Possession of arms under the Arms Act, 1959 and how to get one

INTRODUCTION

The Arms Act, 1959 is an Act of Parliament of India which regulates matters relating to acquisition, possession, manufacturing, sale, transportation, import and export, and licencing of arms and ammunition. It also empowers government officials to exercise powers about the matter. Like every other substantive law, it lays down the penalties and punishments associated with violation of rules related to this act. This Act which deters many Indians to own weapons to ensure that if there were another Indian uprising, it would be less effective

History of the Arms Act

The very first instance involving the use of guns by the Indian people which caused alarm among the then individuals in power- the British, was the sepoy mutiny of 1857. This unsettling event during colonial times involved the introduction of the infamous Enfield rifle by the British for use by the Indian sepoys. To use the rifle, however, the sepoys had to bite off the lubricated cartridges which were greased with a mixture of pig and cow lard. This tactic insulted the religious sentiments of the Muslims and Hindus respectively and caused mass violence and discontent among the Indian sepoys. This gave momentum to the sepoys to unite and cause a violent uprising against the British officials. 

The British, on realizing the rapidity with which the Indians were able to put their differences aside and join hands to fight against their oppression decided that the only way to prevent any future mass uprisings against them was to establish an Act that restricted the Indians from possessing any arms. This gave rise to the Indian Arms Act, of 1878. According to this Act, only those Indians who had prior permission or a proper license were allowed to possess arms. This Act further regulated the manufacture, sale, possession and carrying of firearms and was implemented during the tenure of the then Viceroy of India, Lord Lytton. 

The hypocrisy of this Act was evident as Europeans were conveniently exempted from the provisions of the same while strict penalties and punishments were put forward for Indians if they were found owning any type of weapon. 

After independence, the Government of India passed the Indian Arms Act, 1959 which recognised the necessity for certain law-abiding citizens to possess and use firearms for sports, crop protection and self-defence. This Act was followed by the Arms Rules of 1962. 

Right To Bear Arms In India

The Indian scenario regarding the right to bear arms is completely different from the  United States of America. It has not been given the protection of the Indian Constitution. The right to bear arms is regulated by the Arms Act 1959. The basic objective behind the act is to consolidate, regulate and amend the laws in India relating to arms and ammunition to stop the circulation of illegal weapons and crimes using these illegal weapons. According to this legislation, no person should acquire or possess or bear any arms or ammunition unless the person has a license which has been issued in accordance with the provisions of this Act. The Act defines various terms such as possession, acquisition, sale, import, export and manufacture. It mentions the rules and regulations attached to these terms. It also deals with the licensing of the arms, the procedure which needs to be followed and the fees required for the same. It also talks about the punishments which are there for breaking the rules mentioned in this Act.[xii]

Thus all aspects of gun control and possession are driven by this legislation and the right has no constitutional significance. However, in certain cases, the right to self-defence has been included under the ambit of Article 21 of the Indian Constitution. In the case of Ganesh Chandra Bhatt, Justice Katju had taken the above view. Ganesh Chandra Bhatt had applied for the license of a revolver. Even after fulfilling all the necessary formalities for obtaining a clearance, the license was not granted. The petitioner approached the Allahabad High Court. Justice Katju in this particular case ruled that if an application has been made for a weapon which does not come under the category of prohibited weapons, and if three months have passed and there has been no communication, it would be deemed that the license has been granted by the government.[xiii] He opined that the right to bear arms is included in the right to self-defence, which being a natural right should come within the boundaries of Article 21 which talks about the right to life.  He mentioned that worshipping firearms during Diwali and Dussehra and using firearms in Mahabharata illustrates that this right is related to the dignity and self-respect of the citizen and the right to life with dignity is guaranteed by Article 21. However, this decision was taken before the Mumbai 1993 bomb blast. This decision has been overruled by subsequent judgements and as of now, the settled point is that right to bear arms is governed by the Arms Act only and is not constitutionally protected.

 objectives of The Arms Act, 1959?

 The basic objective behind The Arms Act,1959 is enshrined in its Preamble, which states, “An Act to consolidate and amend the law relating to arms and ammunition”. It aims to reduce the circulation of illegal weapons and the resultant crimes.

Also, the Act seek to classify firearms and other prohibited weapons so as to ensure –

• that dangerous weapons of military patterns are not available to civilians, particularly anti-social elements;
• that weapons for self-defence are available for all citizens under license unless in other circumstances. According to this legislation, no person should acquire or possess any arms or ammunition unless the person has a licence which has been issued in accordance with the provisions of this Act; and
• that firearms required for training purpose are made easily available on permits.

What set of arms and ammunition are ‘prohibited’ under this act?

The Arms Act,1959, Section 2(i) defines “prohibited arms”. These are firearms, including artillery, anti-aircraft and anti-tank firearms; weapons designed to release any noxious liquid, gas or another such thing. The object and reasons of this Act intended to exclude knives, spears, bows and arrows etc from the definition.

And Section 2(h) of the act defines “prohibited ammunition”. It includes rockets, bombs, grenades, shells, missiles, etc.

The Arms Rules, 1962 also lays down the classification of arms and ammunition in columns 2 and 3 respectively of its Schedule I. The Central Government by the publication of a notification in the Official Gazette has the authority to specify any other prohibited arm and ammunition.

Mere possession of Arms without knowledge is not punishable

 under The Arms Act as held by Hon’ble High Court of Bombay in Rachelle Joel Oseran v. The State of Maharashtra and Others on 6^th April, 2018 whilst relying on the Apex Court’s judgment in the case of Sanjay Dutt v/s State through C.B.I., Bombay (1994 SC), wherein the Apex Court while construing the word “possession” occurring in the said provision held that it would mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession.

How many firearms are allowed per person?

The Arms Act, 1959 allows a person to have three licenced firearms.  The Bill proposes to reduce this to one firearm per person.  This would also include any firearms that may have been given as inheritance or as an heirloom.  Excess firearms must be deposited at the nearest police station or licensed arms dealer within one year of the passing of the Bill.  The Bill also extends the duration of a licence from three years to five years.

Note that in 2017, 63,219 firearms were seized from across India under the Arms Act, 1959.  Out of these, only 3,525 (5.5%) were licenced firearms.  Further, 36,292 cases involving firearms were registered under the Act in 2017, of which only 419 (1.1%) cases involved licenced firearms. [1]  This trend persisted even at the level of specific crimes, where only 8.5% of the murders committed using firearms involved licenced firearms. [2]

Types of arms

The Act categorises under Section 2, the firearms which an individual can possess into two main categories:

1. Prohibited Bores (PB), which can be used only by the Army, Central Paramilitary forces or the State police.
2. Non- Prohibited Bores (NPB), which can be used by all individuals who hold a valid arms license.

The primary basis of the distinction between the two is on the measurements of the bore, which is the thickness or diameter of the bullet. 

The 2008 Mumbai terror attacks saw a change in the gun ownership norms. Prior to the attack, prohibited bore firearms were allowed to be used by both defence forces personnel and family heirlooms. Post the attacks, however, only those individuals who face ‘serious and imminent threat’ to their own person or family members as a result of being residents of terrorist-prone areas, or are potential targets of terrorists as a result of the nature of the jobs, are allowed to possess PB firearms. The PB licenses can only be granted by the Central Government. 

Necessary reasons demanded by law for the possession of guns

Before knowing the procedure for getting the gun license, it is important for the readers to know that on what basis the civilians can apply for guns in India. From Section 35 to 46 of Arms Rule 2016 specifies special category for issuing the license namely:

1. License for the destruction of wild animals which poses a threat to human beings and crops. This comes under the protection of life and property which is, in turn, a reason for self-defence. 
2. License for the purpose of target and training purpose (the trainer must be an adult and the trainee must not be below 15 years of age and not above 21 years of age).
3. License for sports shooting association.
4. License for shooting ranges.
5. License for accredited trainers.
6. Quantity of ammunition for sports person, shooting associations etc.
7. License to museums.
8. License for arms and ammunitions for theatrical, film or television production. 
9. License to an international shooter, who has come to India for participation at shooting events in India.
10. Acquisition, possession and export of arms or ammunition by tourists visiting India.
11. License for firemen free zone.

Procedure to be followed

Before following the procedure, a person needs to fulfil the basic age criteria that a person must not be less than 21 years of age, he must be of sound mind and must have a justified reason for acquiring a gun license. After these basic conditions are confirmed the following procedure must be followed for acquiring a gun license in India:

Filing of an application

Section 13(1) of the Arms Act 1959 pertains to the procedure of application, which must be in accordance with Chapter II of Arms Act 1959 and also the prescribed fee must be paid. Moreover, gun license formalities are available at the Indian Ordnance Factories. 

Call for the report

Section 13(2) of the Arms Act 1959 empowers the licensing authority to call for the detailed report made by the police officer of the nearest police station within a prescribed time period. In case the police officer fails to submit the report then the licensing authority may use its discretion and may either approve the application or refuse it. 

License for a different purpose 

In case of self-defence the license for smoothbore can be granted. However, in the case of sports and crop protection the license for muzzle loading gun can be granted. If in case the licensing authority is satisfied that muzzle loading gun is not sufficient then it may grant a license for any other gun. 

Satisfaction of Licensing authority

After undergoing all the due procedure and most importantly after the licensing authority is satisfied with the justification given in the application, the license for specific purpose is granted.

Rules regarding ancestral guns

A license for a gun can be transferred by the person after his death to his legal heirs after following due procedure which is as follows:

1. A license holder may make an application on a plain paper and this paper must be attached to Form A.
2. Moreover, if the original license is expired then the application of its renewal can be made in Form A. All it requires is 2 passport size photos and non-objection of heirs.

Circumstances under which the license may undergo variation, suspension and revocation

The following procedure for variation, suspension and revocation is prescribed under Section 17 of the Arms Act, 1959. 

In case the holder of a license is prohibited

If in case the licensing authority is satisfied by the fact that the holder of the license is prohibited under this Act or under any other law, or Statute abstaining him from possessing or acquiring or carrying any arms or ammunition for the time being in force. 

Necessary for peace and order

If the licensing authority feels that it is necessary for peace, security and public safety, it may suspend or revoke it the license. 

Fabrication of information 

If the licensing authority confronts with the fact that the license holder hides some information or has given false or wrong information it may suspend or revoke his license. 

Beach of a condition

If in case any condition for giving license is contravened and breached or there was a non-compliance of the notice by the holder of a license. 

Application for revoking of license

The holder himself has given the application for revocation of license to the licensing authority.

Holder convicted by the court

When the holder of the license is convicted by the court, then his license may be suspended or revoked. 

Hence, the High courts, appellate courts, the central government has the power to suspend the license. The holders are supposed to submit their license to the authority as soon as it is suspended or revoked.

Prohibitions

Section 2(1)(h) of the Act contains a list of ‘prohibited ammunition’ which includes any ammunition containing any noxious liquid, gas or any other such thing and includes rockets, bombs, grenades, shells, missiles and articles designed for torpedo service and submarine mining. 

Further, the prohibited arms enumerated in Section 2(1)(i) of the act include adapted firearms that provide a continuous discharge of missiles on applying pressure to the trigger or until the magazine containing the missiles is empty as well as any weapons designed to discharge noxious liquids and gases. The list also includes artillery, anti-aircraft and anti-tank firearms. 

Section 7 of the act prohibits the possession, acquisition, manufacture or sale of the prohibited arms and ammunition as stated above. Section 9 of the act further prohibits the acquisition and possession, whether by sale or transfer of the firearms to young persons (those individuals who have not completed 21 years of age). Sections 24A and B of the act prohibit the possession of notified arms in disturbed areas and the carrying of notified arms in or through public places in disturbed areas respectively. 

Relevant case laws in context of the Arms Act

Right to possess arms and ammunition as a fundamental right under Article 21

In the case of Ganesh Chandra Bhatt v. Distt Magistrate, Almora & Ors. (1993), the issue was whether the right to bear arms formed a part of the right to self-defence, which is a facet of the right to life and liberty under Article 21 of the Constitution. In this case, the Court observed the following:

• The right to bear arms did indeed fall within the ambit of Article 21, under the right to self-defence. 
• If despite the applicant having followed the due procedure to obtain the license for a non-prohibited firearm, he/she still receives no communication from the authorities at the conclusion of three months, the license is deemed to have been granted by the government. 
• The custom of worshipping firearms during the festivals of Dussehra and Diwali, which finds its roots in the Mahabharata is linked with the self-respect and dignity of a citizen which was essential for him/her to enjoy their right to life granted under Article 21. 

This decision, however, was consequently overturned in the aftermath of the 1993 Bombay bomb blasts, as a result of which the constitutional protection granted to the right to bear arms was abolished and the right to bear arms has henceforth been governed solely according to the provisions of the Arms Act and is recognized as a legal right under the same. 

‘Conscious possession’ as a core ingredient to establish guilt for an offence punishable under Section 25 of the Arms Act

In the case of Hari Kishan v. State (NCT Of Delhi) (2019), the issue was with regard to the interpretation of the word ‘possession’ under Section 25 of the Arms Act which dealt with the offences and penalties for individuals which resulted in imprisonment for a minimum period of three years, extendable to seven years with a fine. 

The petitioner, in this case, was found to be in the alleged possession of a live cartridge in the side pocket of his bag which was detected by officials who were conducting the baggage check at the Saket metro station. The petitioner, as a result of this finding, was immediately charge-sheeted under Section 25 of the Arms Act. 

The petitioner claimed that he was utterly shocked and surprised as he did not have any knowledge of the presence of the live cartridge in his bag’s side pocket and instead he was framed for the same. The petitioner had a clean record. It was also proven that there was no firearm or any weapon at all in his possession. Further, he had no knowledge of the presence of the live cartridge, or in other words, he was definitely not in conscious possession of the live cartridge. 

He stated that Section 25 of the act covered conscious possession and that mere custody without the awareness of the nature of such possession could not constitute an offence under the Act. The petitioner further drew the Court’s notice to the fact that the provisions of the Act could not apply in the present case as according to Section 45 of the act itself, ‘the acquisition, possession or carrying by a person of minor parts of arms or ammunition which are not intended to be used along with complementary parts acquired or possessed by them of any other person’ does not fall under the commission of an offence. 

The Court agreed with the petitioner’s arguments and in the fact that there was not a “whisper of averment in the First Information Report (FIR) as averred in the charge sheet that the petitioner was aware of being in alleged conscious and knowledgeable possession of the ammunition in question, the FIR against the petitioner as well as the proceedings emanating therefrom were quashed”.

The facts of the above case are similar to the case of Rachelle Joel Oseran v. The State of Maharashtra and Others (2018), which dealt with the issue of ‘conscious possession’ and the Court in this case as well held the same verdict as stated above. 

The Arms (Amendment) Bill, 2019

The main feature of the Arms (Amendment) Bill, 2019 was the modification of the definition of ‘arms’ to include firearms, swords and anti-aircraft missiles. Despite the attempts made by the previous act to curb the nexus of illegal firearms and criminal activity, the use of illegal firearms in the commission of offences was still rife in society. Additionally, the validity period of the arms license was extended from three to five years and the number of arms permissible to be within an individual’s possession (provided he/she is carrying a valid license) was reduced from three to two. This included arms passed on by way of a family heirloom. Under the list of prohibitions, the obtaining or procuring of unlicensed firearms was added as well as the conversion of one category of firearm to another without a valid license, which included modifications done to increase the efficiency of performance of the firearm. 

One of the concerns raised with regard to the limitation of the number of arms permitted for possession was by the competitors of professional shooting as a sport in India. In order to address these concerns, the Ministry of Home Affairs, via a notification posted on the 24th of February, 2020, permitted an increase in the number of firearms that could be kept by professional shooters, as well as an enhancement in the quantity of ammunition which was to be used for their practice. 

Penalties for offences

The quantum of punishment according to the Arms (Amendment) Bill, 2019 has been almost doubled as compared to the Arms Act of 1959. For example, the punishment under Section 25 (1AA) of the 1959 Act which dealt with the manufacturing, selling, repairing and possessing prohibited arms, was a minimum of seven years of imprisonment which could be extended to a maximum of 10 years. The new amendment, however, extends the minimum period of imprisonment to a period of 14 years and the maximum term can extend to imprisonment for life.

CONCLUSION

The latest plan of the Ministry of Home Affairs is to claim a National Database of Arms Licenses, that search out comprise an official record of the keepers of weaponry licenses, in consideration of manage the unchanging and hold banned activities at a minimum. As of January 2021, enumerations show that in spite of the exertions of the body to curb the menace of criminal gun misdemeanors, India resumes to have the 2nd highest number of deaths on account of the use of guns, most of that are not listed and illegitimate. India cannot be distinguished to the USA with regard to weapons reduction as the concluding is a grown nation, accompanying a bigger level of learning and a lower breach rate than India. The management is more adept in the USA in organizing the flow of weaponry in the country and conducting analyses of the arms applicants. India, though mobile aligned, still has a long way to go.

The question of either pieces can always gain constitutional care in India has existed argued by many things for a very long time right from our very own legendary independence warriors. According to Mahatma Gandhi, “Among the many crimes of the British rule in India, past will consider the Act robbing a whole nation of weaponry as the blackest. If we want the Arms Act expected abolished, if we be going to discover the use of weaponry, here is a beautiful moment. If the middle classes show willing help to the Government in the time of allure trial, distrust will cease, and the ban on owning weaponry will be remote.”

Dr B. R. Ambedkar’s views on firearms, in another way, was entirely opposite as maybe implicit from welcome report, “I personally myself cannot create how it hopeful possible for the State to continue activity allure administration if all individual had the right to investigate stock exchange and purchase miscellaneous collection of mechanisms of attack outside some allow or difficulty from the State.”