What does the following mean in Constitution?
Querist :
Anonymous
(Querist) 07 November 2010
This query is : Resolved
Article 19 says the following:
Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right— (b) to assemble peaceably and without arms;
Is the Constitution acknowledging that citizens will normally be in possession of arms but only while making a peaceable assembly, will have do it without arms? Otherwise the question of asking the citizens to disarm while making a peaceable assembly does not arise.
R.Ramachandran
(Expert) 08 November 2010
The meaning of Article 19(1)(b) is straight and simple - that All citizens have the right to assemble peaceably and without arms.
In fact Article 19(3) very clearly says that "Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
PULL STOP.
There is absolutely no scope for any other interpretation or unwanted assumption that the Constitution is acknowledging that citizens will normally be in possession of arms!
Querist :
Anonymous
(Querist) 08 November 2010
The Article 19(3) applicable to only "the right to assemble peaceably and without arms." and certainly not the possession of arms by the citizens when NOT exercising "the right to assemble peaceably and without arms.". This is my question, otherwise why would the Constitution feel the need to explicitly mention the words "without arms". I want purely the Constitutional view point only, had the Constitution being against the possession of arms, then it would have explicitly prohibited that in the Constitution itself as it has already done under various articles under part III, like for untouchability, titles etc.. I am not concerned about the regulation of the possession of arms, which is already being done by Arms Act 1959.
R.Ramachandran
(Expert) 08 November 2010
Dear Anonymous,
Taking a leaf from your own argument (at least for the sake of this limited extent though not in complete agreement with you) that wherever Constitution wanted to explicitly prohibit a thing it has done so - e.g. untouchability, titles etc - similarly wherever the Constitution wanted to grant the fundamental rights it has explicitly done so - like freedom of speech and expression, freedom of movement etc. etc. Can you please show in the Constitution where it has explicitly granted the fundamental right to the citizen to possess Arms?
R.Ramachandran
(Expert) 08 November 2010
If according to you, Constitution acknowledges that citizens will normally be in possession of arms, will not be the Arms Act 1959, would be infringing that fundamental right (assumed by you)? If you are so sure, then better challenge the validity of the Arms Act, 1959 as being ultra vires the Constitution.
Guest
(Expert) 08 November 2010
The exercise of any right guaranteed by Constitution of India is discretionary and there is no compulsion to assemble any where for any purpose' , so in my opinion if you so wishes to exercise the right to 'assemble peaceably and without arms' it is protected and guaranteed under Artcle 19(1)(b) of the Constitution of India.If you claim the protection of any provision of the Constitution you must follow the limitations or prohibitions laid down in the provision of the Constitution itself or in any other law for the time beuing in force. Thus interepretation of "Single word" used in any provision of law or Constitution in isolation of reference or context is unprecedented.
A. A. JOSE
(Expert) 09 November 2010
Interesting question, but the clarifications given herein above are eloquent on the point and I too agree with the views expressed by learned friends.
Querist :
Anonymous
(Querist) 10 November 2010
Yes I agree the replies have been eloquently given. Certainly it is interesting discussion and is helping me think more, arising more questions to get a deeper understanding of our Constitution. I am going by the assumption that provisions of the Constitution are mutually consistent. There are no internal logical contradictions. Also I am going by the assumption that powers are narrow, rights are broad. Delegated powers are to be interpreted as strictly as possible, consistent with the words, and rights as broadly as possible, with the presumption in favor of the right, and the burden of proof on those claiming a power. In cases of doubt, the presumption is not in favor of a power. Apex court has also given the opinion that citizens should be able to enjoy the rights conferred under part III to the fullest measure.
With full respect to the replies, I humbly disagree on the grounds as mentioned under:
Opinion of Mr. R. Ramachandran:
"Constitution wanted to explicitly prohibit a thing it has done so -e.g. untouchability, titles etc - similarly wherever the Constitution wanted to grant the fundamental rights it has explicitly done so - like freedom of speech and expression, freedom of movement etc. etc."
My opinion:
Constitution has certainly prohibited things which it wanted to, but at the same time it has not explicitly enumerated every right acknowledged under Part III. Examples: Right to Privacy, Right to Information, Right to Self Defense etc. etc. There are many rights under Part III which were not known to society even though they existed under Part III, but the awareness emerged in due course of time. The apex court is also of opinion that many unenumerated rights also exist under part III. Can the Constitution say that Right to Self Defense exists under Article 21 but the right to the means of self defense does not exist and it has to be done with bare hands? No the Constitution cannot say that, thus the Right to Keep and Bear Arms exists under Article 21 and its existence also gets confirmation by a bar on it from being used in conjunction with the Right to assemble peaceably under Article 19(1)b. The law enforcement machinery of State is keeping arms under RKBA under Article 21 for self defense. If I create a successful grievance in a court of law, against the police(or the law that allows the police to keep and bear arms, use the arms thus kept and borne to cause death and grievous hurt) under part III of Constitution, then under which Article of Constitution are you going to defend that law and the rights? Nothing but Article 21. When citizens are keeping and using arms for self defense, they are also acting as a law enforcement machinery in individual capacity by enforcing Sections 96 to 106 IPC if situation arises. Hence it cannot be said that the rights of citizens under the same Constitution are unequal or different from those of State for enforcing the laws created for the same Constitutional rights.
Opinion of Mr. R. Ramachandran:
"If you are so sure, then better challenge the validity of the Arms Act, 1959 as being ultra vires the Constitution."
My opinion:
Contesting Arms Act 1959 as ultra vires would be a different topic of discussion, I would open another query for its discussion. Please do not assume that I am taking any sides for or against the opinions. I am open to the both sides of the opinions.
Opinion of Mr. N.C. Dubey:
"The exercise of any right guaranteed by Constitution of India is discretionary and there is no compulsion to assemble any where for any purpose' , so in my opinion if you so wishes to exercise the right to 'assemble peaceably and without arms' it is protected and guaranteed under Artcle 19(1)(b) of the Constitution of India."
My opinion:
I agree 100% with opinion that rights in Part III are negative rights of citizens. I have not contested this opinion in my query.
Opinion of Mr. N.C. Dubey:
"If you claim the protection of any provision of the Constitution you must follow the limitations or prohibitions laid down in the provision of the Constitution itself or in any other law for the time beuing inforce."
My opinion:
I agree 100%, in this discussion I am not against the limitations or prohibitions laid down in the provision of the Constitution itself or in any other law for the time being in force.
Opinion of Mr. N.C. Dubey:
"Thus interepretation of "Single word" used in any provision of law or Constitution in isolation of reference or context is unprecedented."
My opinion:
I am not interpreting a "single" word in isolation. I am interpreting the Article 19(1)b "to assemble peaceably and without arms;" in its entirety in context to Part III. If we read Article 19(1)b it becomes clear that it is talking of at least 2 rights, namely the Right to Assemble Peaceably AND the Right to Keep and Bear Arms. When the citizens are exercising the Right to assemble peaceably, it is placing a bar on the Right to Keep and Bear Arms. The need for placing a bar on a right when used in conjunction with another right in Part III becomes unnecessary if the right does not exist in Part III!
Guest
(Expert) 11 November 2010
Dear Anonymous,
The Assembly may be of any kind , it may be for peaceful purpose or it may be to commit an offence as mentioned in section 141 Indian Penal Code under definition of 'Unlawful Assembly'. Similarly Assembly may consist of some persons armed and other unarmed or it may be of all persons armed .The Right to assemble under Article 19(1)(b) of Constitution guarantees only such assembly which is for peaceful purpose and consist of unarmed persons. Other assemblies are not protected under this provision.
Querist :
Anonymous
(Querist) 11 November 2010
I agree 100% by your above opinion. I am not disputing the kind of assembly protected or not protected by Article 19(1)b. I am saying that when the citizens are exercising the Right to assemble peaceably, Article 19(1)b is guaranteeing that right to assemble peaceably but additionally placing a bar on the Right to Keep and Bear Arms for the duration of the exercise of rights protected under Article 19(1)b.
R.Ramachandran
(Expert) 11 November 2010
Dear Anonymous,
Right from the beginning I know that it is the same Anonymous who opened the topic in another thread http://www.lawyersclubindia.com/experts/Can-it-be-argued-that-license-is-vested-or-implied--121366.asp
Be that as it may, to Mr. N.C.Dubey you say:
I am not interpreting a "single" word in isolation. I am interpreting the Article 19(1)b "to assemble peaceably and without arms;" in its entirety in context to Part III. If we read Article 19(1)b it becomes clear that it is talking of at least 2 rights, namely the Right to Assemble Peaceably AND the Right to Keep and Bear Arms. When the citizens are exercising the Right to assemble peaceably, it is placing a bar on the Right to Keep and Bear Arms. The need for placing a bar on a right when used in conjunction with another right in Part III becomes unnecessary if the right does not exist in Part III!
In the above paragraph, you are paraphrasing the right under Art. 19(1)(b) according to your convenience.
It is not two rights as you interpret: (i) one for freedom to assemble peacefully and (ii) Right to Keep and Bear Arms. ABSOLUTELY WRONG. It is only a single freedom i.e. freedom to assemble peacefully and without arms.
In fact, if the freedom had merely stated "freedom to assemble peacefully" one would have still argued that so long as we assemble peacefully what we bring (arms etc.) should not matter. Probably it is to avoid such ambiguity and probably as a abundant precaution the clause has been worded in the manner in which it has been done.
It is an affirmative provision. It would not automatically give a chance to interpret that but for this bar every one has a fundamental right to possess arms! That will be a wild assumption.
In fact to drive home the point I would like to ask you a counter question:
Going by the Article 19(1)(b) - would it be correct to say that since the said article is concerned only with right to assemble peacefully and without arms; there is an unsaid fundamental right to assemble without peace AND with arms? or A citizen has a fundamental right to disassemble peacefully AND with arms?
TO ME IT APPEARS UTTERLY ABSURD, and not known to any of the canons of Interpretation.
I rest my point here.
R.Ramachandran
(Expert) 11 November 2010
Dear Anonymous,
I also notice that you have said "The need for placing a bar on a right when used in conjunction with another right in Part III becomes unnecessary if the right does not exist in Part III!"
It must be understood that right to life is a fundamental right under Article 21.
If for the purpose of protection of such a life, Arms are necessary the citizen can definitely possess it. But such possession of arms is regulated under Arms Act, 1959. If a person having a licence to possess and in fact possessing such arms wants to take part in peaceful assembly then he must assemble without arms. The bar to possess arms is on such persons who have been licenced to possess.
I still have the hang over of your earlier proposition "Can it be argued that license is vested or implied?"
Guest
(Expert) 12 November 2010
I appreciate the explanations offered by Mr. R.Ramachandran and in addition feel that this forum is not a playgound to be used for foul play/ I think that the purpose of website will frustrate if we envolve in matters of less importance.We are here to dicuss and share the real problems with view to provide help to laymans even
R.Ramachandran
(Expert) 12 November 2010
Dear Mr. Dubey,
I am not able to catch the essence of what you want to say.
Can you please be little clear as to what you want to convey.
Are you in a way saying that the discussion on this topic should not have been done in this Forum? (I do not think so especially you yourself has participated not less than 2 times in this thread!)
To be very frank, I could not follow what you really mean. Please clarify.
Guest
(Expert) 14 November 2010
Dear Mr.R.Ramchandran,
I have mistaken in clubing the two opinions. I really appreciate your efforts and explanations. When I expressed my opinion regarding use of website , I mean to convey querry makers to restrain themselves to real controversies and not to envolve in MUTE discussions so that the real benefit be harvested by laymans also
Querist :
Anonymous
(Querist) 16 November 2010
Dear Mr. N. C. Dubey, I humbly disagree that these are mute discussions, on the contrary these help the lawyers better defend the cases for their clients. For example another query posted by me, might appear mute to someone unaffected by the problem but very important to the person affected by the problem. The said query is http://www.lawyersclubindia.com/experts/Will-there-be-any-wealth-tax-or-income-tax-if-flat-is-sold-129111.asp even another expert who is a former judge and lawyer in High Court expressed that he got benefited from the query.
Yes Mr. R. Ramachandran you guessed correct that I am the same anonymous! My only purpose to stay anonymous in queries is to avoid any possible bias or prejudice from creeping in the mind of experts while answering the query. My another query you enjoyed answering is: http://www.lawyersclubindia.com/experts/Is-there-any-order-of-precedence-between-various-parts-of-Constitution--129581.asp
I thank all the experts with due respect for responding to my query and giving their valued opinions and looking for further participation from all in queries, which help both the querist and the Experts. Before closing this query I would like to put down my views below. If any expert wants to express his or her view, is most welcome.
Constitution is not granting any fundamental rights to its citizens, it is merely guaranteeing already existing fundamental rights which are most likely to be violated by the state. Constitution is interpreted as a harmonious, contiguous and logical whole, we cannot pick and choose the meaning of sub clauses differently within the same clause as per our convenience. Sub Clauses under Articles 19(1) are talking of rights of citizens and Clauses 19(2) to 19(6) are talking about powers of the state to create reasonable restrictions on the respective rights.
Wherever in the Article 19(1) Constitution is talking of two fundamental rights, it is joining them with the word "and" or excluding one from the other with the word "or".
I am placing the entire copy of Article 19(1) below for illustration:
19. Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; 1[and]
2* * * * *
(g) to practise any profession, or to carry on any occupation, trade or business.
If Article 19(1)b had been talking about a single right and RKBA did not exist under Part III, then the word "and" in between, also the words "without arms" were quite unnecessary, as the sentence "right to assemble peaceably" would have been abundantly adequate to serve the purpose, since Clause 19(3) is providing adequate powers to the state to impose reasonable restrictions. All that the state would have to do, is change the terms and conditions of arms licenses by a notification prohibiting the taking of licensed arms to any assemblage. The need for placing a condition, i.e. the excluding of one right, while guaranteeing another right becomes unnecessary if the right being excluded does not exist under Part III.
The presence of RKBA under Article 21 in Part III of Constitution, besides getting confirmed by Article 19(1)b, gets further confirmation from the views expressed in Constituent Assembly debates and the objectives of Arms Act 1959 and its provisions. Arms Act 1959 is a regulatory law, in the layman's language, it a criminal law without any victim. If the state passes a law to regulate a fundamental right guaranteed by Constitution, it cannot put the burden on the citizen to justify the exercise of that right, for the simple reason that Constitution has already taken that burden for him by providing a guarantee. Hence the burden lies on the state to justify placing of regulation/restriction on the fundamental right of the citizen. Since RKBA is a right guaranteed under Constitution, one of the objectives of Arms Act 1959 puts the burden not on the citizen, but on the state. The objective states that "weapons for SELF DEFENSE are available for ALL CITIZENS under licenses UNLESS their antecedents or propensities do not entitle them for the privilege". This objective cannot mean that it is putting a burden on ALL CITIZENS to provide a valid "reason" in order to have a license. Instead it means by the use of word UNLESS, that the state has been put under a burden to provide a valid "reason" for denying a license. This can be further ascertained from Arms Act 1959, CHAPTER III - PROVISIONS RELATING TO LICENCES
14. Refusal of licences:
(3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.
The Constituent Assembly Debates on the topic of RKBA are available at: http://indiansforguns.com/viewtopic.php?f=3&t=1625&start=0
R.Ramachandran
(Expert) 16 November 2010
Dear Mr. Anonymous,
I completely disagree with yout statement that "If Article 19(1)b had been talking about a single right and RKBA did not exist under Part III, then the word "and" in between, also the words "without arms" were quite unnecessary, as the sentence "right to assemble peaceably" would have been abundantly adequate to serve the purpose."
For instance, the aim, objective and purpose of assemblage may be peaceful, but if persons of such assemblage come with arms, the possibility of peace getting disturbed cannot be altogether ruled out. Therefore, mere sentence "right to assemble peaceably" would not be enough.
As regards granting of licence is concerned, I totally agree with you that while rejecting the licence the authorities have to record the reasons therefor and must communicate the same to the applicant, so that the applicant if he so chooses can approach the Court of law
challenging the rejection. THIS IS A VERY VERY REASONABLE AND SOUND ARGUMENT FROM YOUR SIDE WHICH I CANNOT BUT COMPLETELY AGREE WITH. But what I earlier vehemently arguing was that you wanted to say that there is an implied permission for arms.
Any way, nice to know you, the interesting issues that you are throwing up for discussion (which no one in their normal routine would not have had occasion to discuss at all or apply ones mind) and keeping us engaged. I also come to know with interest the reason for your chosing to be 'Anonymous'. But, I don't think that you succeeded in your attempt - for even when you call yourself 'Anonymous' I could place you correctly from the kind of queries being posed by you!
Thanks & Regards.
Querist :
Anonymous
(Querist) 17 November 2010
Thank you Mr. R. Ramachandran for reply.
"But, I don't think that you succeeded in your attempt - for even when you call yourself 'Anonymous' I could place you correctly from the kind of queries being posed by you!"
I was laughing after reading your above statement! No problem, probably you have also been able to make out my login id by comparing the similarity of topics in my postings in area for "Forum" and queries in this area for "Experts"
Regarding my interpretation of the Article 19(1)b, it appears to me that I have not been able to completely express or explain my opinion in my previous reply. You had asked a very important question: "Going by the Article 19(1)(b) - would it be correct to say that since the said article is concerned only with right to assemble peacefully and without arms; there is an unsaid fundamental right to assemble without peace AND with arms? or A citizen has a fundamental right to disassemble peacefully AND with arms?"
If I am understanding it correct, by "unsaid fundamental right" you mean to say an existing fundamental right but not guaranteed by Constitution from violation by State. My answer is yes such rights do exist, but Constitution will not protect the citizens from state action. The burden to justify such rights would lie on citizen. An example of such rights is The Punjab Village and Small Towns Patrol Act, 1918. Under this act, in order to do patrolling, citizens exercise 2 fundamental rights, right to assemble(peaceably as well as violently if situation compels) and the right to arms. If challenged by violent unlawful elements, the peaceful assembly with arms may transform into a violent assembly in order to safeguard their right to life. If the force of unlawful elements is greater than citizens, then the armed assembly of citizens may dissemble violently to safeguard their right to life. And such an assembly may also dissemble with arms peaceably if they are successful in overcoming the force of unlawful elements. But for exercise of such rights the Constitution is not taking the burden on itself to justify such rights on behalf of the citizens, neither is the Constitution getting offended. Instead the state is taking this burden on itself on behalf of citizens under The Punjab Village and Small Towns Patrol Act, 1918.
"For instance, the aim, objective and purpose of assemblage may be peaceful, but if persons of such assemblage come with arms, the possibility of peace getting disturbed cannot be altogether ruled out. Therefore, mere sentence "right to assemble peaceably" would not be enough."
I disagree with your above opinion because Article 19(1)b is not ruling out or extinguishing any fundamental rights or preventing people from exercising any fundamental right(either guaranteed or not guaranteed). It is only the conveying the meaning and condition of the guarantee provided by it, that the right to assemble peaceably is guaranteed by Constitution only if exercised without the right to keep and bear arms. This was done only due to the kind of volatile conditions under which India gained independence. If Article 19(1)b indeed only means one right and not acknowledging the presence of another right RKBA under Part III then "and" in Article 19(1)b is unnecessary. "to assemble peaceably without arms;" would have been adequate to convey the intended meaning. The words "and" and "without arms" do not serve any help to the state for the purpose of restricting or regulating the right guaranteed under Article 19(1)b, it is only the Article 19(3) that is helping the state for imposing restrictions or regulations.
To further explain my contention I would like to draw the attention to the draft Constitution of Constituent Assembly where the citizen's right to keep and bear arms was explicitly enumerated in a separate article. Because of this Article 19(1)b reads "to assemble peaceably and without arms;" The removal of explicitly enumerated right from Constitution does not either change the meaning of Article 19(1)b nor does it extinguish RKBA from another Article 21 under Part III.
