Challenging the prohibition on the import of firearms.

[goodboy_mentor]

Ladies & Gentlemen,
I am not able to understand why some of us are thinking of chances as zero or bleak? Could someone please elaborate, why these thoughts? Is our case based on flimsy grounds? Are we not going to fight the case for our fundamental rights guaranteed by constitution? Shall we not be able to establish violation of fundamental rights and convince the courts?

[amit888_2000]

Dont loose heart, Just remember,

Thomas Alva Edison in 1879, also never invented, Light Bulb.....actually, but his findings led to the path, after which Light Bilb was invented.

(He was neither the first nor the only person trying to invent an incandescent light bulb)

The moral of the instance given above is, nothing is impossible in this small world, and when we have all learned people with us.....
if law will not amend now, then we are the first to lead this path to change in times to come

GOD Bless Us All "Amen"

))))cheers!!!!
Amit

[raimanmeet]

Goodboy,

You are right that we need to have an optimistic view. But we also have to realize that we are fighting with odds against us. So far there is no express fundamental right to bear arms in India. The second amendment in the US constitution is what grants express rights to US citizens. It reads as:

"A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."

On the bare reading of the above it talks about regulated militia and not individual citizens. To understand this we need to appreciate the history of US. US is a federation of states where all the states merged to form the USA. The states have their separate constitution but their constitution cannot be in derogation to the US constitution which they agreed to, on the merger. The USA had to fight for freedom from the british empire and every state had its militia. Even after US had its own army the small state militias continued which were small associations of men who were armed. This was the culture is US due to Conscription (compulsory military service for all men). every man over the age of 18 in US in late 1800 had to carry and own a firearm. Until recently it was not sure that whether it also protected individual right to carry arm. The case decided in 2008 by the US Supreme Court held that though individuals had right to bear arms as a fundamental right but it could be regulated and therefore we see concealed carry laws, ban on possession of automatic weapons in place in US. Also every state can have different laws. Some big cities like Chicago and Los Angeles ban carrying concealed firearms and no license for that is issued. The second amendment has not been deliberated much before the US supreme Court and still its not certain upto what extent the states can regulate it. There is another case which is sub judice before the US Supreme Court challenging the ban on possessing firearms in the city limits of Chicago, this will determine the final conclusion of how far the right can be regulated.

In the Indian scenario when our constitution was being drafted we borrowed many features from the US constitution. But unfortunately the second amendment was left out as the drafters thought that there would not be any need for the Indians to carry arms. so technically we do not have a written right in the constitution. What we are trying to argue is that under Article 21 of the Constitution that grants "right to life and liberty", also gives right to bear arms. This is on the ground that certain rights like right to environment, right to livelihood, right to procreation have been held to be a part of Article 21. These rights were read under Article 21 because the court held that life means meaningful life and not mere animal existence. So self defense is another factor that makes life meaningful.

Having said this it becomes difficult because from the other side the arguments of arms proliferation, national security, law and order come into picture. But there are arguments on both sides. The bigger problem is that many judges are reluctant to grants judgments and orders against the govt as it is the govt. that appoints them. We do have Judges who are not bias and are liberal. We also do not have any precedent and this will be the first case of its kind making it more difficult. Further there are mant groups in India who oppose gun rights and they have a lot of presence in India. As soon as this case comes up there will be international human rights organization that will protest against in. Another problem is that gun rights enthusiasts like us are very few as an average Indian cannot own a firearm so it is not a basic concern for the masses.

All the above factors will make it difficult but its not impossible. We have to work hard towards it in an organized manned, collect all the facts and figures and then approach the court. The Govt. will get the best legal brains to defend them and we need the same. It cannot be done by one person. I have been doing my research on this but I have my limitations. I can initiate the case before Rajastha High Court but I want a pan India approach. I can collect the data from Rajasthan and the MHA for which I have already filed RTI applications a few weeks back through one of my friends in India but what about the other states.

I appreciate your concern but we are fighting against all odds. Its difficult yet possible. That is the reason why I posted this here for comments and forming a core group. I am not sure how many members of IFG are lawyers except me. But if we have more lawyers it will immensely help otherwise I will spearhead this project even if I have to do it alone. I will file the case as I had planned with or without support. If I get the support it will considerably improve the chances of winning.

[winnie_the_pooh]

The govt. can stop the import of firearms through a notification.There is a specific provision in the Arms Act that allows it to do so.This has been upheld by the courts.

The govt is also entitled to exempt an individual or classes of individuals from all or any provision of the Arms Act.This is also specifically mentioned in the Arms Act.The govt. has done this by exempting shooters as defined in the appropriate notifications,those returning on TR and Army officers presented a firearms while on an official visit abroad and allowed to do so by the MOD.

Where is the illegality involved.

On which basis are you going to challenge the restriction on import of firearms.

As far as policy formulation goes,it is the exclusive sphere of the govt. and no court has or will interfere.

Goodboy Mentor

What right are you talking of. Owning a firearm in India is not a fundamental right but a legal right.In fact it is not even a legal right rather a "privilege" (not my words but those of the framers of the Act)

[SURFACE TO AIR MISSILE]

Great raimanmeet,all the way count me in please


SAM

[amit888_2000]

dont worry manmeet, u have our full support, we had made NAGRI, to fight for this same cause, and i had talk to a lawyer, in delhi also, and Abhijeet and few others are already having collected lots of stuff for......

so dont worry..., lets plan to meet first, when u coming next in June to India...

cheers
amit

[raimanmeet]

WTP,

You are right to a large extent but any notification cannot be against the objects that are sought to be achieved by the act. One of the objects was to allow Indians to carry firearms and have reasonable regulation on it. The Article 14 that deals with the right to equality is the main thrust in this case. Why is there a differentiation between people returning on TR, acclaimed shooters and army officials. The classification has to have a well defined reasons. Are the people coming back on TR better off than the ones in India just because they went abroad and stayed there for over 2 years. Or can India without allowing citizens to use firearms for recreation produce world class shooters. Majority of acclaimed shooters have been trained abroad.

Even if the right to carry arm is a legal right it cannot be an illusion. So far it is. It is very difficult to procure a license and even if one gets it he cannot afford to buy a firearm because of the exorbitant prices. The same firearms in other countries are available at the fraction of the price that we pay here.

The government maintains a monopoly on the firearm industry. It sells scrap at exorbitant prices. A .32 pistol manufactured by IOF if sold in US would not even a single buyer at the price at which it is sold in India. These weapons also lack the safety features. Is the government not giving dangerous firearms in the hands of Indians. The government is more than welcome to impose bans on carrying concealed firearms at public places or places like Universities etc. It can also regulate the maximum round capacity of a magazine of a firearm. But what it is doing is on one hand allowing the right but in effect it is an illusion.

The high and might have ready access to the firearms. Politicians have a security cover by the police and still own 3 weapons. On the other hand an average Indian is refused. Is his life less important than that of a politician.

I would be interested that in the last 2 decades how many firearms have been allowed to be imported by DGFT. I am sure there would have been exceptions created for the high and mighty.

The Power to prohibit import or export of arms is granted by virtue of section 11 of the Arms act. It reads as:
The central Govt. may by notification in the official gazette, prohibit the bringing into, or taking out of India, arms and ammunition of such classes and description as may be specified in the notification.

This section no where allows a blanket cover or prohibition on import of firearms. It only stipulates certain classes of firearms. eg. the govt. and restrict the import of any firearms manufactured in a specific country, by an specific organization or a specific class but does not all a complete ban.

The ban imposed in 1986 was on the ground of internal security. Immediately after the operation blue star. Is is still a problem after 20 years. If it is then it shows the ever increasing need for the citizens to carry arms as the security forces have failed miserable. I would love to hear a govt counsel say that they have failed to curb the insurgency and crime in India in the last 20 years.

Apart from all the above technical arguments have the NPB used by the anti social elements. If the govt. says that the arms dealers sell NPB to non license holders prosecute them. When the naxals, terrorists possess AK 47, uzi's and other sophisticated weapons I dont see a rational to not allow law abiding citizens to own NPB and have a ready access to it. In the past even the security forces have asked the govt. to grant them access to more sophisticated weapons to tackle the threats. A terrorist would not wait for one year to get a license, obtaining filthy expensive firearm and then use it for committing the crime.

In you have any specific cases that you say the court has allowed please do share the citation. I don't recall or have so far come across any case dealing with the prohibition on import of firearms in India.

I see the violation of Article 14, 21 and 19.
There is excessive delegation of powers.
The notifications cannot be against the act.

You are right to say that the policy cannot be challenged but we are not challenging the policy. We are challenging the Notification through which the import of firearms were banned. a policy cannot be enforced against the express provisions of the the act. They have to draft notifications which can be challenged before the courts.

-- Mon May 03, 2010 3:57 pm --

@ Amit,

I was a litigating lawyer before the Rajasthan High Court and will be taking ut up again on my return in June. I should be there close to June 15. We can plan a meeting and then start working collectively towards it. I eagerly look forward to meeting you all personally on my return. Presently I am on a sabbatical and took up gun rights as my focus area. There is no better place to learn about the gun right laws than US.

@ SAM,

Thanks for your support. You are in; mate, we need everyone's support to achieve this. I highly value and appreciate your support and enthusiasm.

[amit888_2000]

Good 15th June 2010,
Here I would request Abhijeet (Mundir), to decide, a date and venue, of our meeting with manmeet, and all those people, who like to share there data, with him, and help him to collect all date & compile, for an appeal...

)))cheers!!!!
amit

[grewal]

Count me in Manmeet , I will be more than happy to help.

[goodboy_mentor]

I see the violation of Article 14, 21 and 19.
There is excessive delegation of powers.
The notifications cannot be against the act.

I agree, though I am not a lawyer but whatever limited understanding of law I gathered from internet, I have tried to put them together at the following: http://indiansforguns.com/viewtopic.php ... =60#p98259 &
http://indiansforguns.com/viewtopic.php ... =60#p98364

Even though it is a legal right of citizens to keep and bear arms, the executive has transformed it into a "need" or "no need" issue based on "threat" or "no threat" logic
Reference http://cic.gov.in/CIC-Orders/WB-05032009-01.pdf Page 2 in which DCP Licensing Delhi states the following as RTI reply

"The sanction/ rejection of application for arms license depends upon the need, justification and threat perception etc to the individual. The grant of an arm license cannot be claimed as a matter of right. It is for the Licensing authority to judge the requirement and pass such orders as deemed fit."

in-spite of ruling by High court against such view of "threat"/"no threat"
Reference http://www.allahabadhighcourt.in/ILR/il ... ec2002.pdf Page number 867 Civil Misc Writ Petition number 31573 of 1999 Abdul Kafi verses District Magistrate, Allahabad and another.

[Lucky Luke]

Manmeet,

Very Very laudable intentions and I'm sure that the effort shall result in something positive.
In what way may the IFG members contribute ?

[raimanmeet]

Goodboy & Lucky,

Thanks a lot for updating me on the above. See all the members here have some access to legal documents that I cannot access. Many of us have in the past filed RTI applications and even filed cases.

I plan to compile all this data. We need to see the trends in different states. The rate at which the licenses are refused. The number of politicians holding a gun license as well as police cover and any judgments from different High Courts across the state. We will also have to compile the stats for the number of people prosecuted for the misuse of license. No. of licensed firearms used for perpetrating crime.

This exercise is to prove that guns in the hands of law abiding citizens does not pose a threat to national security and will go a long way ahead in supporting our argument when we go before the court. I want that IFG should have a core team working on this. Then we need to have state level groups who would collect data in their respective states. This data would be collected, compiled and published.

We will use this data effectively to put forth our arguments. I also propose to file writ petitions at the same time on the same date before all state High Courts all across India. It will create a nation wide debate and we will be able to tackle all the questions with the help of the data.

Prior to filing the petitions the core group will do a brain storming and put the copy for comments. Once the comments are incorporated we will strike and commence the battle. I look forward to meeting Mr. Abhijeet Singh and other IFG members on my return.

After the meeting we will release the action plan and let everyone know how to go about it. As of now I urge everyone to keep a track of such state specific cases or RTI applications being filed and their response. It will help us later.

[amit888_2000]

BRAVO, guys, carefully drive ur car, keep a close eye on ur TARGET, without a noise, this time we have to hit them hard.....but with all precautions.....

cheers
amit

[Georgian21]

Yes...

Use RTI Bullets as they are the peices of Information given by Babus... we only have to make them work to our advantage.

Guys - if you post the departments address and the contact person from whom the information can be derived, we can flood them with RTI applications and collect the data we need.

Regards
Gopal

[winnie_the_pooh]

Just a question that we need to put to ourselves

"Do we want only imported firearms or do we want reliable well made firearms regardless of where they are made?"

If you want that former then you want that only those who travel abroad should be able to get a good firearm

If you want the latter then you are thinking of each and every person who is legally entitled to own a firearm

Personally I have no problem buying a pistol made by TATA/Mahindra/L&T/Bajaj or any other Indian maker as long as it is well made.

Open up gun manufacture and you would have another lobby working for you.One that will have money and the willingness to spend it.Unlike now.