New Arms Rules 2016 notified by Government of India!

[winnie_the_pooh]

Mods....how about splitting all the talk of legal action into a separate thread? I see it spiralling into several pages... lol

[Anand]

Hello all,
What ever the legal course we take, to either object to the new Rules, or vie for changes etc. the points of concern are:

1.In case of grant of licenses, factor that there are several cases by various courts that licensing should be the norm and not the exception. The transparency of granting or rejecting is of paramount importance, so that, in case of rejection, timely and fair escalation to the appellate authority is available.

2.If all long guns are to be carried in a public place only in a holder or cover or rucksak or pouch, then if a licensee is to carry a long gun for defense, as most poor, rural/farmers would probably be apt to do, how are they to excercise their defensive rights? How can one, in case of a defensive scenario arising, remove a long gun from its cover and then get ready for the confrontation? This is not a well thought out rule and is really meant to reduce the people from carrying long guns in open and break India's "Gun Culture" .

3. Air rifles/guns of caliber above 4.5mm and those of energy of 15 ft.lbs are to be licensed, it is understandable if the energy limit is placed at 15 ft.lbs, but why any bore above 4.5mm? A .22 airgun can still qualify for the "below 15 ft .lb" category. This was aimed at pleasing Manekaji. Most Airsoft guns are usually of low velocity and much below the 15 ft.lbs limit, they have a bore size in excess of 4.5mm, as they are usually 6mm. How are airsoftguns a danger to wild life of to others?

4. A license for firearm free zones has been included, thereby allowing a mall,theatre, resaturant, hospital or school etc to prevent licensees for excercising their defensive rights. Just remember what happened at the Taj Hotel in Mumbai in 2008. If a place is known as a firearm free zone, would it not be an easy target/sitting duck. Most School or university shootings or in theatres or religious places in the USA or other places take place precisely for this reason.

5. The increase in license fees has been exponential, making it even more difficult for a poor farmer to afford it. This is nothing but economic discrimination. Is the cost of verifying the antecedents of a licensee so expensive, especially in an age of computers, internet and aadhaar cards? Or is the Govt. trying to make a profit on license fees?

6. Replica guns/imitation firearms etc have been brought into the ambit of licensing and recently an exemption has also been issued. However, the question is how can the Arms Act 1959 regulate something that is not an "Arm". The mere appearance of being an Arm cannot make it an Arm. The same logic should be applied to Blank guns.

While the positive changes are welcome, such as;
i.) increase in ammo quotas, ii.) time limit for Police report,iii.)increase in time granted for obtaining a new firearm, iv.) the deletion of the requirement to report to local police station within 48 hrs if travelling to a place outside normal residence, v.) inclusion of semi auto shot guns and .22 rifles in the permitted category, and clarifying what the truly restricted calibers are vi.)medical certificates, vii.) safety courses and vii.)safe storage requirements;
the latter three can easily be abused, as there is no clarity what the minimal standards are and who is to perform the checks.

As for the restriction on the number of firearms, and the duration of validity of license (3 years) can only be changed by amending the Arms Act 1959 itself.
It should be noted that one important aspect of the Arms Act 1959 is that not only can the Arms and ammunition be regulated by it, but also by any other law prevailing at that time. IMHO this is how the election commission issues notices for deposit of firearms during elections, and import of firearms (and all other things) is being regulated/restricted by Import/export policy.
When the time comes to make amendments to the Arms Act 1959 these points must be kept in mind.

Please add more concerns/ points to this list so it can be used to tweak the new rules.
Regards,
Anand

[goodboy_mentor]

Hello all,
What ever the legal course we take, to either object to the new Rules, or vie for changes etc. the points of concern are:

Points of concern noted with due concern.

In Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244, Supreme Court observed that "the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly."

It clearly means -

1. Right of self defense is a very valuable right

2. Right of self defense serves a social purpose

3. Right of self defense should not be construed narrowly

Since above legal position already held by Supreme Court in Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244 and the same also repeatedly emphasized and reiterated in at least eighteen more Supreme Court judgments mentioned below -

James Martin vs State Of Kerala on 16 December, 2003, Appeal (crl.) 887 of 1997, Special Leave Petition (crl.) 47-49 of 1998

State Of Madhya Pradesh vs Ramesh on 18 November, 2004, Appeal (crl.) 1023 of 1999

Babulal Bhagwan Khandare & Anr vs State Of Maharashtra on 2 December, 2004, Appeal (crl.) 1403 of 2004

V. Subramani And Anr vs State Of Tamil Nadu on 3 March, 2005, Appeal (crl.) 378 of 2005

Shivanna & Ors vs State Of Karnataka on 8 November, 2006, Appeal (crl.) 1130 of 2006

Naveen Chandra vs State Of Uttranchal on 27 November, 2006, Appeal (crl.) 1224 of 2006

Shahjajhan And Ors vs State Of Kerala And Anr on 26 February, 2007, Appeal (crl.) 262 of 2007

Krishna & Anr vs State Of U.P on 21 June, 2007, Appeal (crl.) 835 of 2007

Narain Singh & Ors vs State Of Haryana on 9 April, 2008, Appeal (crl.) 632 of 2008

Genda Singh & Ors vs State Of U.P on 9 July, 2008, Appeal (crl.) 1036 OF 2008

Satya Narain Yadav vs Gajanand & Anr on 1 August, 2008, Appeal (crl.) 305 of 2001

Dinesh Singh vs State Of U.P on 4 August, 2008, Appeal (crl.) 544 of 2001

Salim & Ors vs State Of Haryana on 11 August, 2008, (Arising out of S.L.P. (Crl.) No.463 of 2008)

Ram Pyare Mishra vs Prem Shanker & Ors on 22 August, 2008, Appeal (crl.) 181 of 2001

Raghbir Singh & Ors vs State Of Haryana on 12 November, 2008, Appeal (crl.) 1776 of 2008 (Arising out of S.L.P. (Crl.) No.3647 of 2008)

Ranveer Singh vs State Of M.P on 21 January, 2009, (Arising out of SLP (Crl.) No.3905 of 2008)

Arun vs State Of Maharashtra on 16 March, 2009, Appeal (crl.) 1490 of 2007

Darshan Singh vs State Of Punjab & Anr on 15 January, 2010, Appeal (crl.) 1057 of 2002

that right of self defense is a very valuable right, serving a social purpose and should not be construed narrowly. Self defense in order to be an effective right, it would be very reasonable to conclude right of self defense/ private defense includes it's means and modes i.e. the right to keep and bear arms. This view also gets confirmed by the views taken by Allahabad High Court in judgments for Ganesh Chandra Bhatt v. District Magistrate, Almora and others, AIR 1993 All. 291 on 12 March, 1993, by Hon'ble Justice Markande Katju and in Ajay Kr. Gupta v. State of U.P. and others in writ petition civil no. 49301 of 2011 by Hon'ble Justice Sudhir Agarwal that keeping a fire arm for the purpose of personal safety and security is a mode and manner of protection of oneself and enjoyment of fundamental right of life and liberty under Article 21 of the Constitution. If the person does not have the means and modes for effective right of self defense/ private defense, the right would be purely ephemeral and ineffective. It is a basic principle of law that what cannot be done directly cannot be permitted to be done indirectly. In keeping with the principle of "quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud" - Jagir Singh Vs. Ranbir Singh reported in AIR 1979 SC 381, the right of self defense includes the means and modes of self defense i.e. the right to keep and bear arms. By corollary it would be very reasonable to conclude right to keep and bear arms is also a very valuable right, serving a social purpose and should not be construed narrowly. And thus also be very reasonable to conclude the right to keep and bear arms has substantive and effective protection as a fundamental right under Part III of the Constitution of India. This view indeed gets confirmed by reading Article 19(1)(b) explicitly acknowledging arms as a fundamental right, along with Articles 51A(b),(c),(d) & (i) and Explanation I written in Article 25 of the Constitution of India wherein also arms are explicitly acknowledged as a fundamental right.

As rightly held by Supreme Court, the right of self defense/ private defense cannot be construed narrowly, the Section 96 of Indian Penal Code begins with the heading “Things done in private defence”. Please note word “Things” used by the legislature in Section 96 of Indian Penal Code. The legislature did not use the word like “Acts” or “Actions” instead of “Things” only and only because the right of private defense includes many actions, rights and things like collecting by private or commercial buying or selling arms, ammunition, war like stores, communication equipments and fortifications necessary to have the ability to fully enforce this right whenever necessary, is part and parcel of the foundational fundamental principles of the Common Law.

Similarly since right of self defense/ private defense cannot be construed narrowly, the collecting of arms in itself is a right and not a crime in itself can be further confirmed by reading the Section 122 of the Indian Penal Code. Its heading says “Collecting arms, etc., with intention of waging war against the Government of India.” The intention is the essential ingredient to make it an offense. Even Supreme Court in State (NCT of Delhi) vs. Navjot Sandhu, case number appeal (criminal) 373-375 of 2004, date of judgment 04-08-2005, held in paras 282 and 283 of the report that in the context of 'war' the animus of the party is essential. This view has been again reiterated by Supreme Court in paras 114 and 115 of Extra Judicial Execution Victim Families Association (EEVFAM) & Anr. vs. Union of India & Anr. writ petition (criminal) no. 129 of 2012, judgment dated July 8, 2016. Thus the Section 122 of the Indian Penal Code makes very clear that unless there exists an intention or animus to wage a war against the Government of India, collecting of arms or war like stores or equipment or making preparations for war is not an offense in itself but a matter of right because it is every citizen's fundamental duty to be fully equipped, prepared and trained for defending the nation in his personal capacity and control under Articles 51A(b),(c),(d) & (i), which is reflection of his fundamental right under Article 19(1)(b) and it also gets manifested under the Punjab Village and Small Towns Patrol Act, 1918 and the Himachal Pradesh Village And Small Towns Patrol Act, 1964. The right to keep and bear arms is also getting manifested in a detailed manner in Article 246 read with entry number 5 in List I—Union List of the Seventh Schedule.

[winnie_the_pooh]

No one is going to mount a proper legal challenge to these Rules.You need deep pockets to engage a prominent lawyer who can sway the bench to grant some sort of relief. Do not see anyone emptying their piggy bank to do that.

[rahul_does]

We could try via the PiL route.
Try to garner publicity.
Get prominent gun owners to back us.
We could try.
What else can we do?

Sent from my MotoG3 using Tapatalk

[Sakobav]

22 Air rifle what next?>::.basically translated only privileged few deserve the right to have license and carry arms very uncommon right for common people..many years ago in one of Maneka Gandhi affidavit for property extra it listed a bespoke rifle..have been busy just came back to site..Good luck amigos

[goodboy_mentor]

We could try via the PiL route.
Try to garner publicity.
Get prominent gun owners to back us.
We could try.
What else can we do?

Fully agree with your views. It is not just about publicity, if the writ is taken up in a proper manner, properly drafted with sound logic and reasoning, chances of success are fairly good. It will be a historic case in the legal history of this land for all times to come. Technically PIL is nothing but a writ with wider ambit. Either PIL or writ, both will be fine. The main thing is how well it is drafted, how soundly and skillfully it is taken up to convince the Court.

About Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244, Supreme Court observed that "the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly." mentioned in my previous post is about legally binding precedent. It is a binding precedent, a solid legal position the Supreme Court has been upholding continuously and repeatedly in various cases till now for almost 45 years. It is not a matter of joke. It also means every legislation that in any way has implications with the right of self defense, like Arms Act 1959, Arms Rules, it's Notifications need to pass the test "the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly." Courts do not overrule their own binding precedent unless there is an extremely solid legal reason.

There is no necessity to hire some big shot lawyers who demand king's ransom as their fees. Higher fees does not always translate to better results. There are many good and experienced lawyers around who are not at all money minded but are of social activist type mindset. They can produce equally good results.

If for any reason if one desires not to hire a lawyer, any person/ persons can appear in Court to fight their own or some one else's case with permission of Court. May read Section 32 of Advocates Act 1961 for this.

[karandheer78]

I am an amateur air gunner...& so in my own amateur way I've written directly to the PMO. Nothing to loose...& don't expect to gain much either. But it's my bit ...my try...for a sport that I like.

In case you'd like to make your thoughts known to the powers that are, before being mothballed, here are the steps:

http://pgportal.gov.in/pmocitizen/Grievancepmo.aspx

Go to the bottom of the page & click on " Write to the Prime Minister"
Fill in the legitimate details
As grievance category, for wont of knowledge, I chose " Other central Govt related". You may choose what you feel is correct.

As I said, nothing much expected...but I'd rather go down fighting.

Cheers!

[SMJ]

How about writing to Rahul Gandhi I believe he has a fondness for the sport and in any case the opposition loves to oppose

[SMJ]

I have no legal knowledge but logically thinking what is really needed from the SC is a judgment passed that NOBODY CAN be denied a license on any ground except if convicted of a criminal offense. Maybe it would be too far fetched too hope that additionally, the government officials who deny it for any reason will be answerable to the SC and possibly convicted. That is the only way IMHO I guess one would be able to exercise their constitutional right.

Sent from my SM-A500G using Tapatalk

[goodboy_mentor]

I have no legal knowledge but logically thinking what is really needed from the SC is a judgment passed that NOBODY CAN be denied a license on any ground except if convicted of a criminal offense. Maybe it would be too far fetched too hope that additionally, the government officials who deny it for any reason will be answerable to the SC and possibly convicted. That is the only way IMHO I guess one would be able to exercise their constitutional right.

Law is not something very difficult to understand. it is basically strong logic and reasoning put into a codified form. I would suggest we should start thinking beyond "license". If we continue to keep thinking about license, despite all the efforts, matters will only slide downwards in due course of time. In short the message is fight for your rights, not for licenses(permissions). Free citizens enjoy rights not permissions. The rights of self defense and right to keep and bear arms are well protected under Part III of the Constitution. It needs to be understood that these rights are flowing into the Arms Act 1959 and how these are getting subverted due to lack of clarity and understanding.

Following is my personal understanding(not a legal suggestion to just go now and implement it without due process) of the matter from perspective of licensing and non licensing in Arms Act 1959. Scrutinize these ideas and test them using your own logic and reasoning -

Anything that is not commercial activity, Parliament, including the licensing authorities created by Parliament under Article 307, do not have power of licensing under Arms Act 1959 or its Rules. Such lack of powers are also because in order to ensure the very purpose of fundamental rights are not practically frustrated by the caprices and whims of licensing by the Executive, the burden for guarantee of fundamental rights have already been taken by the Constitution. Such lack of competence to bring under licensing includes, firearms or ammunition that are possessed for private use, self defense or are self made or home made falling under non commercial category. This can be ascertained by reading Section 5(4) of Arms Act 1959, it makes clear that no license for sale is needed for arms or ammunition by person who "lawfully possesses for own private use". Please note the words "lawfully possesses for own private use". It also means there is another category of arms and ammunition within the Arms Act 1959 which can be lawfully possessed for commercial use. Thus Section 5(4) of Arms Act 1959 shows lack of Parliamentary competence to legislate private possession(non commercial possession) and private sale(non commercial sale) of arms or ammunition. In other words, Section 5(4) of Arms Act 1959 confirms such non commercial possession or sale of arms or ammunition is part of Liberty under Article 21 of the Constitution which the State cannot touch.

Similarly since bringing in or out of country of arms or ammunition for private use is non commercial activity and thus a matter of Liberty under Article 21 of the Constitution, that is exactly why no import or export license is needed for the same under Section 10(1)a of Arms Act 1959. It also means that all these are part of freedoms and liberties under Part III of the Constitution and thus Parliament does not have legislative competence to bring them under any enactments or regulations whatsoever. Similarly since commercial activities like services of self protection, for example provided by body guards, bank guards, crop protection which is nothing but a commercial activity in itself and sports activity done in commercial rifle and shooting clubs being within the realm of commercial activity, the Section 13(3)(a) of Arms Act 1959 is talking of express licenses for citizens(provided not offending Sections 9 and 14). Similarly the Section 13(3)(b) of Arms Act is talking about express licenses for commercial activity of persons(non citizens, including legal entities/ legal fictional persons like body corporates, companies, organizations etc.) falling within the confines of Part XIII of the Constitution.

Similarly since there exists Constitutional protection for right to keep and bear arms under Articles 13(2),(3)(a)&(b), 14, 15, 19(1)(b), 20(3), 21, 25, 26(b),(c)&(d), 27, 29(1), 300A, and Parliament lacks any competence to bring non commercial possession of firearms under licensing, that is why in order to ensure that no prosecution is raised under Section 3 of Arms Act 1959, for any non commercial possession of firearms or ammunition, Section 39 of Arms Act 1959 requires previous sanction of the district magistrate. Similarly since the right to keep and bears arms is anyways a fundamental right under Part III of the Constitution, that is why under the Section 41 of Arms Act 1959, the Central Government can exempt any person or class of persons from requiring a license for the right of commercial possession of firearms in public interest. Similarly since the right to keep and bears arms is anyways a fundamental right under Part III of the Constitution, and Parliament lacks any competence to bring non commercial possession of firearms under licensing, there is provision under Section 42 of Arms Act 1959 to conduct a census within the four walls of Census Act 1948.

Similarly since there exists Constitutional protection for right to keep and bear arms under Articles 13(2),(3)(a)&(b), 14, 15, 19(1)(b), 20(3), 21, 25, 26(b),(c)&(d), 27, 29(1), 300A, and Parliament lacks any competence to bring non commercial possession of arms or ammunition under the legislation, that is why Section 45 of Arms Act 1959, enumerates when the Parliament is not competent to legislate in matters related to such non commercial arms. The Section 45(c) of Arms Act 1945 makes it very clear that any weapon(it includes firearms or ammunition) of obsolete pattern, has no commercial value in normal commercial channels coming under the domain of Part XIII of the Constitution of India. Thus weapons of obsolete pattern do not come under Arms Act 1959. Similarly the Section 45(c) of Arms Act 1959 makes it very clear any weapon(it includes firearms or ammunition) having antiquarian value, though having antiquarian value, has no commercial value in normal commercial channels coming under the domain of Part XIII of the Constitution of India. Thus weapons of antiquarian value do not come under Arms Act 1959. Thus from reading of Section 45(c) of Arms Act 1959, similarly it becomes clear that the Parliament's lack of competence to legislate about personal, self made or home weapons, including firearms or ammunition is also embedded in Section 45(c) of Arms Act 1959.

Since the Constitution has already taken the burden on itself to guarantee fundamental rights, the Parliament clearly lacks any legislative competence to reduce the fundamental rights subject to a license or certificate issued by the State. This can be further ascertained by reading various enactments regulating the fundamental rights for ordered liberty in the society. For example the professions of chartered accountants, doctors, advocates and notaries are fundamental right under Articles 19(1)(g) of the Constitution of India and thus do not require any license. This fact of law that a fundamental right cannot be a subject of license can be ascertained by reading the Chartered Accountants Act 1949, the Indian Medical Council Act 1956, the Advocates Act 1961. Even the Notaries under Notaries Act 1952 do not need a license since their profession is a fundamental right under Article 19(1)(g). They need a certificate under the Notaries Act 1952 only because the Notaries are appointed by the State. Similarly we do not need any license or certificate to possess mobile phones for our personal possession or use because it is a non commercial possession or use and fundamental rights flowing from Articles 19(1)(a) and 21 of the Constitution of India. Since it is a matter of non commercial, personal possession and use, the Parliament is not competent to reduce the personal possession or use of mobile phones to subject of licensing or certificate.

[torn64]

can i buy a 0.177 caliber air rifle gun without a license ?

[kishan45]

Hi All,


Does this new Arms Rules state any this on importing Arms or ammunition by an individual.
Although I went through the gazette and found the below details, still I am not very much clear if an Individual can import Arms/ammunition or not.

CHAPTER VI "Import and Export of Arms and Ammunition"

88. Import of arms and ammunition.─
(1) Arms or ammunition shall be deemed to have been brought into India
by a person, when such arms or ammunition are imported through an agent and are either consigned to such
person direct, or consigned to the said agent, if the agent possesses a certificate from the said person that the
arms or ammunition are bonafide his property and the agent only clears the arms or ammunition from the
Indian customs and forwards the same.
(2) The dealer or manufacturer, who wants to import a firearm or parts of firearms or ammunition shall file an
application for grant of a licence in Form X at least twenty-one days before the shipment of the firearm or
ammunition to India or on good cause shown, such shorter period, as the licensing authority in his opinion
deem fit and shall not arrange for the shipment of the firearm or ammunition prior to the issuance of the
import licence.
(3) The licensing authority granting the licence shall forthwith send a copy of the licence to the licensing
authority having jurisdiction at the port of import.
(4) The dealer or manufacturer shall immediately on the arrival of the shipment of firearms or parts of firearms
or ammunition in India, notify the licensing authority as well as the licensing authority for the port of entry
where the shipment has arrived, in writing of the arrival and provide the particulars of the container or
consignment and place where the shipment can be inspected and the importer licensee shall not open the
container or the consignment of firearms or ammunition before an inspection is conducted by the licensing
authority of the port in presence of the Indian customs authority at the port of entry in India.
(5) The dealer or manufacturer shall within seventy-two hours of the arrival of the firearms or ammunition in
India, ─
(a) arrange with the licensing authority of the port of entry to physically inspect the firearms or ammunition;
and
(b) on finalization of the physical inspection, certify in writing to the licensing authority, who issued the
import licence, that the imported firearms or ammunition corresponding with the import licence, have arrived
in India.
(6) Any delay in carrying out the inspection referred to in sub-rule (5) within seventy-two hours resulting in
any additional charges or demur-rage shall be attributed to the licensing authority at the port of entry and the
customs authority and not the importer licensee.

Need your expert advice on this

Thanks

[goodboy_mentor]

Hi All,

Does this new Arms Rules state any this on importing Arms or ammunition by an individual.
Although I went through the gazette and found the below details, still I am not very much clear if an Individual can import Arms/ammunition or not.

Arms Rules is a sub ordinate legislation to implement Arms Act 1959. It cannot undermine or go against Arms Act 1959. Arms Act 1959 has been enacted by the Parliament on behalf of the Constitution. If you read my previous post you will find the following mentioned -

Similarly since bringing in or out of country of arms or ammunition for private use is non commercial activity and thus a matter of Liberty under Article 21 of the Constitution, that is exactly why no import or export license is needed for the same under Section 10(1)a of Arms Act 1959. It also means that all these are part of freedoms and liberties under Part III of the Constitution and thus Parliament does not have legislative competence to bring them under any enactments or regulations whatsoever.

One may ask then where is the problem? The problem is that under Section 5 of Foreign Trade (Development and Regulation) Act, 1992, the government has issued the export and import policy which puts import of personal firearms under restricted category. No matter what Section 10(1)(a) of Arms Act or its Rules say, the Customs will show the policy and if firearm does not have "import license", they will confiscate the firearm.

Until and unless the government corrects the import policy to respect Article 21 of the Constitution of India or this matter is taken to Courts on grounds that because Section 10(1)(a) of Arms Act 1959 is directly flowing from Article 21 and the import export policy cannot override it, I do not see any solution to the problem.

[kishan45]

Thanks for the information, that clearly means that even if the arms rule allows an individual to import arms, there are other rules/agencies which will stop you from getting one.
Isn't this bad for the Rule makers, they are not doing there job properly.
Can an individual file a case regarding this?