Arms Act 1959 analysis for Writ, Public Interest Litigation, Special Leave Petition

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Following is the analysis of Arms Act 1959 for Writ, Public Interest Litigation, Special Leave Petition. Those who want to read only main points of law may go directly to paragraph numbered (165) under Section "Questions of Law". For those who want to read in formatted version, edit or take printout, .odt, .doc and .pdf version of this document are also attached with this post. Requesting everyone share this far and wide.

IN THE SUPREME COURT OF INDIA
ORIGINAL JURISDICTION
CIVIL WRIT PETITION NO. _______OF 2016

IN THE MATTER OF

Name and Address of Petitioner.....Petitioner

versus

Union of India
Through it's Secretary
Ministry of Home Affairs
North Block
New Delhi 110001 ....Respondents

PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION AGAINST THE RESPONDENTS.

To
Hon'ble The Chief Justice of India and His Lordship's Companion Justices of the Supreme Court of India. The Humble petition of the Petitioner above named.

MOST RESPECTFULLY SHEWETH :

Synopsis of facts

(1) The petitioner is a citizen of India by birth and has no personal interest involved with this public interest petition. The petitioner humbly submits that fundamental natural human rights guaranteed to all the members of public and the citizens, including himself under Articles 13(2),(3)(a)&(b), 14, 17, 19(1)(b), 20(3), 21, 25, 26(b),(c)&(d), 27, 29(1), 300A, 301, 303 of Constitution of India are getting violated in a very sordid and grossly unjust manner. As a consequence Articles 19(1)(a), 19(1)(d), 19(1)(g), 37, 38, 39(a),(b),(c)&(d), 40, 43, 51(a)&(c), 51A(a),(b),(c),(d)&(i), 261(1)&(2), 265, 367(1) of the Constitution are also getting violated. Since so many Articles of the Constitution are being violated, a great and gross injustice with members of public and with citizens in particular, of unprecedented proportions is happening in every nook and corner of this country. Since so many Articles of the Constitution are effected, the rule of law has practically got subverted and has almost ceased to work at the ground level for the common man. The “rule of law” has practically got replaced by “rule by law”. The fundamental ingredients of democracy that being the rule of law and the principles of natural justice are fast becoming conspicuous by their absence.

(2) This petition is about those who have fallen victim to defendants', it's officials, it's agents, it's agencies unlawful, unconstitutional and illegal practices and ties directly into the key elements of the defendant's continued sordid prosecutions of innocent firearm owners. There is additional human face to the injustice these prosecutions have visited on tens of thousands of law abiding firearm owners, highlighting the serious constitutional issues at stake here. This petition intends to stop the officials, agents, agencies under direct or indirect control of the Ministry of Home Affairs from abusing the unclear, unreasonable and vague provisions of Arms Act 1959 to make bogus arrests of thousands of law abiding citizens possessing common firearms for their right of self and private defense. And also from coercing tens of millions of law abiding citizens possessing common firearms for their right of self and private defense by corrupt officials, agents, agencies under direct or indirect control of the Ministry of Home Affairs into making huge bribes to avoid prosecution. This extortion of bribes from law abiding firearm owners to avoid prosecutions, has reached an underground mafia type proportions, despite the fact that Arms Act 1959 is a specific legislation enacted by the Parliament, by following Article 35 of the Constitution, to give effect to the human Right to Keep and Bear Arms protected under combined reading of Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) under Part III and and 300A of the Constitution.

(3) The lives of law abiding firearms owners or those who desire to possess firearms for self/ right of private defense or sports or recreation have been inexorably constricted and their rights infringed by the lack of clarity, unreasonableness and vagueness of Sections 3 and 13 of Arms Act 1959 when read with Sections 41, 42 and 45(c) of the same Act. Despite their achievements and contributions to India in various fields, they are being denied the right to inalienable natural human right to keep and bear arms, the most basic and inherent of fundamental natural human rights. The lack of clarity, unreasonableness and vagueness of Sections 3 and 13 of Arms Act 1959 when read with Sections 41, 42 and 45(c) of the same Act renders them criminals in their own country. The lack of clarity, unreasonableness and vagueness of Sections 3 and 13 of Arms Act 1959 criminalizes the very existence of right to keep and bear arms of people by criminalizing their natural human right to keep and bear arms.

(4) The lack of clarity, unreasonableness and vagueness of Sections 3 and 13 of Arms Act 1959 when read with Sections 41, 42 and 45(c) of the same Act impedes the law abiding citizen's right to be open about their possession of firearms with their friends, family, colleagues and employees. The fear that criminalization and coercive state action will follow if a law abiding citizen is open about his possession of firearms can have an unmeasurable harmful effect on one's economic, social and political life. The law abiding firearm owners include not only the poor and down trodden but also those who are highly accomplished professionals, those who have been felicitated for their professional achievements, but have suffered because of the deleterious effect of this draconianly vague provision of Arms Act 1959 on their personal and professional lives.

(5) Due to lack of clarity, unreasonableness, vagueness of Sections 3 and 13 of Arms Act 1959 when read with Sections 41, 42 and 45(c) of the same Act and also the enthusiastic vague and over delegation of Parliamentary legislative powers to the Executive under many provisions of Arms Act 1959, the Ministry of Home Affairs is so confused, it has practically run amok and berserk issuing perverse and prejudiced Notifications, Policies which are not only clearly ultra vires of the Arms Act 1959 but also offending many basic foundational principles, basic structure and fundamental rights in Part III of the Constitution of India. One such illegal Policy that is not only highly prejudiced and perverse, has no authority or sanction of the law is Policy No. V-11016/16/2009-Arms issued by IS-II Division/ Arms Section of Ministry of Home Affairs on 10th January 2011. The Policy can be accessed online at http://mha.nic.in/sites/upload_files/mh ... 130510.pdf

(6) Similarly Arms Rules 2016 with many of it's provisions being ultra vires of Arms Act 1959 and Constitutional provisions and principles has been Notified by the Ministry of Home Affairs without due application of mind. Please read the letter dated 18th August, 2016, no. 11026/104/2014-Arms(Vol.1) issued by IS-II Division/ Arms Section of Ministry of Home Affairs to Secretaries(Home) of all State Governments and UT Administrations. The letter can be read at http://mha.nic.in/sites/upload_files/mh ... le2016.PDF It is clear injustice and violation of due process of law in broad daylight by those who are supposed to uphold and protect it.

(7) The present petition raises far reaching and serious questions not only about present and future freedoms and liberties of the citizens, rule of law, justice and coming generations of this country, but also of the present and future nature of the State and it's relation with the citizens that is unfolding. It raises a fundamental question of law and jurisprudence, is disarming in society under any color or pretext causing and potential to cause grave injustices, subversion of rule of law and natural human rights violation? For example keeping the victims of violence(including politically motivated violence, especially when tinted with caste or religious hatred) disarmed makes them unable to exercise the right of self defense or private defense effectively to overcome the physical or numerical strength of their attackers. If yes, then this is one of the greatest ever possible injustice.

(8) Does the Government not want the common masses to have the right of self/ private defense in face of unlawful police firings? Is it the reason why the Government wants firearms laws to be tougher and more tougher? Is that how the rule of law be practically subverted and guilty Police officers be practically protected to successfully behave and fire like Gen. Dyer of Jallianwala Bagh massacre? Mentioning some relevant facts extracted from the (Retd.) Supreme Court Justice Katju Commission Report that highlight a very common practice how rule of law is practically subverted hereunder -

"[.....]
3. From the testimony of witnesses it further appears that on 14/10/2015 police posted at the spot under the charge of Sh. Charanjit Singh, S.S.P. Moga resorted to Lathi Charge as also firing on the crowd which was sitting peacefully on the spot. Testimony of the witnesses’ reveal that the police action was unprovoked, sudden and without any warning as the law demands. As per law, the police action as to be as per a specifically defined law, that is the crowd has to be informed well in time declaring it to be an unlawful assembly and warning them to leave the spot peacefully failing which lathi charge, could be ordered followed by use of water cannons and tear gas etc. The act of police firing, as a last resort, also necessitates a prior warning with ample time space to enable ‘dispersal’. All these mandatory notices/ warnings are to come from an accompanying magistrate. Testimonies of witnesses and their deposition shows that no such warning was issued at all which make the police action out right ‘unlawful and illegal’.
4. Witnesses deposing before this Commission clearly stated that no such warning or announcement was made by the police/magistrate, and we see no reason to disbelieve them. No State or police authority has cared to appear before us to contradict this version of eye witnesses.
5. It was also brought to the notice of the Commission that some news papers datelined 15.10.10215 i.e. a day after the incident had also highlighted that no such mandatory announcement or warning was made by the police/magistrate before resorting to the Lathi Charge and firing.
Apparently there was no contradiction to these media report either by the state or the police authorities. The commission is well aware of the unfortunate, illegal and unethical practice that in most of such cases, a statement is subsequently got signed by the police authorities from an individual having magisterial powers, stating that the statutory warning and due notice was given to the public. Statements and deposition of the witnesses give no ground to this Commission to believe the plausible theory of a police defense which might be tabled subsequently. Testimonies of the witnesses and circumstantial evidence are enough to convince this Commission of the illegal and arbitrary nature of the police action in this instant case. The FIR registered on 21.10.2015 at the behest of the police ‘on the ground of common perception of people’ does not refer to the statutory provisions. Had any mandatory warning been issued by the police, such a fact should have been included in the said FIR.
Copy of the FIR is placed on record.
[......]
6. In some statements and affidavits to this Commission, names of some police officials have been specifically mentioned. These names include those of Sh. Charanjit Singh S.S.P. Moga and one Sh. Kular, SHO. A number of witnesses, during verbal examination, stated that they did not want to take any names on account of their apprehension that they will be further victimized. This commission could see fear anxiety writ large on their faces and such, would like to particularly again refer to the FIR dated 21.10.2015, which has already been referred to in the preceding paragraphs and which states that sh. Charanjit Singh, SSP Moga was leading the police contingent posted at the venue of police firing and lathi charge. Obviously he cannot be absolved of his responsibility. Punjab Government is reported to have suspended this official, which indicates that even the Punjab Government is of the opinion that Sh. Charanjit Singh, was guilty of dereliction duty.
The Commission takes strong adverse cognizance of the statements of several witnesses that the police had resorted to the Lathi Charge and firing in a very haphazard manner as if they were firing in ‘an enemy target group’ on a war like situation. The police is alleged to have fired on unarmed civilians themselves hiding behind the pillars of a small brick construction located at the cross road of the scene of occurrence as also from behind a tractor trolley which was turned ‘turtle’ on the link road in question and used as a ‘vantage point’ for hiding themselves and shooting at the hapless crowd which included women and even minor children.
Police firing is an extreme measure to be resorted to only in very rare and exceptional situation. We have already pointed out in preceding paragraphs that the crowd had left the main road and was not blocking or obstructing it. It had in fact dispersed towards the nearby link road leading to the village Behbal Kalan. Even assuming that the crowd was blocking the link road in question, it could easily have been dispersed by first making some announcement on loud speakers and then by use of water cannon, tear gas and rubber bullets etc. Some witnesses have stated that tear gas was used, but along with and accompanied by police firing with live bullets. This, in our opinion, was totally uncalled for and unjustifiable. We are living in democracy and people have right to protest and assemble peacefully without arms as provided for in Article 19 of the Indian Constitution. The crowd assembled at Behbal Kalan was unarmed and peaceful. They had neither committed any violence nor threatened police. Therefore, it was just no occasion for the police to resort to such an extreme step as firing with live bullets. This commission unequivocally condemns the efforts of the Punjab Government to suppress the facts and trying brush it under the carpet. This commission thus holds Punjab Government to be a willful accomplice in this instant case and holds it guilty.
[.......]
13. Before concluding, we would like to say that in a democratic country like India, the police are the servant of the law and not of politicians. I am told that some police officers of Punjab police had approached Sh. Shashi Kant, General Secretary of this Commission claiming immunity on the ground that they just receive orders with regard to the actions to be carried out, directly from their political masters and that they have no option but to carry them out, willingly or unwillingly. In this context, this Commission is constrained state categorically that if a police officer receives an illegal order from his political masters, it is his duty not to carry them and instead clearly inform his political masters accordingly. This strange plea of “Orders are Orders” was also taken by the Nazi war criminals at the Nuremburg Trials after the end of Second World War, but this plea was out rightly rejected and many of the accused were hanged.
It is about time now, that the police in India learns to start acting responsibly. We are no longer living under a foreign rule, but are an independent democratic and sovereign country in which people themselves, are the real masters and all State authorities including the police are their servants. The police must therefore, change its ways and stop acting as a colonial strong arm of their political masters. They are accountable to the law of the land and to the Indian populace as such. In the Supreme Court decision in Parkash Kadam Versus Ram Parkash Gupta (2011), it was clearly held that a fake encounter by police even on direction of its so-called superiors amounts to murder and those police men who committed the crime may face death penalty. Similar is the position in this instant case. No police officer can take a plea that he had resorted to Lathi charge, firing or any other such drastic action at the instance of any politician or was even otherwise remotely controlled by his superiors. The officer on ground has to take the decision as per law of the land, procedures there for and be responsible for it. Besides statutes, orders of the superior courts are also equally enforceable and any violation thereof may find the guilty officer not only of willful dereliction of duty and disobedience of law but also of a willful and criminal contempt of the orders of the judiciary.
This Commission would, while reprimanding such officials would also like them to ponder over the question as to in how many of such cases where escaped despite being guilty or where they were actually held to be guilty, had any of their superiors or political masters, stood by them and admitted to be their accomplice on the ground that such guilty officers were just carrying out their orders.
14. Lastly, this People’s Commission hopes and wishes that in this instant case, police and administration will desist from using their pressurizing and intimidating tactics to force people of Behbal Kalan and neighbouring areas ‘into submission’. We could see the fear writ large on the faces of those who deposed before this commission and would like to continue monitoring the situation."
The copy of complete report of (Retd.) Supreme Court Justice Katju Commission is available at http://lfhri.org/full-report-of-retd-ju ... an-punjab/

(9) And given the Geo political and social circumstances prevailing in and around the borders of this country and beyond, if the State conducts itself in this tyrannical and unlawful manner, will it really be able to survive for long? The criminals, politically connected or patronized criminals and unlawful elements of all manner, who by the very nature of their business keep themselves always fully armed with the best illegal and latest automatic firearms and weapons of any manner they so desire. Since the Ministry of Home Affairs for some very practical reasons is unable to do much about this situation, under the prevailing confusion, has resorted to curb the lawful possession of weapons of the law abiding citizens by issuing illegal policies and notifications. The petitioner is pained to recall the immortal words of Saint George Tucker, the Judge of the Virginia Supreme Court 1803 -

“The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest possible limits. ... and when the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”
And of Thomas Jefferson's Commonplace Book, 1774-1776, quoting from On Crimes and Punishment, by criminologist Cesare Beccaria, 1764 -

“Laws that forbid the carrying of arms... disarm only those who are neither inclined nor determined to commit crimes... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”
(10) In order do complete justice, this Court of last resort has under Article 142(1) of the Constitution of India all the full powers necessary to fully arrest and remedy this unprecedented unfolding situation before it goes out of any practical control or remedy. The thought of Justice William O. Douglas, Former Associate Justice of the Supreme Court of the United States very well sums up the present situation put forth in this petition -

“As night fall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such a twilight that we all must be aware of change in the air—however slight—lest we become unwilling victims of the darkness.”
(11) The petitioner humbly submits Arms Act 1959 & its Rules is a complicated and lengthy subject and in order to understand it, it must read combining the Preamble of Constitution of India, relevant Articles of the Constitution from which Arms Act 1959, Parliament's legislative competence and lack of legislative competence is flowing, Parliament's Objects and Reasons of the Bill that became Arms Act 1959, the Arms Act 1959, its Rules, Schedules and Notifications, the inalienable natural human rights, fundamental rights and foundational principles of English Common Law mentioned in English Bill of Rights, forming the foundational principles of Constitution of India and the legal position consistently held by this Court in Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244, that "the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly." this same ratio decidendi has been repeatedly emphasized by this Court in catena of judgments since then. If all these are read separately, it will be like the proverbial story of five blind men who had never seen an elephant and but had formed their own ideas about an elephant.

(12) While dealing with any question related to licensing, like classification of arms, persons or class of persons, question of issue/ grant of license, area validity or maximum license limit or import for personal use, person to person private sale of arms for personal or private use, etc. under Arms Act 1959 and its Rules, it needs to be understood the Articles of the Constitution from which the Parliament is deriving its legislative competence and powers to create the licensing, conditions and the requirements for licensing, creation of licensing authorities for collecting license tax or fees and creating criminal liability for possessing arms without holding a license under Arms Act 1959. And what are the barriers, the lack of competence of the legislative powers of Parliament while doing all this.

Grounds

Hence the Petitioner moves before this Hon’ble Court by way of this petition on, inter alia, following grounds:

Grounds based on Article 21 of the Constitution of India -

(13) BECAUSE this Hon'ble Court in Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244, held that "the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly." and this same ratio decidendi has been consistently held by this Hon'ble Court in catena of judgments since then. Thus it is also a law laid down by this Hon'ble Court under Article 141 of the Constitution. It also means every legislation that in any way has implications with the right of self defense, like Arms Act 1959, it's Arms Rules and Notifications need to pass the following test that -

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

(14) BECAUSE above legal position already held by this Court in Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244 is legally very sound and solid, is also a law laid down by this Hon'ble Court under Article 141 of the Constitution, this same ratio decidendi has also been repeatedly held in at least eighteen more judgments of this Court 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, (2010) 2 SCC 333

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.

(15) BECAUSE 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 other words one right cannot be undermined by undermining another right inextricably embedded in it. 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.

(16) BECAUSE this Hon'ble Court in Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244, held that "the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly.", this same ratio decidendi has also been repeatedly held in at least eighteen more judgments of this Court, 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 natural human 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), Article 21 and Explanation I written in Article 25 of the Constitution of India wherein also arms are explicitly acknowledged as a fundamental natural human right.

(17) BECAUSE as rightly held by this Hon'ble Court in Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244, that "the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly." and this same ratio decidendi has been consistently held by this Hon'ble Court in catena of judgments since then, 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 is inextricably connected and embedded with 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. To prevent the possession of arms merely because criminals use them is to tell the innocent and law abiding that their rights and liberties depend not on their own conduct, but on the conduct of the guilty and the lawless, and the law will permit them to have only such rights and liberties as the lawless will allow. It is a very unreasonable proposition that is unacceptable to law. Society does not control crime, ever, by forcing the law abiding to accommodate themselves to the expected behavior of criminals. Society controls crime by forcing the criminals to accommodate themselves to the expected behavior of the law abiding.

(18) BECAUSE this Hon'ble Court in Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244, held that "the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly." and this same ratio decidendi has been consistently held by this Hon'ble Court in catena of judgments since then, 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 paragraphs 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 paragraphs 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 Arms Act 1959 and the Civil Defense Act 1968. 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.

(19) BECAUSE according to a five judge bench of this Hon'ble Court in Kartar Singh vs State Of Punjab on 11 March, 1994, 1994 SCC (3) 569, JT 1994 (2) 423, held “It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to "steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked". There is lack of clarity, unreasonableness and vagueness of Sections 3, 4 and 13 of Arms Act 1959 when read with Sections 41, 42 and 45(c) of the same Act in relation to the fundamental natural human right to keep and bear arms.

(20) BECAUSE Article 21 of the Constitution includes a fundamental right to health. This Hon'ble Court has held that the right “is a most imperative constitutional goal.” Consumer Education and Research Center v. Union of India , (1995) 3 SCC 42; Mahendra Pratap Singh v. State of Orissa, AIR1997 Ori 37. If a person is kept unarmed by some vague, unreasonable and burdensome provisions of enactment like Arms Act 1959 and thus unable to effectively exercise his or her Right of Private Defense, as laid down from Sections 96 to 106 Indian Penal Code, becomes victim of any of the heinous crimes listed therein, it very severely affects or destroys the mental and physical health. Thus it clearly violates Article 21.

(21) BECAUSE in Consumer Education and Reseasrch Center v. Union of India (1995) 2 SCC 42, this Hon’ble Court ruled that the health “is a most imperative constitutional goal.” If a person is kept unarmed by some vague, unreasonable and burdensome provisions of enactment like Arms Act 1959 and thus unable to effectively exercise his or her Right of Private Defense, as laid down from Sections 96 to 106 Indian Penal Code, becomes victim of any of the heinous crimes listed therein, it very severely affects or destroys the mental and physical health. Thus it clearly violates Article 21.

(22) BECAUSE the fundamental natural human Right to Keep and Bear Arms, police powers, duties and posse comitatus flows from the Articles 19(1)(b), 21, 25, 26(b),(c)&(d), 27, 29(1) and 300A of the Constitution of India into the Arms Act 1959 and the Civil Defense Act 1968.

(23) BECAUSE anything that is not part of commercial activity under Part XIII of the Constitution but is a fundamental right under Part III of the Constitution, the licensing authorities have no competence or powers of licensing under Arms Act 1959. Legislative competence and powers of Parliament for enacting Arms Act 1959 come from combined reading of Articles 35, 246 under Part XI of the Constitution for relations between the Union and the States read with entry numbers 5, 7, 41, 42, 93, 94, 96 of List I—Union List of the Seventh Schedule and Articles 302, 304, 305, 307 under Part XIII for regulating “trade, commerce and intercourse” (hereinafter referred as commercial) within the territory of India. Licensing authorities under Arms Act 1959 have been created from powers under Article 307 read along with Article 265 for purpose of taxing and regulating commercial activity related to arms within India.

(24) BECAUSE the fundamental, natural, historical, human and religious birth right of right to keep and bear arms within Arms Act 1959 gets protected by Articles 13(2),(3)(a)&(b), 14, 17, 19(1)(b), 20(3), 21, 25, 26(b),(c)&(d), 27, 29(1), 265, 300A, 301, 303 of the Constitution of India. When right to keep and bear arms gets violated, as a consequence Articles 19(1)(a), 19(1)(d), 19(1)(g), 37, 38, 39(a),(b),(c)&(d), 40, 43, 51(a)&(c), 51A(a),(b),(c),(d)&(i), 261(1)&(2), 265 and 367(1) of the Constitution are also getting violated.

(25) BECAUSE Article 246 read with entry number 5, 7 in List I—Union List of the Seventh Schedule provides positive legislative powers to Parliament to legislatively enable the foundational fundamental natural human Right to Keep and Bear Arms and matters consequential and incidental to it, for example as done in Arms Act 1959. Right to keep and bear arms is also getting manifested in the Statement of Objects and Reasons of the Parliamentary Bill that became Arms Act 1959 and various provisions of Arms Act 1959. The Statement of Objects and Reasons of the Parliamentary Bill that became Arms Act 1959 can be read in Gazette of India(Extraordinary), 20-2-1959, Part II - Section-2, Page 107. It can also be read in the judgment for Ganesh Chandra Bhatt vs District Magistrate, Almora and others, AIR 1993 All. 291 on 12 March, 1993, by Hon'ble Justice Markande Katju in Allahabad High Court.

(26) BECAUSE it is a well settled matter of law what is necessary is lawful. As a consequence, right to keep and bear arms, police powers and posse comitatus is embedded in Articles 19(1)(b), 21, 25, 26, 27, 29(1) and 300A the same is reflecting in Articles 51A(b)(c),(d) & (i) and the same is flowing into the Punjab Village and Small Towns Patrol Act, 1918 and the Himachal Pradesh Village And Small Towns Patrol Act, 1964, Sections 37 to 39, 43, 46, 47, 52 and 60 in Chapter V Arrest Of Persons of the Criminal Procedure Code, Section 129(2) in Chapter X Maintenance of Public Order and Tranquility of the Criminal Procedure Code and Sections 96 to 106 of the Indian Penal Code as citizen's militia for law enforcement in personal capacity and control. The right to keep and bear arms, police powers and posse comitatus is also embedded and reflecting in the Civil Defense Act 1968.

(27) BECAUSE anything that is not commercial activity, Parliament, including the licensing authorities created by Parliament under Article 307 read along with Article 265, 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 self defense or are self made or home made falling under non commercial category. This can be ascertained further 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". The words "lawfully possesses for own private use" please be noted. It also means there is another category of arms and ammunition embedded 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.

(28) BECAUSE the fundamental natural human Right to Keep and Bear Arms flows from the Articles 19(1)(b), 21, 25, 26(b),(c)&(d), 27, 29(1) and 300A into Arms Act 1959, that is exactly why there is no need of any license for possessing arms other than firearms for commercial activity unless a Notification has been issued under Section 4 of Arms Act 1959.

(29) BECAUSE similarly bringing in or out of country of arms or ammunition for private use is non commercial activity and thus a matter of personal 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.

(30) BECAUSE similarly there exists Constitutional protection for right to keep and bear arms by Articles 13(2),(3)(a)&(b), 14, 17, 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.

(31) BECAUSE similarly there exists Constitutional protection for right to keep and bear arms under Articles 13(2),(3)(a)&(b), 14, 17, 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 or ammunition. 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 including 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.

(32) BECAUSE Article 21 says:

“Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.”

(33) BECAUSE Article 21 is guaranteeing personal liberty. Liberty is an inalienable natural and absolute right. Liberty is freedom from extraneous control. Personal liberty includes the rightful liberty. The meaning of rightful liberty is well described by Thomas Jefferson quoted below:

“Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the rights of the individual.” - Thomas Jefferson's letter to Isaac Tifany, 1819)

(34) BECAUSE the rightful liberty under Article 21, includes the unobstructed action according to our will, for enjoyment of the natural right to keep and bear arms within limits drawn around us by the equal right to keep and bear arms(equality guaranteed by Article 14) of others including the right to keep and bear arms of the State. Since already held by this Court in Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244 and this same ratio decidendi also emphasized and reiterated in at a catena of judgments that right of self defense is a very valuable right, serving a social purpose and should not be construed narrowly, it would be very reasonable to conclude that right of liberty under Article 21 includes modes and means right of self defense/ private defense i.e. right to keep and bear arms to make it an effective right. Also by corollary it would 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.

(35) BECAUSE this Court in Darshan Singh v. State of Punjab (2010) 2 SCC 333 has not only laid down guidelines for the substantive right of private defense but also clarified that right to protect one's own person and property against the unlawful aggressions of others is a right inherent in man. The duty of protecting the person and property of others is a duty which man owes to society of which he is a member and the preservation of which is both his interest and duty. It is, indeed, a duty which flows from human sympathy. As Bentham said: "It is a noble movement of the heart, that indignation which kindles at the sight of the feeble injured by the strong. It is noble movement which makes us forget our danger at the first cry of distress..... It concerns the public safety that every honest man should consider himself as the natural protector of every other." In context of right of private defense, please note the words “inherent right in man”, “feeble injured by the strong”. Since right of private defense is an inherent right of man it must not be construed narrowly. Thus it would be very reasonable to conclude right of private defense includes the right to keep and bear arms to make it an effective right. When the feeble is armed with a gun, the equation gets balanced with the strong. Thus the right of private defense becomes an effective right only when effectively armed.

(36) BECAUSE the law enforcement machinery of State is enjoying the right to keep and bear arms under Articles 19(1)(b), 21 and 300A for self defense. If one creates a successful grievance in a court of law, against the police(or the law that allows the police to keep and bear arms, use the arms thus kept and borne to cause death and grievous hurt) under Part III of the Constitution, then under which Articles of the Constitution the law and the rights of the State which are equal as per Article 14 of the Constitution can be defended? Nothing but under Articles 19(1)(b), 21 and 300A. Keeping in mind the Article 14, there are two types of law enforcement machinery, one is the organized law enforcement machinery of the State militia(Armed forces, Police etc.) and the other is the unorganized militia i.e. law enforcement machinery of the public in personal capacity and control. When the any person or citizen uses his or her right of self/ private defense as codified under Sections 96 to 106 Indian Penal Code, with help of the right to keep and bear arms, he or she is doing nothing but acting as part of the unorganized militia of one i.e. law enforcement machinery in individual capacity and control.

(37) BECAUSE there have been numerous judgments by this Court in support of the right to private defense as codified from Sections 96 to 106 Indian Penal Code like Darshan Singh v. State of Punjab (2010) 2 SCC 333. Sections 96 to 106 Indian Penal Code are direct corollary to the right to life under Article 21 of the Constitution. When faced with criminals armed with modern weapons of various types, for the Right of Private defense to be an effective right, it is very necessary for the law abiding citizens to be armed with effective weapons. It is well settled matter of law that what is necessary is lawful. One cannot say that in all these judgments, it was expected by this Court that right of private defense is to be exercised with bare hands only. Such opinion would also be equally applicable to the right of defense of the State. Such an opinion would also be clearly against Article 14, principles of natural justice and not fulfill the just, fair and reasonable criteria of substantive due process now read into Article 21.

(38) BECAUSE from all the above mentioned reasons, fundamental natural human right to keep and bear arms flowing "by operation of law" from Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1), 300A and go into Sections 3, 4, specifically Sections 10(1)(a) and 13(3)(a) of Arms Act 1959, that is why there is Section 42 of Arms Act 1959 for conducting census of firearms and it needs to be conducted within four walls of Census Act 1948. It needs to be cognized that the concept of licensing for citizens for non commercial possession of personal arms, firearms and ammunition or self made or home made arms, firearms or ammunition in Sections 3, 4 and 13(3)(a) of Arms Act 1959 has no basis in law since anything that is not commercial under Part XIII of the Constitution but a right under Part III cannot be matter of licensing or prescription by the State. 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 together Article 19(1)(g), Article 265 and 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.

Grounds based on the Human Right Laws' inalienable foundational principles and laws flowing into Article 21 and Part III of the Constitution of India -

(39) BECAUSE in Apparel Export Promotion Council, 1 SCR 117, para 27 this Hon’ble Court holds that the judiciary has an obligation to give due regard to International Conventions and Norms.

(40) BECAUSE India has signed and ratified numerous covenants and treaties imposing obligations on the government to respect, protect, and fulfill the human rights of its citizens. This Hon'ble Court has consistently held that the judiciary is “under an obligation to give due regard to International Conventions and Norms for construing domestic laws more so when there is no inconsistency between them and there is a void in domestic law.” Apparel Export Promotion Council, 1 SCR 117, para 27.

(41) BECAUSE Part III of the Indian Constitution is an inspiration from Universal Declaration of Human Rights and India is a signatory to the Universal Declaration of Human Rights. Its Preamble reflects what is embedded inside the Universal Declaration of Human Rights set forth from Article 1 to 30. The preamble also says the following -

"Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,"

(42) BECAUSE above quoted extract from the Preamble of Universal Declaration of Human Rights clearly tells that rule of law is not be be established by taking away the effective means of rebellion. Taking away the effective means of rebellion or suggesting that people be kept disarmed is to undermine the rule of law itself. Such idea of keeping people disarmed is similar to the Constitutionally prohibited doctrine of casteism under Article 17. As per foundational principles of casteism and injustice, only the State(Brahmins and Kshatriyas) could keep, bear and use arms and citizens(tax paying Vaishyas and working class Shudras) were prohibited from keeping, bearing or using arms so they could not revolt as a last resort against injustice, tyranny and oppression. 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 Thus above clearly reflects that right to rebellion for self preservation as a last resort against injustice, tyranny and oppression is an inherent inalienable foundational fundamental natural human right and it includes the right to the tools of rebellion and self preservation, that is with the fundamental natural human right to keep and bear arms. The same is implicit and embedded in the Articles 1, 2, 3 and 17 of Universal Declaration of Human Rights. Rebellion as a last resort is also part and parcel of the British Common Law as well as Articles 13(3)(a)&(b), 14, 17 and the religious doctrines recognized and embedded in Article 25 of the Constitution of India which also form the inherent foundational principles of the Indian Constitution. These are non voidable inherent principles of natural human rights, justice and are not open to question or controversy.

(43) BECAUSE Article 21 of the Constitution of India also draws an inspiration from the United Nations Universal Declaration of Human Rights 1948 and it's Articles 1, 2, 3, 8 and 17 that have the fundamental natural human right to keep and bear arms embedded in them are quoted below -

Article 1 of United Nations Universal Declaration of Human Rights 1948 says -

"All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood."

Article 2 of United Nations Universal Declaration of Human Rights 1948 says -

"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty."

Article 3 of United Nations Universal Declaration of Human Rights 1948 says -

"Everyone has the right to life, liberty and security of person."

Article 8 of United Nations Universal Declaration of Human Rights 1948 says -

"Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law."

Article 17 of United Nations Universal Declaration of Human Rights 1948 says -

"(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.”

(44) BECAUSE resistance to sudden violence, for the preservation not only of one's person, limbs, and life, of own property, is an indisputable right of nature which one can never surrender to the public by the compact of society, and which perhaps, one could not surrender if one would. Liberty and security of person, right to own property includes the fundamental natural human right to keep and bear arms. The security of person includes all the means, modes, tools and property required to defend oneself as human, from the assaults or violence from any person, including the State. Articles 1, 2, 3, 8 and 17 of United Nations Universal Declaration of Human Rights 1948 certainly understand and acknowledges this universal natural human right, fact and truth of nature. Thus, the Articles 1, 2, 3, 8 and 17 of United Nations Universal Declaration of Human Rights 1948 read with its Preamble recognize that when a government destroys human rights and all other remedies have failed, the people are “compelled to have recourse, as a last resort, to rebellion against tyranny and oppression.”

(45) BECAUSE “everyone has the right to an effective remedy,” the people necessarily have the right to possess and use arms to resist tyranny, if use of arms is the only remaining “effective remedy.” So does the Common Law and Article 21 of the Constitution of India in particular and the Constitution of India in general also acknowledge these universal facts, rights and law principles of the civilized world. These facts, rights and law principles are also divine laws of nature since the beginning of time and life on this earth. These divine laws can be also ascertained by reading various Hindu scriptures. These same universal natural human rights and common law principles were confirmed by the tenth master of the Sikhs around 300 years ago in Zafarnama, when wrote that when all the stratagem employed for solving a problem are exhausted, then taking your hand to the sword is legitimate. Thus these laws, principles and natural human right to keep and bear arms for rebellion against tyranny are very much also embedded in Articles 13, 14 and 25 in particular and Part III of the Constitution of India in general. These are the basic foundational, sine qua non rights and principles of freedom, liberty and justice. Any doctrine, law or it's interpretation that says these laws, principles and the natural human right to keep and bear arms for rebellion against tyranny as a last resort are not allowed, is nothing but ab inito null, void, anti justice, anti Constitution and a purely mischievous political prescription under legalistic garb.

(46) BECAUSE the Protection of Human Rights Act, 1993 enacted by Indian Parliament acknowledges the legally binding International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural rights. These two covenants as well as various other Covenants are nothing but detailed legally binding agreements that are flowing from Universal Declaration of Human Rights, which includes the fundamental natural human right to keep and bear arms, that have been signed by the UN member States.

(47) BECAUSE these two covenants acknowledged by Protection of Human Rights Act, 1993 are flowing from Universal Declaration of Human Rights, the right to keep and bear arms being a fundamental natural human right, it is also embedded in these two Covenants. Articles 1.1, 2.1, 5, 6.1, 6.3, 8.1, 8.2, 9.1 of International Covenant on Civil and Political Rights includes right to keep and bear arms. Thus the Protection of Human Rights Act, 1993 has the fundamental natural human right to keep and bear arms very much embedded in it. These Articles are quoted below for quick reference and understanding -

Article 1.1 of International Covenant on Civil and Political Rights says -

“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

The above mentioned Article 1.1 establishes that the right of self determination, the rights to freely determine political status and freely pursue economic, social and cultural development includes the fundamental natural human right to keep and bears arms to protect these rights.

Article 2.1 of International Covenant on Civil and Political Rights says -

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

The above mentioned Article 2.1 establishes that each State party to the Convention undertakes to respect the rights present in this convention without any discrimination. It includes the right to keep and bear arms and arms are also a property right.

Article 5 of International Covenant on Civil and Political Rights says -

“5. 1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.

2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.”

The above mentioned Article 5 makes it very clear that State will not destroy or derogate any rights or freedoms within the Convention. The rights and freedoms include the fundamental natural human right to keep and bear arms and it makes it clear that it will not be restricted or derogated on the pretext that the Convention does not recognize it or recognizes to a lesser extent.

Article 6.1 of International Covenant on Civil and Political Rights says -

“1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

The above mentioned Article 6.1 makes it very clear that every human being has an inherent right to life which includes the modes, manners and tools to defend the same. It includes the inherent fundamental natural human right to keep and bear arms to protect inherent right to life and self preservation from acts of violence to destroy life and liberty.

Article 6.3 of International Covenant on Civil and Political Rights says -

“3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.”

(48) BECAUSE the Indian State is signatory to the UN Convention on the Prevention and Punishment of the Crime of Genocide. The above mentioned Article 6.3 makes it very clear that nothing in this article authorizes the State Party to this Convention to derogate in any way, from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. Please note the words “in any way”. The expression “in any way” includes the disarming, denial, derogation or subversion of the fundamental natural human right to keep and bear arms necessary to fight or defeat a genocide in progress. It needs to be noted that all through the history of human civilization, the genocides have preceded disarming of population by the State under one color or pretext. You do not need expensive tanks, artillery, aerial fighter bombers or missiles to conduct genocide of a disarmed population. Disarming of the population makes it cheap and easy to conduct the genocides with help of illegally armed goons or State controlled militia to conduct genocides in cheap and silent manner.

(49) BECAUSE the Article 51(c) of Indian Constitution which is a reflection of fundamental natural human rights in it's Part III, directs the Indian State to respect international law and treaty obligations. The treaty UN Convention on Prevention and Punishment of the Crime of Genocide can be downloaded from the following link https://treaties.un.org/doc/Publication ... nglish.pdf The following is quoted from the UN Convention on Prevention and Punishment of the Crime of Genocide to understand the meaning of genocide -

"In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such :
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group."

(50) BECAUSE the facts in the following paragraphs make it very clear that the Indian State not only failed miserably to respect it's treaty obligations on prevention and punishment of crimes of genocides but also made efforts to hide the facts and truth related to them.

Genocide of Muslims -

From the Sundarlal Committee report that was submitted to the Prime Minister of India. Rather than taking action as per Convention on Prevention and Punishment of the Crime of Genocide, the report was kept secret for decades. Its findings were politically so harrowing that the Prime Minister buried it, and it only came to light in around 2013. The most conservative estimates of the government commission put the number of dead between 27,000 to 40,000 in span of a few days. -

"The Sunderlal team visited dozens of villages throughout the state.

At each one they carefully chronicled the accounts of Muslims who had survived the appalling violence: "We had absolutely unimpeachable evidence to the effect that there were instances in which men belonging to the Indian Army and also to the local police took part in looting and even other crimes.

During our tour we gathered, at not a few places, that soldiers encouraged, persuaded and in a few cases even compelled the Hindu mob to loot Muslim shops and houses."

The team reported that while Muslim villagers were disarmed by the Indian Army, Hindus were often left with their weapons. The mob violence that ensued was often led by Hindu paramilitary groups.

In other cases, it said, Indian soldiers themselves took an active hand in the butchery: "At a number of places members of the armed forces brought out Muslim adult males from villages and towns and massacred them in cold blood."

The investigation team also reported, however, that in many other instances the Indian Army had behaved well and protected Muslims.

The backlash was said to have been in response to many years of intimidation and violence against Hindus by the Razakars.

In confidential notes attached to the Sunderlal report, its authors detailed the gruesome nature of the Hindu revenge: "In many places we were shown wells still full of corpses that were rotting. In one such we counted 11 bodies, which included that of a woman with a small child sticking to her breast. "

And it went on: "We saw remnants of corpses lying in ditches. At several places the bodies had been burnt and we would see the charred bones and skulls still lying there."

The Sunderlal report estimated that between 27,000 to 40,000 people lost their lives.

No official explanation was given for Nehru's decision not to publish the contents of the Sunderlal report, though it is likely that, in the powder-keg years that followed independence, news of what happened might have sparked more Muslim reprisals against Hindus.

It is also unclear why, all these decades later, there is still no reference to what happened in the nation's schoolbooks. Even today few Indians have any idea what happened.
The Sunderlal report, although unknown to many, is now open for viewing at the Nehru Memorial Museum and Library in New Delhi."

Source http://www.bbc.co.uk/news/magazine-24159594

Genocide of Christian Nagas -

"1948 – The new Indian government begins raids of Naga villages in what is now Manipur, south of present day Nagaland. These raids continue for the next decade. NNC elders are hunted down and killed. The Indian government attempts to legitimize their genocide of the Nagas by identifying them as dangerous insurgents.

1958 – The Indian government passes the Armed Forces Special Powers Act, which gives them the right to “shoot to kill” on mere suspicion of “insurgency.” The Indian army, Assam Rifles, goes on to kill over 100,000 Nagas, rounding them up into 59 concentration camps."

Source http://nagalandmusings.blogspot.in/2013 ... nagas.html

Genocide of Sikhs -

"The decennial census operations completed by the time indicated, the extent to which the Sikh genocidal policy initiated by Indira had had its impact during the decade 1981-1991.

Keeping in view the strength of the armed forces, the CRPF and the BSF in Punjab at the time of census operations and the strength of Purbea labour in various districts, and reading in between the lines the provisional population figures issued by the census authorities, one comes to the startling conclusion that in Punjab,

a) the Sikhs have lost anything between ten to twelve lakh (1 to 1.2 mn) people mainly youth, during the decade 1981-91: the break up being over 200,000 thousand each in Amritsar and Gurdaspur districts: over 100, 000 each in Ludhiana, Patiala; and Bhatinda districts; between 50,000 to 100,000 in Faridkot, Hoshiarpur, Kapurthala, Jalandhar, Ferozepur and Sangrur districts; between 25,000 to 50,000 in Rupnagar district.

b) the number of the Sikh women in age group 15-35 in 1991 was higher than the corresponding figure for the Sikh menfolk in the same age group.

The Operation Woodrose was complementary to the Operation Bluestar in scanning the Sikhs in the countryside. The army in baat cheet, talking points, simply laid down that an amritdhari, baptised, Sikh was a potential terrorist. The baat cheet un-abashedly declared Guru Gobind Singh to be the fountainhead of the Sikh militancy and virtually declared war on him. This was for the third time in the history of the Sikhs that such a decree of mass annihilation was issued. The first decree to kill worshippers of Nanak - the Sikhs - was issued by Emperor Bahadur Shah (1707-12) and was repeated by Emperor Farrukh Siyar (1713-19). Now, the Government of India made a distinction between the Sikhs of Guru Gobind Singh and others, as it had effectively used patit, renegade, Sikhs in the Operation Bluestar. Also, Guru Gobind Singh had been persona non grata to M.K. Gandhi, later acclaimed father of “our nation,” who had described him as ‘a misguided patriot’, and had otherwise till his death carried on a campaign against the Sikhs maintaining keshas and keeping kirpans.

During the Operations Bluestar and Woodrose, one wearing kesari turban was summarily shot at, while the one wearing blue turban and keeping kirpan could in certain circumstances save his life after giving up both. Honour of no Sikh was safe. It counted for nothing.

The Sikhs keeping keshas especially became victim of wide witchhunt for the armed forces with youth especially between 15 to 35 years coming for searching inquisitions. The army combed each and every village and town, and with the help of known Congressites, BJP and CPM activists rounded up all the Sikhs active in community services in local Gurdwaras, besides activists of Akali, Dal. Many were summarily shot: and a lot of them got indicted because of generations old enmities. In the words of Sanjeev Gaurl “The army arrested fewer terrorists and more innocent Sikhs during mopping up operations. The army indiscriminatingly raided Sikh homes in the villages, abused their family members and took into custody young people. . . Said a police officer, ‘Sikhs in Punjab villages today hate the army. (It) really let loose a reign of terror’. Go to any Punjab village and they have those sad and tragic stories to narrate to you.”

The author’s enquiries in end-1984 revealed that during the first four to six weeks of Operation Woodrose about 100,000 youth had been taken into custody, and many of them were not heard of again: and about 20,000 belonging to third generation after independence escaped to Pakistan. That was having very adverse repercussions on the Sikh perception of the armed forces as a force of occupation and a vehicle of oppression. The army and the para military forces were breeding terrorism, which was natural reaction to tyranny. The government’s oppressive intentions were clear by promulgation of National Security Act Ordinance on June 22, 1984, and Terrorist Affected Areas Ordinance on July 14, 1984. This was precursor of Terrorist and Disaffected Areas Act.

It was in this melee that a nephew of the author was taken into custody in September 1988 at Ludhiana. The family was not told of boy’s being killed the same night. That made the author, then a senior officer in the Indian Foreign Office to contact Additional Secretary (Police) in the Union Home Ministry, and at his instance K.P.S. Gill at Chandigarh and SSP Ludhiana Mr. Sumed Saini. While in Gill’s office, the author learnt that the police had taken into custody about 30,000 school going boys who had taken amrit, baptism, and they were not being released. Later, the author met at Chandigarh the head of CRPF who entrusted a very senior officer to find out about the boy. He stated that Sumed Saini SSP Ludhiana and one Bahuguna head of CRPF unit in Ludhiana, had liquidated a large body of the Sikh youth, and that, he said, was more or less true for whole of the Punjab."

(51) From Sikhs in History by Dr. Sangat Singh, Publisher- Singh Brothers (October 1, 2002), ISBN-10: 8172052766, ISBN-13: 978-8172052768. One may search for this book on internet, it is also available for free download. Dr. Sangat Singh was member of the policy planning think tank in the Indian Foreign Office. He was an alternate member of Joint Intelligence Committee, the supreme policy planning body of the Government of India, for two years each in early and late 1970’s. in between, for three years, he was Director, strategic studies, in India’s Defense Ministry. Dr. Sangat Singh joined the Ministry of External Affairs in early 1960’s following Nehru’s China war, as a Sinologist specializing in guerrilla warfare. This was shortly overtaken by his numerous high profile stints as an analyst on Pakistan, and a significant one on Iran. He spent his last decade in the foreign office dealing, inter alia, with disinformation. He was known for his incisive analysis. Dr. Sangat Singh was a keen observer of contemporary events and gained a rare insight into the ongoing developments in Punjab. He has half a dozen books to his credit. He did his PhD from Punjab University in 1964. Note: He was among the senior most Sikh to ever work for RAW to date. The Indian Government has never rebutted or challenged his numbers ever. Source https://thirdsikhgenocide.wordpress.com ... lion-lost/

“Denial is the eighth stage that always follows a genocide. It is among the surest indicators of further genocidal massacres. The perpetrators of genocide dig up the mass graves, burn the bodies, try to cover up the evidence and intimidate the witnesses. They deny that they committed any crimes, and often blame what happened on the victims.” - Gregory H. Stanton, Research Professor in Genocide Studies and Prevention at George Mason University in Fairfax County, Virginia, United States. Formerly of the US State Department and the founder of Genocide Watch.

(52) BECAUSE the above mentioned quote is worth noting because the facts are very much applicable to this country, because genocides are officially denied, evidence clandestinely destroyed, witnesses intimidated, and then genocides again repeated with precision. Needless to mention, the Constitutional Courts were too confused to step in and stop the genocides in progress. There have been many more genocides in India than just these three mentioned above. The genocides in New Delhi in October 1984 and in Gujrat in 2002-3 are also well known. With the mischievous view to deny genocides have taken place, they are usually passed off in the media as “riots”.

“Genocide is not just a murderous madness; it is, more deeply, a politics that promises a utopia beyond politics - one people, one land, one truth, the end of difference. Since genocide is a form of political utopia, it remains an enduring temptation in any multi ethnic and multicultural society in crisis.” - Michael Ignatieff

(53) BECAUSE the above mentioned dangerous promise of political utopia of “one people, one land, one truth, the end of difference” please be noted in the Indian context in relation to genocides, since Indian society is also multi ethnic, multi cultural and multi national society. Let us read and understand the definition of nation as quoted from Black's Law Dictionary 9th Edition below -

“Nation - A large group of people having a common origin, language, and tradition and usually constituting a political entity. When a nation is coincident with a state, the term nation-state is often used. Also termed nationality.

"The nearest we can get to a definition is to say that a nation is a group of people bound together by common history, common sentiment and traditions, and, usually (though not always. as, for example, Belgium or Switzerland) by common heritage. A state, on the other hand, is a society of men united under one government. These two forms of society are not necessarily coincident. A single nation may be divided into several states, and conversely a single state may comprise several nations or parts of nations." John Salmond, Jurisprudence 136 (Glanville L Williams ed., 10th ed. 1947)."

[goodboy_mentor]

(54) Above definition of Nation clarifies that the Indian State, the political Nation State, is made of different Nations. Similarly the Article 1 of the Constitution, implicitly accepts this fact. Every State has it's own different language, origin, culture, history, traditions and so forth. For example Punjab has nothing in common with Arunachal Pradesh, Arunachal Pradesh has nothing in common with Maharashtra, Maharashtra has nothing in common with Nagaland and so on. It clearly means we are multiple "peoples" and not “one people”.

(55) BECAUSE the similar goal of political utopia of “one people, one land, one truth, the end of difference” i.e. the denial that different people with different ideas and values do exist and also have their own rights and laws, appears manifested in the Explanation II of Article 25 wherein the persons professing the Sikh, Jaina or Buddhist religion have been clubbed into those believing in the Hindu religion. Similarly Article 44 under Directive Principles of State Policy stating that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. Such a political endeavour can only be realized by the denial of the fact that different people with different ideas and values do exist, along with their own their own rights and laws. In such politically motivated circumstances and goals, the temptations of committing genocides of unarmed people, to easily end or terrorize into submission of the political opposition against the political goal of “one people, one land, one truth, the end of difference” and various similar other political matters becomes even more attractive and enduring.

“Contemporary scholars have little explored the preconditions of genocide. Still less have they asked whether a society's weapons policy might be one of the institutional arrangements that contributes to the probability of its government engaging in some of the more extreme varieties of outrage. Though it is a long step between being disarmed and being murdered -- one does not usually lead to the other -- it is nevertheless an arresting reality that not one of the principal genocides of the twentieth century, and there have been dozens, has been inflicted on a population that was armed.” - Daniel D. Polsby, Washington University Law Quarterly, Volume 73, Number 3, Fall 1997.

(56) BECAUSE some ignorant people cannot see any harm in disarming the people, but it has a nasty downside. Its victims number in the tens of millions. Its downside is genocide, that is the mass murder of civilians on account of ethnicity, religion, language, or political views. The ingredients or formula for Genocide are: hatred + mischievous Government + disarmed civilians. How reasonable is this formula? It is very reasonable. First, it states a fact or truth that unarmed, defenseless people have no hope against armed aggressors. Second, it states the historical fact or truth that evil and mischievous governments did wipe out tens of millions of innocent non-military lives in the 20th Century alone. When some ignorant persons quote a statistic about how many people are killed by firearms misuse, the argument sometimes bogs down into whose crime statistics to believe and how to count crimes verses the defensive firearm uses. There is also a lot of statistical disagreement on whether the protection against self incrimination saves lives or not, whether it results in the release of dangerous persons who have confessed to their crime but the confession cannot be used. Judiciary does not resolve questions like this, like if something is a right or not on the basis of statistics. Instead the judiciary is duty bound to review if the legislature has respected the fact there are foundational fundamental natural human rights at issue. Thus it is necessary to get a bigger picture, the lessons from history of the crimes against humanity the governments can do if citizens, especially those deprived from effective political power and rendered helpless by disarming to fight back effectively. In the 20th Century alone:

• Governments murdered at the very least four times as many civilians that were killed in all the international and domestic wars combined.

• Governments murdered tens of millions more people than were killed by common criminals.

How have the governments killed so many people? Because the governments have all kinds of arms and organized power. And the people, that is the unarmed and unorganized victims, are unable to resist the violent might of government. Since 1900, at least scores of major genocides by governments, mainly due to political reasons, have occurred worldwide involving tens of millions of victims (read chart below):

Government
Dates
Targets
Civilians Killed
"Gun Control" Laws
Features of over all "Gun Control" scheme
Ottoman Turkey
1915 - 1917
Political opponent, Armenian people
(mostly Christians)
1 - 1.5 million
Art. 166, Penal Code, 1866 & 1911 Proclamation, 1915
• Permits required
• Government list of owners
• Ban on possession
British India
1919
Unarmed political opponents (mostly Sikhs) assembled peaceably in Jallianwala Bagh, Amritsar, Punjab
1500
Arms Act, 1878
• Licenses required
• Government list of owners
• Severe penalties
• Warrant less searches
• Confiscation powers
Soviet Union
1929 - 1945
Political opponents,
farming communities
20 million
Resolutions, 1918
Decree, July 12, 1920
Art. 59 & 182, Pen. code, 1926
• Licensing of owners
• Ban on possession
• Severe penalties
Nazi Germany
& Occupied Europe
1933 - 1945
Political opponents,
Jews, Gypsies,
critics, "examples"
20 million
Law on Firearms & Ammunition, 1928
Weapon Law, March 18, 1938
Regulations against Jews, 1938
• Registration & Licensing
• Stricter handgun laws
• Ban on possession
British India, Dominions of India and Pakistan
1946 - 1947
Muslims, Sikhs, Hindus
3.4 million
Arms Act, 1878
• Licenses required
• Government list of owners
• Severe penalties
• Warrant less searches
• Confiscation powers
Dominion of India
1948
Political opponents, the Muslim people after annexation of Hyderabad
40,000
Arms Act, 1878
• Licenses required
• Government list of owners
• Severe penalties
• Warrant less searches
• Confiscation powers
Union of India
1958
Political opponents, the Christian Naga people
100,000
Arms Act, 1878
• Licenses required
• Government list of owners
• Severe penalties
• Warrant less searches
• Confiscation powers
China, Nationalist
1927 - 1949
Political opponents,
army conscripts, others
10 million
Art. 205, Criminal. Code, 1914
Art. 186-87, Criminal. Code, 1935
• Government permit system
• Ban on private ownership
China, Red
1949 – 1952,
1957 – 1960,
1966 - 1976
Political opponents,
Rural populations,
enemies of the state
20 - 35 million
Act of Feb. 20, 1951
Act of Oct. 22, 1957
• Prison or death to "counter-revolutionary criminals" and anyone resisting any government program
• Death penalty for supply guns to such "criminals"
Guatemala
1960 - 1981
Mayans & other Indians,
political opponents
100,000 -
200,000
Decree 36, Nov 25 •Act of 1932
Decree 386, 1947
Decree 283, 1964
• Register guns & owners •Licensing with high fees
• Prohibit carrying guns
• Bans on guns, sharp tools
• Confiscation powers
East Pakistan, now Bangladesh
1971
Political opponents, intellectuals, ethnic Bengali people
3 million
Arms Act 1878
• Licenses required
• Government list of owners
• Severe penalties
• Warrant less searches
• Confiscation powers
Uganda
1971 - 1979
Christians,
political opponents
300,000
Firearms Ordinance, 1955
Firearms Act, 1970
•Register all guns & owners •Licenses for transactions
•Warrant less searches
•Confiscation powers
Cambodia
(Khmer Rouge)
1975 - 1979
Educated persons,
political opponents
2 million
Art. 322-328, Penal Code
Royal Ordinance 55, 1938
• Licenses for guns, owners, ammunition & transactions
• Photo ID with fingerprints
• License inspected quarterly
Union of India
1981 - 1991
Political opponents, the Sikh people
1.2 million
Arms Act 1959, various anti Constitution, anti human rights, draconian amendments to Arms Act 1959 done between 1983 - 1988
• Licenses required
• Government list of owners
• Severe penalties
• Warrant less searches
• Confiscation powers
Union of India
1989 - 1990
Political opponents, Kashmiri Pandits
Hundreds killed and thousands forced to flee
Arms Act 1959, various anti Constitution, anti human rights, draconian amendments to Arms Act 1959 done between 1983 - 1988
• Licenses required
• Government list of owners
• Severe penalties
• Warrant less searches
• Confiscation powers
Rwanda
1994
Tutsi people
800,000
Decree-Law No. 12, 1979
• Register guns, owners, ammunition
• Owners must justify need
• Concealable guns illegal
• Confiscating powers
Union of India
2002 - 2003
Muslim people
2000
Arms Act 1959, various anti Constitution, anti human rights, draconian amendments to Arms Act 1959 done between 1983 - 1988
• Licenses required
• Government list of owners
• Severe penalties
• Warrant less searches
• Confiscation powers

(57) After reading the above chart illustrating the chilling crimes of genocide against humanity and facilitated by the State gun control, one common fact emerges very clearly, that behind the smoke screen “reasons” of gun control legislation, the real target is the political opponents. The political opponents are disarmed contrary to the human rights, Common Law or Constitutional principles and then genocided. This is nothing new to the history of human civilization, this can also be confirmed by reading the English Bill of Rights 1688 - 89. Under the heading “Subjects Arms” it clearly mentions that the King had caused several good Subjects being Protestants to be disarmed (for political reasons) at the same time when Papists were both Armed and employed contrary to Law. There were thirteen specific complaints and the sixth of these, set well above matters such as free elections, was that King James had “caused several good subjects, being protestants, to be disarmed at the same time when papists were both armed and imployed contrary to law.” The Bill did not seek to disarm catholics, but merely to place protestants on an equal footing by asserting that “the subjects which are protestants may have arms for their defence, suitable to their condition and. as allowed by law”. This statement must also be taken in the context of its day. The right to keep arms was a long established part of English Common Law but, because the Common Law is capable of change by various mechanisms, the right was not absolute and Charles II had modified it through his Militia Act of 1662 which continued the practice of requiring subjects to keep arms of a particular type according to their ‘condition and degree’ -- that is their rank in society and their wealth. The rights and liberties of Englishmen continued to expand under Common Law. In the 17th century, many of the supposed rights did not, in practice, extend to the bottom of the social ladder but by the 18th century, Common Law rights were well established. and of such a nature that Sir William Blackstone, in his Commentaries on the Laws of England (1765) was in no doubt that the right to keep arms was a vital part of the Common Law. Blackstone listed the rights or liberties of Englishmen and showed that to vindicate these rights when attacked, the Common Law provided that the subject was entitled to justice in the courts, the right of petitioning the King and Parliament for redress of grievance and, “the right of having and using arms for self preservation and defence.” Again for purely political reasons in 1920 the Government of Britain was in fear of popular revolution and documents such as the Cabinet Diaries reveal debates about the number of aircraft available for use against insurgents within the British Isles. In that climate, the registration of firearms (other than shotguns) was imposed for the stated purpose of “ensuring that all arms are available for redistribution to friends of the government”. In reality the legislation was passed to facilitate people's firearms confiscation, contrary to the foundational principles and rights under the Common Law enumerated in the English Bill of Rights 1688 – 89, in the event of popular civil unrest or revolution. Most people agree that gun confiscation, consisting of massive house to house raids, is very costly, time consuming and thus unlikely. It could lead to violent resistance, insurgency or a civil war. But slow, incremental confiscation, taking place over generations, by continually increasing restrictions on who may own guns, and what guns may be owned, is exactly the strategy that was used in England.

(58) BECAUSE it is really a question of relationship between the people and the State, of who is in charge, of who is the de facto master or the de facto slave, the people or the State? One can't expect politicians or bureaucrats to do anything other than work to make people dependent on the State or become its de facto slaves, it's in their best interest. Since no practical benefit has ever been demonstrated - anywhere in the world let alone India - for an arms licensing or registration scheme or even banning them, from the point of view of the prevention, detection or solving of crime, one must conclude that the primary intention is political, to harass the law-abiding. And the added benefit by consequence is if ever needed in the future, can conduct confiscation of the arms of political opponents to make them defenseless and thus making their killings or genocides an easy task.

(59) BECAUSE all of the laws any State enacts are backed by the threat of force implicitly saying — “If you don’t obey the law, the State can and will harm you.” Without a countervailing threat of force, the State can fairly easily devolve into tyranny. What effective means would a law abiding citizen have at his disposal to stop the police or a government agent or any of a number of government officials who now routinely carry firearms, from unlawfully seizing his person or property, without the ability to similarly arm himself? Or, if a well intentioned government exceeds its bounds and begins to suppress individual freedoms and liberties, how would those individuals who cherish freedom and liberty attempt to resist that government in toto? The right to keep, bear and use arms provides the means for private citizens to preserve and protect liberty also from the State, be it foreign invasion or domestic hostility to freedom and liberty. Joel Barlow, a political theorist of Thomas Jefferson's time, wrote tellingly - “[The disarming of citizens has] a double effect, it palsies the hand and brutalizes the mind: a habitual disuse of physical forces totally destroys the moral [force]; and men lose at once the power of protecting themselves, and of discerning the cause of their oppression.”

(60) BECAUSE we live with a recent history of genocides by the State powers that have dwarfed in scope and cruelty anything Barlow or Jefferson could have imagined. The Turkish massacre of the Armenians, the Nazi final solution, the Soviet purges, the killing fields of Cambodia, the Hutu-Tutsi massacres in Rwanda, the repeated genocides of millions in the Indian sub continent, each and every one of these vast and hideous genocides was preceded by and relied upon the disarmament of the victims. It is more important than ever, today after a century of genocides, that we as people and citizens of this nation retain the power both to protect ourselves and to discern the cause of such oppressions. That cause has never been in civilian arms borne by free people, but in their opposite and enemy — the organized and conscienceless brutality of the cancerous and rouge States. It is time to recognize that we, as individuals and as citizens of our nation and our planet, have gone too far down a road that leads only to disintegration of both society and the self — a future of atomized and alienated sheep, terrified by the reflection in each others eyes of the phantoms in their own souls, easy prey for demagogues and tyrants. It is of no consolation or consequence that these demagogues or tyrants come to power with help of elections or they are fellow citizens. It is time for each of us to rediscover the dignity of free men and women in the only way possible, by proving it in the crucible of daily decision, even on ultimate matters of life and death. It is time for us to embrace bearing arms again — not merely as a deterrent against criminals and tyrants, but as a gift and sacrament and affirmation to ourselves.

(61) BECAUSE without the right to keep, bear and use arms, the Constitutional guarantees lack enforcement teeth. The courts may appear to be a means of protecting liberties, but they are administered by the State, and therefore can be used to the State’s purposes. The courts appear to be powerful given the constitutional framework of our country. Yet it is important to remember the practical fact that they are actually quite powerless by themselves. It needs to be noted and understood, the countries in which genocides have happened, also had courts or judiciary, but the courts failed to prevent or stop the genocides in progress or even punish those involved. The judiciary has no army or police to help it enforce its orders. The armed forces and police are controlled by the executive. The strength of the judiciary lies in the legitimacy it enjoys in the eyes of the public. Thus courts must be immune to the vagaries of public opinion, their moral authority can stem only from utmost rectitude and integrity. Similarly, voting and other means of enacting or repealing laws only works as long as both sides, private citizens and State agencies agree to abide by the outcomes of these actions. The only effective means of checking the State’s use of force is for the people to have a significant opposing force available. Thomas Jefferson understood this well and said: “The strongest reason for the people to retain the right to keep, bear and use arms is, as a last resort, to protect themselves against tyranny in government.” This timeless and universally applicable aphorism is very much in tune with the the natural laws, Common Law, Articles 13(3)(a)&(b), 21 and the religious doctrines, sacraments recognized and embedded in Article 25 of the Constitution of India and the Preamble of the Universal Declaration of Human Rights that confirms the fundamental natural human right of rebellion as a last resort against tyranny and oppression.

(62) BECAUSE many victim disarmament advocates appear to be much more trusting of the State and its agents. Most seem comfortable in allowing only law enforcement officials to possess guns. History shows time and again that when this happens, tyranny is the result. In caste based feudal India, it was a crime for non warrior castes to learn use of arms or keep and bear arms. Similarly in feudal Japan, the warrior class made it a crime for any other individuals to learn to fight or to have access to arms. Hitler began his reign of terror in part by strict enforcement of laws denying private ownership of firearms, and when the citizens were disarmed, and no one had the ability to ask him to step down, he began rounding up Jews, gypsies, blacks, and other non Aryans. For any age, there is undoubtedly an example.

(63) BECAUSE it may seem unreasonable or crazy to think that such things can happen here in India — but it has already happened a number of times and no crystal ball exists that can show same or even worse might not happen again. Even the most well intentioned laws can have disastrous results. This is best summed up by the utterance of U. S. Supreme Court Justice Louis D. Brandeis, 1928:

"Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficial ... the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding"

(64) BECAUSE agents of democratic governments also do make mistakes, and they can also be corrupted. No matter how unlikely either possibility may seem, the fact that they do happen makes it necessary for private citizens to be able to defend themselves against them. Democratic governments also have a record of stifling personal freedom and liberty in favor of State control. What if criminals subvert the democracy and take control of it? What if the de jure democratic government is subverted or taken over by de facto despotic leaders or tyrannical government that is not amenable to forces of reasoning or of democracy? For example Hitler had come to power through democracy. Once in power, he destroyed democracy so that no one was there to ask him to step down. The fundamental natural human right to keep, bear and use arms is an individual citizen’s guarantee of having substantial protection against all such possibilities. By including the fundamental natural human right to keep, bear and use arms and militia in personal capacity in the Article 19(1)(b), the founders of the Constitution were stressing the importance of a vigilant, armed society, both for individual defense and the defense of common freedoms, life and liberty and it is reflected in Articles 51A((c),(d) & (i). The spirit behind the guarantee of fundamental natural human right to keep, bear and use arms and militia in personal capacity by the Constitution is also exactly to counter and check this tendency of Governments, so that monopoly of power and violence does not lie with the Government but with the original sovereign i.e. the people of the country.

Article 8.1 of International Covenant on Civil and Political Rights says -

“1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.”

Article 8.2 of International Covenant on Civil and Political Rights says -

“2. No one shall be held in servitude.”

(65) BECAUSE depriving fundamental natural human right to keep and bear arms also implicitly means violating Article 8 because slavery or servitude also means a condition in which one lacks liberty especially to determine one's course of action or way of life. Slavery does not merely mean a legalized form of subjection. It also means a state of society in which some men are forced to accept from others the purposes which control their conduct. This condition happens even where there is no slavery in the legal sense. If any person or people are kept disarmed under any color or pretext, then their course of action to implement the inherent right of self defense(course of action or way of preserving life) or rebellion as a last resort when required lacks liberty. It amounts to nothing but de facto slavery.

Article 9.1 of International Covenant on Civil and Political Rights says -

“1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

Preamble of International Covenant on Economic, Social and Cultural Rights says -

“Recognizing that these rights derive from the inherent dignity of the human person,
Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights,”

(66) Please note the words “the inherent dignity of human being” and “ideal of free human beings enjoying freedom from fear”. It is a well settled matter that politically oppressive State powers all through the human history have been disarming their populations to instill fear, terror and prelude to genocides to subdue political resistance. The right to keep and bear arms is also a civil, political, social and cultural right originating from inherent dignity of person. This can be ascertained by reading Explanation I of Article 25 of the Constitution of India. It is a well settled matter that Kirpans are nothing but arms. Kirpan is made of two words Kirpa meaning grace or kindness. Aan meaning dignity. Thus Kirpan means one that has grace or kindness to adore and protect the dignity of person. This Court in Francis Vs. Union Territory on 13 January, 1981, AIR 1981 SC 746, 1981 SCR (2) 516 has already held that right to life and liberty mentioned by Article 21 of the Constitution of India includes life of dignity. Thus the fundamental natural human right to keep and bear arms can be read not only into the Article 21, 25 of Constitution of India, Articles 1, 2, 3 and 17 of United Nations Universal Declaration of Human Rights 1948 but also the Articles 5, 10, 12, 15, 24, 25 of International Covenant on Economic, Social and Cultural Rights.

Article 12.1 of International Covenant on Economic, Social and Cultural Rights says -

“1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

(67) BECAUSE if a person is kept unarmed by some vague, unreasonable and burdensome provisions of enactment like Arms Act 1959 and thus unable to effectively exercise his or her Right of Private Defense, as laid down from Sections 96 to 106 Indian Penal Code, becomes victim of any of the heinous crimes listed therein, it very severely affects or destroys the mental and physical health. Thus it clearly violates Article 12.1 of International Covenant on Economic, Social and Cultural Rights. The United Nations based Committee on Economic Social and Cultural Rights (CESCR) further clarifies the right to health, explaining that: “The right to health is not to be understood as a right to be healthy. The right to health contains both freedoms and entitlements.” Thus the freedoms include the freedom from vague, unreasonable and burdensome provisions of enactment like Arms Act 1959, to be well armed to effectively protect one's mental and physical health by exercising the Right of Private Defense when needed.

(68) BECAUSE it has been stated “health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.” by Committee on Economic, Social and Cultural Rights, General Comment 14, The right to the highest attainable standard of health (Twenty-second session, 2000), U.N. Doc. E/C.12/2000/4 (2000), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 85 (2003). If a person is kept unarmed by some vague, unreasonable and burdensome provisions of enactment like Arms Act 1959 and thus unable to effectively exercise his or her Right of Private Defense, as laid down from Sections 96 to 106 Indian Penal Code, becomes victim of any of the heinous crimes listed therein, it very severely affects or destroys the mental and physical health.

(69) BECAUSE besides the right to keep and bear arms being a fundamental right, it is also a fundamental natural human right as well. Can the Constitution say that the right to self defense exists under Article 21 but the right to the means of self defense does not exist and it has to be done with bare hands? No the Constitution can never say that, it would be clearly against Article 14, principles of natural justice and basic human rights. That is why we have Sections 96 to 106 Indian Penal Code for the right of private defense which is a corollary to liberty and the right of self defense under Article 21. It also means that Sections 96 to 106 Indian Penal Code are implicitly acknowledging the right to keep and bear arms under Article 21. Thus the right to keep and bear arms exists under Article 21 and its existence also gets confirmation by the explicit mention of it for citizens, in conjunction with the right to assemble peaceably under Article 19(1)b. The rights under Article 19 are nothing but rights flowing from Article 21 but provide enhanced protection to the citizens. In other words as held by this Court in Anuj Garg v. Hotel Association of India and Ors. (2008) 3 SCC 1, a law made under Article 19 needs to be tested not merely against “reasonableness” under Article 14 but also be subject to “strict scrutiny”.

Grounds based on Article 19(1)(b) of the Constitution of India -

(70) BECAUSE the fundamental natural human Right to Keep and Bear Arms has been clearly and explicitly acknowledged by Article 19(1)(b) of the Constitution of India and the same gets reflected as fundamental duty in Articles 51A(b),(c),(d)&(i) of the Constitution of India. It is well settled matter of law when the foundation fails, all fails. The Constitution is the foundation of all statutory laws. If the Constitution is not understood properly, everything working under it is bound to fail sooner or later. Because the Constitution is not understood properly, that is exactly why the rule of law is getting subverted day by day in this country. In order to prevent the foundation from failing, we must understand the specific provisions of Constitution relevant to Arms Act 1959 mentioned below.

(71) BECAUSE Article 19(1)(b) is saying it is a citizen's fundamental right “to assemble peaceably and without arms;” only and only because there exists another combination of fundamental right “to assemble peaceably and with arms” embedded in it. It is a matter of settled law whenever any issue arises which calls for an "interpretation of statutes" or where a word requires interpretation, the word is known by the company it keeps. It is clear and self evident the word "and" in company of Clause 1 of Article 19 has been used to join two negative rights. These combination of rights are preferred but Constitution is not offended by any other combination of any other fundamental rights. Since the rights in Article 19 are negative rights, one combination is freedom of speech and with expression and the other combination is freedom of speech and without expression. Similarly right to assemble peaceably and without arms has another combination embedded in Article 19. It is to the right to assemble peaceably and with arms. Someone may ask why the right to assemble peaceably and with arms has not been explicitly enumerated in Part III? It is because of volatile experiences of 1947 were fresh in the memory of members of the Constituent Assembly, the concern of the Constituent Assembly was to avoid cases of display of arms in terrorem populi. That is why in order to avoid cases of display of arms in terrorem populi, peaceable assembly without arms was considered the preferred mode of combination of rights under Article 19. This does not by any stretch of imagination mean that combination of right of peaceable assembly with arms does not exist. This gets clearly illustrated after reading below paragraph:

(72) BECAUSE fundamental rights and fundamental duties are two sides of the same coin and since fundamental right to assemble peaceably and with arms and citizen's militia in personal capacity and control is embedded and exists for citizens under Article 19(1)(b), that is why there exists corresponding reflection of fundamental duty of citizen's militia in personal capacity and control, under Articles 51A(b)(c),(d) & (i) 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. Under these acts, in order to do patrolling, able-bodied male inhabitants exercise two fundamental rights, right to assemble (peaceably as well as violently if situation compels) and the right to keep and bear arms. Similarly the right to keep and bear arms, police powers and posse comitatus is also embedded in Civil Defense Act 1968.

(73) BECAUSE the fundamental natural human right of right to keep and bear arms and police powers, both individually and as an assemblage also flowing from Article 19(1)(b) are embedded in Sections 37 to 39, 43, 46, 47, 52 and 60 in Chapter V Arrest Of Persons of the Criminal Procedure Code, Section 129(2) in Chapter X Maintenance of Public Order and Tranquility of the Criminal Procedure Code and Sections 96 to 106 Indian Penal Code flowing from Articles 21 as citizen's militia in personal capacity and control. 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. Also the Article 40 of the Constitution talks of units of self government, since self defense is an inalienable right of every person including the government, it includes units of self defense in units of government. The Article 43 talks of cottage industries, it includes cottage industries related with the fundamental natural human right to keep and bear arms. Thus it is very clearly self evident that arms are recognized as fundamental natural human right by the Constitution of India under Articles 19(1)(b) and 21. Though it is very clearly self evident and no ambiguity exists, to put any doubts at rest, it is important to mention Justice Vivian Bose of this Court in Krishna v. State of Madras, 1951 SCR 621 stated: “When there is ambiguity or doubt the construction of any clause in the chapter on Fundamental Rights, it is our duty to resolve it in favour of the freedoms so solemnly stressed.”

(74) BECAUSE Article 51A(b), also a reflection of Article 19(1)(b) says:

"to cherish and follow the noble ideals which inspired our national struggle for freedom;"

(75) BECAUSE ideals and national struggle for freedom were not entirely without arms. Freedom struggle indeed included armed struggle. There are countless and well documented accounts and cases of this fact. The freedom fighters who were fighting to violently overthrow the British rule were acting as militia in personal capacity and control. There can be no controversy or doubt about this fact. Pages of the history of the freedom struggle also stand in evidence for this. It follows that there exists a corresponding fundamental right to keep and bear arms and militia in personal capacity and control under Article 19(1)(b) of the Constitution. Following paragraphs also clearly demonstrate the awareness of the importance of noble ideals of the right to keep and bear arms for the goal of liberty were also part of inspiration of the freedom struggle:

"Among the many misdeeds of the British rule in India, history will look upon the act depriving a whole nation of arms as the blackest." – M. K. Gandhi (An Autobiography OR The story of my experiments with truth, by M.K. Gandhi, p.238)

(76) BECAUSE Mahatma Gandhi bemoaned the fact that the British had disarmed India and left passive civil disobedience as the Indians only possibility for fighting British repression and tyranny. He wrote about this in an article for the “Young India” magazine. Mahatma Gandhi advocated non-violence but did not preach cowardice by giving up the right to keep and bear arms, I quote "I do believe that, where there is only a choice between cowardice and violence, I would advise violence... I would rather have India resort to arms in order to defend her honour than that she should, in a cowardly manner, become or remain a helpless witness to her own dishonour", Gandhi goes on further to state "But I believe that nonviolence is infinitely superior to violence, forgiveness is more manly than punishment. Forgiveness adorns a soldier...But abstinence is forgiveness only when there is the power to punish; it is meaningless when it pretends to proceed from a helpless creature...."

"He who cannot protect himself or his nearest and dearest or their honor by non-violently facing death, may and ought to do so by violently dealing with the oppressor. He who can do neither of the two is a burden." – M. K. Gandhi

(77) BECAUSE the noble ideals that inspired our freedom struggle included the ideal of the right to keep and bear arms, that is exactly why throughout the freedom struggle our leaders protested against the Arms Act of 1878, demanding for every Indian citizen the enjoyment of right to keep and bear arms. For example in Nagpur around 1923 or 1924 there was a Satyagraha movement against the prevailing Arms Act. This movement attracted Satyagrahis from all over India, it went on for six months and the Indian National Congress put its seal of approval on this Satyagraha movement against the Arms Act. In fact even the Father of Nation, Mahatma Gandhi, protested for the right of every Indian citizen to keep and bear arms, going so far as to State that, “Among the many misdeeds of the British rule in India, history will look upon the Act depriving a whole nation of arms, as the blackest”.

(78) BECAUSE the noble ideals that inspired our freedom struggle included the ideal of the right to keep and bear arms, that is exactly why the Indian National Congress in it's historic 1931 resolution on fundamental rights passed at Karachi stated “This Congress is of opinion that to enable the masses to appreciate what Swaraj as conceived by the Congress will mean to them, it is desirable to State the position of the Congress in a manner easily understood by them...” “...The Congress, therefore, declares that any constitution...” please note these words - “any constitution“...which may be agreed to on its behalf, should provide or enable the Swaraj Government to provide for the following...” and various fundamental rights are enumerated, among which was also this one -- “Every citizen has the right to keep and bear arms in accordance with regulations and reservations made in that behalf.” It is in line with this promise made to all the citizens of this country that framers of the Constitution ensured that arms are indeed acknowledged as fundamental natural human right under Articles 14, 19(1)(b), 21, 25, 26(b), (c) & (d), 27, 29(1), 300A and 301 of the Constitution.

(79) BECAUSE Article 51A(c), also a reflection of Article 19(1)(b) says:

"to uphold and protect the sovereignty, unity and integrity of India;"

(80) BECAUSE sovereignty is a child and dependent of liberty and one of the pillars of liberty is the ability to unleash violence to the fullest as a last resort for self preservation. Thus the duty of citizens to uphold and protect the sovereignty cannot be expected to be done without existence of corresponding fundamental right to keep and bear arms. It needs to be noted that in a free and democratic republic, the citizens themselves constitute the collective sovereign and militia in personal capacity and control. It follows that there exists a corresponding fundamental right to keep and bear arms under Article 19(1)(b) of the Constitution.

(81) BECAUSE Article 51A(d), also a reflection of Article 19(1)(b) says:

"to defend the country and render national service when called upon to do so;"

(82) BECAUSE the duty to defend the country cannot be expected to be done without the existence of corresponding fundamental right to keep and bear arms. It is important to note that the fundamental duty to defend the country whenever called in national emergencies, cannot be done unless the citizen is always well in advance, already well possessed with the best and the latest arms of the times and also well trained in their use. This is also the desire and mandate of the Constitution in Articles 51A(b),(c) and (d). It also needs to be noted that in times of emergencies, there is no leisure or luxury of time or resources to procure arms or train in the use of arms. Some general knowledge of use of firearms is important to the public welfare because it would be impossible, in case of war, to organize promptly an efficient force of volunteers unless the people had familiarity with use of weapons of war. The Constitution encourages and secures this right of the people to keep and bear arms. No doubt, a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons and daughters to do the same, exercises his individual right. No doubt, a person whose residence or duties involve peculiar peril may keep a gun for prudent self defense.

(83) Needless to say, it follows from Articles 51A(b),(c) and (d) that there already exists a corresponding fundamental right to keep and bear arms and militia in personal capacity and control for every citizen under Article 19(1)(b) of the Constitution. It also demonstrates that the ‘arms’ referred to in Article 19(1)(b) are those which ordinarily are used for national defense or public defense purposes. And further, that ordinarily when called for service, these citizens are expected to appear bearing arms supplied by themselves and of the kind in common militia use in modern times. It thus demonstrates that it is citizen's right and duty to be at all times armed. It also demonstrates the right of the citizens to keep, bear and use arms in defense of themselves, the State and it shall not be questioned.

(84) BECAUSE Article 51A(i), also a reflection of Article 19(1)(b) says:

"to safeguard public property and to abjure violence;"

(85) BECAUSE safeguarding public property includes safeguarding it with right to keep and bear arms. "abjure violence" does not mean that one has to suffer unlawful violence from criminals by staying without arms. "abjure violence" also means abjure suffering from unlawful violence. In order to create an atmosphere that is concomitant with principles of "abjure violence", it means that there is right to the means and tools of suppressing the unlawful violence. It follows that there exists a corresponding fundamental right to keep and bear arms and militia in personal capacity and control under Article 19(1)(b) of the Constitution.

(86) BECAUSE on behalf of safeguarding the fundamental right to keep and bear arms of the people under Part III of the Constitution, the Article 246 read with entry number 5 in List I—Union List of the Seventh Schedule delegates the right of legislative powers to the Parliament to regulate arms, firearms, ammunition and explosives. Article 246 read with entry number 5 in List I—Union List of the Seventh Schedule is an affirmative, enabling provision and not a restricting provision. If arms, firearms, ammunition and explosives are not fundamental rights or are offense under Part III of the Constitution of India, question of providing right of legislative powers to issue licenses or tax or exemptions for them does not arise. It needs to be noted that Parliament does not have the right of legislative powers to issue licenses or tax or provide exemptions for acts that are offenses or crime under Part III of the Constitution. For example Parliament cannot pass regulatory laws to issue licenses or taxes or exemptions for committing offenses under Indian Penal Code that flows from Part III, like licenses or taxes or exemptions for allowing murder, extortion, genocide, kidnapping, robbery, torture etc. Since arms, firearms, ammunition and explosives are surely not an offense but a right under Part III, therefore we have Article 246 read with entry number 5 in List I—Union List of the Seventh Schedule and have provisions for exemptions, licenses and taxation under respective laws, for the State as well as all persons under the respective laws for arms, firearms, ammunition and explosives.

(87) Thus we also see that Articles 51A(b)(c),(d), (i) and 246 read with entry number 5 in List I—Union List of the Seventh Schedule which are reflection of citizen's rights to keep, bear and use arms and of militia under Part III, especially under Article 19(1)(b).

(88) Some people have grown accustomed to a misconceived notion, that right to lawful violence or right to possess the means of lawful violence is the monopoly of State only. Emotion of fear is a powerful emotion that can cloud logical and reasoning faculties of mind. Such misconceived notions are also due to fear of responsibility and risk that comes with liberty and sovereignty. It needs to be noted that liberty and its child sovereignty are a shared responsibility of every citizen. Liberty and sovereignty are not risk free propositions. They are ignorant of the fact that for a community of sovereign citizens, the highest duty is to preserve its liberty and sovereignty by whatever means it can, which includes the right to keep and bear arms. Since India has long standing living historic tradition of citizen's militias that enjoyed the right to keep and bear arms, Articles 19(1)(b) and its reflections in Articles 51A(b)(c),(d) & (i) are only recognizing and guaranteeing this long standing living historic tradition of citizen's militias. It has already been clearly demonstrated that this view is supported by the Constitution under Articles 51A,(b)(c),(d) & (i). In other words the Articles 51A(b)(c),(d) & (i) do not except the State to have sole monopoly or superiority on right to lawful violence or its means.

(89) BECAUSE the Constitution of India expects all the citizens in their personal capacity and control, to be already and always be, well armed and well trained in use of arms, that is exactly why the citizens are expected to do their duty of protection and defense of State under Articles 51A(b)(c),(d) & (i). In other words, the Constitution does not get offended by combination of right to assemble peaceably and with arms. As already mentioned earlier the example is when citizens do there duty under Articles 51A(b)(c),(d) & (i) or same getting manifested under the Punjab Village and Small Towns Patrol Act, 1918 and the Himachal Pradesh Village And Small Towns Patrol Act, 1964. Under these acts, in order to do patrolling, able-bodied male inhabitants exercise two fundamental rights, right to assemble (peaceably as well as violently if situation compels) and the right to keep and bear arms. They may have to assemble peaceably and with arms. If occasion demands the peaceable assembly may turn into violent assembly. Similarly the fundamental natural human right to keep and bear arms and police powers, both individually and as an assemblage is also embedded and reflects in Sections 37 to 39, 43, 46, 47, 52 and 60 in Chapter V Arrest Of Persons of the Criminal Procedure Code, Section 129(2) in Chapter X Maintenance of Public Order and Tranquility of the Criminal Procedure Code and Sections 96 to 106 Indian Penal Code flowing from Article 21 as citizen's militia in personal capacity and control.

Grounds based on Articles 19(1)(a), 19(1)(d) and 19(1)(g) of the Constitution of India -

(90) BECUASE right to keep and bear arms is among one of the most important human, natural and fundamental rights because its infringement can lead to infringement of various other fundamental rights as explained below -

(91) BECAUSE if the right to keep and bear arms is not getting enjoyed, the rights under Article 19(1)(a) are also getting affected, you are not able to openly speak or express your opinions against various types of dangerous persons in public life since you will not be able to defend yourself or your near and dear ones, if they decide to violate the law. In other words freedom of speech and expression gets severely constricted. For example targeted violent attacks on RTI activists who are physically unable to defend themselves. The State surely cannot and should not depute an armed policeman behind every person. Such an exercise will be an unacceptable burden on liberty.

(92) BECAUSE if the right to keep and bear arms is not being enjoyed, the rights under Article 19(1)(d) also get very severely affected. Example: If for any reason like you have to take family members especially children or ladies to hospital for emergency at night or you have to travel at night with children and ladies, life and liberty of all people including yourself will be at the mercy of criminal elements since right to keep and bear arms is not getting enjoyed. Hence you are also being forced to avoid enjoying your rights under Article 19(1)d or compelled to put life and liberty at mercy of criminals while traveling. The State surely cannot and should not depute an armed policeman behind every person. Such an exercise will be an unacceptable burden on liberty of the individual.

(93) BECAUSE if the right to keep and bear arms is not getting enjoyed, the rights under Article 19(1)(g) are also getting affected, like you will not get employment as private bodyguard or security guard.

Grounds based on Article 25 of the Constitution of India -

(94) BECAUSE Articles 25(1), and Explanation I in Article 25 read together clearly acknowledge, that right to keep and bear arms is a fundamental natural human right and there is a clear wall of separation and boundaries between this right to keep and bear arms and the State. They are quoted below -

"25. Freedom of conscience and free profession, practice and propagation of religion.—(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion."

(95) BECAUSE it is a well settled matter of law what is good and equal, is the law of laws. This applies to Article 25 as well. Thus the Article 25 is the law of laws. It is also well settled matter of law and there is no controversy that kirpans are arms. In other words the Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A when all read together have clearly acknowledged equally for all, regardless of their religion that -

(a) Subject to public order, morality and health and to the other provisions of Part III, the State has no power to legislate or prescribe about arms.

(b) So long arms are not any economic, financial, political or other secular activity, regulating or restricting them is not within legislative or prescriptive competence or powers of the State.

(96) Thus any arms that satisfy the above two conditions (a) and (b) of Article 25 are not commercial for Part XIII of the Constitution. Any arms that satisfy the above two conditions are part of liberty under Article 21 of the Constitution. Such arms are free from any extraneous control. That is exactly why kirpans are arms that are beyond the licensing or prescriptive powers of the State. That is exactly why the Central Ministry of Home Affairs has issued Gazette Notification G.S.R. 991, dated 13 th July, 1962 excluding kirpans possessed or carried by Sikhs from licensing under Section 4 of Arms Act 1959. Similarly khukris possessed or carried by Gurkhas of all classes are excluded from licensing of Section 4 of Arms Act 1959. Similarly, the persons of Coorg race and Jumma tenure holders in Coorg have been exempted from requirement of licensing under Arms Act 1959 vide Ministry of Home Affairs Notification No. S.O. 1920, dated 6.7.1963. Similarly any self made or home made arms or ammunition or those possessed for right of self/ private defense are part of personal liberty under Article 21 of the Constitution. These arms and ammunition are embedded in Section 45(c) of Arms Act 1959. This fact of law please be noted.

(97) BECAUSE the word kirpan is made from two words “Kirpa” (mercy, grace or kindness) and “Aan” (dignity/ honor). Thus kirpan has wide and substantial meaning, it means “one that has grace to protect the honor” of self, family, home and others. It has been well settled by this Court in various judgments that dignity and the means to defend dignity are part and parcel of Article 21 and Right of Private Defence in the Indian Penal Code. Thus kirpan is for serving very important practical and substantial purpose of individual forming part of the militia protecting life and liberty in individual capacity and control. Kirpan is an invented word to represent any reliable weapon of the day that produces the desired result of protecting dignity and honor. In India during 1600s and up to around middle of 1800s, the guns in use were muzzle loading matchlocks. They could only be fired by first loading gunpowder and lead shot from the muzzle end and then touching the end of a burning string or rope with touch hole to ignite gunpowder. Thus they were clumsy, inaccurate, time consuming and one could not always keep a burning string always ready. That is why due to instantly ready dependability, the kirpan came to be associated with sword and not gun of those days. Modern day kirpan is the gun of the latest type and pattern. Every Sikh knowledgeable of the principles of his religion or a reasonable person will agree. This view also gets confirmation from ancient and religious texts of the Sikhs, like Dasam Granth, has entire portion devoted to arms and a complete chapter in it is devoted to firearms. Following verses are quoted below from their historic Dasam Granth which very clearly acknowledge the fundamental natural human right to keep and bear arms:

"As kirpan khando kharag tupak tabar aru tir
Saif sarohi saihthi, yahai hamarai pir:"

In English the above means -

"The sword, the sabre, the scimitar, the gun, the battle axe, the arrow.
The rapier, the dagger, the spear: these indeed are our respected seniors."

(98) BECAUSE similarly the religious scripture of Hindus, the Gita while acknowledging the fundamental natural human right to keep and bear arms says "The State that protects the nation and its people with arms, only there the people can talk about arms"

(99) BECAUSE in the Mahabharata, a Hindu religious text, tells the people to ‘gird themselves up and kill a cruel king, who does not protect his subjects, who extracts taxes and simply robs them of their wealth.’ This is clearly a right (adhikar) to rebel against the king if he does not fulfill his duty to protect the people. This is a clear example of how the concept of right to keep and bear arms is flowing into the context of rebellion as last resort for self defense and human rights.

(100) BECAUSE similarly the religious scripture of Hindus, the Sri Rudram while acknowledging the fundamental natural human right to keep and bear arms says the following -

“You, Oh showerer of blessings, with your weapons and the bow in Your hand, completely protect us.
Let there be salutations to your sturdy and potent weapons, and also to both your hands and your bow.
Salutations to Him who has a sword and a quiver of arrows.
Salutations to Him having keen shafts and all weapons.
Salutations to Him bearing a beautiful and powerful weapon and bow.
Salutations to the Rudraganas (soldiers of Rudra)who have their weapons uplifted and who strike from the front.”
(101) BECAUSE these were the most effective, latest and substantial arms of those times, it also means that any and all these weapons, including the latest type and pattern of guns of the day are on equal footing for religion, law and justice. It is well settled matter of law that rights never die and where two rights concur, the more ancient shall be preferred. This establishes that possession and use for all lawful purposes, of all kinds of most effective and latest arms of the day, are ancient, natural, human and religious fundamental rights of the people of India, rooted very deep in their collective conscious, for defense of their self, their near and dear ones, their State, and the State has no legislative or prescriptive power over these rights. These are the sovereign rights of a sovereign people who have created a sovereign State for themselves. This fact of law please be noted.

(102) BECAUSE as per Article 13(3)(a) law includes any custom or usage. Article 13(3)(a) read with Articles 14, 17, 19(1)(b), 21, 25, 26, 27, 29(1) and 300A shows that arms(includes firearms, ammunition and explosives) which are part of custom or usage are lawful. Also because they are not commercial under Part XIII of Constitution. In other words they are freedoms and liberties under Part III of the Constitution which the State cannot touch. In tune with these Constitutional foundations and principles, the High Court of Punjab and Haryana at Chandigarh in Dilawar Singh versus State of Haryana, CWP no. 9013 of 2015, date of decision March 16, 2016 has held that Sikhs have fundamental right, liberty to carry or wear swords, that is the right to keep and bear arms even in the court rooms. Following passage is quoted from the decision below -

"The sword of the Khalsa was never a symbol of aggression, and it was never used for self-aggrandisement. It stands for defence of righteousness, truth and virtue. The sword is considered synonymous with God, the Primal generative principle, the supreme power to sustain moral order and to annihilate negative forces. In this way the Guru conveyed to the Khalsa, as an individual as well as a corporate body, that they, as wielders of the sword, should cast themselves in the mould of God, with all these attributes. Unlike a dagger, which is associated with secret attack, the sword is associated with open combat, governed by certain ethical principles. Thus, the sword of the Khalsa is the assertion of this right to freedom. To quote Kapur Singh:

(The Sword) is by ancient tradition and association, a typical weapon of offence and defence, and hence a fundamental right to wear, of the free man and woman, a sovereign individual. All governments and rulers, whether ancient or modern, have and do insist to wear arms. Indeed in final analysis, a government or the state is sustained and supported by the organised might and exclusive right of possession of arms, a citizen's right to wear arms being conceded as only of a permissive and licensed character. It follows from this that the measure of freedom to possess and wear arms by an individual is the precise measure of his freedom and sovereignty. Since a member of the Khalsa brotherhood is pledged not to accept any alien restrictions on his/her civic freedom, he/ she is enjoined upon to insist on and struggle for his or her unrestricted right to wear and possess arms of offence and defence."


(103) BECAUSE one of the most clear and telling evidence of the historic sui generis sovereign, imprescriptible, inviolable sacrament and sacred foundational and enumerated fundamental right to keep and bear arms and the living historic tradition of the irregular militia that has been recognized by the Constitution is in the Article 25, when it says -

"The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion."
(104) BECAUSE it does makes lot of sense if kirpans denotes to cover weapons of various types. In this context, please note that the Article 25 of the Constitution has deliberately not used specific words used in English Common Law or English language, like sword or dagger or even kirpan in singular form, but used the word kirpans, that is in plural form, to denote a wider meaning to cover any number or type of weapons that an individual as part of militia can wear or carry for the purpose. Being a Sikh constitutes being a part of living irregular militia tradition, he has to wear and carry multiple type of kirpans to serve purpose for various types of situations that may arise during combat. Such an interpretation makes lot of sense. This view also gets credence from various historical weapons of the Sikhs, historical books and records that Sikhs carried and used almost all kinds of weapons including latest firearms of the day. Thus it also demonstrates that all kinds of arms have historically as well as present, have sacred place for leading life of honor and dignity. It also demonstrates that bearing of arms is the essential medium through which the individual asserts both his social power and his participation in politics as a responsible moral being. Thus the right to life and liberty under Article 21, includes the life of honor and liberty also protected by arms, which hold sacred position in the collective consciousness of people. And at the same time, it is also getting reflected in Article 19 to provide a higher level of guarantee for citizens.

(105) BECAUSE it is well established that human rights are moral principles or norms that describe certain standards of human behavior, and are regularly protected as legal rights in national and international law. Since arms are part and parcel of human conscience, human and natural rights, dignity that is personal self realization and autonomy, that is why wearing and carrying of kirpans is explicitly recognized in Article 25 as a historic sui generis foundational fundamental right of a historically sui generis sovereign and distinct social group. Also there is no controversy or confusion that kirpans are arms as defined in Section 2(1)(c) of Arms Act 1959 and Section 153AA of Indian Penal Code.

(106) BECAUSE only the core part of the rights are enumerated in the Constitution of India, complete whole of the rights are unenumerated and embedded in it. The authentic history of this land and traditions are important to consider and understand what rights are protected by the Constitution in this country. In order to properly understand and interpret fully the Fundamental Rights under Part III of the Constitution, including those embedded in Article 25 by substantive due process, it is important to understand the rights rooted in traditions and conscience of people of this land by understanding their historical culture, their history and their historical rights. It is well settled matter of law that rights never die. Also it is well settled matter of law that where two rights concur, the more ancient shall be preferred. Now let us read, understand and take cognizance of the historical fundamental right to keep and bear arms of the people of India from the historical evidence as quoted below from the book “History of the Sikhs 1739 – 1768 Evolution of Sikh Confederacies” by Dr. Hari Ram Gupta, foreword by Sir Jadunath Sarkar, wherein he confirms that the book has been set up on a granite foundation and it ought to serve as a model to other workers on Indian history -

"Fighting and riding were the only qualifications required from an individual who came to seek recruitment under a chief, and the possession of a horse and a matchlock was his best recommendation, though in many cases they were assured of these things by the leader from the proceeds of his spoil." - Page 22

If a Sikh was captured in these expeditions and was asked to disarm himself, he boldly refused to do so, loudly announcing that wearing arms was a part his religion" - Page 173

Qazi Nur Muhammad, the author of the "Jang Namah", who came with the forces of Ahmad Shah Abdali in 1764 to fight against the Sikhs is quoted below from the same book mentioned above -

"Besides these arms, when they take up a musket in hand at the time of battle, they come to the field fiercely springing and roaring like lions and (immediately) split many a beast and make the blood of many others roll in the dust. You may say that the musket was invented in ancient times by these dogs and not by Luqman Hakim. Though guns are possessed in large numbers by others, but nobody know them better. These bad-tempered (people) discharge hundreds of bullets on the enemy on the right and left and in front and on the back. If you disbelieve in what I say, enquire from the brave warriors who will tell you more than what I have said and would have nothing but praise for their (art of) war. The witnesses of my statement are those thirty thousand heroes who fought with them." - Page 278

"The accoutrements of a Sikh soldier while on a march consisted of offensive and defensive weapons, priming horns, ammunition pouches, two blankets, a grain bag and heel ropes, while their cooking utensils were carried on ponies. Swords, spears, scymctar. sabre, two-edped daggers, lances, muskets, guns, cutlasses, pikes, bows and arrows were generally employed. In the handling of these arms, especially the matchlock and the sabre, they were uncommonly expert." - Pages 281 - 282

"Their method of attack, as is described by contemporary writers, was this. A party of Sikh horsemen numbering from forty would advance towards the ranks of the enemy galloping at a quick pace and would suddenly draw up their horses who were so expertly trained to this sort of performance that on receiving a stroke of the hand they would stop from a full career. Then they simultaneously discharged their loaded guns from a distance with such marksmanship that not a single shot would fail in its aim. After that they suddenly retired to about a hundred paces, re-loaded their pieces and repeated the old process. All this was done with an alacrity and activity unparalleled by other people of India. This caused a great annoyance to the enemy and made it helpless against them." - Pages 282-83

"An old tactic, so frequently resorted to by the Sikhs, was to discharge a sudden volley of bullets and bombs (huqqa ?) upon the enemy, engage them in fight for an hour or so, and then suddenly retire from the field. This gave the enemy an idea that the Sikhs had taken to flight. A detachment of the enemy pursued them. When the Sikhs found their pursuers away from the immediate succour of their main body, they would all of a sudden come to a halt, return and attack them vehemently. Each Sikh fought hand to hand with his opponent, grappled his distortions and hideous cries. They then throttled, tore and slaughtered him, thus cutting the whole batch to pieces." - Pages 283-84

(107) BECAUSE from the above quoted extracts, clearly mentioning that wearing of arms, not just limited to kirpans was part of religion, and it was loudly announced by the captured soldiers. The same fundamental natural human right to keep and bear arms, is not just limited to kirpans, is still a part of their religion and is clearly and loudly acknowledged by Explanation I of Article 25 of the Constitution. Thus the above mentioned historical records also clearly establish that all kinds of latest firearms of the time like matchlocks, muskets and bombs were the part and parcel of their fundamental rights including the religious rights and remain fully lawful even today in custom and usage to the satisfaction of the meaning in Article 13(3)(a). Moreover according to casteist social order, all castes other than Brahmins and Kshatriyas were deprived of the Right to Keep and Bear Arms for thousands of years, that is exactly why a revolutionary step was taken up in the Sikh religion to bring parity among all the castes and creeds, weld them together by making the Right to Keep and Bear Arms mandatory for all castes and creeds, as a basic practical step against injustice, untouchability and restoring dignity and trust in every individual. This fact is embedded in Article 17 and the same is manifestly getting expressed in the Explanation I of Article 25. Thus Articles 17, 21 and 25 are fully in agreement with each other. All these facts clearly establish these rights to be inalienable part and parcel of Part III in general and of Article 25 in particular. The State has no jurisdiction or legislative competence to infringe whatsoever on these fundamental natural human rights.

Grounds based on Article 26 of the Constitution of India -

(108) BECAUSE Article 25 of the Constitution has clearly acknowledged the fundamental natural, human and religious birth right to keep and bear arms, the Article 26 provides additional protection to this right.

(109) BECAUSE Article 25 of the Constitution has clearly acknowledged the fundamental natural, human and religious birth right to keep and bear arms, the clause (a) of Article 26 acknowledges the right to preserve and propagate this right with help of institutions of religion and charity.

(110) BECAUSE Article 25 of the Constitution has clearly acknowledged the fundamental natural, human and religious birth right to keep and bear arms, the clause (b) of Article 26 reaffirms the right to keep and bear arms as a religious matter.

(111) BECAUSE the clause (c) of Article 26 acknowledges arms being a fundamental property right since property is acknowledged as fundamental natural human right by Article 17 of Universal Declaration of Human Rights, Article 2.1 of International Covenant on Civil and Political Rights, Article 2.2 of International Covenant on Economic, Social and Cultural Rights and Article 300A of the Constitution of India as a Constitutional right.

(112) BECAUSE the Constitution of India is flowing from Common Law, the clause (d) of Article 26 is not a constrain but an affirmation of the right of property that also includes arms under the Common Law.

Grounds based on Article 27 of the Constitution of India -

(113) BECAUSE arms are clearly acknowledged as fundamental natural, human and religious birth right by Articles 25 and 26 of the Constitution, the Article 27 clarifies that State is incompetent to tax arms in any way or manner including by using licenses or certificates. The same lack of competence of the State is flowing into Section 45(c) of Arms Act 1959.

Grounds based on Article 29 of the Constitution of India -

(114) BECAUSE Articles 25, 26 and 27 have clearly acknowledged the fundamental human and religious birth right to keep and bear arms, the Article 29 provides enhanced protection to the religious minorities to preserve their historical culture of right to keep and bear arms to the fullest and widest extent.

Grounds based on Article 13 of the Constitution of India -

(115) BECAUSE the Right to Keep and Bear Arms is a fundamental, natural, historical, human, religious birth right deeply embedded in the collective consciousness of the people of India, any legislation that inconsistent with or derogates this fundamental right is ab inito void since it violates Article 13 of the Constitution of India. The Right to Keep and Bear Arms is a fundamental natural human right under Part III of the Constitution can be clearly ascertained by combined reading of Articles 19(1)(b), 21, the Explanation I of Article 25, 26, 27, 29 and 300A of the Constitution of India.

Grounds based on Article 14 of the Constitution of India -

(116) Article 14 of the Constitution of India says:

"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

It means that Constitution and laws enacted under it, treat equally all persons, citizens and the State. Thus the rights of the State and person or citizen may not be exactly identical but are always surely without exception equal due to Article 14. If we contend that person or citizen does not have the right to keep and bear arms, then as per Article 14, the State also does not have the right to keep and bear arms. This much is very clear and thus there can be no controversy about it. Logically and reasonably it follows that State has no constitutional mandate or protection to keep, bear or use arms and should be disarmed immediately for all purposes. But this view is unrealistic and cannot be supported by facts, logic or reasoning. Same facts, logic or reasoning holds good for every person.

(117) BECAUSE if we contend that person or citizen does have the fundamental natural human right to keep and bear arms, then as per Article 14, the State also does have the fundamental natural human right to keep and bear arms. This contention indeed makes sense and is supported by facts of law. It is a fact that State has right to form the militia i.e. armed forces and police and self regulate it. Similarly because of Article 14, it is bound to be a fact that every person and every citizen has right for forming the militia in personal capacity and self regulate it.

(118) BECAUSE the Right to Keep and Bear Arms is flowing from Part III of the Constitution of India into the Section 45 of Arms Act 1959. Since it is a fundamental right of the State, the State is enjoying fully unregulated Right to Keep and Bear Arms. This can be ascertained by reading the Section 45(b) of Arms Act 1959.

(119) BECAUSE the Right to Keep and Bear Arms is guaranteed to the State under Part III of the Constitution of India, the same right is equally guaranteed to it's citizens by Article 14 of the Constitution of India. This can also be ascertained by reading the Section 45(c) of Arms Act 1959.

(120) BECAUSE Article 14 of the Constitution guarantees equality to all including the State, there is no exemption to the State from the acts that are offenses under Part III of the Constitution. For example because of Article 14 the State is not exempt under the laws from the acts of genocide, murder, kidnapping, rape, dacoity, theft etc. But for the acts which are not offenses under Part III of the Constitution, the State can claim exemptions and exclusions under the enacted laws. For example as in Sections 41 of Arms Act 1959, since arms and ammunition are any ways a fundamental natural human right under Part III of the Constitution, the State can exclude any person or class of persons from the burden of restrictions and commercial taxation under licenses. Similarly under Section 45(b)&(c) of Arms Act 1959 there is exemption from the burden of restrictions and commercial taxation by licensing. Therefore this very fact of exemptions and exclusions to persons and the State from the provisions of Arms Act 1959, proves that arms are surely not an offense under Part III of the Constitution. If arms are not an offense under Part III then surely they are a right under Part III because while interpreting the Constitution there is presumption in favor of the right, and the burden of proof on those claiming a power. In cases of doubt, the presumption is not in favor of a power and there is no doubt in this matter that arms are not an offense under Part III of the Constitution. Therefore the question of presumption in favor of power in this matter does not arise.

(121) BECAUSE it is a well settled fact that humans do not undergo some sudden great increase in intelligence or morality when they assume positions of authority or power. This goes for the entire planet. If the Constituent Assembly or the Constitution or citizens of our country believed or believe otherwise, then the right and proper thing would be to have the State relinquish all of its military and law enforcement arms to some other sympathetic State. If they believe that the State is responsible enough to possess arms, then they by extension MUST believe that the citizens of our country who have created the State are also responsible enough to possess arms. However it can be argued for an exception when a country is occupied by a different culture or rouge State, that the occupied culture can be portrayed/ propagandized as being more "primitive" or “immature” and therefore not responsible/ mature enough to own or possess any arms at all. If they do not believe this, then they must accept that the State is made up of the same citizens of the country as a whole, and fortunately for the planet in general, there are more responsible humans than irresponsible ones, so the net benefit is a positive one.

Grounds based on Article 17 of the Constitution of India -

(122) BECAUSE Article 17 is explicitly against inhuman casteism and all it's doctrines clandestinely pushed to help injustice under any color or pretext. Article 17 is not merely against untouchability but also against all it's underlying means and doctrines that help enforce injustice. As per the inhuman casteist doctrine, in order to prevent liberty and human right of rebellion as a last resort, against injustice and tyranny, only the State(comprising of Brahmins and Kshatriyas) has the liberty, civil, political, natural, human and birth Right to Keep and Bear Arms since they(the State) are there to protect, the citizens(tax paying Vaishyas and working class Shudras) have no liberty, Right to Keep and Bear arms. 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. Keeping this basic principle of law in mind, Article 17 is clearly against any such casteist like unjust doctrine absurdly or mischievously, justifying under any color or pretext that only State can have monopoly over liberty of Right to Keep and Bear Arms and depriving the same right to the citizens. Article 17 read along with Articles 14, 19(1)(b), 21, the Explanation I of Article 25, 26, 27, 29 and 300A of the Constitution of India further clarifies this beyond any doubt that Right to Keep and Bear Arms deprived by casteism for thousands of years has been restored in it's entirety.

(123) BECAUSE according to casteist social order, all castes other than Brahmins and Kshatriyas were deprived of liberty of Right to Keep and Bear Arms for thousands of years, that is exactly why a revolutionary step was taken up in the Sikh religion to bring parity among all the castes, weld them together by making the liberty of Right to Keep and Bear Arms mandatory for all castes and creeds, as a basic practical step against injustice, untouchability, restoring dignity and trust in every individual. This fact is embedded in Article 17 and the same is manifestly getting expressed in the Explanation I of Article 25. Thus Articles 17, 21 and 25 are fully in agreement with each other.

[goodboy_mentor]

Grounds based on the English Common Law inalienable foundational principles, fundamental rights and laws flowing into Part III of the Constitution of India -

(124) BECAUSE the right to keep and bear arms is an inalienable foundational fundamental, natural, ancient, historical, human and religious birth right that is why it is part and parcel of the British Common Law and acknowledged by English Bill of Rights 1689. It cannot be surrendered either individually or by any compact of society. It is a well settled matter that Fundamental rights and laws of the Indian Constitution are based on Fundamental rights and laws of British Common Law mentioned in English Bill of Rights 1689. The Constitution itself has acknowledged the British Common Law in at least Articles 13(3)(b), 25(2), 35(b), 367(1), 372 and 374. Since the rights under Part III of the Constitution are based on higher laws than the Constitution, the Parliament even during emergency, is incompetent to derogate these rights by using Article 358(1) except the political rights under Article 19. Similarly since Articles 20 and 21 are directly connected with higher laws than the Constitution, the President even during emergency, is incompetent to order suspension of enforcement of rights under Articles 20 and 21 using Article 359(1). Thus neither is the Constituent Assembly nor the Constitution competent to derogate or extinguish an inalienable fundamental, natural, ancient, historical, human and religious birth right of right to keep and bear arms.

(125) BECAUSE India is a country that has legal and judicial system based on English Common Law principles since it was a colony of Great Britain, the Indian Constitution also has its fundamental rights and laws based on common law and the same is also explicitly recognized by Articles 13(3)(b), 25(2), 35(b), 367(1), 372 and 374. In countries with an English common law tradition, a long-standing common law right to keep and bear arms has long been recognized, as pre-existing in common law, prior even to the existence of written national constitutions. Such rights are outlined in historic documents such as Magna Carta 1215, the Declaration of Arbroath 1320, the Bill of Rights 1688/ Claim of Right Act 1689, and as guaranteed by Article IV of the Treaty of Union of 1707, which British parliament has no powers to usurp, these being the true ancient and indubitable rights of the British citizen. Even the foundation of the 2nd Amendment of U.S. Constitution is based on common law principles.

(126) BECAUSE the legislature of British Crown while following the common law, even in India had no powers to extinguish or usurp the right to keep and bear arms. If one notes the objects and reasons of all the legislations related to regulate the right to keep and bear arms, enacted by legislature of British Crown in India, it clearly mentions about regulating the "right to keep and use" arms. It means the freedom to "right to keep and use" arms has been passed on (with regulations) to the people of India with transfer of State power under the Indian Independence Act, 1947 and same has been accepted by the Indian Constitution with its enactment, since the Constitution has accepted the common law along with it's fundamental doctrines and principles.

(127) BECAUSE if we read the following extract from The State vs Keshab Chandra Naskar on 12 January, 1962 in Calcutta High Court, AIR 1962 Cal 338, we find that the natural birthright and human right to right to keep and use arms as acknowledged by common law, was also legally acknowledged by the Legislature of Dominion of India(as recognized by Article 367(1) of the Constitution) beginning with Act XXVIII of 1857, Act XXXI of 1860:

“Act XXVIII of 1857 was passed by the Legislative Council of India and received the assent of the Governor Central on the 11th September, 1857. The preamble of that Act said "An Act relating to the importation, manufacture, and sale of Arms and Ammunition, and for regulating the right to keep or use 'the same". It was an Act of 36 sections. The first section dealt with the places to which the section extended and the necessity for a written notice of the possession or Arms to be given to the Magistrate. The second section provided for penalty for wilful neglect to give notice. The third section required a Register to be prepared and certificates to be granted on request. The fourth section dealt with the seizure and detention of Arms and Ammunition by the Magistrate. The fifth section provided for disarming persons in certain cases and in certain places and the persons who were authorised to disarm. The next material section of this 1857 Act is Section 17 providing for apprehension of persons conveying Arms, Ammunition., etc., under suspicious circumstances without warrant. Then Section 22 of this Act goes on to provide for penalty for wilful neglect to give notice of possession of Ammunition of military stores. Section 23 provides for the power to enter and search houses where there was reasonable cause for suspecting Arms and Ammunitions.

The preamble of this statute of 1860 says -
"An Act relating to the manufacture, Importation, and sale of Arms and Ammunition, and for regulating the right to keep and use the same, and to give power of disarming in certain cases,''

(128) To begin with, let us read the relevant provisions of Magna Carta of 1215. Magna Carta is important for a couple of reasons: it establishes that Royal Prerogatives do have limits, that subjects do have certain rights under the Common Law, and that the King cannot run roughshod over these rights. They are mentioned below -

"1. [...]
We have also granted to all freemen of our kingdom, for us and our heirs for ever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs for ever:
[...]
63.Thus, we wish and we firmly ordain that the English church shall be free, and that men in our kingdom shall have and keep all these previously determined liberties, rights, and concessions, well and in peace, freely and quietly, in their fullness and integrity, for themselves and their heirs, from us and our heirs, in all things and all places for ever, as is previously described here."

(129) Above establishes that "freemen" have rights, and that they shall be recognized and maintained by the Rulers of England "in all things and all places for ever" -- wherever England rules, for all time. Thus it also included India. Freeman -- those of free status in the eyes of the law (that is, not villeins) and as such having certain rights denied to villeins, such as access to the Kings courts in certain actions, freedom to move about and marry and exemption from certain onerous duties.

(130) Let us read the relevant provisions of the English Bill of Rights 1689. They are quoted below -

"An Act for declaring the rights and liberties of the subject and settling the succession of the crown."

Please note it says RIGHTS AND LIBERTIES of the SUBJECT -- rights that previously existed, which the English Bill Of Rights seeks to restore.

Complaints -

"Whereas the late King James the Second, by the assistance of divers evil counselors, judges, and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion, and the laws and liberties of this kingdom."

Above is their complaint -- that King James II tried to subvert the laws and liberties of the kingdom -- in other words, he exceeded his authority.

[...]
[idem]
"By causing several good subjects, being protestants, to be disarmed, at the same time when papists were both armed and employed, contrary to law."

Above is one of the specific complaints, the disarmament of Protestants -- which was contrary to the law.

[...]
"All of which are utterly and directly contrary to the known laws and statutes, and freedom of this realm."

Above is the conclusion of the complaint portion of the petition ("Bill") -- all the previous actions of King James II listed were DIRECTLY CONTRARY to the known laws and statutes and FREEDOM of the realm

"And whereas the said late King James II having abdicated the government, and the throne being thereby vacant, his highness the Prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did (by the advice of the lords spiritual and temporal, and divers principal persons of the commons) cause letters to be written to the lords spiritual and temporal, being protestants; and other letters to the several counties, cities, universities, boroughs, and cinque-ports, for the choosing of such persons to represent them, as were of right to be sent to parliament, to meet and sit at Westminster upon the 22 January, 1689 in order to make such an establishment, as that their religion, laws, and liberties might not again be in danger of being subverted; upon which letters, elections have been accordingly made, "

Above is the preamble to the "remedy" phase of the petition ("Bill"); they seek to remedy the complaints listed in the first section, and ensure that they don't happen again: "as that their religion, laws, and liberties might not again be in danger of being subverted" and abused by "arbitrary power"

"And thereupon the said lords spiritual and temporal, and commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid; do in the first place (as their ancestors in like cases have usually done) for the vindicating and asserting their ancient rights and liberties, declare:"

Above is the part of the petition ("Bill") that outlines how they expect the Crown to remedy and redress the unlawful actions of the former King. Please note it says "THEIR ANCIENT RIGHTS AND LIBERTIES" -- these are what are being vindicated and asserted.

Remedies:

[...]
[idem]
"Standing Army.

That the raising or keeping a standing Army within the Kingdome in time of Peace unlesse it be with Consent of Parlyament is against Law."

(131) Please note the words "Standing Army" mentioned above. It means there exists a non standing army i.e. the militia. Non standing army are commonly known as militia or irregulars. This can also be confirmed from Text of the Assize of Arms of 1181 and Assize of Arms of 1252. Since there existed non standing army(militia) composed of subjects with their personal weapons of war, they made sure King would not raise standing army on his own and misues against them for political or internal purposes. It establishes that to keep and bear arms for war as militia personal capacity and control was their fundamental natural human right.

[...]
[idem]
"Subjects' Arms.

That the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law;"

Having had this fundamental natural human right subverted and denied to them by the former King, this fundamental natural human right is being restored to them, fully and completely as qouted above. If the right was being restored, it must have previously existed. Throughout the English Bill Of Rights, the phrase "allowed by law" is an affirmation, not a constraint. The English Bill of Rights 1688 can be read at http://www.legislation.gov.uk/aep/WillandMarSess2/1/2

(132) The Universal Declaration of Human Rights read with it's Preamble follows the same logic and reasoning as did William Blackstone in his Commentaries, the most influential legal treatise written in English, which has enormous influence in every nation including India which has adopted the Common Law. In detailing the Common Law’s protection of natural human rights, Blackstone first set forth the three primary rights: personal security, personal liberty, and private property. Now let us read relevant portions of COMMENTARIES on the LAWS OF ENGLAND by Sir William Blackstone 1765 below -

BOOK THE FIRST OF THE RIGHTS OF PERSONS
CHAPTER THE FIRST OF THE ABSOLUTE RIGHTS OF INDIVIDUALS
[...]
"In the three preceding articles we have taken a short view of the principal absolute rights which appertain to every Englishman. But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property. These are,
[1 ... 4]
5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c. 2. [English Bill of Rights] and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

In these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen: liberties more generally talked of, than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon it is founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other.

And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed."

"Personal security" equates to "security of the person", that is, the right to be free from assaults or other violence perpetrated by the State or others. It includes the right to keep and use of arms as a last resort when all effective remedies have failed or are not available.

"To preserve these from violation, it is necessary that the constitution of parliaments be supported in it's full vigor; and limits certainly known, be set to the royal prerogative. And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts and law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self-preservation and defense.

And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints. Restraints in themselves so gentle and moderate, as will appear upon farther enquiry, that no man of sense or probity would wish to see them slackened."

It says that enjoying entirely all these rights and liberties, including the right of having and using arms for self-preservation and defense are birthright. In other words all these are natural human rights. The "restraint of law" must be "reasonable", very gentle and moderate.

"For all of us have it in our choice to do every thing that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow citizens."

This means that "good men" do not need the restraint of the law or reasonable restrictions to act in a responsible manner.

"So that this review of our situation may fully justify the observation of a learned French author, who indeed generally both thought and wrote in the spirit of genuine freedom[x]; and who hath not scrupled to profess, even in the very bosom of his native country, that the English is the only nation in the world, where political or civil liberty is direct end of it's constitution.

Recommending therefore to the student in our laws a farther and more accurate search into this extensive and important title, I shall close my remarks upon it with the expiring wish of the famous father Paul to his country, "ESTO PERPETUA!" x Montesq. Sp. L. 11. 5."
Blackstone establishes these rights as belonging to all Englishmen, not just nobility or others.

(133) That Arms Act 1878 was disarming act has even been acknowledged by the Indian Parliament in the Statement of Objects and Reasons of the Bill that became Arms Act 1959. The British Crown, the Parliament and Judiciary worked under British Common Law that evolved over centuries. A substantial question of law is did the British Parliament or its representatives that were enacting the laws in India or its British colonies anywhere in the world have legislative powers to make possession of personal arms or firearms a subject of licensing? License means permission and not a right. To find the answer let us read the relevant portions of English Bill of Rights 1688 and Article IV of Union with England Act 1707.

(134) The Article IV of Union with England Act 1707 can be read at http://www.legislation.gov.uk/aosp/1707/7 It says the following -

"That all the Subjects of the United Kingdom of Great Britain shall from and after the Union have full Freedom and Intercourse of Trade and Navigation to and from any port or place within the said United Kingdom and the Dominions and Plantations thereunto belonging And that there be a Communication of all other Rights Privileges and Advantages which do or may belong to the Subjects of either Kingdom except where it is otherwayes expressly agreed in these Articles"
(135) Above clearly confirms that subjects of Dominions have Rights, including the fundamental natural human right to keep and bear arms flowing from the English Bill of Rights. The British India was a Dominion before 1947. As per the Indian Independence Act, 1947 enacted by the British Parliament, two Dominions of India and Pakistan were created in 1947. The Subjects of both the Dominions got the Rights that are part of English Bill of Rights 1688 and the British Common Law. The same has been explicitly acknowledged by the Articles 19(1)(b) and the Explanation I of Article 25 of Constitution of India. It means we have those rights even today.

(136) Please refer pages 19, 20, 21, 25, 30, 33, 34, 35, 36, 41, 44, 47 under pages titled Opinion of the Court in District Of Columbia v. Heller at http://www.supremecourt.gov/opinions/07pdf/07-290.pdf In this judgment, District Of Columbia v. Heller, the US Supreme Court has acknowledged that the 2nd Amendment and right to keep and bear arms is descending from the English Bill of Rights 1688-89. Similarly since the Indian Constitution is based on the British Common Law foundations and principles, the fundamental natural human rights acknowledged by the English Bill of Rights are also descending into the Constitution of India. It includes the fundamental natural human right to keep and bear arms as acknowledged by English Bill of Rights and also further confirmed by Sir William Blackstone in his Commentaries on the laws of England.

(137) BECAUSE the doctrine of 2nd Amendment in the U.S. Constitution is very much present in the Indian Constitution. The 2nd Amendment of the U.S. Constitution contains mainly three ideas:

(i) a well-regulated militia;
(ii) the security of a free state; and
(iii) two separate rights of the people that may not be infringed — the right to keep arms; and
the right to bear arms.

All the three above mentioned ideas are very much present in the Indian Constitution. It will become more clear by reading the following two paragraphs below -

(138) BECAUSE the right to keep and bear arms is a natural right of individuals under the theory of democratic government. Thus citizens defend themselves, their family, home and their State by forming organized militia and State law enforcement machinery represented by armed forces and police and by forming unorganized, self regulated militia and private law enforcement machinery with military and police powers in personal capacity and control. What the Articles 51A(b)(c),(d) & (i) of Constitution, the Punjab Village and Small Towns Patrol Act, 1918 and the Himachal Pradesh Village And Small Towns Patrol Act, 1964 flowing from Articles 51A(b)(c),(d) & (i) does, is recognize the historic as well as common law right, power, and duty of able-bodied citizens to organize into militias and defend the State. It effectively recognizes that all citizens have military and police powers, and the "able-bodied" ones -- the militia -- also have military and police duties, whether exercised in an organized manner or individually in a crisis.

(139) BECAUSE the Constitution has recognized English common law under Articles 25(2), 35(b), 367(1), 372 and 374. "Able-bodied" is a term of art established by English common law, and is the only qualification besides citizenship on what constitutes the "militia" under Article 19(1)(b) and consequently reflected under Articles 51A(b)(c),(d) & (i). While not well defined in modern terms, it is somewhat broader than just able-"bodied": implicit is also "able-minded" and "virtuous". In other words, persons might be excluded who are physically able to bear arms but who are mentally or morally defective. Defense or security of the "State" under Articles 19(1)(b), 21, 51A(b)(c),(d) & (i) and flowing into Sections 37 to 39, 43, 46, 47, 52 and 60 in Chapter V Arrest Of Persons of the Criminal Procedure Code, Section 129(2) in Chapter X Maintenance of Public Order and Tranquility of the Criminal Procedure Code and Sections 96 to 106 Indian Penal Code includes self-defense and defense of one's family, near and dear ones, friends and neighbors who are, after all part of the State. By establishing human right of self defense/ private defense including defense of one's family, near and dear ones, friends and neighbors with right to keep and bear arms, who are after all part of the State, a basis is laid for requiring citizens to risk or sacrifice their life in defense of the State, and thus the citizen's duty to defend the State is corollary flowing from the inherent right of self defense and right to keep and bear arms, which is considered to prevail in situations in which self sacrifice is not called for.

Grounds based on the Historical lessons and historical laws' inalienable foundational principles flowing into Part III of the Constitution of India -

(140) BECAUSE history of India is also inspiration and forms part and parcel of the Constitution and thus also gets reflected in the Constitution. A dynamic, enduring and living example of militia tradition is of Sikhs of the Khalsa tradition. The Sikhs of the Khalsa tradition have been recognized by Article 25 of the Constitution. This citizen's militia has done invaluable service in defending the freedoms, life and liberties of people from 1699 to 1849 and even to the present day. For historical reference of facts, one may refer to History of the Sikhs 1739-1768 (Evolution of Sikh Confederacies) by Dr. Hari Ram Gupta, History of the Sikhs (Volume 4) by Dr. Hari Ram Gupta and History of the Sikhs, From the origin of the Nation to the Battles of the Sutlej by Joseph Davey Cunningham.

(141) BECAUSE all through the history of human civilization, its history has time and again given its clear verdict about the undeniable importance of the right to keep and bear arms and militia. One may ask what is the importance of right to keep and bear arms and militia? History has repeatedly answered this question and will keep going on to answer it in all times to come. Unfortunately its importance has been often lost in its clouded, myopic or ignorant interpretations. It becomes a slippery slope for those people who are not aware of this fact or do not remain vigilant to protect it. The cost of ignoring or misinterpreting its answer is nothing but loss of freedoms, life and liberty. Then the Constitutional guarantees of freedoms, life and liberty become worthless and not even the worth of paper on which they are written.

(142) BECAUSE the worst possible fall out of this short sightedness, or even plain “cussedness”, on the part of the “powers that be” is that our country is bereft of a “second line of defense”. Article 51 of the Constitution of India talks of promoting international peace and stability. International peace and stability cannot be promoted by mere platitudes. It is promoted by practically removing the incentive for invasion by the invading forces. It will happen when all citizens of the country are well armed and trained to do their fundamental duties in individual capacity and control as elaborated in Articles 51A(b)(c),(d) & (i) of the Constitution. During World War II Japan refrained from attacking the U.S. mainland because every citizen was armed and it would be wasting all it's forces fighting an endless and enormous resistance. Similarly Hitler was not interested in attacking Switzerland because every citizen was armed and he did not want to waste his forces fighting endless and enormous resistance. On the other hand he was able to rapidly capture western European countries that did not have militia tradition in any meaningful sense. Whatever legal arms that were in hands of citizens were confiscating after seizing the gun registers from public authorities.

(143) BECAUSE without guns in the hands of the people, all the other freedoms are easily negated by any mischievous or hostile State power. If one disagrees, ask yourself if the Nazis could have gassed millions of Jews, had the Jews been armed with rifles and pistols — then there weren’t enough SS troops to do the job! Lest we forget, in the Warsaw Ghetto Uprising of 1944, a couple of hundred Jews armed with rifles and homemade explosive devices held off two fully equipped German divisions (about 8,000 soldiers) for nearly two months. What would happen to India, in the absence of a second line of defense, if some country or countries were to attack in future? It needs no great intelligence to visualize the scenario in possible defeat of State forces, whatever guns and ammunition will be in hands of citizens will get quickly confiscated after stealing or seizing the centralized gun database with Home Ministry. Have the government or courts seriously thought about this?

(144) BECAUSE no one can guarantee that the Indian armed forces are forever invincible. Notwithstanding plenty of historic debacles in the Indian subcontinent for ages, let us not forget a recent debacle of 1962. Let us not forget a recent small skirmish in Kargil when the General of Indian Army was quoted in the media sadly saying “we will fight with whatever we have”. Notwithstanding the artillery, areal bombardment and brave face being put in the media, fact remains that the Indian State was unable to push back the intruders. It was only after intense American diplomatic pressure that the intruders withdrew. History may not be an accurate guide into the future but unfortunately it the only guide we have. If there is an important lesson to be learned from history, it is history often repeats itself. Now let me explain the relation of right to keep and bear arms, and citizen's militia in personal capacity and control. It needs to be understood, there are inherent limitations to the capabilities of militia in State capacity and control i.e. armed forces of the State. Once they are defeated or demoralized, it is very costly and time consuming to raise them again into a meaningful fighting force. But the citizen's militia in personal capacity and control is altogether a different matter. This fact holds true even in the recent days and times. The examples are abundant. Keeping the ideologies and politics involved aside, the prominent being Vietnam, Afghanistan and Iraq. In these countries the citizen's militia in personal capacity and control made it unbearably painful and costly for even the armed forces of super powers like U.S.S.R. and U.S.A. to stay permanently.

(145) BECAUSE the regular militia in State capacity and control i.e. standing armed forces of the State are like tiger. The irregular forces of citizen's militia in personal capacity and control is like group of piranhas. When tiger enters water full of piranhas, the teeth and claws of tiger are irrelevant and useless against them. The watch is in the hands of tiger but the time is in the hands of piranhas. The tiger has only two choices, either to retreat to save its life or stay in the water to have its flesh completely eaten up by the piranhas in due course of time. One of the most important features of a stable society is the ability to plan for the future on the basis of its past. For illustration is the historical case of regular standing army of Marathas. It was equipped and trained with the latest and heavy weapons of those times like French canons etc. Just like many people today consider the Indian armed forces invincible, many people of the time having myopic views considered the Maratha army to be invincible. It is a fact of history that Maratha regular standing army failed to effectively deal with repeated invasions of Ahmad Shah Abdali. Once the large regular standing army of Marathas was defeated in the Third Battle of Panipat, the Maratha forces hardly ever regained their previous form and morale. On the other hand the irregular Khalsa forces of Sikh citizen's militia, though much less in numerical strength, was very much adaptable, despite heavy odds and many defeats or setbacks, retained its form and morale. Through the mode of irregular warfare including guerrilla tactics, it was able to effectively deal, ultimately demoralize and defeat invasions of Ahmad Shah Abdali in long run. Thus the irregular forces of the Khalsa citizen's militia played the crucial role as makers and shapers of history of this sub continent by defending freedoms, life and liberty of people, whereas others had failed in their duty. Below is an extract from History of the Sikhs 1739-1768 (Evolution of Sikh Confederacies) by Dr. Hari Ram Gupta, foreword by Sir Jadunath Sarkar(from pages 129 and 130 ) for establishing this fact:

“The Sikhs, however, did not fail in their national duty, in which the Marathas had so miserably acquitted themselves. Even in the face of heavy odds they did not allow the Abdali to pass through their country without striking a blow, as is testified by a Marathi letter which runs:-”Abdali has come to Lahore and fought a great battle with Sikhs, 2000 Abdali troops were slain and Jahan Khan was wounded

By this time the Sikhs had made themselves supreme in the Punjab. They were the only organised power who could defy the tyrannical rule of the Lahore viceroy and could offer resistance to the alien invader. They succeeded where even the Marathas had failed. Therefore, if there was any Indian power which had a moral right to rule over the frontier province of the country, it was the Sikhs.”

Below is another extract from History of the Sikhs by Dr. Hari Ram Gupta(from pages 514-531, Volume 4) for illustration of the importance of irregular forces of citizen's militia:

"The most important factor in the political life of a country is its own security and survival as a nation. It is in this respect that the north-western frontier (This refers to the undivided Punjab, that now lies across Pakistan and India) assumes the most important position. No other land frontier anywhere else has contributed so much to shape the life of the people as this frontier has done in India. The foreign invasions across this frontier have greatly affected not only its political life but also its social life, economic life, religious life, spiritual life, its art, literature, language, thought and culture.

The Hindus never took any interest in their north-western frontier right from the time of Mahabharata. It was the policy of no objection to the entry of foreigners. In Hindu literature there is generally no reference to the north-west frontier. If there is any mention at all, it is in derogatory terms.

The people of the Panjab bore the brunt of all the foreign invasions from the north-west. They would not easily part with their wealth and women. They put up the most stubborn resistance and exhausted the military power and material resources of the enemy within the land of the five rivers. As a result little enthusiasm was left in the invader to proceed farther. The Iranians could not advance beyond river Beas. It took Alexander the Great ten months in advancing from the Hindukush to the Indus, and nineteen months to subdue the Panjab. He had taken as much time in reducing Asia Minor (Turkey), Syria, Iran, Sistan, Afghanistan and Bactria (Turkistan) as he took in subduing the Panjab. His soldiers were so much frustrated that they declined to cross the river Beas.

The Arabs remained confined to Sind and Multan. Mahmud of Ghazni plundered a large part of northern India, yet he could not establish his empire beyond the Ravi. Muhammad Ghori was assassinated in the Panjab. The Slaves, Khaljis, Tughlaks and Lodhis ruled Northern India, but their religious zeal had been consumed in the Panjab. Babar could seize Delhi after invading the Panjab five times. The Mughals could maintain themselves in power by recruiting soldiers, generals and administrators from their homeland in Central Asia. Their religious zealotry was spent in fighting in the Panjab. Mainly political stimulant remained. The main current of religious fanaticism of Muslim invaders was reduced into ripples, having lost its vigour and vitality in the Panjab.

Panjab again witnessed a score of foreign invasions from 1739 to 1799 in sixty years. Nadir Shah invaded India in 1739. Ahmad Shah Durrani attacked her nine times from 1747 to 1770. His son and successor, Timur Shah, led five expeditions from 1774 to 1789. Timur’s son and successor, Shah Zaman, entered India four times from 1793 to 1799.

We see during all these invasions, mainly Panjab alone was the victim of foreign aggression.

The Muslim view of north-western frontier was of welcome to their brethren from across the passes. Their supremacy in India depended upon them. During the Muslim rule of about eight hundred years almost all the lucrative posts both in the civil and military administration were filled by foreign Muslims. The Muslims of Indian origin were generally treated as pariahs.

The Sikh view was to put a stop to the ingress of all foreigners into their homeland. The foreign Afghan hordes stood on the heights of Khaibar Pass. The Mughals anxiously waited to extend their greetings to them from the ramparts of the Red Fort. But the twin were separated by the native land of the long-haired guardians of the North-West Frontier. The two halves looked in despair at Peshawar and Delhi to meet each other. Their eyes could meet only in the new moon of Id. As a result the foreign hordes starved for money and the Mughals starved for want of fresh blood to regenerate themselves.
Gobind Singh’s Khalsa closed the gateways upon the external enemy and clubbed the internal one."

(146) BECAUSE from reading of above paragraphs we see the undeniable duty and importance of the irregular citizen's militia in protecting the freedoms, life and liberty of this land. We also see that regular standing armies of State can provide safety to freedoms, life and liberty no doubt, but only for short and temporary duration until they are not defeated or corrupted. Thus solely banking on regular standing armed forces of State for protecting the freedoms, life and liberty without any second line of defense are a big and foolish gamble based on myopic vision. One the other hand the irregular citizen's militias based on age old martial traditions of selfless sacrifice and valor are long term bet for any nation's life, freedom and liberty. This fact is best summed up by immortal words of Benjamin Franklin "They who can give up essential liberty to obtain a little temporary safety, ultimately loose both liberty and safety." “essential liberty” here includes the right to keep and bear arms. “temporary safety” here means the safety afforded by the State through its regular standing armed forces and police.

(147) BECAUSE we see the undeniable importance of citizen's militia in personal capacity and control. Exactly because of this, the ageless, living historic fundamental duty of citizen's militia in personal capacity and control is also acknowledged under Article 19(1)(b) and the same getting reflected in Articles 51A(b)(c),(d) & (i), 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. Under these acts, in order to do patrolling, able-bodied male inhabitants exercise two fundamental rights, right to assemble (peaceably as well as violently if situation compels) and the right to keep and bear arms. If challenged by violent unlawful elements, the peaceful assembly with arms may transform into a violent assembly in order to safeguard their right to life. If the force of unlawful elements is greater than the inhabitants, then the armed assembly of inhabitants may dissemble violently to safeguard their right to life. And such an assembly may also dissemble with arms peaceably if they are successful in overcoming the force of unlawful elements. The Constitution is not getting offended either. Similarly the natural and human right to keep and bear arms and police powers, both individually and as an assemblage is also embedded and reflects in Sections 37 to 39, 43, 46, 47, 52 and 60 in Chapter V Arrest Of Persons of the Criminal Procedure Code, Section 129(2) in Chapter X Maintenance of Public Order and Tranquility of the Criminal Procedure Code and Sections 96 to 106 Indian Penal Code flowing from Article 21 as citizen's militia in personal capacity and control.

Grounds based on natural laws flowing into Part III of the Constitution of India -

(148) BECAUSE people have been mis-educated to believe that the human civilization is not apart of the natural order of things and thus, we are special, not subject to the immutable laws of action and consequence, as enforced by the laws of nature. Neglecting the role of those who have subverted education, this requires people to be misled enough to not question their education and the opinion of the arm chair “experts”. It also requires people to be misled enough to continue trusting these arm chair “expert” opinions, despite overwhelming contrary evidence. We therefore believe we are immune to facing the consequences of our mis-educated actions or that government or the man made laws will protect us. They cannot and thus will not, for the simple reason that they are also subject to the laws of nature. The laws of nature are inviolable. What is pre-ordained by nature has to be protected, and man or humanity has an obligation to nature.

(149) BECAUSE the fundamental natural rights or fundamental human rights are God given or nature given rights. Fundamental human rights are those fundamental natural rights which are given to us by nature because we are humans. These are the rights that every human being is born with, as opposed to the rights bestowed by the government or by human law. For example: The right to self defense, the right to keep and bear arms are not “conferred” or "granted" by any government document or instrument like Constitution or Bill of Rights or society. Neither are any Constituent Assembly, Constitution or Bill of Rights or society is competent to extinguish these rights. Humans had these rights which were fundamental to them, for enjoying, safe guarding and survival of their life and liberty even before any governments or societies were formed. These inalienable rights include the right of self defense and by extension the right to keep and bear arms, without which many fundamental natural, human, civil, political, religious, and common law rights become quite force less or ephermal. Inalienable human rights cannot be surrendered either individually or by any compact of society. This must please be noted.

(150) BECAUSE without the right to keep and bear arms, the right to life and liberty is like the life of a chicken in a butcher's shop. The chicken has the right of free speech and expression but without the right to keep and bear arms, his right of free speech and expression lacks any force, all his freedoms, rights, life and liberty are at the mercy of decision of the butcher(read oppressive, tyrannical or Police State). All through the human history, only the modes and the means of enjoying the right to keep and bear arms changed with the progress of society. It started with stones, wooden clubs and sticks, then to spears, bows and arrows, then to firearms and the like. These rights are pre-existing, Constitution is not establishing or granting these rights, it is recognizing all such rights and merely guaranteeing these pre-existing fundamental human rights from violation by the State. It shows that even the repeal of such written provisions would not end such rights or the Constitutional protection of those rights under Part III of the Constitution. The only purpose of explicit enumeration of at least some of the rights needed to be made explicit in the Part III of the Constitution was to avoid having future generations with less understanding of the fundamental rights weaken in their defense of those rights. It has turned out to be a good idea.

(151) In order to correctly interpret and understand the Constitution, it is of paramount importance to understand the natural laws of the creation that created it in the first place and allowed it to come into existence. In other words, it is about understanding its connections that flow from the rule according to higher laws of irreducibility, that are much above any written, man made Constitution. In order to be balanced, just and reasonable with the natural laws of creation, the man made Constitutions and laws under them have to be in tune with the irreducible laws of God or nature. If the man made Constitutions and laws under them are not in tune with or respect the parent irreducible laws of God or nature, then they are bound to be unbalanced, unjust and unreasonable and thus bound to wither away in due course of time. Irreducible laws of God or nature or life cannot be reduced further or extinguished by anyone including any Constituent Assembly or Constitution or society. As per irreducible laws of God or nature, Sovereignty is a child and a dependent of Liberty. One may ask “What is the relation of liberty or its foundation with the right to keep and bear arms?” It has inalienable, indivisible, inseparable, irreducible and paramount relation. The relation cannot be comprised under any color or cost. Saying Constitution does not recognize the right to keep and bear arms is clear violation of rule according to higher laws. Since the rights under Part III of the Constitution are based on higher laws than the Constitution, the Parliament even during emergency, is incompetent to derogate these rights by using Article 358(1) except the political rights under Article 19. Similarly since Articles 20 and 21 are directly connected with higher laws than the Constitution, the President even during emergency, is incompetent to order suspension of enforcement of rights under Articles 20 and 21 using Article 359(1). Similarly the right to keep and bear arms has connections that flow from the rule according higher laws of irreducibility that are much above any man made Constituent Assembly or Constitution.

(152) BECAUSE irreducible complexity is a term used to describe a characteristic of certain complex systems whereby they need all of their individual component parts in place in order to function. In other words, it is impossible to reduce the complexity of (or to simplify) an irreducibly complex system by removing any of its component parts and still maintain its functionality. Constitution of India is one such complex system. Also as per irreducible laws of God or nature, liberty regardless of its type or manifestation, is like a three legged standing table. Thus it has a very delicate balance. In order to maintain this delicate balance, all the three legs of liberty have to be firm, in equal amplitude and footing. The three legs of liberty are knowledge, property and violence. Damage or remove any one or more of these three, liberty does not remain liberty. These three are ageless, dynamic, enduring, living facts and truths, able to transcend both space and time. They will last for all time. They are not a Rubick's cube, something to be "figured out" or "solved". Depending whether one is friend of liberty or enemy of liberty, any or all of these three can be used for positive or negative purposes. All fundamental rights are children and dependents of these three facts and truths. Let me explain these three very briefly below for purpose of illustration:

Knowledge includes all kinds of knowledge, all its manifestations and means. Thus fundamental rights of conscience, expression, religion, speech and the like are all also its children and dependents.

Property includes all kinds of property, its all manifestations and means. Thus fundamental right of property, right over one's own body, intellectual property and the like are all also its children and dependents.

Violence includes all kinds of violence, its all manifestations and means. Thus fundamental rights of self defense, right to keep and bear arms and the like are all also its children and dependents.

(153) BECAUSE these three legs of liberty are all inalienably linked together with all the three of themselves, and all through the ages to this day, there is a constant conflict between friends of liberty who protect these three legs of liberty and enemies of liberty who attack these three legs of liberty. Whenever any of the three legs of liberty are damaged or shortened by enemies of liberty, the table of liberty is on the brink of destruction, in due course of time it looses its balance and falls. Now with example of three legged table, I have explained how the three legs or foundations of liberty are important for the very existence and enjoyment of liberty and its subset sovereignty.

For ease of understanding, now let me explain below with another concrete example, about how sovereignty is dependent on liberty, how liberty and sovereignty is bound to fall with the fall of any of the three legs of liberty.

Lion is called King or Sovereign of the jungle not without a reason. He is sovereign because he has all the three pillars of liberty, no other animal in jungle can surpass his ability to protect the three pillars of liberty. He has first pillar of liberty called knowledge i.e. he knows how to hunt. He has the second pillar called property i.e. marks and possesses territory where he hunts. He can unleash violence i.e. powerful teeth and claws. Remove any one pillar of liberty, other two pillars can't support the weight of his liberty. He is no more sovereign. See how it happens in examples of facts and truth below:

Remove or bypass knowledge, like hunter lays a hidden trap. Lion has no knowledge or understanding that there is a trap. He gets trapped. He becomes the slave or prisoner of hunter. His liberty is finished. His life is also at the mercy of hunter. He is no more sovereign.

Remove the property i.e. territory of lion by encroaching on his prey base and his forest. He slowly but surely becomes slave or prisoner. His liberty is finished. His life is also finally at the mercy of hunter. He is no more sovereign.

Remove violence i.e. remove the teeth and claws of lion. He becomes the slave or prisoner of all those who have teeth and claws in the jungle. His life is also at the mercy of enemies of his liberty who have teeth and claws in the jungle. They do what they want, like injure, torture or kill him. His liberty is finished. He is no more sovereign.

(154) Above example is equally and similarly applicable to any Constitution, it's State or it's citizens or persons. Remove or damage any of the above mentioned three pillars of liberty for any Constitution, it's State or it's citizens or persons, liberty is no more liberty for them. They are at mercy of those powers who enjoy all the three pillars of liberty. One may also call the three pillars of liberty as grundnorms of liberty. From all these it becomes clear that if the expression “liberty” used in Article 21 means liberty, then it is undoubtedly bound to have all the three pillars of liberty, including the right to keep and bear arms inalienably sine qua non embedded in it equally for all, including the Constitution, it's State, it's citizens and persons.

(155) Now having understood the importance of the three pillars of liberty and how life and also sovereignty are children or dependent of liberty. And also understood how these three pillars of liberty are core, essence, and foundations of liberty, sovereignty or any of its manifestations, and thus bound to form the constituents of any doctrine of basic structure of any sovereign Constitution. If any of these three pillars of liberty are not in the basic structure of the Constitution or weakened in any way, the Constitution looses its sovereign character. Free State no more remains a free State. The guarantees of protecting various freedoms under Part III of the Constitution are nothing but written and unwritten manifestations of protecting and nourishing of all the three pillars of liberty in equal measure and strength. Even where the Constitution has prohibited or abolished things which it wanted to e.g. discrimination, untouchability, titles, prohibition of traffic in human beings and forced labour, prohibition of employment of children in factories etc., it is doing nothing but acknowledging liberty and as a consequence acknowledging the need of protecting and nourishing one or the other of the three pillars of liberty by affirmative action. Same purpose of Part III, that is protecting and nourishing liberty, is getting reflected in the directive principles of State policy in Part IV and in fundamental duties of Part IVA of the Constitution. Thus we see that affirmative action for protecting and nourishing all the three pillars of liberty to the fullest extent, are of equal and paramount importance to the Constitution and the State under it, as well as for every individual person or citizen that constitutes the State. A serious note of this fact of law must be taken by our custodians of the Constitution lest it becomes too late.

(156) BECAUSE even the most moralistic (modern “natural law”) and non-moralistic (“positivistic”) legal theorists today share a common moral goal: liberty/ autonomy. To prioritize individual liberty/ autonomy is to posit a common good and demand that society be structured for its promotion. We see this, for example, in the contemporary marriage laws in many common law countries, which allow either spouse to demand a unilateral “no-fault” divorce, prioritizing the liberty/ autonomy of the departing spouse over the other spouse’s desire for community and stability. Liberty/ autonomy in the sense of self-actualization and self-definition is taken as a metaphysical highest good (or right), ordering other, lesser goods (or rights). As the U.S. Supreme Court mused in its decision in Planned Parenthood of Southeastern Pennsylvania vs. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” We can and should, on this view, define and choose the nature and meaning of our own existence. And thus the Constitution, ought to be interpreted principally as an enactment for protection of individual liberty/ autonomy, must uphold this choice making quality of liberty/ autonomy, by forbidding laws that might intrude thereon. Academics, too, insist on the link between liberty/ autonomy and human dignity; Neumann, for example, insists on the necessity of privacy rights for human dignity, though he denies that this is a moral claim. Ref. Michael Neumann, The Rule of Law : Politicizing Ethics 56–57 (2002).

(157) Thus, there appears to be at least one knowable common good for modern legal theorists: maximum individual liberty/ autonomy. Moreover, this moral good is found through implicit rejection of the fact/ value distinction. To prioritize individual liberty/ autonomy is to derive the “ought” of choice maximization from the “is” of the capacity to make free choices. Only if we assume that choice making is central to our human nature — our being, our essence, our conscience as it were — can such a view make sense. As a result of this form of reasoning, individual liberty/ autonomy is taken as a fundamental, grounding ideal (one might say a grundnorm) of the Constitution, the implications of which are to be and will be unpacked by judges, so long the rule of law and justice exists, but the further bases of which are not open to question.

(158) Every constitutional guarantee is burdensome to society because it places a barrier between the individual and the State. Every fundamental right that we have come to regard as indispensable involves this tension between individual freedom and State control. The fundamental common law right to remain silent and have counsel present during a custodial interrogation, for example, has been assailed by no less a jurist than Justice White: "In some unknown number of cases the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. Similarly the right to keep, bear arms and use arms is usually at the forefront of various emotional issues that periodically confront society, especially the legal community. Nevertheless, as guardians of the Constitution, the judges have an obligation to interpret the Constitution, irrespective of their personal feelings, so as to carry out not merely the limited intent of the framers of the Constitution but also the doctrines and laws of higher order that make up the Constitution. If judges abandon this obligation, the public will view courts as political institutions, their decisions less rooted in the law than in the personalities and politics of the individual judges, and will view the courts as not expounding the law but rather as handing down social policy in judicial dress, or giving fundamentally political judgments dressed in legalistic garb, to suit the perceived needs of the moment.

(159) Now in light of the above discussed so far, let us try to understand and interpret the relevant portions of the Constitution directly connected to the topic of this petition. Constitution is to be interpreted as confirming to the irreducible laws of God or nature, as a harmonious, contiguous and logical whole, we cannot pick and choose the meaning as per our convenience or personal biases or prejudices. How the Constitution is to be interpreted is also mentioned in the Constitution itself under Article 367(1). Going by Section 28 of the General Clauses Act, 1897, reasoning supported by facts in the Constitution(an enactment) can be cited in competent court of law for adjudication. In my interpretation below, I am also going by the well settled rule that powers are narrow, rights are broad. Delegated powers are to be interpreted as strictly as possible, consistent with the words, and rights as broadly as possible, with presumption in favor of the right, and very strict burden of proof on those claiming a power. In cases of doubt, the presumption is not in favor of a power. This Court has also opined in many judgments that citizens should be able to enjoy the rights guaranteed under Part III of the Constitution to the fullest measure. A constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems.[Francis Coralie Mullin v. Union Territory of Delhi on 13 January, 1981, AIR 1981 SC 746, 1981 SCR (2) 516]. The attempt of the court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction. The wave length for comprehending the scope and ambit of the fundamental rights has been set by this Court in R. C. Cooper's case and our approach in the interpretation of the fundamental rights must now be in tune with this wave, length. [This Court in Maneka Gandhi vs Union Of India on 25 January, 1978, 1978 AIR 597, 1978 SCR (2) 621]

(160) Statutory laws enacted by Parliament are to regulate common law rights for common/ public interest. Fundamental laws(Fundamental Rights) of the Indian Constitution are based on English Common Law.

Common Law is:

• The unwritten Law of the Common man

• Comes directly from higher self/conscience/intuition

• Religious codes of conduct

• Summed up as ‘Harm None’

• These Laws are for Man and protect that is Lawful -

• Law of the Land

• Almost universal Worldwide

• Protects those whose Rights have been infringed upon

• Crime with a Victim i.e. mallum in se crime like murder, theft etc.

Statutes/ Legislation is:

• A Statute is a Legislative Act of a Society

• Formal written agreement which governs a Country, State etc. Which has the ‘Force of Law’ or Color of Law

• Almost always comes with a monetary ‘Charge’

• These Laws are on Man and restrict freedoms that are legal -

• Commercial Law

• Admiralty Maritime Law

• Law of Trade

• Law of The Sea

• Victimless Crime i.e. mallum prohibitum crime like possessing gun(the common law human right of right to keep and bear arms) "without license" under Arms Act. One is paying monetary "charge" i.e. license fee/ tax to get license. One is also paying paying monetary "charge" for offenses and penalties under it in form of fines. These type of laws are an atrocious burden on freedom/ liberty/ common law. That is why they have to be reasonable, least restrictive and State having demonstrated a very compelling State interest so that common law(fundamental laws/ fundamental rights) are not hurt or burdened unreasonably.

(161) BECAUSE the Preamble of the Constitution reflects what is inside the Constitution. Now let us analyze and understand the Preamble of the Constitution. Preamble of the Constitution is quoted below -

WE, THE PEOPLE OF INDIA, having solemnly
resolved to constitute India into a1 [SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and
to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and
worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual
and the 2 [unity and integrity of the Nation];
IN OUR CONSTITUENT ASSEMBLY this twenty-
sixth day of November, 1949, do HEREBY ADOPT,
ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.
1 Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 2, for “SOVEREIGN DEMOCRATIC REPUBLIC” (w.e.f. 3-1-1977).
2 Subs. by s. 2, ibid., for “unity of the Nation” (w.e.f. 3-1-1977).

(162) It says that "We, the people of India" are creating a sovereign State. The people can give only those rights and powers to the State which they have. They cannot give those rights and powers to the State which they do not have. It means "We, the people of India" are a free men and women or a liberated people, and as a consequence of liberty, a sovereign people, are creating a sovereign State for themselves. It also means that in order to create a sovereign State, the liberated and sovereign people have all the rights that come with liberty and it's child sovereignty. It includes the fundamental natural human right to keep and bear arms and the right to be part of unorganized militia in personal capacity and control. Since they have all these rights, that is why they have been able to give all these rights also to the State to create organized militia in State's personal capacity and control i.e. armed forces and police of State and also equally secured these rights and powers for themselves by Article 14. “Militia” is a Latin abstract noun, meaning "military service", not an "armed group". To the Romans, "military service" included law enforcement and disaster response. Today “militia” might be more meaningfully translated as "defense service", associated with a "defense duty", which attaches to individuals as much as to groups of them, organized or otherwise. When we are alone, we are all militias of one. In the broadest sense, militia is the exercise of civic virtue.

(163) Even if just for the limited sake of a faulty reasoning, that the justice, liberty, equality and fraternity are to be "secured" by without arms, then because of Article 14, the right to keep and bear arms of the militia in the State's personal capacity and control i.e. armed forces and police of the State are also against the mandate of the Constitution. This would clearly mean that the Constitution is being unrealistic and going against the irreducible laws of nature i.e. three pillars of liberty we discussed earlier. "We, the people of India" are not separate from the State we have created. If the Constitution is getting offended by "We, the people of India" having the right to keep and bear arms for being part of militia in personal capacity and control, then because of Article 14, surely the Constitution is also getting offended by the right to keep and bear arms by the militia in State's personal capacity and control i.e. armed forces and police of State. Thus we clearly see the error, gross unreasonableness and impracticability of this line of thought. On the contrary because of Article 14, the Constitution is surely not offended either by "We, the people of India" having the right to keep and bear arms for being part of militia in personal capacity and control or by the right to keep and bear arms of the militia in State's capacity and control i.e. armed forces and police of State. Rather it wants justice, liberty, equality and fraternity to be secured equally by both "We, the people of India" having the right to keep and bear arms of militia in personal capacity and control and by the right to keep and bear arms of the militia in State's capacity and control i.e. armed forces and police of the State.

Grounds based on Article 300A, a reflection of Human Rights in Article 21 of the Constitution of India -

(164) BECAUSE Article 300A of the Constitution recolonizes arms as a Constitutional right to property, since Articles 21, 25(1) read with Explanation I in 25, 26, 27, 29 acknowledge arms being a fundamental right including property right, since property is acknowledged as fundamental natural human right by Article 17 of Universal Declaration of Human Rights, Article 2.1 of International Covenant on Civil and Political Rights, Article 2.2 of International Covenant on Economic, Social and Cultural Rights. Similarly right to property is embedded in the Protection of Human Rights Act, 1993 as it acknowledges the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural rights which clearly acknowledge property as a fundamental human right.


Questions of Law

(165) In the preceding paragraphs of this petition, I have clearly established that arms are protected by Articles 13(2),(3)(a)&(b), 14, 17, 19(1)(b), 20(3), 21, 25, 26(b),(c)&(d), 27, 29(1), 265, 300A, 301, 303 of the Constitution of India not only by preponderance of evidence but also beyond reasonable doubt. There is nothing in this Constitution that can be rationally or reasonably construed that people of this country have extinguished their fundamental, natural, historical, human and religious birth right to keep and bear arms.

(167) Arms Act 1959 is a specific legislation enacted by the Parliament, by following the Article 35 of the Constitution, to give effect to the right to keep and bear arms guaranteed by combined reading of Articles 19(1)(b), it's reflection in Articles 51A(b)(c),(d) & (i), and Articles 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution, all read together. Despite this effort by Parliament under Article 35, the following provisions of Arms Act 1959, due to lack of clarity and confusion, are not only causing gross injustices and violation of the fundamental human rights guaranteed in the Constitution but also destroying the very foundations of sovereign relationship between the citizens and the State they created. Above all because of this lack of clarity and confusion, the provisions of Arms Act 1959 are being implemented in a manner that goes against the very core foundations of law, justice and ratio decidendi, as laid down in catena of judgments of this court beginning from Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244 delivered in support of the human Right of Private Defense that -

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

(168) Licensing authorities under Arms Act 1959 have been created from powers under Article 307 read along with Article 265 for purpose of taxing and regulating “trade, commerce and intercourse” i.e. commercial activity related to arms within India. Anything that is not part of commercial activity under Part XIII of the Constitution but is a fundamental right protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution read together, the licensing authorities have no competence or powers of licensing under Arms Act 1959. Legislative competence of Parliament for enacting Arms Act 1959 come from combined reading of Articles 35, 246 under Part XI of the Constitution for relations between the Union and the States read with entry numbers 5, 7, 41, 42, 93, 94, 96 of List I —Union List of the Seventh Schedule and Articles 302, 304, 305, 307 under Part XIII for regulating only “trade, commerce and intercourse” i.e. only commercial activity related with right to keep and bear arms within the territory of India.

(169) Since contractual legislative competence of Parliament, for imposing contractual consideration of taxation by licensing under Arms Act 1959, is limited to regulating “trade, commerce and intercourse” i.e. only commercial activity related with fundamental right to keep and bear arms within the territory of India, that is why powers related to licensing and related punishments, arrests, confiscations, searches, seizures etc. delegated to the State under all the relevant provisions of Arms Act 1959 are only for commercial acquisition, carry, possession, sale, transfer, manufacture, conversion, repair, export, import, transport etc. That is exactly why no prosecution can be initiated under Section 3 without previous sanction of the district magistrate due to Section 39 of Arms Act 1959, because non commercial/ private fundamental right to keep and bear arms is matter of non commercial personal liberty, about which Parliament is fully incompetent to bring under taxation of license, the same Parliamentary incompetence, is flowing into Section 45(c) of Arms Act 1959. Requesting this court to read into and read down for clarity in interest of justice, because gross and irreparable injustice to fundamental freedoms, human rights of life and liberties is happening due to lack of this clarity.

(170) Thus in interest to prevent the continuing and increasing gross injustice, requesting this court read into and/ or read down or strike down, as the case may be, the concerned provisions of Arms Act 1959.

(171) Sections 2(1)(a)&(k) of Arms Act 1959 says -

"2. Definition and interpretation.- (1) In this Act, unless the context otherwise requires,--
(a) "acquisition", with its grammatical variations and cognate expressions, includes hiring, borrowing, or accepting as a gift;
(k) "transfer", with its grammatical variations and cognate expressions, includes letting on hire, lending, giving and parting with possession."
Since the acquisition or transfer of arms and ammunition includes non commercial/ private acquisition, possession or transfer, that is why their meaning in Sections 2(1)(a)&(k) of Arms Act 1959 includes borrowing, or accepting as a gift or lending, giving and parting with possession. Borrowing, or accepting as a gift or lending, giving and parting with possession are self evidently non commercial transactions. This shows that besides dealing with commercial acquisition, possession or transfer, Arms Act 1959 also recognizes non commercial or private acquisition, possession or transfer, which are beyond the licensing competence or purview of the State.

(172) Section 3(1) of Arms Act 1959 says -

“3. Licence for acquisition and possession of fire-arms and ammunition.-1*[(1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:
Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder.”
While the first para of Section 3(1) of Arms Act 1959 deals with license for commercial acquisition and possession of fire-arms and ammunition, the second para of Section 3(1) of Arms Act 1959 clarifies a right that a person, without himself holding a commercial license, has right to possess firearms to include carry any firearm or ammunition for non commercial carry, like for repair or for renewal of the license or indulge in right of non commercial use of firearm. It is so because non commercial/ private acquisition, carry, possession, sale or transfer of firearms or ammunition, are anyways matters of inherent personal fundamental freedoms, life and liberty protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution all read together and thus indeed flowing into various provisions of Arms Act 1959.

Thus to clarify these points of law and fundamental human rights flowing from the Constitution into the Arms Act 1959, the second para of Section 3(1) of Arms Act 1959 clarifies that the commercial license holder, as owner of the property i.e. firearm, has inherent personal/ private right to be a licensing authority to -

(i) issue implicit oral non commercial license to possess for carry or use of his firearm or ammunition within his presence or property, leading to enjoyment by the licensee of his inherent non commercial human right to keep, bear or use arms.

or

(ii) issue explicit written non commercial license to possess for carry or use his firearm or ammunition outside his presence or property, leading to enjoyment by the licensee of his inherent non commercial human right to keep, bear or use arms.

(173) Thus it is clearly established that the requirement of license from State under Section 3 of Arms Act 1959 is only and only for commercial acquisition, possession or transfer. But the State is too confused in making clear distinction that licensing from State can only be for commercial acquisition, possession or carry of firearms or ammunition and non commercial/ private acquisition, possession or carry of firearms or ammunition are matters of personal fundamental freedoms, life and liberty protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution read together and thus cannot come under State licensing.

(174) This confusion of Section 3(1) of Arms Act 1959 is causing irreparable scars of terrorism in minds of citizens and thus preventing them from enjoying their inherent fundamental right for non commercial acquisition, possession or carry of firearms or ammunition. Also those anyhow daring to exercise the inherent fundamental human right for non commercial acquisition, possession or carry of firearms or ammunition, are constantly hounded by police for filing motivated cases under Arms Act 1959, or greedily hounded to terrify or torture by corrupt police officers for extracting hefty bribes, so that prosecutions under the Arms Act 1959 do not visit them. This point of law needs to be clarified in interest of immediately arresting the continuation of irreparable gross injustice and subversion of rule of law from happening.

(175) Section 3(2)&(3) of Arms Act 1959 says -

“(2) Notwithstanding anything contained in sub-section (1), no person, other than a person referred to in sub-section (3), shall acquire, have in his possession or carry, at any time, more than three firearms:
Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment) Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such commencement, the remaining firearms with the officer in charge of the nearest police station or, subject to the conditions prescribed for the purposes of sub-section (1) of section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that subsection.
(3) Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice.”
The arbitrary limits and exemptions in Section 3(2)&(3) of Arms Act 1959 are ultra vires of the Constitution, arbitrary, unreasonable and unjustified because commercial as well as non commercial acquisition, carry, possession, sale or transfer of arms or ammunition are matters of fundamental freedoms, life and liberty protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution all read together.

[goodboy_mentor]

(176) The enhanced Constitutional protection of citizen's right to keep and bear arms in comparison to persons, is flowing from Article 19(1)(b) of the Constitution into every provision of Arms Act 1959 including Section 3(2)&(3) of Arms Act 1959. This can be clearly confirmed by reading Section 13(3)(a)(i) of Arms Act 1959 wherein it provides enhanced protection to citizen, by making it obligatory for licensing authority to issue license for commercial acquisition and possession of firearms, provided the citizen is not among those offending Section 9 or 14 of Arms Act 1959. Keeping this enhanced protection to the citizen by Article 19(1)(b) of the Constitution, Section 3(2)&(3) of Arms Act 1959 also have this protection undeniably embedded in them. But Section 3(2) of Arms Act 1959 not manifesting it expressly and causing very serious confusion. On the other hand, Section 3(3) of Arms Act 1959 is doing exactly the opposite and absurd, by saying that instead of citizens, it is the legal fictional persons like organizations, corporate bodies have no three firearm limit mentioned in Section 3(2) of Arms Act 1959. Whereas the Section 3(3)(a)(i) of Arms Act 1959 read with it's Section 13(3)(b), makes it very clear beyond any doubt that, since every citizen has fundamental right to keep and bear arms enhanced protection by Article 19(1)(b) flowing into Section 13(3)(a)(i) of Arms Act 1959, that is why the legal fictional persons like organizations, corporate bodies have to provide “a good reason” under Section 13(3)(b) for commercial license for right to keep and bear arms.

(177) Section 4 of Arms Act 1959 says -

“4. Licence for acquisition and possession of arms of specified description in certain cases.- If the Central Government is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification, and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.”
While the Section 4 of Arms Act 1959 implicitly recognizes arms as fundamental right that is why no license can be imposed, but it is too vague in making distinction that licensing from State can be only for commercial arms and non commercial/ private arms or ammunition are anyways matters of personal fundamental freedoms, life and liberty protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution read together and thus cannot come under licensing from State.
(178) Section 5(2) of Arms Act 1959 says -

“(2) Notwithstanding anything contained in sub-section (1) a person may, without holding a licence in this behalf, sell or transfer any arms or ammunition which he lawfully possesses for his own private use to another person who is entitled by virtue of this Act or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having in his possession such arms or ammunition:”
What does Section 5(2) of Arms Act 1959 mean? It means while Section 5(1) of Arms Act 1959 deals with commercial acquisition, carry, possession, sale or transfer of arms or ammunition, Section 5(2) of Arms Act 1959 clarifies that no license is required for non commercial/ private sale or transfer to any person who is not prohibited by law from possession of such arms or ammunition, because non commercial/ private acquisition, carry, possession, sale or transfer of arms or ammunition are anyways matters of personal fundamental freedoms, life and liberty protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution read together and thus licensing from State cannot apply.

(179) Section 10(1)(a) of Arms Act 1959 says -

“10. Licence for import and export of arms, etc.-(1) No person shall bring into, or take out of, India by sea, land or air any arms or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:
Provided that-(a) a person who is entitled by virtue of this Act or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having, in his possession any arms or ammunition, may without a licence in this behalf bring into, or take out of, India such arms or ammunition in reasonable quantities for his own private use; ”
Similarly while Section 10(1) of Arms Act 1959 deals with commercial licensing for import of arms etc., Section 10(1)(a) clarifies that no license from State is required to bring in or take out of India arms or ammunition for own private use because since non commercial/ private import, acquisition, carry, possession, sale or transfer of arms or ammunition are matters of personal fundamental freedoms, life and liberty protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution read together and thus State licensing cannot apply.

(180) Section 13(3)(a)(i) of Arms Act 1959 says -

“(3) The licensing authority shall grant -
(a) a licence under section 3 where the licence is required -
(i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection: ”
What does Section 13(3)(a)(i) of Arms Act 1959 mean? It means commercial legal right right to keep and bear arms flowing from Article 19(1)(b) for protection(by citizen professional body guards etc.), commercial sport, commercial crop protection are commercial activities. Since non commercial right to keep and bear arms for self defense or private defense does not require license, self defense or private defense(as mentioned from Sections 96 to 106 of Indian Penal Code) are not mentioned as reasons for getting license.

(181) For commercial legal right to keep and bear arms flowing from Article 21, Section 13(3)(b) of Arms Act 1959 is for license for commercial possession for persons that includes non citizens, legal fictional entities like companies, organizations etc. have to provide “a good reason” for right to keep and bear arms, since anyways every citizen has fundamental right to keep and bear arms enhanced protection by Article 19(1)(b) flowing into Section 13(3)(a)(i) of Arms Act 1959.

(182) Section 14(2) & (3) of Arms Act 1959 says -

“14. Refusal of licences
(2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property.

(3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.”

What does Section 14(2) of Arms Act 1959 mean? It means that if the applicant is not offending anything in Section 9 or 14, then only because he does not have sufficient property cannot become a reason to deny arms license. Since denying firearm only on the ground of lack of sufficient property would mean the applicant is being denied to acquire property(firearm is also a property). Since Articles 21, 25(1) read with Explanation I in 25, 26, 27, 29, 30 and 300A all read together, also acknowledge property as fundamental human right, since property is acknowledged as fundamental natural human right by Article 17 of Universal Declaration of Human Rights, Article 2.1 of International Covenant on Civil and Political Rights, Article 2.2 of International Covenant on Economic, Social and Cultural Rights. Similarly right to property is embedded in the Protection of Human Rights Act, 1993 as it acknowledges the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural rights which clearly acknowledge property as a fundamental human right.

What does Section 14(3) of Arms Act 1959 mean? It means since it is the question of applicant's fundamental human right to keep and bear arms, the burden to provide "reason" to refuse license lies on the State, so that in case the fundamental right to right to keep and bear arms guaranteed by the Constitution of the applicant is infringed, the applicant can approach High Court with the "reason" for refusal provided in writing, to get his right enforced which has been guaranteed by the Constitution.

(183) Section 24 of Arms Act 1959 says -

“24. Seizure and detention under orders of the Central Government. The Central Government may at any time order the seizure of any arms or ammunition in the possession of any person, notwithstanding that such person is entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, and may detain the same for such period as it thinks necessary for the public peace and safety.”
Whereas right to keep and bear arms is clearly acknowledged by combined reading of Articles 19(1)(b), 21, 25(1) read with Explanation I in Article 25 and citizen's Article 19(1)(b)'s reflection in Articles 51A(b)(c),(d) & (i) flowing into the Punjab Village and Small Towns Patrol Act, 1918 and the Himachal Pradesh Village And Small Towns Patrol Act, 1964, the Sections 37 to 39, 43, 46, 47, 52 and 60 in Chapter V Arrest Of Persons of the Criminal Procedure Code, Section 129(2) in Chapter X Maintenance of Public Order and Tranquility of the Criminal Procedure Code and Sections 96 to 106 Indian Penal Code, Articles 300A, 358(1) and 359(1) of the Constitution all read together, make it clear that -

(i) By establishing human right of self defense/ private defense including defense of one's family, near and dear ones, friends and neighbors with right to keep and bear arms, who are after all part of the State, a basis is laid for requiring citizens to risk or sacrifice their life in defense of the State, and thus the citizen's duty to defend the State is corollary flowing from the inherent right of self defense and right to keep and bear arms, which is considered to prevail in situations in which self sacrifice is not called for.

(ii) Article 358(1) makes it clear that State is clearly incompetent to derogate or violate the human right of self or private defense or it's most effective and modern means directly or indirectly under any color or pretext even under conditions of emergency. This view is further confirmed by Article 359(1)that even under conditions of emergency, State is clearly incompetent to derogate or violate the human right of self or private defense or it's most effective and modern means flowing from Article 21, directly or indirectly under any color or pretext, even under conditions of emergency. Article 359(1) also clarifies that even the other rights under Part III cannot be suspended, only the remedial enforcement of such rights may be temporarily suspended. If a person or citizen does not have the means and modes for effective human right of self defense/ private defense, the right would be purely ephemeral and ineffective, but this is exactly what the Section 24 of Arms Act 1959 is doing indirectly. It is a basic principle of law that what cannot be done directly cannot be permitted to be done indirectly. In other words one right cannot be undermined by undermining another right inextricably embedded in it. 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.

(iii) One of the cardinal principles of law and justice are consistency and equality. Section 24 of Arms Act 1959 is exactly destroying these very cardinal principles by saying that the liberty of right to keep and bear arms of person including citizen, can be derogated or violated for no cause or justification and at the same time, the State can enjoy absolute liberty of right to keep and bear arms. Thus Section 24 is destroying the very core foundations of liberty, rule of law and justice, defeating the very purpose of equality before law and justice, defeating the very purpose of Constitutional guarantees in interest of liberty, justice, defeating the very purpose of Arms Act 1959 which has been enacted by Parliament in interest of justice by following the Article 35 of the Constitution, to give effect to liberty and it's right to keep and bear arms guaranteed under Part III of the Constitution.

(184) Thus by reading the above paragraphs, it is clear that Section 24 is not only ultra vires of the Arms Act 1959 as well the Constitution, it is also absurdly, grossly unjust and unlawful, since there is utter lack of proper application of mind, to the point of being a grossly unlawful law been given a cover of legalistic dress, destroying the very foundations of liberty, of rule of law by clearly lacking due process of law or any justification whatsoever for depriving the fundamental human right to keep and bear arms and the Right of Private Defense guaranteed by the Part III of the Constitution. The Section 24 is so vague, over delegated and above all based on the faulty unstated premise, that persons as well as citizens(despite citizens having enhanced guarantee for right to keep and bear arms by Article 19(1)(b)) have no liberty, no inalienable human right of self or private defense or inherent right of defense of the State they have themselves created, thus the State can without any justification or due process of law, disarm anyone at it's sweet whims and fancies at any time. On the contrary, it is a Constitutional fact made abundantly clear by Articles 358(1) and 359(1) that State is clearly incompetent to derogate or violate the human liberty, human right of self or private defense or it's most effective and modern means directly or indirectly under any color or pretext.

(185) Similarly Sections 24A & B of Arms Act 1959 are expanded, malignant version corollary of the absurdly, grossly unjust and unlawful Section 24 of Arms Act 1959, similarly based on the faulty unstated premise, that persons as well as citizens(despite having enhanced guarantee for right to keep and bear arms by Article 19(1)(b)) have no inalienable human right of self or private defense or inherent right of defense of the State they have themselves created, thus the State can without any justification or due process of law, disarm anyone at it's sweet whims and fancies at any time. Similarly all the reasons mentioned for Section 24 of Arms Act 1959 being grossly unjust and unlawful, being ultra vires of the Arms Act 1959 as well the Constitution in earlier paragraphs are also applicable to Section 24A & B of Arms Act 1959.

(186) Just as explained in the preceding paragraphs, similarly Sections 25, 26, 27, 29, 32, 35, 36, 37(a), 38, 41, 42, 43, 44 of Arms Act 1959 are not applicable to non commercial/ private arms or ammunition. Since the State lacks clarity on these Sections of Arms Act 1959, gross injustice is happening. In interest of justice, this Hon'ble court give clarity on this and direct the State accordingly.

(187) Moreover the words imposing the condition that “unless the contrary is proved” in the Section 35 of Arms Act 1959 and “the burden of proving which shall lie upon such person” in Section 36 are contrary to the well settled principle against self incrimination under the Common Law which is guaranteed under Article 20(3) of the Constitution. The need to protect human right of non self incrimination is so important that it has even been made clear in Article 359(1) that State cannot touch it even when the very existence of the State is under peril.

(188) Section 42 of Arms Act 1959 says -

“42. Power to take census of firearms.-(1) The Central Government may, by notification in the Official Gazette, direct a census to be taken of all firearms in any area and empower any officer of Government to take such census.
(2) On the issue of any such notification all persons having in their possession any firearm in that area shall furnish to the officer concerned such information as he may require in relation thereto and shall produce before him such firearms if he so requires.”
What does Section 42 of Arms Act 1959 mean? It means since the right to keep and bears arms is anyways a fundamental right protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution read together, and Parliament lacks any competence to bring non commercial/ private possession of firearms under licensing, the same flowing into the Section 45(c) of Arms Act 1959, that is why there is provision under Section 42 of Arms Act 1959 to conduct a census of firearms within the four walls of Census Act 1948. Since the census of firearms has full protection of Section 15 of Census Act 1948 against any civil or criminal proceedings, all persons are required to furnish information to concerned Census officer, of the firearms under their possession or even produce before him such firearms. The Census of firearms is conducted to find the exact number of modern non commercial/ private firearms held due to Section 45(c) of Arms Act 1959, thus estimate the capacity of mobilization of citizen's militia in personal capacity and control as posse comitatus because Article 19(1)(b)'s mirror image reflection as fundamental duty of under Articles 51A(b)(c),(d) & (i) and it's flowing into the Punjab Village and Small Towns Patrol Act, 1918 and the Himachal Pradesh Village And Small Towns Patrol Act, 1964. Under these acts, in order to do patrolling, able-bodied male inhabitants exercise two fundamental rights, right to assemble (peaceably as well as violently if situation compels) and the right to keep and bear arms. Similarly the right to keep and bear arms, police powers and posse comitatus is also embedded in Civil Defense Act 1968.

(189) Section 45(c) of Arms Act 1959 says -

“45. Nothing in this Act shall apply to-
[........]
(c) any weapon of an obsolete pattern or of antiquarian value or in disrepair which is not capable of being used as a firearm either with or without repair; ”
It becomes clear from above that the Arms Act 1959 does not apply, if any weapon falls in any one or more of the following three non commercial/ private weapon categories:

i) any weapon of an obsolete pattern

or

ii) of antiquarian value

or

iii) in disrepair which is not capable of being used as a firearm either or without repair;

(190) Please note that on one hand, the legislature has taken great pains to define the types of arms, ammunition and firearms in Section 2(1)(b)(c)(e)(h)&(i) of Arms Act 1959, but on the other hand, in order to exclude all kinds of non commercial arms, ammunition and firearms from the scope of Arms Act 1959, the legislature has deliberately used the words “any weapon” in Section 45(c) of Arms Act 1959.

(191) What does Section 45(c) of Arms Act 1959 mean? It means since non commercial/ private acquisition, carry, possession, sale, transfer, manufacture, conversion, repair, test or proof of arms or ammunition are matters of personal fundamental freedoms, life and liberty protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution read together and thus cannot come under licensing of Arms Act 1959, that is why this fundamental natural human right flowing into Section 45(c) of Arms Act 1959 as legal right, does not allow any provision of Arms Act 1959 to apply for any non commercial/ private arms or ammunition that includes their acquisition, possession, sale, transfer or manufacture, conversion, repair, test or proof.

(192) Going by combined reading of Section 45(c) of Arms Act 1959, Rule 2(24), Rules 9(4)(5)(6), Rule 57 of Explosives Rules 2008, one may as a matter of legal right, manufacture, buy, sell or possess non commercial/ private weapons including matchlocks, flintlocks or similar firearms of "obsolete pattern" without any kind of license under the Arms Act 1959. The cap and ball, black powder revolvers would also fall in the category of "any weapon of an obsolete pattern". And to ascertain if a weapon is of an antiquarian value, The Antiquities and Art Treasures Act 1972 tells what is an antiquity. Any weapon that is not less than one hundred years is an antiquity, therefore it also does not require license under Arms Act 1959. Neither do you have to drill holes or spoil their antiquarian value by converting them into non firing weapons. All one has to do is contact the nearest office of ASI and register them under Antiquities and Art Treasures Act 1972.

(193) Percussion caps, gunpowder and small arms nitro compound not exceeding five kilograms, possessed for non commercial/ personal use do not need a license under Explosives Rules 2008. Quoting the relevant portions below -

Rule 2(24) of Explosives Rules 2008 says -

““fireworks” means low hazard explosive comprising of any composition or device manufactured with a view to produce coloured fire or flame, light effect, sound effect, smoke effect (coloured or natural), or combination of such effects and includes fog-signals, fuses, rockets, shells, percussion caps;”

Rules 9(4)(5)(6) of Explosives Rules 2008 say -

“Rule 9. No licence needed in certain cases.— Notwithstanding anything contained in rule 7, no licence shall be necessary for the following cases, namely :—
(4) transport of safety fuse and fireworks;
(5) possession of fireworks not exceeding one hundred kilogram for own use and not for sale;
(6) possession by any person for his own private use and not for sale of gunpowder not exceeding five kilograms and fifty metres of safety fuse in any State other than Bihar, Kerala, Tamilnadu and West Bengal and of small arm nitro-compound not exceeding five kilograms except in the State of Kerala;”

Rule 57 of Explosives Rules 2008 says -

“Rule 57. Small quantities of fireworks exempted.— Nothing contained in rules 49, shall apply to the transport of manufactured fireworks in the custody of a person entitled to possess them without a licence under sub-rule (5) of rule 9:
Provided that not more than five kilograms of manufactured fireworks, securely packed in original packing, shall be so transported in any motor vehicle used for conveyance of more than six passengers.”

(194) Going by the Section 45(c) of Arms Act 1959 and Rule 2(24), Rules 9(4)(5)(6), Rule 57 of Explosives Rules 2008, one can legally possess without license, non commercial/ private weapon/s including weapons of obsolete pattern along with percussion caps, gunpowder and small arm nitro-compound each not exceeding five kilograms for all lawful purposes including shooting sports, target practice, re-enacting film scenes, self defense etc.

(195) If there is problem sourcing percussion caps, gunpowder and small arm nitro-compound etc., any rifle club, association or a shop can obtain licence from District Magistrate. For example license for small arm nitro-compound can be obtained on Form LE-5(under article 5(a) of Part 1 of Schedule IV of the Explosives Rules, 2008) to possess and sell from a shop, at any one time, not exceeding 25 kilograms of small arm nitro compound. Non commercial ammunition re-loaders and owners of weapons of non commercial/ private possession or of obsolete pattern can buy percussion caps, gunpowder and small arm nitro-compound without any license from this shop as a matter of right. Similar right for non commercial/ private acquisition or possession of firearms and ammunition is embedded in Arms Act 1959 for purchase without license from licensed firearm gun shops as a matter of right.

(196) The Section 45(c) of Arms Act 1959, Rule 2(24), Rules 9(4)(5)(6), Rule 57 of Explosives Rules 2008 are not a result of some mistake of drafter or loophole that slipped into the law. They have been purposefully put in because it clearly means since the right to keep and bears arms is anyways a fundamental right protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution read together, and thus Parliament lacks any competence to bring non commercial/ private possession of firearms under licensing, the same is flowing into the Section 45(c) of Arms Act 1959, Rule 2(24), Rules 9(4)(5)(6), Rule 57 of Explosives Rules 2008.

(197) The Notification G.S.R. 991, dated 13th July, 1962 stating exemption for Sikhs and Gurkhas, and Notification S.O. 1920, dated 6.7.1963 stating exemption for Coorgs from requirement of licenses under Arms Act 1959 for possessing Kirpans, Khukris or firearms are not really “exemptions” in the eyes of law or the Constitution but merely a non exhaustive written confirmation about the State's lack of competence to tax by licensing of Constitutionally guaranteed non commercial/ private fundamental human right to keep and bear arms flowing into Arms Act 1959 for all, because the right to keep and bear arms has anyways been acknowledged for all by Articles 19(1)(b), 21, 25(1) read with Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution read together, and same being explicitly reflecting in Article 19(1)(b) and in Explanation I of Article 25. And the right to keep and bear arms also has protection of Articles 13, 14, 17.

(198) From all the above mentioned reasons, fundamental natural human right to keep and bear arms flowing "by operation of law" from Articles 13, 14, 17, 19(1)(b), 21, 25(1) read with Explanation I in Article 25, 26, 27, 29(1) and 300A also go into Sections 3, 4, specifically Sections 10(1)(a) and 13(3)(a) of Arms Act 1959, that is why there is Section 42 of Arms Act 1959 for conducting census of firearms and it needs to be conducted within four walls of Census Act 1948. It needs to be cognized that the concept of licensing for citizens for non commercial/ private possession of personal arms, firearms and ammunition or self made or home made arms, firearms or ammunition in Sections 3, 4 and 13(3)(a) of Arms Act 1959 has no basis in law since anything that is not commercial under Part XIII of the Constitution but a right protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A cannot be matter of licensing or prescription by the State. 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.

(199) This fact of law that a non commercial fundamental right cannot be a subject of licensing or taxation, can be ascertained by reading together Article 19(1)(g), Article 265 and 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 non commercial 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 private 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.

(200) Similarly since non commercial/ private acquisition, carry, possession, sale, transfer, manufacture, conversion, repair, test or proof of arms or ammunition are matters beyond the competence of Parliament and thus embedded in Section 45(c) of Arms Act 1959 for persons and citizens. Citizens have enhanced protection embedded in Section 45(c) of Arms Act 1959 because of Article 19(1)(b) acknowledging arms as fundamental right of citizens(this right already protected by Articles 13, 14, 17, 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A) and Article 19(1)(b)'s mirror image reflection as fundamental duty of citizen's militia in personal capacity and control, under Articles 51A(b)(c),(d) & (i) and it's flowing into the Punjab Village and Small Towns Patrol Act, 1918 and the Himachal Pradesh Village And Small Towns Patrol Act, 1964. Under these acts, in order to do patrolling, able-bodied male inhabitants exercise two fundamental rights, right to assemble (peaceably as well as violently if situation compels) and the right to keep and bear arms. Similarly the right to keep and bear arms, police powers and posse comitatus is also embedded in Civil Defense Act 1968. Similarly since arms are a fundamental right having equal protection of Article 14 of the Constitution, the State is also equally exempt in Section 45 of Arms Act 1959.

(201) Fundamental rights under Article 19 of the Constitution of India offer enhanced protection to the citizens because the citizens have created and run the State. It is clear that arms are recognized as a fundamental right for citizens under Article 19(1)(b), that is exactly why the same citizen's right with enhanced protection as compared with persons, is flowing into Section 13(3)(a)(i) of Arms Act 1959. Similarly the same citizen's right flowing from Article 19(1)(b) with enhanced protection as compared with persons, is flowing not only into Sections 3, 41, 42 and 45(c) but every provision of Arms Act 1959, it's Rules and Notifications.

(202) As held by this Court in Anuj Garg v. Hotel Association of India and Ors. (2008) 3 SCC 1, a law made under Article 19 needs to be tested not merely against “reasonableness” under Article 14 but also be subject to “strict scrutiny”. Thus the fundamental right to keep and bear arms under Article 19(1)(b) can have restrictions under clause 19(3) but subject to very strict scrutiny. Thus the reasonable restrictions under Sections 7, 8, 9, 11, 12 of Arms Act 1959 are subject to very strict scrutiny in interests of citizens in comparison to persons.

Averment

That the present petitioner has not filed any other petition in any High Court or the Supreme Court of India on the subject matter of the present petition.

That this Hon’ble Court has the power and jurisdiction to entertain this writ petition. It is submitted that the issues involved in this writ petition are not limited to a single State but involves the entire nation and if the prayer sought for in the present writ petition are not granted, the due process of law, the rule of law and the entire nation will suffer irreparable loss and injury. Also the security of every citizen done under his individual capacity and control and as a consequence the long term national security of the country as well is at stake.

Given the seriousness of the matter, the Petitioner has no other alternate equally efficacious remedy than to approach this Hon’ble Court.
PRAYER

In light of the facts and circumstances of this case, the Petitioner prays to this Hon'ble Court as under :

(i) Direct the State that since this Court has consistently held in catena of judgments that right of self defense is a very valuable right, serves a social purpose and should not be construed narrowly, as a corollary, the the right to keep and bear arms is a very valuable right, serves a social purpose and should not be construed narrowly.

(ii) Direct the State that Arms Act 1959 is a specific legislation enacted by the Parliament, by following the Article 35 of the Constitution, to give effect to the right to keep and bear arms as fundamental human right guaranteed by combined reading of Articles 19(1)(b), it's reflection in Articles 51A(b)(c),(d) & (i), and Articles 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution, all read together.

(iii) Direct the State that licensing from State under Arms Act 1959 or any other law can only be for commercial acquisition, sale, manufacture, import, export, possession, carry or use of firearms or ammunition. Non commercial/ private acquisition, sale, manufacture, import, export, possession, carry or use of firearms or ammunition are matters of personal fundamental freedoms, life and liberty protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution read together and thus cannot come under State licensing. That is exactly why the Section 45(c) of Arms Act 1959 also includes non commercial/ private acquisition, carry, possession, sale, transfer, manufacture, conversion, repair, test or proof of arms or ammunition. Similarly right for non commercial/ private acquisition or possession of firearms and ammunition is embedded in Arms Act 1959 for purchase without license from licensed firearm gun shops as a matter of right. Similarly similarly Sections 25, 26, 27, 29, 32, 35, 36, 37(a), 38, 41, 42, 43, 44 of Arms Act 1959 are not applicable to non commercial/ private arms or ammunition.

(iv) Strike down the arbitrary limits and exemptions in Section 3(2)&(3) of Arms Act 1959 as ultra vires of the Constitution, arbitrary, unreasonable and unjustified because commercial as well as non commercial acquisition, carry, possession, sale or transfer of arms or ammunition are anyways matters of fundamental freedoms, life and liberty protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution all read together.

(v) Direct the State that for commercial legal right right to keep and bear arms flowing from Article 19(1)(b) into Section 13(3)(a)(i) of Arms Act 1959 is for license for commercial protection by citizen like professional body guards etc., for commercial sport, commercial crop protection activities.

(vi) Direct the State that for commercial legal right to keep and bear arms flowing from Article 21, into Section 13(3)(b) of Arms Act 1959 is for license for commercial possession for persons that includes non citizens, legal fictional entities like companies, organizations etc. have to provide “a good reason” for right to keep and bear arms, since anyways every citizen has fundamental right to keep and bear arms enhanced protection by Article 19(1)(b) flowing into Section 13(3)(a)(i) of Arms Act 1959.

(vii) Strike down Sections 24, 24A & B of Arms Act 1959 since they are grossly unjust, over delegated and unlawful, since there is utter lack of proper application of mind, to the point of being a grossly unlawful law been given a cover of legalistic dress, destroying the very foundations of liberty, of rule of law by clearly lacking due process of law or any justification whatsoever for depriving the fundamental human rights guaranteed by the Part III of the Constitution, including the right to keep and bear arms and the right of self/ private defense.

(viii) Strike down the condition that “unless the contrary is proved” in the Section 35 of Arms Act 1959 and “the burden of proving which shall lie upon such person” in Section 36 since they are contrary to the well settled principle against self incrimination under the Common Law which is guaranteed under Article 20(3) of the Constitution. The need to protect human right of non self incrimination is so important that it has even been made clear in Article 359(1) that State cannot touch it even when the very existence of the State is under peril.

(ix) Direct the State to conduct census of firearms under Section 42 of Arms Act 1959 done within the four walls of Census Act 1948 to find the exact number of modern non commercial/ private firearms held due to Section 45(c) of Arms Act 1959, thus estimate the capacity of mobilization of citizen's militia in personal capacity and control as posse comitatus because Article 19(1)(b)'s mirror image reflection as fundamental duty of under Articles 51A(b)(c),(d) & (i) and it's flowing into the Punjab Village and Small Towns Patrol Act, 1918 and the Himachal Pradesh Village And Small Towns Patrol Act, 1964.

(x) to pass any other appropriate writ, order or direction this Hon'ble Court may deem necessary on the facts and in the circumstances of this case.

FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL AS IN DUTY BOUND, EVER PRAY.

FILED BY:

ADVOCATE FOR THE PETITIONER/ PETITIONER IN PERSON


DRAWN:

FILED ON:

[PRITAM PATEL]

Who will Bell the Cat ?

regards

[goodboy_mentor]

Who will Bell the Cat ?

Who else other than those for RKBA? I have provided the basic foundational masala, ideas, jurisprudence, natural justice, points of law to start with. The matter can be edited, modified, refined or improved as per need.

If you read this post here https://www.indiansforguns.com/viewtopi ... 60#p242878 rahul_does wanted to go ahead with this matter. I have emailed this document to him. His response is positive. Let us see. Since he has already given his phone numbers and emails publicly in post mentioned above, everyone may contact him, co ordinate the matters with him and have a word how to practically go about it.

Have emailed this document to a number of persons including NAGRI. spin_drift of this forum has responded that he has forwarded this document to his lawyer to study it. Similarly all those who have lawyers as their friends, family members or relatives may also share this document with them and may proceed in Supreme Court or local High Court.

[Woods]

(50) BECAUSE the facts in the following paragraphs make it very clear that the Indian State not only failed miserably to respect it's treaty obligations on prevention and punishment of crimes of genocides but also made efforts to hide the facts and truth related to them.

Genocide of Muslims -

From the Sundarlal Committee report that was submitted to the Prime Minister of India. Rather than taking action as per Convention on Prevention and Punishment of the Crime of Genocide, the report was kept secret for decades. Its findings were politically so harrowing that the Prime Minister buried it, and it only came to light in around 2013. The most conservative estimates of the government commission put the number of dead between 27,000 to 40,000 in span of a few days. -

"The Sunderlal team visited dozens of villages throughout the state.

At each one they carefully chronicled the accounts of Muslims who had survived the appalling violence: "We had absolutely unimpeachable evidence to the effect that there were instances in which men belonging to the Indian Army and also to the local police took part in looting and even other crimes.

During our tour we gathered, at not a few places, that soldiers encouraged, persuaded and in a few cases even compelled the Hindu mob to loot Muslim shops and houses."

The team reported that while Muslim villagers were disarmed by the Indian Army, Hindus were often left with their weapons. The mob violence that ensued was often led by Hindu paramilitary groups.

In other cases, it said, Indian soldiers themselves took an active hand in the butchery: "At a number of places members of the armed forces brought out Muslim adult males from villages and towns and massacred them in cold blood."

The investigation team also reported, however, that in many other instances the Indian Army had behaved well and protected Muslims.

The backlash was said to have been in response to many years of intimidation and violence against Hindus by the Razakars.

In confidential notes attached to the Sunderlal report, its authors detailed the gruesome nature of the Hindu revenge: "In many places we were shown wells still full of corpses that were rotting. In one such we counted 11 bodies, which included that of a woman with a small child sticking to her breast. "

And it went on: "We saw remnants of corpses lying in ditches. At several places the bodies had been burnt and we would see the charred bones and skulls still lying there."

The Sunderlal report estimated that between 27,000 to 40,000 people lost their lives.

No official explanation was given for Nehru's decision not to publish the contents of the Sunderlal report, though it is likely that, in the powder-keg years that followed independence, news of what happened might have sparked more Muslim reprisals against Hindus.

It is also unclear why, all these decades later, there is still no reference to what happened in the nation's schoolbooks. Even today few Indians have any idea what happened.
The Sunderlal report, although unknown to many, is now open for viewing at the Nehru Memorial Museum and Library in New Delhi."

Source http://www.bbc.co.uk/news/magazine-24159594

Genocide of Christian Nagas -

"1948 – The new Indian government begins raids of Naga villages in what is now Manipur, south of present day Nagaland. These raids continue for the next decade. NNC elders are hunted down and killed. The Indian government attempts to legitimize their genocide of the Nagas by identifying them as dangerous insurgents.

1958 – The Indian government passes the Armed Forces Special Powers Act, which gives them the right to “shoot to kill” on mere suspicion of “insurgency.” The Indian army, Assam Rifles, goes on to kill over 100,000 Nagas, rounding them up into 59 concentration camps."

Source http://nagalandmusings.blogspot.in/2013 ... nagas.html

Genocide of Sikhs -

"The decennial census operations completed by the time indicated, the extent to which the Sikh genocidal policy initiated by Indira had had its impact during the decade 1981-1991.

Keeping in view the strength of the armed forces, the CRPF and the BSF in Punjab at the time of census operations and the strength of Purbea labour in various districts, and reading in between the lines the provisional population figures issued by the census authorities, one comes to the startling conclusion that in Punjab,

a) the Sikhs have lost anything between ten to twelve lakh (1 to 1.2 mn) people mainly youth, during the decade 1981-91: the break up being over 200,000 thousand each in Amritsar and Gurdaspur districts: over 100, 000 each in Ludhiana, Patiala; and Bhatinda districts; between 50,000 to 100,000 in Faridkot, Hoshiarpur, Kapurthala, Jalandhar, Ferozepur and Sangrur districts; between 25,000 to 50,000 in Rupnagar district.

b) the number of the Sikh women in age group 15-35 in 1991 was higher than the corresponding figure for the Sikh menfolk in the same age group.

The Operation Woodrose was complementary to the Operation Bluestar in scanning the Sikhs in the countryside. The army in baat cheet, talking points, simply laid down that an amritdhari, baptised, Sikh was a potential terrorist. The baat cheet un-abashedly declared Guru Gobind Singh to be the fountainhead of the Sikh militancy and virtually declared war on him. This was for the third time in the history of the Sikhs that such a decree of mass annihilation was issued. The first decree to kill worshippers of Nanak - the Sikhs - was issued by Emperor Bahadur Shah (1707-12) and was repeated by Emperor Farrukh Siyar (1713-19). Now, the Government of India made a distinction between the Sikhs of Guru Gobind Singh and others, as it had effectively used patit, renegade, Sikhs in the Operation Bluestar. Also, Guru Gobind Singh had been persona non grata to M.K. Gandhi, later acclaimed father of “our nation,” who had described him as ‘a misguided patriot’, and had otherwise till his death carried on a campaign against the Sikhs maintaining keshas and keeping kirpans.

During the Operations Bluestar and Woodrose, one wearing kesari turban was summarily shot at, while the one wearing blue turban and keeping kirpan could in certain circumstances save his life after giving up both. Honour of no Sikh was safe. It counted for nothing.

The Sikhs keeping keshas especially became victim of wide witchhunt for the armed forces with youth especially between 15 to 35 years coming for searching inquisitions. The army combed each and every village and town, and with the help of known Congressites, BJP and CPM activists rounded up all the Sikhs active in community services in local Gurdwaras, besides activists of Akali, Dal. Many were summarily shot: and a lot of them got indicted because of generations old enmities. In the words of Sanjeev Gaurl “The army arrested fewer terrorists and more innocent Sikhs during mopping up operations. The army indiscriminatingly raided Sikh homes in the villages, abused their family members and took into custody young people. . . Said a police officer, ‘Sikhs in Punjab villages today hate the army. (It) really let loose a reign of terror’. Go to any Punjab village and they have those sad and tragic stories to narrate to you.”

The author’s enquiries in end-1984 revealed that during the first four to six weeks of Operation Woodrose about 100,000 youth had been taken into custody, and many of them were not heard of again: and about 20,000 belonging to third generation after independence escaped to Pakistan. That was having very adverse repercussions on the Sikh perception of the armed forces as a force of occupation and a vehicle of oppression. The army and the para military forces were breeding terrorism, which was natural reaction to tyranny. The government’s oppressive intentions were clear by promulgation of National Security Act Ordinance on June 22, 1984, and Terrorist Affected Areas Ordinance on July 14, 1984. This was precursor of Terrorist and Disaffected Areas Act.

It was in this melee that a nephew of the author was taken into custody in September 1988 at Ludhiana. The family was not told of boy’s being killed the same night. That made the author, then a senior officer in the Indian Foreign Office to contact Additional Secretary (Police) in the Union Home Ministry, and at his instance K.P.S. Gill at Chandigarh and SSP Ludhiana Mr. Sumed Saini. While in Gill’s office, the author learnt that the police had taken into custody about 30,000 school going boys who had taken amrit, baptism, and they were not being released. Later, the author met at Chandigarh the head of CRPF who entrusted a very senior officer to find out about the boy. He stated that Sumed Saini SSP Ludhiana and one Bahuguna head of CRPF unit in Ludhiana, had liquidated a large body of the Sikh youth, and that, he said, was more or less true for whole of the Punjab."

(51) From Sikhs in History by Dr. Sangat Singh, Publisher- Singh Brothers (October 1, 2002), ISBN-10: 8172052766, ISBN-13: 978-8172052768. One may search for this book on internet, it is also available for free download. Dr. Sangat Singh was member of the policy planning think tank in the Indian Foreign Office. He was an alternate member of Joint Intelligence Committee, the supreme policy planning body of the Government of India, for two years each in early and late 1970’s. in between, for three years, he was Director, strategic studies, in India’s Defense Ministry. Dr. Sangat Singh joined the Ministry of External Affairs in early 1960’s following Nehru’s China war, as a Sinologist specializing in guerrilla warfare. This was shortly overtaken by his numerous high profile stints as an analyst on Pakistan, and a significant one on Iran. He spent his last decade in the foreign office dealing, inter alia, with disinformation. He was known for his incisive analysis. Dr. Sangat Singh was a keen observer of contemporary events and gained a rare insight into the ongoing developments in Punjab. He has half a dozen books to his credit. He did his PhD from Punjab University in 1964. Note: He was among the senior most Sikh to ever work for RAW to date. The Indian Government has never rebutted or challenged his numbers ever. Source https://thirdsikhgenocide.wordpress.com ... lion-lost/

“Denial is the eighth stage that always follows a genocide. It is among the surest indicators of further genocidal massacres. The perpetrators of genocide dig up the mass graves, burn the bodies, try to cover up the evidence and intimidate the witnesses. They deny that they committed any crimes, and often blame what happened on the victims.” - Gregory H. Stanton, Research Professor in Genocide Studies and Prevention at George Mason University in Fairfax County, Virginia, United States. Formerly of the US State Department and the founder of Genocide Watch.

(52) BECAUSE the above mentioned quote is worth noting because the facts are very much applicable to this country, because genocides are officially denied, evidence clandestinely destroyed, witnesses intimidated, and then genocides again repeated with precision. Needless to mention, the Constitutional Courts were too confused to step in and stop the genocides in progress. There have been many more genocides in India than just these three mentioned above. The genocides in New Delhi in October 1984 and in Gujrat in 2002-3 are also well known. With the mischievous view to deny genocides have taken place, they are usually passed off in the media as “riots”.

“Genocide is not just a murderous madness; it is, more deeply, a politics that promises a utopia beyond politics - one people, one land, one truth, the end of difference. Since genocide is a form of political utopia, it remains an enduring temptation in any multi ethnic and multicultural society in crisis.” - Michael Ignatieff

(53) BECAUSE the above mentioned dangerous promise of political utopia of “one people, one land, one truth, the end of difference” please be noted in the Indian context in relation to genocides, since Indian society is also multi ethnic, multi cultural and multi national society. Let us read and understand the definition of nation as quoted from Black's Law Dictionary 9th Edition below -

“Nation - A large group of people having a common origin, language, and tradition and usually constituting a political entity. When a nation is coincident with a state, the term nation-state is often used. Also termed nationality.

"The nearest we can get to a definition is to say that a nation is a group of people bound together by common history, common sentiment and traditions, and, usually (though not always. as, for example, Belgium or Switzerland) by common heritage. A state, on the other hand, is a society of men united under one government. These two forms of society are not necessarily coincident. A single nation may be divided into several states, and conversely a single state may comprise several nations or parts of nations." John Salmond, Jurisprudence 136 (Glanville L Williams ed., 10th ed. 1947)."

So , basically you want relaxation in Arms Act to wage war against this "unnatural state / utopia India " .

Seek psychological advice first before putting these arguments in a court of law .

Added in 1 minute 53 seconds:
If personal agenda and frustration and jehadi religious obligation are dominating a petitioners mind , he's sure to be identified .

[Vikram]

So , basically you want relaxation in Arms Act to wage war against this "unnatural state / utopia India " .

Seek psychological advice first before putting these arguments in a court of law .

Added in 1 minute 53 seconds:
If personal agenda and frustration and jehadi religious obligation are dominating a petitioners mind , he's sure to be identified .

Would you like to express your views more clearly? Please depersonalise your comments when responding.

[goodboy_mentor]

So , basically you want relaxation in Arms Act to wage war against this "unnatural state / utopia India " .

Seek psychological advice first before putting these arguments in a court of law .

Added in 1 minute 53 seconds:
If personal agenda and frustration and jehadi religious obligation are dominating a petitioners mind , he's sure to be identified .

Most probably you need some very serious psychiatrist help to dispel your personal delusions and fears because of the following reasons -

1. you fail to understand a simple fact this petition will be decided ultimately by the wisdom of Supreme Court notwithstanding what is written in it

2. you fail to understand that this petition is not demanding "relaxation" of Arms Act 1959 but in interest of effectively safeguarding inherent fundamental human rights of self defense and right to keep and bear arms, demanding honest and objective interpretation of Arms Act 1959 to set right a fraudulently vague interpretation and enactment of Arms Act 1959

3. you are having some imaginary delusions or fear that filing a petition in Supreme Court amounts to waging a war

4. you are having some imaginary delusions or fear that the author of this thread has a personal agenda, is frustrated, is a "jehadi" and so on

5. you are having some imaginary delusions or fear that if Arms Act 1959 is honestly and objectively interpreted, sky is going to fall on earth

6. you are too afraid to face some facts that include unpleasant, cowardly criminal historical facts that are very well documented by people, including eyewitness, government officials, including Sunderlal Committee formed by Parliament of India. If I am able to recall correctly, it was on 29 September 2008, even the Supreme Court Bench of Justice Markandey Katju and Altamas Kabir recognized killing of innocents who exposed killings by Police in genocide as "worse than genocide". Now the genocide of Sikhs has been officially recognized by more than dozen city councils in America, Ontario State Parliament. Home Minister Rajnath Singh had also earlier acknowledged genocide before media publicly. Delhi State Assembly had also passed motion under Rule 107 on June 30, 2015 unanimously recognizing genocide in which even BJP's legislators supported the motion. You may even check the Delhi Assembly website to ascertain this motion recognizing genocide.

So where is the problem or fear? Is it inside the biases and prejudices of mind only?

[panzernain]

This is an extensive draft. The synopsis and grounds need a thorough reading. I'll need some time to properly do it. Also, during a cursory read, I found the census of firearms being discussed. What about the recent Unique ID registration of weapons? Also the 2013 stay of Fresh licences in UP by Lucknow Bench. It was based on some substantial data. Forgive me if I missed it in the draft.

[goodboy_mentor]

This is an extensive draft. The synopsis and grounds need a thorough reading. I'll need some time to properly do it.

Thank you for taking interest in this draft and spending your valuable time. Please take your time to read and understand it in details. Will wait for your comments.

Also, during a cursory read, I found the census of firearms being discussed.

Parliament has authorized the Central Government under Section 42 of Arms Act 1959 to take census of firearms. If all the firearms are to be possessed only and only under license from State, then question of census of firearms by State does not arise because every licensing authority has details of all licenses it has issued. It means since the right to keep and bears arms is anyways a fundamental right protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution read together, and Parliament lacks any competence to bring non commercial/ private possession of firearms under licensing, the same non commercial fundamental right is flowing into the Section 45(c) of Arms Act 1959, that is why there is provision under Section 42 of Arms Act 1959 to conduct a census of firearms within the four walls of Census Act 1948. Since the census of firearms has full protection of Section 15 of Census Act 1948 against any civil or criminal proceedings, all persons are required to furnish information to concerned Census officer, of the firearms under their possession or even produce before him such firearms.

What about the recent Unique ID registration of weapons?

It is only for firearms held under license from State.

Also the 2013 stay of Fresh licences in UP by Lucknow Bench. It was based on some substantial data. Forgive me if I missed it in the draft.

I have not read the order of Lucknow Bench of High Court hence will not be able to comment on it. But regardless of this, is any High Court competent to put a stay on my or every citizen's legal right as citizen of India to get arms license under Section 13(3)(a)(i) of Arms Act 1959 without due process of law? When I read Article 19(1)(b) of Constitution, I find right to "assemble peaceably and with arms" is also embedded in it. Though it is not a preferred combination so that it does not create terrorem populi. This right to keep and bear arms under Article 19(1)(b) to every citizen with enhanced protection of Article 19 is flowing into Section 13(3)(a)(i) of Arms Act 1959. As per Article 35 of the Constitution the Parliament has enacted Arms Act 1959 to give effect to this right under Part III. Has the High Court taken cognizance of this fact? This is a different fact from mere data. It is well settled matter that stare decisis cannot apply to different set of facts.

My main logic or reasoning in the draft is the following -

(1) Arms are fundamental natural human rights recognized by the Constitution. It can be ascertained by reading Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution all read together. Because of right to equality, the State is also equally enjoying right to keep and bear arms.

(2) Article 19(1)(b) and Explanation I of Article 25 are explicitly acknowledging fundamental right to keep and bear arms. Article 19(1)(b) and 25 are flowing from Article 21. It means right to keep and bear arms is also embedded in Article 21. While interpreting right of self defense in Article 21, Supreme Court has held consistently in catena of judgments begining from Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244 that -

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

(3) It also means every legislation that in any way has implications with the right of self defense, like Arms Act 1959, it's Arms Rules and Notifications need to pass the above test laid down by Supreme Court. In other words the construction and interpretation of Arms Act 1959 and connected legislation be beneficial and harmonious.

(4) Arms Act 1959 has been enacted by Parliament to give effect to this right by following Article 35 of the Constitution. Reasonable restrictions on right to keep and bear arms are already there in the form of Sections 7, 8 and 9 of Arms Act 1959.

(5) Parliament's competence to bring under licensing of fundamental rights including arms is limited to commercial aspects related to fundamental rights. It is incompetent to bring non commercial/ personal/ private aspects of fundamental rights under licensing. Insight into this fact is given by Article 25 of the Constitution. Reading of Article 25 tells me that -

(a) Subject to public order, morality and health and to the other provisions of Part III, the State has no power to legislate or prescribe about arms.

(b) So long arms are not any economic, financial, political or other secular activity, regulating or restricting them is not within legislative or prescriptive competence or powers of the State.

(6) All Articles of the Constitution are in agreement with each other and at equal footing. Thus Article 19(1)(b) and 21 fully respect Article 25 and thus same reasoning holds good for them too.

(7) Article 27 further explicitly confirms that State lacks any competence to tax by licensing or without licensing, non commercial aspects of fundamental rights.

(8) This view is further confirmed by reading of Part XIII of the Constitution. Licensing authorities under Arms Act 1959 have been created from powers under Article 307 read along with Article 265 for purpose of taxing via licensing and regulating “trade, commerce and intercourse” i.e. commercial activity related to arms within India. Anything that is not part of commercial activity under Part XIII of the Constitution but is a fundamental right protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution read together, the licensing authorities have no competence or powers of taxing by licensing under Arms Act 1959. Legislative competence of Parliament for enacting Arms Act 1959 come from combined reading of Articles 35, 246 under Part XI of the Constitution for relations between the Union and the States read with entry numbers 5, 7, 41, 42, 93, 94, 96 of List I —Union List of the Seventh Schedule and Articles 302, 304, 305, 307 under Part XIII for regulating only “trade, commerce and intercourse” i.e. only commercial activity related with right to keep and bear arms within the territory of India.

(9) Since the acquisition or transfer of arms and ammunition includes non commercial/ private acquisition, possession or transfer, that is why their meaning in Sections 2(1)(a)&(k) of Arms Act 1959 includes borrowing, or accepting as a gift or lending, giving and parting with possession. Borrowing, or accepting as a gift or lending, giving and parting with possession are self evidently non commercial transactions. This shows that besides dealing with commercial acquisition, possession or transfer, Arms Act 1959 also recognizes non commercial or private acquisition, possession or transfer, which are beyond the licensing competence or purview of the State.

(10) This view is further confirmed by reading the second para of Sections 3(1) of Arms Act 1959 that -

the commercial license holder, as owner of the property i.e. firearm, has inherent personal/ private right to be a licensing authority to -

(i) issue implicit oral non commercial license to possess for carry or use of his firearm or ammunition within his presence or property, leading to enjoyment by the licensee of his inherent non commercial human right to keep, bear or use arms.

or

(ii) issue explicit written non commercial license to possess for carry or use his firearm or ammunition outside his presence or property, leading to enjoyment by the licensee of his inherent non commercial human right to keep, bear or use arms.

(11) This view is further confirmed by reading of Sections 5(2), 10(1)(a) of Arms Act 1959 that State is incompetent to bring under licensing of non commercial aspects related to right to keep and bear arms, like non commercial sale, purchase, import, export.

(12) This view is further confirmed by reading of Section 39 of Arms Act 1959, permission is required from district magistrate as a procedural safeguard to ensure no prosecution is raised under Section 3 of Arms Act 1959, to include among other things to also include, for any non commercial possession of firearms or ammunition.

(13) 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.

(14) 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.

(15) This view is further confirmed by combined reading of Section 45(c) of Arms Act 1959, Rule 2(24), Rules 9(4)(5)(6), Rule 57 of Explosives Rules 2008 are not a result of some mistake of drafter or loophole that slipped into the law. They have been purposefully put in because it clearly means since the right to keep and bears arms is anyways a fundamental right protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution read together, and thus Parliament lacks any competence to bring non commercial/ private possession of firearms under licensing, the same is flowing into the Section 45(c) of Arms Act 1959, Rule 2(24), Rules 9(4)(5)(6), Rule 57 of Explosives Rules 2008. In other words the combined reading of Section 45(c) of Arms Act 1959, Rule 2(24), Rules 9(4)(5)(6), Rule 57 of Explosives Rules 2008 is a very brief manifestation of non commercial/ private fundamental right to possession of firearms without licensing. The enhanced protection to citizens flowing from Article 19(1)(b) in comparison to persons is also embedded in them.

(16) Article 358(1) makes it clear that State is clearly incompetent to derogate or violate the human right of self or private defense or it's most effective and modern means directly or indirectly under any color or pretext even under conditions of emergency. This view is further confirmed by Article 359(1)that even under conditions of emergency, State is clearly incompetent to derogate or violate the human right of self or private defense or it's most effective and modern means flowing from Article 21, directly or indirectly under any color or pretext, even under conditions of emergency. Article 359(1) also clarifies that even the other rights under Part III cannot be suspended, only the remedial enforcement of such rights may be temporarily suspended.

If the opposite party disagrees to any of the above points it must prove it to the contrary.

[panzernain]

I'm convinced on point 3,4 and 7. Rest need thorough discussion. goodboy_mentor, we need to meet up /on phone, discuss this,but only once I finish reading the complete draft. Btw are you a lawyer or a law student? If that's the case it will be way easy to discuss.

[goodboy_mentor]

I'm convinced on point 3,4 and 7.

It means we are on the right track. In Hindi it would be haathi nikal gaya poonch baki hai Elephant has passed, only his tail is struck.

Rest need thorough discussion. goodboy_mentor, we need to meet up /on phone, discuss this,but only once I finish reading the complete draft.

Yes would request you to take your time, the matter might need thorough reading, probably a number of times. Yes we can communicate/ discuss over phone, PM or email.

Btw are you a lawyer or a law student? If that's the case it will be way easy to discuss.

Not a practicing advocate or lawyer but can assure this is not going to create trouble in the way of communicating.

[panzernain]

I'm convinced on point 3,4 and 7.

It means we are on the right track. In Hindi it would be haathi nikal gaya poonch baki hai Elephant has passed, only his tail is struck.

Rest need thorough discussion. goodboy_mentor, we need to meet up /on phone, discuss this,but only once I finish reading the complete draft.

Yes would request you to take your time, the matter might need thorough reading, probably a number of times. Yes we can communicate/ discuss over phone, PM or email.

Btw are you a lawyer or a law student? If that's the case it will be way easy to discuss.

Not a practicing advocate or lawyer but can assure this is not going to create trouble in the way of communicating.

Ok, so this is how any SLP or PIL is filed. We first of all need to decide who is going to be the petitioner. Also, an advocate on record needs to be engaged. I occasionally appear in SC but I'm not an AOR. The drafting and filing has to be through an AOR 's office. Also there is a certain impatience with the judges of SC. No matter how fundamental the issue is ,they have a tendency to dismiss petitions in a jiffy. So the draft has to convince the court within 2 minutes. Then if they show their interest in lending discretion,we have success. So along with drafting, a good argument is essential. And finally there is this added expense of printing at least 6 - 7 paperbooks of the petition along with fees of the AOR and other miscellenous expenses. Although Court fees is nominal. Do suggest.

[panzernain]

Do send me your mail address goodboy_mentor.