During my previous internship under a criminal lawyer, I had asked sir whether he owned a gun. Now, if you’re like my mother, you might have had the impression that being a criminal defense lawyer makes to an enemy of a lot of criminals. This is not a totally unfounded fear, in fact sir told me about incidents of threatening clients which had transpired in his own career where he had felt a need to keep a personal firearm for self-defense. Being alert about his own and his family’s safety he tried to apply for a gun license, but at the end permission was not granted. On another note, sadly, we often get to hear about school shootings in the United States, and every time something like that happens there’s always an uproar about the lax gun law situation in the USA and how there is a need for immediate reform. India is often on the news for a lot of reasons, but very rarely for its gun laws. This article is going to give a brief overview of the Arms Act in India and its proposed amendment.
All types of arms were freely owned by all sections of the society in India. Regulation of firearms only came about with the arrival of the British administration, owing to the inherent distrust of the Europeans on their Indian subjects. The war of 1857, making the Britishers’ worst fears comes true, lead to the enactment of the first Indian Arms Act of 1878. The Stringent laws were meant to disarm and subjugate the native population were implemented, while leaving out the Europeans to carry weapons as per their will[1]. The Arms Act of 1959 in the post- independence era became the legislation which governed ownership of arms in India. The India 1959 Arms Act along with the Arms Rules prohibit the arrangement, manufacture, proprietorship, acquisition, import, fare and transport of firearms and ammunition except under a grant.
Procedure for obtaining license under the Arms Act
In the United States, it is a constitutional rights of a citizen to have the freedom to bear arms under the 2nd amendment. However, India falls in the category of one of the countries having some of the strictest gun laws in the world[2]. Section 3 of the Arms Act states that only valid license holders are legally allowed to be in possession of firearms and/or ammunition. A number of safeguard procedures are put in place which an individual has to satisfy before they are eligible to leally own arms. For example, the Act also only allows an individual possession of a maximum of three firearms. There also exists high levels of corruption in the process of licensing which in effect dissuade ordinary applicants[3]. These factors make it a long and difficult process for an ordinary citizens. Regular citizens are also purchase and own only small, non-prohibited bore firearms which includes weapons like handguns the procedures for which is provided under Chapters II and III of the Arms Act 1959.
An applicant who wishes to own a license gun has to at least 21 years of age. An exception is made for individuals under 21 but not younger than 16 to also hold a license is the person is a ‘junior target shooter. The required documents to be submitted to the licensing authority include: identity proof, address proof, age proof, education certificates, income tax returns of the last three years, a character certificate, a physical and mental health certificate along with four passport size photographs. An applicant cannot expect their application to be accepted just by submitting all correct document, a rigorous procedure of background check, interviews of the individuals family members, their neighbours etc. are taken to ascertain the nature of the individuals personality and investigate into the level of aggression or violent behaviours the person may or may not engage in and lastly a final interview with the applicant itself is also scheduled. Application of ordinary civilians are normally only accepted on three grounds: crop protection, self-defense and sports. For the reason of self-defense, there is a requirement to provide evidence of the threat they are facing. This rule then implies that civilians have to be under actual real threat to even make an application on this ground in the first place. Satisfaction of the licensing authority is subjective and the added paperwork does not make it an easy non-stressful process for someone who is already paranoid and in a lot of stress because of threats the person is getting. Relating to this issue, the case of Ganesh Chandra Bhatt v. Distt Magistrate, Almora & ors[4], is relevant. The question before the court in this case was whether the right to bear arms formed a part of right to self-defense which is encompassed under Article 21- Right to Life and liberty. It was held that the right to bear arms did fall under the ambit of Article 21 and if an applicant, despite having submitted all relevant documents and having followed all relevant procedures under the Act, does not get any communication from the licensing authority within three months period, then the license is automatically deemed to have been granted. However, this decision was overturned after the Bombay blasts of 1993 and Constitutional protection is no longer accorded to the right to bear arms[5].
2019 Amendments, stricter gun laws and some opinions
On 13th December 2019 the Arms Amendment Act was passed. The statement of objects of the Act stated that the context to the amendment is in response to the growing illegal firearms possession and its connection with rising crime rates. Several changes have been made to this regard, which includes the reduction of the no. of firearms an individual is allowed to possess. As already discussed above, the 1959 Act allowed three. The 2019 Amendment reduces it to one. Excess firearms are to be surrendered to the nearest police station within a year of the Act coming into force. Stricter punishments are envisaged for violations of the provisions of the Act and some new offences are included such as celebratory gunfire, forcefully taking a firearm away from an officer and the introduction of organized crime[6].
Amendment of the 1959 Act was anticipated and expectation were high. However, many have been left confused and disappointed with the changes made. One of the major criticisms and one that I agree with, is that the legislature merely made the provisions related to already licensed firearms and their holders stricter and hardly any change has been made with regards to the biggest issue about firearms in India- illegal weapons market. The National Crime Records Bureau recorded that out of all the firearms seized, less than 2% accounted for licensed firearms[7]. The illegal weapons market meanwhile is thriving. The difficulty in getting a licensed firearm coupled with stringent laws are to be credited. Licensed firearms are not being used to commit the crimes that the Amendment seeks to put a stop to, it is being committed with illegal firearms that are not being regulated. Uttar Pradesh, Jharkhand, Bihar etc. are some of the hotspots of factories manufacturing firearms which become as part of the illegal weapon trade. Existence of illegal weapon trading makes it impossible to ascertain the actual number of Indians who are in possession of Arms which then makes relation in place seem non-useful.
Although there have been proponents of more freedom for civilians wishing to possess licensed firearms, as they “help in prevent heinous crimes by offering citizens a real chance to defend themselves”[8] and liberalization of gun laws, not just regarding possession but imports and manufacture. I do not agree. Indeed there are deficiencies even after the 2019 Amendment but that does not require liberalized laws. This idea of ‘more guns, less crimes’ is a flawed argument. Most famously pushed by researcher John Lott in his book ‘Come Guns, Less Crimes’, claiming that two-thirds peer-reviewed literature shows that right to carry arms reduce crimes. In fact not only was Lott’s study defective, most studies done after 2005 find that the right to carry laws lead to an increase in crime and in short, more guns in public actually results in more crime[9]. This is a logical conclusion which seems to have been ignored for a counter-intuitive conclusion which, at the end of the day is highly flawed. Proponents of liberalization of gun laws in India argue that comparatively easy to access gun licenses, will help in maintaining official records and in this way in this way it will be easier to trace and keep a track of. However, this argument does not take into account how efficient the administration actually is to maintain records and whether there are enough resources available for such large scale record maintenance. In the constituent assembly debates, Dr. B.R Ambedkar, expressed deep reservation about allowing possession of firearms as a constitutional rights and stated that state administration would be in grave danger is every individual is allowed to purchase and possession of weapons without any state imposed restriction[10]. Allowing private entities for manufacture and export of trade which in turn might help in boosting economy might be a proposal worth consideration. However, this again brings in issues of transparency and regulation. Earlier, the Ordnance Factories under the Ordnance Factory Board (OFB) which further were under the control of Department of Defence production of the Ministry of Defence were sole legal manufacturers of defence equipment in India. The OFB has now been dissolved and in place of it, seven new government owned corporate entities take over the production of firearms and other defence instruments[11]. In my opinion, this is a welcome move by the government where transparency in the working of these factories and the controlling corporates is ensured due to government involvement while also increasing creative input in order to elevate the status of Indian defence equipment: hoping to attract more global attention and at the same time employment rates would see an upward trend.
[1] Abhijeet Singh, ‘OFBC restructuring is progressive, but reforming the rules on civilian gun ownership makes sense too’ (Firstpost 3October 2021) https://www.firstpost.com/india/ofb-restructuring-is-progressive-but-reforming-the-rules-on-civilian-gun-ownership-makes-sense-too-10020901.html
[2] Rama Laksmi, ‘India already had some of the world’s strictest gun laws. Now it’s tightened them’ (The Washington post 1August 2016) https://www.washingtonpost.com/world/asia_pacific/india-had-the-one-of-the-strictest-gun-laws-in-the-world-it-just-got-tighter/2016/08/01/affd9422-51da-11e6-b652-315ae5d4d4dd_story.html
[3] Manverndra Singh, ‘By amending Arms Act, Modi govt will make way for Gangs of Wasseypur-style gun possession’ (The print 5 December 2019) https://theprint.in/opinion/modi-govt-arms-act-amendment-makes-way-for-gangs-of-wasseypur-gun-possession/330377/
[4] AIR 1993 All 291
[5] Niket Khandelwal, ‘Gun Laws in India’ (Lawtimesjournal 13 september 2020) https://lawtimesjournal.in/gun-laws-in-india/
[6] ‘The debilitating effect of stringent gun laws : An overlooked perspective’ (NULJ Law Review 8 February 2021) http://www.nlujlawreview.in/the-debilitating-effect-of-stringent-gun-laws-an-overlooked-perspective/
[7] ibid
[8] See note 1
[9] ‘MYTH: Most studies show that more guns mean less crime’ (gvpedia) https://www.gvpedia.org/gun-myths/more-guns-mean-less-crime/
[10] See note 6
[11] See note 1
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