Self-defense for the women of crime capital??

"Is it not high time to lift the arms act?"

I agree, it is high time we get rid of this act, if we do not know how to implement it fairly. This is where the problem is. The improper implementation of Arms Act helps in keeping the law abiding unarmed. No matter what the law says, criminals by their very nature of business will always keep themselves armed. Victims are rarely armed to defend themselves. It is of no consolation to victims of crime whether they have been assualted with help of so called illegal weapons.

A perusal of the Introduction to and the Statement of Objects and Reasons of the Act would indicate that the Indian Arms Act, 1878, which preceded the present Act, was enacted by the British with a view to disarm the entire nation. The said Act was repealed by the Arms Act, 1959. Under the repealed Act, even the swords, daggers, spears, spear-heads, bow and arrows were declared as ‘arms’. Even after independence, the law declaring the said weapons as ‘arms’ was allowed to 1[1]) 1993 Allahabad 291. continue unaltered on the Statute Book. Post-independence, the law makers felt that the rigours of the Indian Arms Act, 1878 and the Rules made thereunder continued to make it difficult for law abiding citizens to possess firearms for selfdefence; whereas terrorists, dacoit-gangs and other anti-social or anti-national elements were using not only civilian weapons but also bombs, hand-grenades, Bren-guns, Sten-guns, 303 bore service rifles and revolvers of military type for perpetrating heinous crimes against society and the State. The Indian Arms (Amendment) Bill (No.49 of 1953) was introduced in the Lok Sabha on 27-11-1953, which was discussed in the House on 26-3-1954 and circulated for public opinion. After receiving the opinions from all the State Governments, legal luminaries, Bar Associations, Judges, Collectors, Senior Police Officers and Local Bodies of their respective States, the Bill was introduced with the following objects:-

“(a) to exclude knives, spears, bows and arrows and the like from the definition of ‘arms’.

(b) to classify firearms and other prohibited weapons so as to ensure –

(i) (i) that dangerous weapons of military patterns are not available to civilians, particularly anti-social elements;

(ii) (ii) that weapons for self-defence are available for all citizens under license unless their antecedents or propensities do not entitle them for the privilege; and

(iii)(iii) that firearms required for training purposes and ordinary civilian use are made more easily available on permits;

(c) to co-ordinate the rights of the citizen with the necessity of maintaining law and order and avoiding fifth-column activities in the country;

(d) to recognize the right of the State to requisition the services of every citizen in national emergencies. The licensees and permit holders for firearms, shikaris, target shooters and rifle-men in general (in appropriate age groups) will be of great service to the country in emergencies,

If "the rights of the citizens" as mentioned above do not exist under Article 21 of the Constitution, then the question of co-ordinating these rights for all the citizens does not arise. What does "to co-ordinate the rights of the citizen with the necessity of maintaining law and order" mean? Surely it does not mean co-ordinating the rights like the right to privacy, the rights to information or similar rights. It means nothing but co-ordinating the rights of self defense and RKBA necessary for maintaining law and order. There are two types of law enforcement machinery, one is the law enforcement machinery of the State(Police etc.) and the other is the law enforcement machinery of the citizens in individual capacity. When the citizens use their right of self defense as explained under Sections 96 to 106 IPC with help of RKBA, they are doing nothing but acting as the law enforcement machinery in individual capacity.

The problem is that we have lost sight of the fact RKBA is a natural, human and fundamental right guaranteed by our Constitution, also we have lost sight of the objectives and reasons of Arms Act 1959. Arms Act 1959 was passed NOT to curb or restrict gun ownership from citizens but to co-ordinate their rights and encourage gun ownership. It can be ascertained from the objective (c) highlighted in yellow above. These rights being co-ordinated by Arms Act 1959 are nothing but the fundamental rights of Self Defense and RKBA.

Unfortunately most of the people, the judiciary, the executive and the legislature, mainly out of ignorance think RKBA is not guaranted by our Constitution. This ignorant assumption is made on the premise that only enumerated fundamental rights are guaranteed by the Constitution. Actual fact is that not all fundamental rights are enumerated in Pat III of the Constitution but are still guaranteed. For example the right to privacy, the right to information, the freedom of press etc., though not enumerated are also guaranteed by our Constitution. These rights have been inferred by courts by following the "due process" for interpreting the Constitution.

In the case of U.S. Constitution, the 2nd Amendment is making a positive obligation on the State by saying "the right of the people to keep and bear Arms, shall not be infringed." This does not mean if 2nd Amendment would not have been there, then RKBA would not have existed under the U.S. Constitution. The other place to infer RKBA is from the 5th Amendment of the U.S. Constitution where it says "nor be deprived of life, liberty, or property, without due process of law" which is very similar to our Article 21 of the Constitution. This discussion about inferring RKBA using the due process can be read in detail from US Supreme court conversation transcriptts related to Otis McDonald Vs City Of Chicago available at https://indiansforguns.com/viewtopic.php?f=3&t=10735&start=0

When the Constitution guarantees the right to life, it cannot say that right to self defense is not guaranteed. When the Constitution agrees to guarantee the right to self defense, it cannot say that RKBA is not guaranteed and self defense has to be done with bare hands. Hence RKBA also gets guaranteed by the Constitution.

Moreover I would like to draw the attention to the fact that the Constitution is the supreme law, all the rights and laws flow from the Constitution. The Fundamental rights of the citizens and the State are both equal before the Constitution. All the fundamental rights of the citizens and the State flow from the Part III of the Constitution. If Article 21 under Part III of the Constitution is not guaranteeing RKBA for the citizens, then it is also not guaranteeing RKBA for the State. You cannot give a license to anyone if you do not hold any rights yourself. Example if you have ownership rights on a property, you give your property on a license to a tenant. But if you do not hold any rights on a property, then how can you give that property on license to a tenant?

Also as per Article 25 says: "The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion." There is no doubt or confusion that kirpans are arms. If RKBA is not guaranteed by the Constitution and it is also treating all the citizens equally for the purpose of fundamental rights, then how can people professing Sikh religion enjoy RKBA by keeping and wearing kirpans, unless RKBA has also been equally guaranteed to all citizens under Article 21 of the Constitution?

You may also read the following:

https://www.lawyersclubindia.com/forum/10th-December-Human-Rights-Day-28338.asp

https://www.lawyersclubindia.com/forum/Liability-of-State-in-Death-from-Robbery-28021.asp

"The real resistence  shall always start from people."

the problem with the people is that they are being able to run their household with great difficulty. If any untowards incident happens then no body will take care of their liability. The weakness lies with law enforcement agencies.

Also really it is high time that Arms act be lifted. Initially it may pose some problem but ultimately, it will of great help and Police too will get sigh of relief.

When state fails to protect us and our properties then we have right to defend ourselves. 

illegal arms are openly available.

"When state fails to protect us and our properties then we have right to defend ourselves. "

No State in the world is ever always able to babysit on citizens to protect every time. Citizens are always the first line of defense against crime. Self defense is their fundamental right.

"illegal arms are openly available."

Absolutely correct. No matter how many laws are passed, criminals by their very nature of business will always keep themselves armed. Coorgs in Kodagu District in Karnataka are freely allowed to keep firearms without licenses. Almost every Coorg house has firearms. Crime as well as Police atrocities are both under control. Nobody wants to cause injustice to armed people. Just like tigers go to hunt sheep and goat, they do not go to hunt wolves and tigers because they will get equal and opposite reaction from them.

Jamee par apni hifajat khud karo, Khuda to yaro aasmano mei hai!

In one the judgment SC has made the observation that when state machinery fails to protect anyone, then he has right to protect his life and property, but has failed to observe that how one can protect danger to his life and property.