Allahabad High Court agrees: RKBA - Part of Article 21

[χάος]

Keeping a fire arm for the purpose of personal safety and security is a mode and manner of protection of oneself and enjoyment of fundamental right of life and liberty under Article 21 of the Constitution.

Cheer UP !!

It seems that gradually the legal fraternity is moving in the direction to understand the fact that RKBA is guaranteed under Articles 19 and 21 of the Constitution of India and the Arms Act 1959 is just a regulatory law to regulate this fundamental right. Hence the utterance by the High Court that the grant of firearm licence is not a privilege accorded by the government(in other words, it means that it is accorded/guaranteed by the Constitution).

In simpler words 'The grant of licence shall be the action and its rejection must be a exception'

Herein attached the copy of the complete judgement -

RKBA is Guaranteed under Article 21 - 85234_210216_26_wric_a_49301_2011.pdf

Below is the copy of entire judgment:

High Court Of Judicature at Allahabad

Court No. - 21

Case :- WRIT - C No. - 49301 of 2011

Petitioner :- Ajay Kumar Gupta
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Yogesh Srivastava
Respondent Counsel :- C.S.C.

Hon'ble Sudhir Agarwal,J.

1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

2. Considering the pure legal submission advanced by learned counsel for the petitioner, learned Standing Counsel states that he does not propose to file any counter affidavit and the writ petition may be disposed of finally at this stage under the Rules of this Court.

3. The petitioner's application for grant of firearm licence has been rejected by the District Magistrate, Allahabad vide order dated 15.10.2009 only on the ground that petitioner has not given any special circumstance for seeking firearm licence and the said order has been confirmed by Commissioner by dismissing appeal vide order dated 05.08.2011.

4. Learned counsel for the petitioner submitted that he has applied for firearm licence for his personal safety and the said fact has not been found incorrect or false. The respondents have considered the matter in a most arbitrary and illegal manner by misdirecting themselves on certain aspects which are not relevant for the purpose of considering whether firearm licence should be granted or not.

5. Learned Standing Counsel having gone through the impugned orders could not support the same.

6. This Court in Pawan Kumar Jha Vs. State of U.P. and others, 2010(10) ADJ 782 has held that undue restriction on keeping and bearing arms ought not be based on unfounded fear. Licence is normally to be granted unless there is something adverse.

7. A fire arm licence cannot be denied only on conjectures and surmises and without appreciating the objective of statute under which the power is being exercised. Right to life and liberty which includes within its ambit right of security and safety of a person and taking, adopting and pursuing such means as are necessary for such safety and security, is a fundamental right of every person. Keeping a fire arm for the purpose of personal safety and security is a mode and manner of protection of oneself and enjoyment of fundamental right of life and liberty under Article 21 of the Constitution. In the interest of maintenance of law and order certain reasonable restrictions have been imposed on such right but that would not make the fundamental right itself to be dependant on the vagaries of executive authorities. It is not a kind of privilege being granted by Government to individual but only to the extent where grant of fire arm licence to an individual would demonstratively prejudice or adversely affect the maintenance of law and order including peace and tranquility in the society, ordinarily such right shall not be denied. It is in these circumstances, this Court has observed that grant of fire arm licence ordinarily be an action and denial an exception. In Vinod Kumar Shukla Vs. State of U.P. and others, (Writ Petition No. 38645 of 2011), decided on 15.07.2011 this Court has said:
"When a fire arm licence is granted for personal safety and security it does not mean that in the family consisting of several persons only one fire arm licence is to be granted. Moreover, this cannot be a reason for denial of arm licence. Fire arm licence can be denied only if the reason assigned by applicant or details given by him in application are not found to be correct but merely because there are one fire arm licence already possessed by one of the family member, the same cannot be denied. Grant of fire arm licence should ordinarily be an action and denial should be an exception. The approach of authorities below is clearly arbitrary and illegal. It also lacks purpose and objective of the statute."

8. The authorities empowered to grant licence under the Act ought not to behave as if they are part of the old British sovereignty and the applicant is a pity subject whose every demand deserved to be crushed on one or the other pretext. The requirement of an Indian citizen governed by rule of law under the Indian Constitution deserved to be considered with greater respect and honour. The authorities thus shall have considered the requirement of applicant with more pragmatic and practical approach. Unless they find that in the garb of safety and security, applicant in fact intend to use the weapon by obtaining a licence for a purpose other than self defence, it ought not to have been denied such licence. I am not putting the statutory power of authority concerned in a compartment since there may be more than one reasons for exercising statutory discretion against applicant but then that must justify in the context of purpose and objective of statute and necessarily ought not be whimsical.

9. Both impugned orders in the case in hand shows that on wholly conjectures and surmises the authorities have denied petitioner's claim for fire arm licence and have rejected his application in a most arbitrary manner. The two orders, therefore, cannot sustain.

10. In view of above, the writ petition is allowed. The impugned orders dated 15.10.2009 and 05.08.2011 are hereby quashed and the matter is remanded back to the Collector concerned to consider the same afresh in accordance with law and in the light of observations made above and pass a fresh order within a period of two months from the date of production of a certified copy of this order.

Order Date :- 29.8.2011

Feel free to post in case of any other details are sought.

Adios Amigos
---
Vishal
Guns don't Kill people - POLICIES DO

[mundaire]

Fantastic news Vishal, thank you so much for sharing with everyone here.

Kudos to the court for standing up against the government for the cause of personal liberty & freedom

Cheers!
Abhijeet

[Katana]

Absolutely brilliant judgement. If only a Supreme Court judgement on similar line were to be given, although the same may be used as precedence. Feel like personally going and shaking the Judge's hand.

[spin_drift]

this is an excellent news

[Hammerhead]

tagged

[lonetrigger]

This is indeed a positive development.
However, I am skeptical considering that there was similar judgement from Allahabad High Court by Justice Katju which was refuted by a Higher Bench of the same court.

I have a question: What is the power of the Judiciary over the Executive?
This is not the first time that the courts have ruled in favor of the petitioner wrt. RKBA, especially the Allahabad High Court. Aren't the High Court judgments relevant at least within the respective State? Isn't it a Contempt of Court when the Executive of that State keeps denying the RKBA by rejecting Arms Licence based on spurious pretexts?

The effect of such positive judgement is apparently restricted to only that case or petitioner. That particular petitioner gets the Arms licence. After which the Licencing Authorities are back to the business of rejecting applications until someone again goes to courts. Could someone please explain what is going on?

Regards...

[jpc]

Absolutely brilliant judgement. If only a Supreme Court judgement on similar line were to be given, although the same may be used as precedence. Feel like personally going and shaking the Judge's hand.

Dear,
In the case of Ranjith Singh V/s Union of India , reported as AIR 1981 SC 461 , Hon'ble Supreme Court has held that " An applicant for a licence is entitled to have it considered in accordance with the terms of the statute and to press for its grant on the basis of the criteria set forth in it".
Form the above judgment of Hon,ble Supreme Court , it is very cristal clear that licensing authority can not consider any other ground for rejection of arm application which are not mention under Section 14 of the Arms Act 1959.
J.P.Chaturvedi

[winnie_the_pooh]

Thanks for posting this.Kudos to the judge for taking this view.

[ckkalyan]

vishalksinghVY Many thanks for bringing up this case, amigo! Bravo!

This is a definite step in the right direction! Judge DRED Rulez!

Thanks jpc In the case of Ranjith Singh V/s Union of India , reported as AIR 1981 SC 461 , Hon'ble Supreme Court has held that "An applicant for a licence is entitled to have it considered in accordance with the terms of the statute and to press for its grant on the basis of the criteria set forth in it".

Exactly! This type of judgement should be used as precedence ALL the time, EVERY time - until it is accepted as the NORM and NOT the exception!

[goodboy_mentor]

This judgment is already discussed here few months ago http://indiansforguns.com/viewtopic.php ... 64#p147708 Legally speaking it is not a "grant" of arms license but an "issue" of copy of arms license which already belongs to the citizen.

[χάος]

Guess What !!

Allahabad High Court slapped a fine of INR 10,000/- for Denying a weapon license to be granted to an individual whose father has a criminal background & POLICE also didn't recommended the grant of license.

AND it said again that RKBA is guaranteed by constitution .

Bravo !!


Hon'ble Sudhir Agarwal,J passed this order on 10/04/2012. He also imposed penalty of Rs 10000 on administration. Text of the order is below -

Case :- WRIT - C No. - 3827 of 2012

Petitioner :- Akhilesh Kumar Singh
Respondent :- State Of U.P. Thru' Secretary Ministry Of Home And Others
Petitioner Counsel :- Riyajuddin Ansari,J.A. Azmi
Respondent Counsel :- C.S.C.

Hon'ble Sudhir Agarwal,J.
1. Heard learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the record.

2. This writ petition is directed against the order dated 25.10.2011 passed by District Magistrate, Deoria rejecting petitioner's application for grant of firearm licence and appellate order dated 29.09.2011 passed by Commissioner, Gorakhpur Division, Gorakhpur rejecting appeal of petitioner.

3. It appears that police did not recommend grant of firearm licence to petitioner and relying thereon the District Magistrate rejected petitioner's application. In appeal, besides the fact that police has not made any recommendation, the appellate authority has observed that appellant, i.e., petitioner did not disclose any special reason or circumstances relating to his security which would justify grant of firearm licence to petitioner, hence he has held that the District Magistrate has rightly rejected petitioner's application for grant of firearm licence.

4. It is admitted that petitioner applied for grant of firearm licence for his personal safety and security. In the counter affidavit the respondents have filed a copy of police report dated 18.10.2010 which shows that police did not find anything wrong with petitioner but found that petitioner's father was an accused in a criminal case under Section 302 IPC in which though he was acquitted but since the acquittal was based on account of lack of proof of charges due to witnesses become hostile, the police did not recommend grant of firearm licence to petitioner.

5. Learned Standing Counsel could not explain as to how the conduct of petitioner's father was relevant for grant of firearm licence to petitioner. Moreover, in respect to non recommendation of licence to petitioner the police report is totally silent about the conduct and antecedents of petitioner justifying non recommendation of firearm licence. It appears that police authorities are proceeding as if it is their pleasure to make recommendation or not for any reason whatsoever and they can proceed to submit inquiry report in a whimsical and arbitrary manner and their mere observation that they did not recommend licence to applicant, would be sufficient to disentitle the applicant from obtaining firearm licence. The approach of police authorities does not appear to be objective in the matter. The District Magistrate and Commissioner have also proceeded in the same manner without any application of mind on their part. Moreover, this Court find it difficult to comprehend as to what the authorities below wanted from a person who is seeking firearm licence for his personal safety and security. It is not the case of respondents that law and order situation in the district concerned or in the State has improved so drastically that police and district administration is extremely capable to give security to all persons and there is no question of any endanger or apprehension to security and safety of any individual entitling him to take his own care since that can be done by law and order machinery itself. It is also not their case that petitioner's claim of firearm licence for his personal safety and security is bogus or a pretext and the real motive is otherwise.

6. This Court in Pawan Kumar Jha Vs. State of U.P. and others, 2010(10) ADJ 782 has held that undue restriction on keeping and bearing arms ought not be� based on unfounded fear. Licence is normally to be granted unless there is something adverse.

7. A fire arm licence cannot be denied only on conjectures and surmises and without appreciating the objective of statute under which the power is being exercised. Right to life and liberty which includes within its ambit right of security and safety of a person and taking, adopting and pursuing such means as are necessary for such safety and security, is a fundamental right of every person. Keeping a fire arm for the purpose of personal safety and security is a mode and manner of protection of oneself and enjoyment of fundamental right of life and liberty under Article 21 of the Constitution. In the interest of maintenance of law and order certain reasonable restrictions have been imposed on such right but that would not make the fundamental right itself to be dependant on the vagaries of executive authorities. It is not a kind of privilege being granted by Government to individual but only to the extent where grant of fire arm licence to an individual would demonstratively prejudice or adversely affect the maintenance of law and order including peace and tranquility in the society, ordinarily such right shall not be denied. It is in these circumstances, this Court has observed that grant of fire arm licence ordinarily be an action and denial an exception. In Vinod Kumar Shukla Vs. State of U.P. and others, (Writ Petition No. 38645 of 2011), decided on 15.07.2011 this Court has said:

"When a fire arm licence is granted for personal safety and security it does not mean that in the family consisting of several persons only one fire arm licence is to be granted. Moreover, this cannot be a reason for denial of arm licence. Fire arm licence can be denied only if the reason assigned by applicant or details given by him in application are not found to be correct but merely because there are one fire arm licence already possessed by one of the family member, the same cannot be denied. Grant of fire arm licence should ordinarily be an action and denial should be an exception. The approach of authorities below is clearly arbitrary and illegal. It also lacks purpose and objective of the statute."

8. The authorities empowered to grant licence under the Act ought not to behave as if they are part of the old British sovereignty and the applicant is a pity subject whose every demand deserved to be crushed on one or the other pretext. The requirement of an Indian citizen governed by rule of law under the Indian Constitution deserved to be considered with greater respect and honour. The authorities thus shall have considered the requirement of applicant with more pragmatic and practical approach. Unless they find that in the garb of safety and security, applicant in fact intend to use the weapon by obtaining a licence for a purpose other than self defence, it ought not to have been denied such licence. I am not putting the statutory power of authority concerned in a compartment since there may be more than one reasons for exercising statutory discretion against applicant but then that must justify in the context of purpose and objective of statute and necessarily ought not be whimsical.

9. Both impugned orders in the case in hand shows that on wholly conjectures and surmises the authorities have denied petitioner's claim for fire arm licence and have rejected his application in a most arbitrary manner. The two orders, therefore, cannot sustain.

10. In view of above, the writ petition is allowed. The impugned orders dated 25.10.2010 and 29.09.2011 are hereby quashed and the matter is remanded back to the District Magistrate concerned to consider the same afresh in accordance with law and in the light of observations made above and pass a fresh order within a period of one month from the date of production of a certified copy of this order. The petitioner shall also be entitled to cost, which I quantify to Rs. 10,000/-. At first instance the cost shall be paid by respondent no. 1 but it may have the liberty to recover the aforesaid amount from official concerned who held the office of respondents no. 2 and 3 and are responsible for passing the impugned orders.
Order Date :- 10.04.2012
AK
---

Cheer up guys, I believe the time is coming.

[varunik]

Wow! Proud to be a Uttar Pradeshi

[goodboy_mentor]

However, I am skeptical considering that there was similar judgement from Allahabad High Court by Justice Katju which was refuted by a Higher Bench of the same court.

If one carefully reads the judgment overruled by the higher bench it will be found to be per incurium. There are many important facts and substantial questions of law which were not discussed by that bench.

I have a question: What is the power of the Judiciary over the Executive?
This is not the first time that the courts have ruled in favor of the petitioner wrt. RKBA, especially the Allahabad High Court. Aren't the High Court judgments relevant at least within the respective State? Isn't it a Contempt of Court when the Executive of that State keeps denying the RKBA by rejecting Arms Licence based on spurious pretexts?

Judiciary and Executive are separate. Judiciary can intervene when the law is not followed by Executive.

High Court judgments are binding on lower courts within its jurisdiction. High Court judgments can also be cited in other High Courts to fortify your arguments. They have persuasive value.

Since these judgments are related to individual cases, it will be contempt of court if the directions of court are not followed for that individual.

The effect of such positive judgement is apparently restricted to only that case or petitioner. That particular petitioner gets the Arms licence. After which the Licencing Authorities are back to the business of rejecting applications until someone again goes to courts. Could someone please explain what is going on?

Your observation is correct since the "petitioners" move court for only their cases. Hardly anyone has moved a writ or PIL in a manner so that court gives direction to the Executive on a wider scale or attacked the root cause of the problem. What is the root cause of the problem with this "licensing" under Arms Act 1959? Since arms are fundamental right under Articles 19 and 21, I find some Sections of Arms Act 1959 to be violating Article 20(3). Similar judgment of US Supreme Court is Haynes v. United States, 390 U.S. 85 (1968). It can be read at http://caselaw.lp.findlaw.com/cgi-bin/g ... 0&invol=85

[χάος]

@ goodboy_mentor :

Great work !!!

It is indeed a careful insight of the matter, I do agree situation is not good but it is getting better .. and especially this platform is helping a lot of people, help changing their mindset, and making people more responsible ..

Govt. is us .. Until we; ourselves don't get disciplined govt. can't get disciplined .. It applies to all .. It applies to everyone ..

I am happy with the pace things are moving, and very very proud and happy for the acheivements that as a nation we are acheiving, for example DRDO is rolling out something new every now and then .. People said we need active defence system and they rolled out missile shield .. Launched our satellite system capable of watching weather and watching enemy(s) too - day & night, almost everything is made indigenously and they are trying very hard ..

However; I strongly believe that until we realise the power of citizenship we won't be able to change the system; half of the population doesn't vote and 70-80% of the population who cast their vote are voting under influence - under influence of money or under influence of alcohol, and under these circumstances how can we even demand that our politicians be truthful and and honest. There were instances in the past that criminals are winning elections, in the recent election in UP a criminal won a election as an independent candidate and the party who was going to make the Govt. has taken this criminal and awarded a key ministry to him, which was not required as the party already had majority.

Who has made them the leaders, we; the voters.
Why did he won? Because 50% polulation didn't cast their vote,
20-30% people voted without having a Pan-India vision,
and remaining 20-30 % people voted under influence.

Well the list is endless, so back to square one, I firmly agree that initiatives like a PIL is required and I am hoping NAGRI is preparing case very strongly ..

Cheers for the good work ..