This article is written by Saumya Shikha, a IV year B.A.LL.B. student at Jogesh Chandra Chaudhuri Law College, University of Calcutta, currently interning under Legal Vidhiya
Abstract :-
This article focuses and briefs about the Arms Act, 1959. The concerned crucial piece of legislation plays an important role in regulating manufacture, possession, acquisition, sale, transport, import, export and usage of firearms and ammunitions with notable restrictions and penalty provisions. Enacted with the primary objective of maintaining public order and ensuring safety of citizens, the Act establishes a comprehensive framework for control and supervision of firearms supply. With such a structured legal framework, the supply and possession is now controlled to an exemplary extent. It also balances out individual rights and personal safety measures keeping in mind the phenomenon of self-defense. Compliance of which directly contributes to the traceability and proper record keeping as approximately every fifth Indian citizen out of a cent owns a gun. Gun violence rates particularly that of homicides have spiked amounting around 10%. Hence, its overarching goal becomes ensuring public safety and preventing the unauthorized proliferation of weapons.
Keywords:-
Gun culture, Arms and ammunitions, Firearms, Licencing, Four-tier protection.
Introduction:-
The Arms Act, 1959 (hereafter Act all across the article) if simply put was framed to regulate the supply, possession of arms and ammunitions, which was once quite literally unlicensed and omnipresent in India. It becomes State’s prime responsibility to protect its men with stringent rules and that being the case there was the need of introducing such an Act which could cater it all. Key features of the Arms Act, 1959 include the classification of firearms into prohibited, restricted and non-restricted categories, with stringent regulations governing each class. Prohibited arms are strictly forbidden for civilian possession, while restricted arms require special permits and licenses. The Act empowers the government to regulate, grant and revoke licenses, ensuring firearm ownership being subject to careful scrutiny. The Arms Act also addresses issues related to illegal manufacturing and trafficking of arms, imposing severepenalties for offences such as unauthorized possession, usage and transfer of firearms. This contributes to the broader national security efforts by curbing the proliferation of illicit weapons. Additionally, this Act also outlines the responsibilities of firearm Licence holders, specifying conditions for storage, transportation and use. It establishes a system for the renewal and transfer of licenses, ensuring ongoing compliance with the law.
Historical background :-
Digging deep the Indian Hindu mythology, gods and goddesses hailed triumph and victory with possessions of arms, more precisely their weapons. Weapons of holy gods included Shiva’s trishul, Hanuman’s gada, Krishna’s sudarshan chakra and Kali the devastator’ katta and Durga’s bhala. So to say possession of such “items” have been predominant in the Indian context and to certain extent rather glorified.
With the advent of the colonizers, colonial India witnessed its infamous rebellion of the Sepoy Mutiny. The Act of 1877 was brought about in haste as the colonizers thought of it as a method of curtailment in order to suppress the mutiny and easily guillotine the natives, which they did. The reason for which the Act was brought hence served its purpose. Act of 1877 was very much like the British act with unskippable resemblance. They implemented a law like theirs with the Crown governed all happenings. Therefore control over arms production brought significant political implications. The British authorities maintained strict control over manufacture and distribution of weapons to prevent any insurgency or rebellion against them. Indians couldn’t have the possession of firearms and hence colonial rule continued for an added century. It is a peculiar phenomenon to note that certain people did enjoy licensed arms under the British Raj, they were what we today know them as pseudo nationalists, generally people helping the British Raj to flourish then. Britishers awarded those who were loyal to them. Consequently, the need for a steady supply of weapons and ammunition led to the establishment of arms manufacturing units. Firearms’ manufacture started out on a local level- local blacksmiths, gunsmiths did the job. The colonial administration had to rely on the skills of local craftsmen and artisans for arms production. Indian gunsmiths and metalworkers were involved in manufacturing weapons and their expertise was often utilized in these ordnance factories. More often than not malfunctioning and broken cartridges were the outcomes. So to say, it was nearly impossible to imitate their machinery but the countrymen did anyways. The British established several ordnance factories across India. These factories grew producing a variety of arms and ammunition, including rifles, cannons, muskets and gunpowder. Apart from firearms, there was a dedicated focus on the production of ammunition. This included the manufacture of bullets, gunpowder and other essential components for the weaponry used by the British Indian Army. Overall, the manufacture of arms in colonial India was closely tied to the military and economic interests of the British East India Company and later the British colonial administration. It played a role in shaping the military landscape of the region and had lasting effects on the socio-economic fabric of colonial society. One notable example is the Royal Small Arms Factory in Ishapore, West Bengal, which was established around that time. This factory played a crucial role in producing firearms for the British Indian Army. It manufactured a range of weapons, including the famous Enfield rifles. Additionally, establishment of these arms manufacturing units had the economic implications too. It contributed to the growth of certain industries, such as iron and steel and subsequently created employment opportunities. However, the benefits were evidently not equally distributed and the economic impact was often felt more by the colonial rulers than the local population.
About the Act :-
The Act was introduced in the Lok Sabha in November, 1953 but was given assent on 23 December, 1959 after the assent of the then President Dr. Rajendra Prasad. It though came into force in 1962. As per section 1, it is a Central Act, hence applies and extends to whole of India.
It is pertinent to note that there is a four-tier protection given to an individual, most certainly one accused of illegal possession.
- Firstly, it’s the Police. When a person is booked under the Act, it is police’s prima facie duty to examine the firearms so seized. Officers carry out the identification procedures whether or not it is one of those falling under the category of types of firearms mentioned in the Act. For instance someone creating nuisance possessing a toy pistol would not be liable under the Act, lethality of the firearm is the sensitive issue. Items so seized must be sealed on spot in order to prevent any tempering of evidence under section 204 IPC. If the Investigating Officer ascertains that it isn’t a firearm to begin with, the investigation doesn’t move forward.
- Secondly, as under section 57 of the CrPC, an arrestee in custody must be taken to the Magistrate within 24 hours of the arrest. It therefore is the duty of the concerned Investigating Officer to present the accused before the Magistrate as he is the expert of experts with the relevant documents to be specific, the seizure list, the FIR and sealed firearms. The Magistrate critically observes and examines the sealed firearms presented and if he deems necessary assents the Investigating Officer’s application. The officer puts forward an application with a prayer to permit seized firearms’ further examination by the forensics team which by now has enhanced accused person’s culpability.
- Thirdly, on the Magistrate’s grant necessary subsequent investigation is directed to the forensics laboratory/firearms expert. The examination here is moves forward majorly under two heads, * physical & *scientific. When talking of physical and scientific examinations, size of the firearms (for example the gun so seized), its caliber, the trigger, hammer and barrel’s working is checked, the most basic i.e. test firing and also the pressure/thrust among others. On successful conclusion of this tier, if the investigation affirms positive, a certificate is issued stating the effectiveness of the pistol and live/misfire of the cartridge is reported in the Forensic Arms Report.
- Fourthly and the most important one is the District Magistrate. The Investigating Officer brings the aforementioned Forensic Arms Report regarding the effectiveness of the firearm to the District Magistrate with the case diary and the seized {sealed(if any)} firearms. The DM under section 39 of the Arms Act, shall therefore concludingly accord sanction against the accused for prosecution. Later, chargesheet would be the upshot.
Where does the Act not apply!
Here are some instances where the Arms Act’s exemptions exist:
- Licensed Firearms Owners: Individuals who possess valid licenses for firearms, issued in accordance with the provisions of the Arms Act, are exempted from the questionable restrictions as the Act meticulously outlines the procedures and criteria for obtaining such licenses.
- Government Officials and Security Personnel: Certain provisions of the Arms Act may not apply to government officials, law enforcement officers, and members of the armed forces who are authorized to carry firearms in the course of their duties.
- Exemptions for Specific Areas or Regions: In certain areas or regions, especially those experiencing exceptional circumstances such as insurgency or unrest, there may be specific exemptions or modifications to the application of the Arms Act. These exemptions are often made to address unique security concerns.
- Sporting and Recreational Use: The Arms Act may have provisions for individuals participating in sports or recreational activities involving firearms. In such cases, certain exemptions or regulations may be specified to facilitate these activities.
- Antiques and Curios: The Arms Act does not apply to firearms that are classified as antiques or curios, depending on their historical significance.
The Act is branched out in as under Chapter II of the Act like,[1]
| Licence for possession and acquisition of firearms and ammunitions; section 3 |
| Licence for possession and acquisition of arms of specifies description in certain cases; section 4 |
| Licence for manufacture, sale etc. of arms and ammunitions; section 5 |
| Licence for shortening of guns or conversion of imitation of firearms into firearms; section 6 |
| prohibition of acquisition or possession, or of manufacture or sale of prohibited arms or prohibited ammunition;section 7 |
| prohibition of sale or transfer of firearms not bearing identification marks; section 8 |
| prohibition of acquisition or possession by, or of sale or transfer to, young persons and certain other persons of firearms, etc. section 9 |
| Licence for import and export of arms, etc. section 10 |
| power to prohibit import or export of arms, etc. section 11 |
| power to restrict or prohibit transport of arms; section 12 |
Important definitions :-
Taking note of the bare act, here are the important definitions listed below,
- “ammunition” means ammunition for any firearms, and includes as under section 2 of the Act;
i) rockets, bombs, grenades, shells 3 [and other missiles,]
ii) article designed for torpedo service and submarine mining,
iii) other articles containing, or designed or adapted to contain, explosive, fulminating or fissionable material or noxious liquid, gas or other such thing, whether capable of use with firearms or not,
iv) charges for firearms and accessories for such charges,
v) fuses and friction tubes,
vi) parts of, and machinery for manufacturing, ammunition, and
vii) such ingredients of ammunition as the Central Government may, by notification in the Official Gazette, specify in this behalf; [2]
2. “arms” means articles of any description designed or adapted as weapons for offences, or defense, and includes firearms, sharp-edged and other deadly weapons, and parts of, and machinery for manufacturing arms, but does not include articles designated solely for domestic or agricultural uses such as a lathi or an ordinary walking stick and weapons incapable of being used otherwise than as toys or being converted into serviceable weapons; [3]
3. “firearms” means arms of any description designed or adapted to discharge a projectile or projectiles of any kind by the action of any explosive or other forms of energy, and includes—
i) artillery, hand-grenades, riot-pistols or weapons of any kind designed or adapted for the discharge of any noxious liquid, gas or other such thing,
ii) accessories for any such firearm designed or adapted to diminish the noise or flash caused by the firing thereof,
iii) parts of, and machinery for manufacturing, firearms, and
iv) carriages, platforms and appliances for mounting, transporting and serving artillery;
2 [(ea) “Licence” means a Licence issued in accordance with the provisions of this Act and rules made there under and includes a Licence issued in the electronic form;]
Types of Arms :-The Act classifies arms into various categories based on their lethality and intended usage. Following is the classification under the Act of 1959. Additionally, different states within India have different territorial regulations.
- Prohibited Bore Arms (Section 3): These include firearms designed for military use or those specified by the government as prohibited. Examples may automatic and semi-automatic weapons, machine guns, and artillery.
- Non-Prohibited Bore Arms (Section 4): These are firearms that do not fall under the prohibited bore category. They are further classified into two categories: Prohibited Bore (PB): Certain non-prohibited bore firearms may still be prohibited based on their features. Non-Prohibited Bore (NPB): Firearms that are not prohibited under the Act.
- Antique Arms (Section 3A): Firearms that are considered antiques and are over 100 years old. Ownership of antique arms may be subject to certain conditions.
- Muzzle-loading Firearms (Section 3B): Firearms that are loaded from the muzzle (front end) and require manual loading. This category includes black powder firearms and muskets.
- Air Guns and Air Rifles (Section 4A): These are firearms that use compressed air or other gases to propel a projectile. They are generally subject to less stringent regulations compared to firearms.
- Imitation Firearms (Section 4B): Devices that closely resemble firearms but are not capable of discharging projectiles. They may include replicas or toys that can be mistaken for real firearms.
- Ammunition (Section 4): The Arms Act also covers various types of ammunition, including bullets, cartridges, shells, and other projectiles.
- Licenses and Permits (Section 13): The Act specifies the procedures and requirements for obtaining licenses and permits for the acquisition and possession of firearms.
Licence provisions :-
Chapter II of the Act mainly necessitates the requirement of licenses for agencies or person etc. to own, manufacture and sell firearms. The term “licensing authority” means an officer or authority empowered to grant or renew licenses under rules made under this Act, and includes the Government; [4]
While “district magistrate” is defined to be, in relation to any area for which a Commissioner of Police has been appointed, means the Commissioner of Police thereof and includes any such Deputy Commissioner of Police, exercising jurisdiction over the whole or any part of such area, as may be specified by the State Government in this behalf in relation to such area or part.[5] Section 3(1) bars a person to have possession, or to carry, or to acquire any firearms or ammunition unless he is licensed to do so. The proviso to the same subsection though distinguishes that a person could carry arms for repair, or under the order of a written authority without having a license of his own. Another major section to focus upon is, section 5 which clearly states the license for manufacture, sale etc. of arms and ammunitions. It mandates the sale, manufacture, use, transfer, procurement, conversion, repair, test or prove only under the Licence granted under the Act and the rules made thereunder. There is indeed a difficult process to obtain a Licence as under section 13, which clearly states that an applicant must responsibly file an application form A-1 under the licencing authority with other vitally important procedures such as passport sized photographs, age proof and others. Moving further, if any person’s Licence has expired then he must immediately submit for a Licence renewal in the nearest police station. In unavoidable cases such as death or accidental lunacy any person related to the Licence holder can submit the arms in the nearest police station.
Penal provisions :-
It is quite evident that mere possession of firearms too can bring serious liabilities under the Act, one of such being as grave as an imprisonment for three years . Also all the major liabilities arise due to the non-compliance of section 3. Provisions for penalties are meticulously described thereunder Chapter V. Section 25 mentions that any person accused of procuring, sale, transfer, conversion, repair of arms and ammunition or shortening the barrel of the firearm, or anything contravening section 11 shall be liable of imprisonment for life of not less than 7 years 25(a) (b) (d).
The punishment for using arms under section 27, is an imprisonment not less than three years which could be extended for seven years with fine. Also as per 27(2) the usage of prohibited arms and ammunition in contravention of section 7 is punishable for at least seven years of imprisonment which can extend upto imprisonment for life with fine. Punishment for knowingly purchasing arms from an unlicensed person is given under section 29 which can extend for a term of three years or more or with fine.
The provision and power of confiscation of the arms used, or any vessel used, or the vehicle used for conveyance by the convicting court to either partially or fully confiscate.
Major amendments:-
Over the years, the Arms Act has undergone amendments to adapt to evolving security challenges and legal considerations of the country, namely:
- Arms Rules, 2016.
- Arms Amendment Act, 2019.
- Arms (Amendment) Rules, 2020[6].
The legislation reflects a balance between individual rights and the state’s interest in maintaining public safety, providing a legal framework that’s aimed to prevent misuse of firearms while allowing responsible citizens to possess for legitimate purposes. To begin with the 2016 Rules, any person applying for arms or manufacture Licence must meet the essentials also mandatorily complete the safety training course or drill, which includes the basic knowledge of the arms’ Licence contested for, care and transportation, its proper and safe handling with secure storage.
Taking note of the changes brought in 2019, number of firearms possessed by a person got reduced from three to two. [7] It also has striking provisions meant for the increment of punishment for the existing offences i.e. those relating to illegal sales, manufacture, import, export, illicit possession etc. Provision for introduction of new offences and subsequent punishment are mentioned too, covering those offences of smuggled and trafficked arms, its punishment. Another prominent one include taking away of arms by police or army personnel, being a part of organized crime syndicates, rash and negligent use of firearms.
Relevant Case Laws :-
- In Atar Singh v. State :- In the given case the constitutionality of section 1(3) was challenged. The court held that the power of the Centre to decide the date of commencement wasn’t unconstitutional.
- Kailash Nath v. State of U.P. :- It was held by the constitutional bench that grant of Licence is not a right but a privilege.
- Ganesh Chandra Bhatt v. District Magistrate :- The question of dignity and glorification of the possession of arms, under the umbrella of Article 21 was brought before the court. The single bench judge held that right to bear arms is constitutionally guaranteed under Article 21 thought critically kept in check under the provisions of the Arms Act.
- Narayan v State, 1982 :- Where the pistol that was recovered from the possession of the accused was not in working order, in absence of any evidence, the inference that it could be put in working condition by effecting some repairs or otherwise couldn’t be drawn.
- Ratan Deo Singh v State of Bihar, 1989 :- A person may possess a Licence of a firearm but the very moment utilizes the firearm to execute any illegal act, he commits an offence under section 27 of the Act. Previous sanction of the DM wouldn’t be required for prosecution.
Criticism :-
The Arms Act of 1959 in India has been subject to various criticisms over the years. Here are some points of criticism for the Indian scenario:
- Lack of differentiation of the arms: Critics argue that the Act does not differentiate adequately between various categories of firearms. For instance, same set of regulations may apply to both lethal weapons and non-lethal ones, leading to an overly broad and uniform approach that may not be necessary for certain types of firearms.
- Inadequate provision of punishments: Some critics argue that the penalties specified in the Arms Act are not that sufficient to deter illegal activities related to firearms, particularly the possession, supply and manufacture. Strengthening the punitive measures against violations of the Act could be considered to enhance its effectiveness.
- Questionable concept of self-defense: The Act has been criticized for not adequately recognizing the right to self-defense as a valid reason for firearm ownership. Some argue that the legislation should be more accommodating to individuals seeking firearms for personal security in situations where law enforcement may not provide immediate assistance as in the case of women seeking licenses.
- Stringency and complexity of certain provisions: The Arms Act is often criticized for its stringent regulations, making it challenging for law-abiding citizens to legally possess firearms for self-defense. The complex licensing procedures and extensive documentation requirements can be discouraging for potential applicants which as a consequence leads to the surge in unlicensed possessions or smugglings.
- Archaic provisions: The Arms Act of 1959 has been criticized for its outdated provisions that do not align with contemporary security challenges in India. Withadvancement of technology and society, there is a need for the legislation to be updated to address new types of weapons and emerging threats.
- Lack of uniform implementation: Critics point out the lack of uniformity in the implementation of the Arms Act across different states in India. There may be variations in the interpretation and enforcement of the Act, leading to inconsistencies in licensing and regulation. More often cases of surrender or seizures make headlines in Punjab, Jharkhand and similar sensitive states.
- Black market and illicit trades: The Arms Act has been criticized for not effectively addressing the issue of illegal firearms trade and the existence of a black market. Critics argue that stricter regulations alone may not be sufficient, and a more comprehensive approach is needed to tackle the illicit arms trade.
Conclusion:-
In order for the State security and defence agencies to protect its citizen a regulatory statute here the Act must be imposed to keep a check on the supply, purchase and license of the arms and ammunitions in order to the curtail the threats be it internal or external, also there is a need for a comprehensive review and potential amendment to address the evolving challenges and ensure a balanced approach that considers the rights of law-abiding citizens while maintaining public safety and security. All of this equips the authoritative body in easing peaceful establishment of the mass. The clear distinction under Article 21, right to be armed isn’t a solid thing rather possession is one such privilege.
[1] Arms Act, 1959 | Bare Acts | Law Library | AdvocateKhoj
[2] Definitions | Arms Act, 1959 | Bare Acts | Law Library | AdvocateKhoj
[3] Definitions | Arms Act, 1959 | Bare Acts | Law Library | AdvocateKhoj
[4] India Code: Arms Act, 1959
[5] https://www.indiacode.nic.in/show-data?actid=AC_CEN_11_61_00011_188404_1523272950845
[6] Arms (Amendment) Rules, 2020 — Notified by Centre | SCC Blog (scconline.com)
[7] pib.gov.in/PressReleaseIframePage.aspx?PRID=1604150
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