More thoughts on implicit license "by operation of law" (read as by operation of Articles 13, 14, 19(1)(b), 21, 25, 26, 27, 29(1) getting reflected in Section 13(3)(a) of Arms Act 1959).
It is a matter of settled law that whenever any issue arises which calls for an "interpretation of statutes" or where a word requires interpretation, the word should be known by the company it keeps. We see the words "and" in company of Clause 1 of Article 19 have been used to join two negative rights. These combination of rights are preferred but Constitution is not offended by any other combination of any other fundamental rights. Also if arms are not recognized by any or all of Articles 13, 14, 19, 21, 25 or anywhere under Part III, then question of saying "and” “without arms" does not arise. Also since Article 19(3) is already there to help the State in imposing reasonable restrictions(also getting reflected in Sections 9 and 14 of Arms Act 1959 ) on anything that does not constitute a right under Article 19(1)b, saying "and” “without arms" becomes all the more unnecessary if arms are not embedded as fundamental right in Articles 13, 14, 19, 21 and 25 or anywhere under Part III. Thus it is clearly self evident that arms are recognized as fundamental right by the Constitution in Article 19. Though it is clearly self evident and no ambiguity exists, to put any doubts at rest, it is important to mention Justice Vivian Bose in Krishna v. State of Madras, 1951 SCR 621 stated: “When there is ambiguity or doubt the construction of any clause in the chapter on Fundamental Rights, it is our duty to resolve it in favour of the freedoms so solemnly stressed.”
Since these rights are negative rights, one combination is freedom of speech and with expression and the other combination is freedom of speech and without expression. Similarly assemble peaceably and without arms has another combination embedded in Article 19. It is to assemble peaceably and with arms. Someone may ask why the right to assemble peaceably and with arms has not been explicitly enumerated in Part III? It is because of volatile experiences of 1947 were fresh in the memory of members of the Constituent Assembly, the concern of the Constituent Assembly was to avoid cases of display of arms in terrorem populi. That is why in order to avoid cases of display of arms in terrorem populi, peaceable assembly without arms is preferred mode of combination of rights under Article 19. This does not by any stretch of imagination mean that combination of peaceable assembly with arms does not exist. I am explaining it below.
Fundamental rights and fundamental duties are two sides of the same coin. Since fundamental right to assemble peaceably and with arms and citizen's militia in personal capacity and control is embedded and exists for citizens under Article 19, that is why there exists corresponding reflection of fundamental duty of citizen's militia in personal capacity and control, to “follow the noble ideals which inspired our national struggle for freedom”, "protect", "defend" and “safeguard” their free State under Articles 51A(b)(c),(d) & (i) and it also gets manifested under the Punjab Village and Small Towns Patrol Act, 1918 and the Himachal Pradesh Village And Small Towns Patrol Act, 1964. Under these acts, in order to do patrolling, able-bodied male inhabitants exercise two fundamental rights, right to assemble (peaceably as well as violently if situation compels) and the right to keep and bear arms. The right to keep and bear arms is also embedded in Civil Defense Act 1968. The right to keep and bear arms and police powers is also embedded in Sections 37 to 39, 43, 46, 47, 52 and 60 in Chapter V Arrest Of Persons of the Criminal Procedure Code and Sections 96 to 106 IPC as citizen's militia in personal capacity and control, in a detailed manner in Article 246 read with entry number 5 in List I—Union List of the Seventh Schedule.
Now let us have a look at relevant portion of Article 25. It says -
25. Freedom of conscience and free profession, practice and propagation of religion.—(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
The word kirpan is made from two words “Kirpa” (mercy, grace or kindness) and “Aan” (dignity/ honor). It has been well settled by Hon'ble Supreme Court in various judgments that dignity and the means to defend dignity are part and parcel of Article 21 and Right of Private Defence in Indian Penal Code. Thus kirpan also has wide meaning, it means “one that has grace to protect the honor” of self, family, home and others. Thus it is for serving very important practical purpose of individual forming part of the militia protecting life and liberty. It is an invented word to represent any weapon of the day that produces the desired result of protecting dignity and honor. In India during 1600s and up to around middle of 1800s, mostly the guns in use were muzzle loading matchlocks. They could only be fired by first loading gunpowder and lead shot from muzzle end and then touching the end of a burning string or rope with touch hole to ignite gunpowder. Thus they were clumsy, inaccurate, time consuming and one could not always keep a burning string always ready. That is why due to ready dependability, the kirpan came to be associated with sword and not gun. Modern day kirpan is gun of the latest pattern. Every knowledgeable Sikh or reasonable person will agree.
It is a well settled maxim of law that what is good and equal, is the law of laws. This applies to Article 25. It is also well settled matter of law and there is no controversy that kirpans are arms. In other words the Explanation I in Article 25 has clearly acknowledged that equally for all, regardless of religion -
1) Subject to public order, morality and health and to the other provisions of Part III, State has no power to legislate about arms.
2) So long arms are not any economic, financial, political or other secular activity, regulating or restricting them is not within legislative powers of State.
3) Since because of above two reasons, also because they are not trade, commerce and intercourse under Part XIII, kirpans are arms that are beyond licensing powers of State, that is why the central Ministry of Home Affairs has issued Gazette Notification G.S.R. 991, dated 13 th July, 1962 excluding kirpans possessed or carried by Sikhs from licensing under Section 4 of Arms Act 1959, similarly Khukris possessed or carried by Gurkhas of all classes are excluded from licensing of Section 4 of Arms Act 1959.
As per Article 13(3)(a) law includes any custom or usage. Article 13(3)(a) read with Articles 19, 21, 25, 26, 27, 29(1) shows that arms(includes firearms, ammunition and explosives) which are part of custom or usage are lawful. Also because they are not trade, commerce and intercourse under Part XIII of Constitution. In other words are freedom and liberty under Part III which State cannot touch. That is why fireworks and other explosives are not covered under exceptions of Explosive Rules 2008.
From all the above reasons of implicit licenses "by operation of law" for firearms in Section 13(3)(a) of Arms Act 1959), that is why Section 42 of Arms Act 1959 talks of conducting census of firearms and it needs to be conducted within four walls of Census Act 1948. Also the concept of licensing for citizens in Section 13(3)(a) of Arms Act 1959 appears on flimsy and shaky grounds since anything that is not trade, commerce and intercourse under Part XIII of Constitution but a right under Part III cannot be matter of licesning.
