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

[goodboy_mentor]

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.

Fully agree with your views. One IFG member rahul_does wanted to file the petition through his class fellow who is now AOR in Supreme Court. He had mentioned it here in this post viewtopic.php?f=4&t=24511&start=150#p243735 Few days ago had emailed this draft to him also, his response has been so far positive. Let us see what his AOR has to say in this matter. Meanwhile, I am also emailing the link of this thread to him also so that his AOR can also read it.

Do send me your mail address goodboy_mentor.

Please check your PM, emailed the email id.

Would like to add - this discussion is extremely useful and interesting as it is bringing more clarity about the matters related to Arms Act 1959. It is a learning experience for me.

[panzernain]

I'm glad to help. Thanks

[goodboy_mentor]

Adding more thoughts on this topic -

Since arms are fundamental right under Articles 19(1)(b), 21 and 25 of the Constitution, that is why Parliament has enacted Arms Act 1959 to give effect to the right to keep and bear arms using Article 35 of the Constitution. If arms are not fundamental right under Part III, then question of using Article 35 does not arise. Moreover there is equality under Part III, if State can enjoy RKBA, then citizens can also enjoy RKBA.

Licensing under Arms Act 1959 is not for arms but for licensing and taxation of the "activity" related with arms(a fundamental right). This is the most important point to be noted - "activity". The activities are like sale, transfer, manufacture, test proof, shorten, purchase, possession, use, import, export etc. State is not competent to license arms(a fundamental rights) but it can put reasonable restrictions, regulate by licensing, tax commercial "activity" connected with fundamental rights. If the "activity" is commercial it can invoke it's authority(licensing authority) under Article 307 and Article 265 for taxation.

If the "activity" like sale, transfer, manufacture, test proof, shorten, purchase, possession, use, import, export etc. connected with arms(a fundamental right) is non commercial/ private/ personal, then State is not competent to license or tax that activity. To prevent misuse of due process of law and secure the ends of justice, Sections 5(2) of Arms act 1959 clarifies that if activity of sale or transfer is non commercial/ private/ personal, no license is required for such activity.

Similarly to prevent misuse of due process of law and secure the ends of justice, Section 10(1)(a) of Arms Act 1959 clarifies that if the activity of import or export is non commercial/ private/ personal, no license is required for that activity.

Similarly to the Sections 5(2) and 10(1)(a) of Arms Act 1959, to prevent misuse of due process of law and secure the ends of justice, Section 3 of Arms Act 1959 has provision embedded in it that says if the activity of possession is non commercial/ private/ personal, no license is required for that activity. This can be confirmed by reading the second para of Sections 3(1) of Arms Act 1959. In order to prevent misuse of due process of law and secure the ends of justice the second para of Sections 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 for activity of possession 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 for activity of possession 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.

As a corollary to Section 3 of Arms Act 1959, Section 39 of Arms Act 1959, in order to prevent misuse of due process of law and secure the ends of justice clarifies that no prosecution is to be raised under Section 3 of Arms Act 1959, for any non commercial/ private/ personal activity of possession of firearms or ammunition, without permission from district magistrate as a procedural safeguard. This Section 39 of Arms Act 1959 is similar to Section 482 of Cr.PC.

Similarly 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/ personal fundamental right flowing from Liberty of Article 21 of right to sale, transfer, manufacture, test proof, shorten, purchase, possession, use, import, export etc of "any weapons" including firearms without any application of any provision of Arms Act 1959, that are of an obsolete pattern or of antiquarian value. The enhanced protection to citizens flowing from Article 19(1)(b) in comparison to persons is also embedded in them. The muzzle loading firearms, 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.