By Justice Markandey Katju-
(Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own)
Before the British came to India the situation in our country was that in almost every house there were some arms. Possession of arms was regarded as a sign of dignity and self-respect. Even today in our country in many communities on Dussehra day arms are worshipped, which is symbolic of the respect given to arms in earlier times.
The Mahabharat, which is the longest epic in the whole world, is full of the use of arms. Thus, Arjun goes to divya-lok to get arms from the gods (which he subsequently used in the Mahabharat War). Thus, in our culture, the value of arms for leading a life of self-respect and dignity has been accepted.
When the British came to India they had to face armed resistance from the feudal kings. Due to their technological and organizational superiority, they gradually overcame this resistance and spread their rule in India. It was only after putting down the Mutiny of 1857 that the British decided to disarm the Indian people.
Having been shocked by the sudden, widespread uprising against them they decided that to avoid such revolts in the future they must (1) disarm the Indian people (2) divide the Indian people ( on religious lines ). This policy was implemented so effectively that up to Independence in 1947, there was hardly any significant militant uprising against them.
The Arms Act, 1857 was enacted for disarming the Indian people, and it provided that no Indian can have in his possession a gun or sharp-edged object ( except for household or agricultural use ) without a license from the District Magistrate, and such licenses were rarely granted. Carrying such a weapon was declared a crime punishable by upto 3 years jail sentence.
Even after Independence, the rigors of the Arms Act and Rules thereunder continue to make it difficult for law-abiding citizens to possess firearms for self-defense whereas terrorists, dacoit-gangs and other anti-social or anti-national elements use not only civilian weapons but also bombs, hand grenades, AK 47, Bren-guns, Sten-guns, 303 bore service rifles and revolvers of military type, for perpetrating heinous crimes against society and the State.
The position in our country today is that unfortunately, the law-enforcing authorities are not providing adequate protection to the citizens. The result is that decent, respectable and law-abiding citizens are defenseless if a gangster or criminal enters their house with a weapon, or accosts them elsewhere. If such a criminal enters one’s house with a weapon he can loot the entire property there, dishonor the women and do as he pleases because an unarmed person cannot be reasonably expected to put up resistance against a person carrying a gun or revolver. If, on the other hand, one has a revolver or pistol with him he can put up resistance against such criminals. In my opinion, if the Arms Act is substantially amended by allowing citizens to bear arms, though with certain regulations, crimes will go down and will not go up as some people think. In these days the situation is that the criminals are armed, whereas the law-abiding citizens are not easily granted an arms license and thus they are at the mercy of the criminals.
Article 21 of the Indian Constitution states “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
In my opinion, the right to bear arms is embedded in Article 21 of the Constitution and hence it is a fundamental right. No doubt this right, like all fundamental rights, is subject to reasonable restrictions, but the reasonability of the restriction must be judged from the point of view of the prevailing social conditions and not in the abstract
In the U. S. Constitution, there is a specific provision stating that citizens have the right to bear arms. This Article in the Bill of Rights states “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.”
There is no doubt no similar specific provision in the Indian Constitution. However, many rights which have not been specifically provided in the Constitution, have been read into Article 21 by judicial interpretation, e.g. the right to privacy, the right to livelihood, etc
In this connection, it may be mentioned that in the Second World War when Germany was about to attack Britain in 1940, British Prime Minister Winston Churchill in one of his famous speeches said to the British people “Arm yourselves and be ye men of valor”. In other words, Churchill recognized the reality that an unarmed person cannot reasonably be expected to be valourous when confronted with an armed criminal. But a criminal will be afraid to attack a law-abiding citizen if the latter is armed.
A new Arms Act was enacted in 1959 by the Indian Parliament, which made a distinction between a ‘prohibited arms’ and non-prohibited ones.
Under Section 2 (1) ‘prohibited arms’ means:
(i) firearms so designed or adapted that if pressure is applied to the trigger missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty, or
(ii) weapons of any description designed or adapted for the discharge of any noxious liquid, gas or such other thing and other such things and includes…such other arms as the Central Government may by notification in the Official Gazette specify to be prohibited arms.
Section 7 prohibits acquiring, possessing or transferring prohibited arms except with the authority of the Government.
Section 14 of the Arms Act 1959 entitles the authority concerned to reject an application for an arms license if he thinks the applicant is ‘unfit’ for some reason. But the word unfit is totally vague.
The most important difference between the 1959 Arms Act and the 1878 Act is that the former makes a distinction between prohibited arms and non-prohibited arms, while in the latter there is no such distinction. In my opinion the correct interpretation of the Arms Act, 1959 is that under its provisions an application for prohibited arms is not to be ordinarily allowed, whereas an application for a non-prohibited arm is ordinarily to be allowed. Such an interpretation will be in consonance with the Statement of Objects and Reasons, as well as the prevailing social conditions. Hence the word ‘unfit’ in Section 14 should be interpreted to mean that the applicant for some exceptional and strong has disqualified himself from holding a license e.g. if he is a hardened criminal or is involved in heinous crimes, otherwise, all applications for licenses for non-prohibited arms must be allowed.
“Every person has a right, subject to the restrictions contained in Section 99, to defend–
First–His own body and the body of any other person against any offense affecting the human body.
Secondly–The property, whether moveable or immovable of himself or of any other person, against any act which falls under the definition of theft, robbery, mischief, or criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass ”.
Now the right of self-defense must be an effective right. How can it be effective when a law-abiding citizen is unarmed while the criminal is armed with a country-made pistol or gun (if not a Kalashnikov or AK 47) ? Hence on a reasonable interpretation of Sections 13 and 14 of the Arms Act 1959 read with Sections 96-106 I.P.C. it follows that an Indian citizen has a right to bear non-prohibited arms.