Gun Laws In India , the need for enforcement and Reform

The use of country made firearms and such unlicensed weapons are rising exponentially for criminal activities in India . Despite India having a very tough gun control act , it is home to the second largest civilian firearms in the world . It is reflected by the statistics of the year 2019 that , 88% of all crimes involving firearms involve the use of unlicensed ones , which are hard to be traced and identified by the investigating authorities due to their casual and country-made origins . Even in the forensics department , it is hard to determine the range of the wound and is difficult to make an investigative ballistic report based on an injury caused by an unlicensed or a country made firearm due to a plethora of reasons . It is also to be taken into consideration the the Gun laws in India are draconian and need immediate amendment to cut out this prolific menace of the huge and ever-growing arms trade in the country , which is becoming a breeding ground for violence , crime , black money , international money laundering , corruption , and unrestricted and un-regulated use of the force of arms by un-authorized civilian entities and bodies .

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INTRODUCTION-

Ever since the invention of gun powder and firearms, mankind has seen lot of bloodshed. May be it is war, terror, insurgency or crime; firearms have changed the very dimension of the game. Time and again peace activists rally for a world without nuclear weapons, free from weapons of mass destruction. Atomic bombs silently sit in their silos and have never been used since World War II, but on the other hand small arms have killed more people than any other weapon in the world. If we think prudently small arms are the real weapons of mass destruction. Understandably ?civilian? possession and ownership have been closely regulated by the governments around the world. On one end of the spectrum we have the United States of America, where the Second Amendment to the Constitution guarantees every one of its citizen ?right to possess firearms[1] , unless someone specifically prohibited by law. On the other end are UK and India where strict statutory guidelines are in place for the civilian ownership of firearms[2]. ?Even though, India is regarded as a nation having one of the toughest gun control legislations in the world (Indian Arms Act 1959 has very stringent rules for granting gun licenses). [3]It was done with the right intention, but has resulted in a paradoxical effect. Our country has acquired a dubious distinction of having large number of Civilian Firearms second only to the United States of America[4]. The total estimated civilian owned firearms in the whole world is about 650 million out of which India accounts for approximately 40 million. What comes as a shocker and is mindboggling to know, out of these just 6.3 million or 15.75% are licensed firearms (, the rest are ?unlicensed, illegal guns?. ?[5]These may be country made guns called ?Desi-Kattas? or factory-made guns smuggled across the international border. This notorious truth is reflected by the fact that according to National Crime Record Bureau?s annual report of the year 2011, number of victims murdered by unlicensed firearms is 7 times more than those killed by the licensed ones. 2964 persons were murdered by the unlicensed guns as against 404 by the licensed[6]. ?Three states viz. Uttar Pradesh, Bihar and Jharkhand account for 66.4% murders committed by firearms in India and overwhelming 92.8% of these were committed from illegal firearms. According to a brief released by Small Arms Survey, out of 8 top dangerous megacities in India; 5 were from the state of Uttar Pradesh. The list was topped by Meerut which is about 70 Kms from national capital, New Delhi[7]. According to one study, there are about 3, 00,000 illegal firearms in the national capital [8]. In the year 2011, Delhi saw 63 murders being committed by firearms and 90% of these were from illegal ones .. There are many possible theories behind the proliferation of the Desi-Kattas primarily in UP; some of them include: a) Guns are regarded as status symbols ?[9]b) With the growth in GDP, more people have the money to buy guns c) Presence of traditional gunsmiths (since British Raj days, who had passed on the knowledge of gun making from generation to generation) d) Availability of abundant raw materials e) Poor law enforcement ?f) Cheap cost ?As discussed earlier, the procedure to obtain a civilian firearm license is very difficult. Even if one manages to get them, the costs of legal firearms are astronomically beyond the reach of most people. On an average a simple Desi-katta costs INR 500-1000/- only, ?as against a standard factory made 0.32" Revolver which comes with the price tag of INR 63,000 plus taxes. ?Thus Desi-katta has been an ideal weapon for criminals as it is cheap and after commission of crime it can be ?easily disposedoff?. Again it will be a herculean task for the law enforcement agencies to file a watertight case against them sans the very weapon of offense. From the crime scene to the courtroom, Forensic Medicine and Forensic Science are vital part of investigations. Forensic best practices are fundamental for recognizing and preserving all items of evidence. The criminal justice system relies heavily on the impartial objective data provided by them to build cases based on unequivocal physical evidence in addition to eyewitness statements and circumstantial evidence. The role of trained autopsy surgeons and forensic ballistics experts are paramount in firearm cases. But little credible research has been undertaken and published in the study of Desi Kattas. One such study was done in Central Forensic Science Laboratory, Chandigarh, India where 300 country-made firearms were studied. ?They found that 92% Desi-Kattas comprised of country made pistols , 12 were shotguns and 12 were revolvers. Out of these country made pistols, 228 were capable of firing .303 or .315” rifle cartridge and 48 were capable of firing 12 gauge shotgun cartridges. Thus broadly Desi-Kattas can be classified as 0.315/0.303 in. single shot pistols, 0.38/0.32 in. revolvers and 12 bore pistols .

THE INDIAN LAW , AN OVERVIEW .

Weapons have been an integral part of the development of the human race and if there is one thing that can be attributed to the parameters of same growth rate as of Human Beings as a species, it would be undoubtedly be the Weapons. From the Pre Historic rocks tied to the sticks to the modern fully automatic guns, nuclear weapons and many other they have evolved as per the need of the society to show its power, from power to eliminate single target destruction to annihilating millions at a time have been achieved, and the relation of weapons, power and human is another story.

A weapon, arm, or armament is any device used in order to inflict damage or harm to living beings, structures, or systems. Weapons are used to increase the efficacy and efficiency of activities such as?hunting,?crime,?law enforcement,?self-defense, and?warfare. In a broader context, weapons may be construed to include anything used to gain a strategic, material or mental advantage over an adversary.

As with every other aspect of human life the right to posses arms cannot be left absolute as such an step may lead to chaos, every country based on its needs puts restrictions upon which kinds of arms can be possessed by its citizens or not, in India the law has evolved to the present extent after various events, after the revolt of 1857 British put in place the measures to secure that uprising never happens and for this Viceroy Lord Lytton brought into existence the Indian Arms Act 1878 ensuring that no Indian can posses any weapon, the Arms Act of 1959 scrapped away the previous law and in 1962 the Arms Rules were brought in to supplement the Arms Act.

The Arms Act is divided into six chapters and has 45 Sections; the Act extends to whole of India.

What are Arms:??The act defines the arms in words “arms means article of any description designed or adapted as weapons for offence or defense, and includes firearms, sharp-edged and other deadly weapons and parts of machinery for manufacturing arms, but does not include articles designed solely for domestic or agricultural uses such as lathi or an ordinary walking stick and weapons incapable of being used otherwise as toys or of being converted into serviceable weapons.” The question of what is to be considered as arms was raised various times, such as In?Neel vs. State of West Bengal, it was held that a sword is an “arm” under the meaning of Sec. 2(1)(c) of Arms Act, whereas in?Nanak Chand vs. State of Delhi,?it was held that?Kirpan?does not falls under the category of Arms. In?Surrinder Singh v. State of Haryana,?it was held that “In view of Sec.2(1)(b) of the Arms Act, a cartridge can be an ammunition for any firearm if it is live.”

It further it is provides that the length of the barrel is to be measured from muzzle to the point from where the charge is released.

Prohibited and Non Prohibited Arms:?All the fully automatic firearms which are capable to discharging the projectiles until the pressure from trigger is removed or magazine containing projectiles is empty, or any weapon designed to discharge any noxious liquid, gas or other such thing including artillery, anti-aircraft, anti-tank firearms are prohibited arms and in no case license is granted for this category. Modification of barrel as well as possession and sale of firearm without valid ID is prohibited. In order for a firearm to be a valid one ID mark of the manufacturer is needed ?and there is a presumption of guilt if the ID mark is not there.

The semi-automatic and Bolt action firearms have different criteria of bores (or calibers), the Arms Rules identify two categories i.e. the prohibited and non prohibited bores.?Prohibited bores are the ammunitions which are used by services (defense or police) of the country ex. .303 (British) or 7.62 mm (NATO) are prohibited bores for rifles and .380 caliber, .455?caliber in rimmed and 9mm Luger in rimless cartridges are prohibited for handguns and pistols. These categories are prohibited, but the prohibition is not absolute in nature and license can be granted in special circumstances. Shotguns with barrel less than 20 inches, silencers and flash suppressors also fall under this category.

In?Ganesh Chandra Bhatt v. D.M. of Almora,?the court held that there is no absolute prohibition against giving a license for a prohibited arm, and whenever the application is made for such license the authorities must consider all the relevant circumstances and must not act arbitrarily in disposing of the application.

Licensing:?To carry and possess firearms a valid license is required the requirement for valid license are that the person should be above 21 years of age and must not be convicted of any offence or must not have served any term under Chapter VIII of CRPC , it also provides that no one can hold more than three firearms. The firearms must be a smooth bore gun having barrel not less than 20 inches for the purpose of protection, sports and crop protection or .22 bore rifle or an air rifle to be used for practicing the target by a member of a rifle club recognized by the government, thus the possession of guns for purpose of collection is not allowed.

In case of?Ganesh Chandra Bhatt v. D.M. Almora,?the court said that whenever the license application is made and it is not disposed within the 3 months, it will be deemed to have been allowed on the expiry of 3 months, and that license can be refused on?the grounds of public safety, but that does not means normal conditions of law and order, there must be some threat to the public.

In?Shesh Nath Singh vs. State of Bihar ,?it was observed that “Satisfaction of the licensing authority is justifiable. But the High Court acting under writ jurisdiction cannot examine sufficiency of reasons for cancellation of license.”

In??Indrajit Singh vs. State of U.P.,?it was held that cancellation of license not mentioned in the show-cause notice is illegal. In Tale?Singh Yadav vs. State of U.P. ,?it was held that arms license can be revoke without show-cause notice but a post decisional hearing must be provided.

In case of?Madhurerendra Kumar Singh vs. State of Bihar it was held that the Commissioner had no right to issue directions to the licensing authority to cancel or suspend a license.

Powers and Punishments:?Any Police officer or any officer empowered by Central Govt. may ask for the license of the person carrying the arms, in case of suspicion he may forfeit the?arms or arrest the person too, this power is also given to the public servants or any person employed in Railways, Aircraft or any vessel, the unlawful manufacturing and selling of firearms attracts punishment of 3 years which may extent upto 7 years imprisonment along with fine, punishment of possession of prohibited arms may extend from 5 to 10 years with fine, one who causes death by using such weapons shall be punished with death penalty, one who knowingly buys arms from the person who is not authorized to sell them may face imprisonment upto 3 years with fine.

THE PARADOX IN QUESTION

Efficacy of the Act:?The Arms Act tries to control and prohibit the use of illegal arms and ammunitions, but if the statistics from various sources are considered then, it is evident that it has failed miserably in doing so. According to the data total number of guns owned in India, including both licit and illicit is roughly around 40,000,000 out of 650 million civilian guns owned worldwide. About 6.3 million firearms out of this 40 million are registered or licensed which amounts to almost 15% of total guns, which draws the attention to the fact that there are almost 33.7 millions unregistered guns which are predominantly used for the murder related crimes. So what can be concluded is that though the provisions made are strict but their implication is not taking place in a proper way and some of the provisions need to be stricter like imposition of fines.

Right to carry Arms:?There seems to be an unclear position with regards to the right related to carry arms, different courts have interpreted the rights in different ways, The Allahabad High Court in?Ganesh Chandra Bhatt vs. D.M. Almora,?observed that the right to bear arms is embedded in the Article 21 of Indian Constitution and hence is a fundamental right. It also went on to state that as all rights are subject to reasonable restrictions same is the case with right to bear arms, but reasonability of the restrictions should be judged from the present condition.

Whereas the Patna High Court in the case of?Kapildeo Singh vs. State of Bihar,?held that there is no right to carry arms under the Indian law. Grant of license to carry arms is upon the discretion of the licensing authority.

?There is a need of clear opinion upon the very nature of the right, whether it be judicial or legislative opinion. Though it may be easy for one to argue that the right should be considered a fundamental right as Right to life also includes the right to protect one’s life and in cases of peril that arms carried may prove a vital element to one trying to save his life, but as every right is this should also be subjected to reasonable restrictions.

Unfit for license under Section 14:?The term unfit for license as used Section 14(1)(i)(3) does not clearly defines who are the person who fall under this category and it is purely upon the interpretation of the licensing authorities whom they deem fit and whom they deem unfit, thus one can easily imagine that there may arise certain cases where the licensing authority of one state may deem it fit to grant license to a person whereas the person with same mental and all other attributes is refused license in another part of the country. This creates an ambiguity, a more proper approach can be that in cases of non prohibited arms the application should be allowed if test of Section 9 is followed. Licenses should not be allowed only in cases where the person is liable of serious crimes.

The arms related laws are different for every country as the historical background and societal needs were different for different societies which lead to development of their Arms Laws, for example the Gun Laws in U.S.A. are more liberal as in earlier times firearms were needed by people to protect themselves during Civil War and also from tribal attacks whereas in India the laws were made so strict so as not even to allow Indian to carry Arms in pre-independence times to stop people from going against established British government which later was changed with the need of the time, but, the present times again call for a change in the Arms Laws of the country, the provisions and punishment for their contravention should be made more strict along with a change in implementation of laws too, so as to curb menace of unregistered and illegally made country arms.

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[1] GPO's Federal Digital System [Internet] [cited 2012 July 19]. Available from https://www.gpo.gov/fdsys/pkg/GPO-CONAN1992/pdf/GPO-CONAN-1992-10-3.pd

[2] UK Home office [Internet] [cited 2012 July 19]. Available from https://www.homeoffice.gov.uk/publications/police/firearms/HOFirearms-Guidance.pdf?view=Binary

[3] THE INDIAN ARMS ACT 1959

[4] Karp A. ?Completing the Count: Civilian firearms.? Small Arms Survey 2007. Cambridge: Cambridge University Press; 2007. Chapter 2, Guns and the City; p. 67

[5] Gunpolicy.org [Internet] [cited 2012 July 19]. Available fromhttps://www.gunpolicy.org/firearms/region/india .

[6] Crime in India 2011 Statistics. NCRB (National Crime Records Bureau), Ministry of Home Affairs. 2011. Chapter 3, Violent Crimes; p. 340.

[7] Kohli A, Aaron K and Sonal M. ?The Geography of Indian Firearm Fatalities.? Mapping Murder: The Geography of Indian Firearm Fatalities; IAVA Issue Brief No. 2; p. 2, 6

[8] Dikshit P. ?Weaponisation of Indian Society through Illicit Arms Proliferation, Production and Trade.? In BinalakshmiNepram, ed. India and the Arms Trade Treaty. New Delhi: India Research Press; 2009. p. 35–36, 43–45.

[9] Firstpost.com [Internet] [updated 2012 Nov 22][cited 2012 Nov 29]. Available fromhttps://www.firstpost.com/india/ponty-shooting-gunslike-mobiles-are-integral-to-india-531225.htm