NOC/PROCEDURE

[mundaire]

Everyone may find the following ruling by a 5 judge bench interesting:

http://indiankanoon.org/doc/211722/

In effect it strikes out the portions of Justice Markandey Katju's judgement which equated the right to keep and bear arms with Article 21 of the constitution.

Cheers!
Abhijeet

[goodboy_mentor]

First of all let me tell though this judgment overruled the judgment of Hon'ble Justice Katju, it is not the last word. It is open to be challenged in competent courts. It must be remembered that the judge/s writing the judgements are human being after all and they can interpret to their understanding which may not be always perfect. The judgment which passes the test of nearness to the statement of objects and reasons can be termed as law of the land. This judgment does not appear to be so to me. After reading this judgment it appears as if a great deal of effort has been given to "justify" the reasons for arriving at a predecided judgment. Most important of all, the relevant facts to the case appear to have been ignored in order to arrive at the judgment. On the contrary this judgment itself appears suffering from the "per incuriam" rule. Following are the reasons for my observation:

36. Sections 13 and 14 of the Act as no such inference can be construed from the phraseology of the aforesaid Sections and also the intention of the Legislature.

Did the Hon'ble Justices read the objectives of Arms Act before coming to the conclusion about "intention" of the legislature?

In order to understand "intention" of legislature and certain provisions of an Act,the meaning of the words contained therein, are not the sole basis of an interpretation of those, or the only basis to reach an understanding of them.

When any Bill is intorduced in any House of the Parliament, along with the title of the Bill,the member introducing the Bill also lays out the salient features of the Bill and the purpose of introducing the Bill(or the objectives of the Bill).In order to understand the meaning of the power of the govt. one should also look at what the objectives were of introducing the Bill[The Indian Arms (Ammendment) Bill(No.49 of 1953)]

The most relevant are below:-

" (b)(ii) that weapons of self-defence are available for all citizens under license unless their antecedents or propensities do not entitle them for the privilige;and

(iii)that firearms required for training purposes and ordinary civilians are made more easily available on permits;...."
Reference: http://indiansforguns.com/viewtopic.php?f=4&t=2779

36. There can be a reasonable and just explanation on behalf of the District Magistrate for the delay in the disposal of the application for the grant of an arm licence made by a citizen and as such the ratio of the above cases that the licence should be deemed to have been granted is not only contrary to the provisions of Sections 13 and 14 of the Arms Act, but would also endanger public safety and national security".

How did Hon'ble Justices come to a general conclusion that NPB weapons would endanger public peace and national security? Did they check the objectives of Arms Act as mentioned above, before arriving at the conclusion? Do they mean that the insurgency in JK and Northeast is being sustained by NPB weapons obtained on licenses? Did they check if the people who have decided to endanger public peace and national security really have the need to obtain licenses for NPB weapons when they have AK 47s, RPGs, hand grenades, landmines, time bombs etc. etc? Or do the Hon'ble judges think licenses are also been given for these weapons? Hon'ble Justices assumed that all the citizens of this country are living in conditions as secure as that of the courtroom of the Hon'ble Court. Before reaching conclusion, did the Hon'ble Justices check if people living in the countryside in the states where law and order is not good, are living under constant undeclared threat of criminals? Hence firearms are essential for men and women to protect their life, integrity, honour and dignity.

Did the Hon'ble Justices, read under Chapter VI Miscellaneous, the Section 40:
Protection of action taken in good faith.

40. Protection of action taken in good faith.- No suit, prosecution or other legal proceeding shall lie against any person for any thing which is in good faith done or intended to be done under this Act.

What is this above clause for? When there is a delay in issue of arms license, why can't state have good faith in it's citizens and arms license be deemed to have been issued, state can issue the arms license at it's own speed and hand it over to the citizens later on. By causing delay the state should not be unduly infringing upon the Right to protect Life. What is it that is "checked" by the Licensing Authority before granting of Arms License that is not available by RTI Act 2005?

37. A reading of the relevant statutory provisions of the Arms Act would show that no time limit has been prescribed therein for the consideration of an application for the grant of an arms licence, nor is there any provision to the effect that if the application is not finally decided within a particular time frame, the licensing authority shall be bound to grant the licence, or that the licence shall be deemed to have been granted.

Do the Hon'ble Justices contemplate that the law abiding citizens should wait indefinitely to get an arms license for NPB weapon, even if it means keeping their life and property open to attack by criminals. Hon'ble Justices assumed that all the citizens of this country are living in conditions as secure as that of the courtroom of the Hon'ble Court. Before reaching conclusion, did the Hon'ble Justices check if people living in the countryside in the states where law and order is not good, are living miserable lives under constant undeclared threat of criminals? Hence firearms are essential for men and women to protect their life, integrity, honour and dignity. Did the Hon'ble Justices check what is the average time taken for issue of licenses at licensing authourities? How many applications are received and how many are rejected and on what grounds?

Did the Hon'ble Justices, read under Chapter VI Miscellaneous, the Section 40:
Protection of action taken in good faith.

40. Protection of action taken in good faith.- No suit, prosecution or other legal proceeding shall lie against any person for any thing which is in good faith done or intended to be done under this Act.

What is this above clause for? When there is a delay in issue of arms license, why can't state have good faith in it's citizens and arms license be deemed to have been issued, state can issue the arms license at it's own speed and hand it over to the citizens later on. By causing delay the state should not be unduly infringing upon the Right to protect Life. What is it that is "checked" by the Licensing Authority before granting of Arms License that is not available by RTI Act 2005?

38. Equally unsustainable is the view that the right to carry non-prohibited fired arms comes within the purview of Article 21 of the Constitution, nor indeed one can we subscribe to the theory as expounded by M. Katju, J. In Ganesh Chandra Bhatt's case 1993 (30) ACC 204, that it is only an armed man who can lead a life of dignity and self respect.

What is the purpose of obtaining Arms License under Arm Act 1959? Self protection. What does it mean? It includes protection of Life from being violated/taken away by crime. If the State is reducing the right to protect Life from crime, to just a privilege(a plaything in hands of the executive), what is the State violating? The answer is nothing but Right to Life guaranteed under Article 21 of Constitution of India. Did the Hon'ble Justices check, what is the point of having sections 96 to 106 of IPC if the citizens do not have the means to defend themselves? Did they check numerous rulings of Hon'ble Supreme Court on the Right to Private Defense?

Hon'ble Justices assumed that all the citizens of this country are living in conditions as secure as that of the courtroom of the Hon'ble Court. Before reaching conclusion, did the Hon'ble Justices check if people living in the countryside in the states where law and order is not good, are living miserable lives under constant undeclared threat of criminals? Hence firearms are essential for men and women to protect their life, integrity, honour and dignity.

38. As rightly held in Kailash Nath's case(supra), obtaining of a licence for acquisition and possession of fire arms under the Arms Act is no more than a privilege.

What is the purpose of the privilege for Arms License under Arm Act 1959? Self protection. What does it mean? It includes protection Life from being violated/taken away by crime. If the State is reducing the right to protect Life from crime, to just a privilege(a plaything in hands of the executive), what is the State violating? The answer is nothing but Right to Life guaranteed under Article 21 of Constitution of India. Did the Hon'ble Justices check, what is the point of having sections 96 to 106 of IPC if the citizens do not have the means to defend themselves? Did they check numerous rulings of Hon'ble Supreme Court on the Right to Private Defense?