Challenging the prohibition on the import of firearms.

[raimanmeet]

PROJECT TRIGGER

As I am new to the forum I have posted my introduction under the Introduction and welcome thread. I am planning to challenge the prohibition on the import of firearms imposed almost 2 decades back by the ministry of Finance. I strongly believe that unless we Indians have ready access to firearms the right to bear arms cannot be fruitfully visualized. The ready access of firearms would lead to more people possessing them then only we can propose to see a greater collective action against the Govt. curbing the right. Currently the firearms are commodities which an average Indian cannot even think off as they are damn expensive. Until the supply meets the demands we cannot generate a large debate on the rights to bear arms. Majority of the Indians do not even think about this issue as they know that they would never be able to afford a firearm.

The proposal:

1. Data Collection-
In order to make a strong case before the courts we need to have as much data as possible about the number of licenses issued in each state, number of cases for the violations of the license, number of fatal accidents/crime by license holders, number of illegal weapons confiscated, number of MPs and MLAs from each state holding a firearm license, number of applications received in the last 5 years and the rate of rejection, number of female applicants etc.

The second line of data collection would be about the number of firearm industries in the country, their production capacity, type of weapon manufactured by them and the safety mechanisms on such firearms.

The third category of date would be with regard to the prices of the firearms in India and in US or other countries which will be compared to the price of an imported firearm after paying the custom duty.

This date will be collected through filing RTI application in each state and having a nation wide data survey. Unfortunately the Crime Records Bureau does publish annual statistics about crime but does not categorize the ones we need for the case.

2. The grounds:

The grunds that will be urged in the petition would be as follows:
a) RKBA is a fundamental right under Article 21 of the constitution of India. (See Ganesh Chandra Bhatt v. Dist Mgistrate & Ors., AIR 1993 All. 291)
b) The prohibition violates article 14 of the constitution of India: the present policy creates a economic disparity between the have and have nots with regard to right to bear arms. The economic disparity is due to the people who can afford to purchase arms and those who cannot.
c) does not achieve the object proposed: Every policy, statute, notification should show that it strives to achieve the objective behind it. The objective behind the prohibition was the growing insurgency but allowing importation of arms will only allow law abiding license holders to import arms and will not be available to the anti-social elements.
d) Safety concerns: The weapons manufactured by IOF and the foreign manufactured ones lack the safety mechanism as compared to their foreign counterparts.
e) US Constitution v. Indian Constitution: Majority of the provisions that we see under the Indian constitution in Part III dealing with the fundamental rights were borrowed from the US constitution. Although over the years the their interpretation has changed. One of the vital rights present under the US constitution thats did not find itself under the Indian constitution was the second amendment (RKBA). In the Constituent assembly debates not much ink has been spilt in why it dis not find a place except that Dr. B. R. Ambedkar did not consider that Indians would need the guns after they have achieved the Independence but now is the ever increasing need for right to carry arms.
f) Self Defense: an inherent right of every citizen is at stake as the authorities are unable to cater to the needs and protect the citizens. Mumbai Bomb blast and the news reports esp in which Mr. Abhijeet Singh expressed his views on this. The news reports of how the politicians who have police protection enjoy the privilege of easily procuring a license whereas a common citizen is bluntly refused. see http://indiatoday.intoday.in/site/Story ... +guns.html
g) Governments misdeeds cannot lead to curbing our rights: The Indian authorities in the past have miserably failed to ensure a safe crime free environment in India. Many of the government officials have indulged in illegal activities of supplying firearms to naxals and anti social elements. The Hon'ble Home Minister Mr. Chidambram recently after the Dantewara massacre was posed with a question by one of the Journalists "Where do the Naxals get arms from?" His candid reply was we all know it, even you know it, do a google search. If the authorities know where the illegal arms come from why can't they stop it?
See generally:
http://www.dnaindia.com/india/report_mi ... ar_1322245
http://timesofindia.indiatimes.com/city ... 201490.cms
http://timesofindia.indiatimes.com/news ... 908341.cms
http://www.morungexpress.com/frontpage/29482.html
http://www.hindustantimes.com/News-Feed ... 29002.aspx
http://economictimes.indiatimes.com/New ... 134069.cms
http://www.hindu.com/thehindu/holnus/00 ... 041041.htm
http://www.cdi.org/program/document.cfm ... /index.cfm
http://www.timesonline.co.uk/tol/commen ... 299010.ece
http://sify.com/news/women-empowered-wi ... eeibj.html
http://afp.google.com/article/ALeqM5gSD ... -SqEOJ9lag

h) Present Law v. The old law: When Arms Act of 1959 was put into place it was to regulate the firearms in India and not to curb the right to bear arms. The object of the act clearly states:
--------That weapons for self-defense are available to all citizens under license unless their antecedentsor propensities do not entitle them for the privilege.
--------That firearms required for training purposes and ordinary civilian use are made more easily available on permits.
--------To co-ordinate the rights of the citizens with the necessity of maintaining law and order and avoiding fifth-column activities in the country.
--------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 generalfin appropriate age groups will be of great service to the country in emergencies, if the government can properly utilize and mobilize them.

These objects are mentioned before the act in the original text but usually not available on the ones that are online. The objects of the statutes aare a major tool in interpreting them.
The above mentioned objectives with the main intent of getting rid of the british act of disarming citizens shows that how the authorities and the administration has interpreted the act is untenable and misconceived. The Govt. to hide their failures are trying to shift the blame on the law abiding citizens.
I) The state sanctioned killings and its failure: the scars of 1984, babri maszid, godhra, minorities in Orrisa and the recent Mumbai attack are still fresh. The police could do nothing but was simply a mute spectator and in certain cases the perpetuator of the crimes, which entitles every citizen all the more reason to carry a firearm.

3. Not against regulation:

The petition is not against regulation of firearms but against the unreasonable restrictions imposed in exercising the right to carry and bear firearms.

The Approach

After considerable consensus is generated we can form groups of members in different states who will fire RTI applications and gather the data with the core group. The format of the RTI can be made available on the forum. Thereafter we need to do brainstorming and draft the petition. Once it is done by the core group of 10-15 members it would be up on the forum for suggestions. After the suggestions are incorporates we need to file the petition in different high courts all across the country. The chances of succeeding are bleak and even if we do win the respectives state and central govt. will challenge it before the SC and that is where we want the cases to go. Once at at the Supreme Court the final battle will commence.

We will need a lot of resources to ensure that the best brains work on this and that is how we can ensure a meaningful right. In the past 6 years no one has ever challenged the Arms act or tried to interpret. It has been left free to be abused at the hands of the bureaucracy.

_______________________________________________________________________________________________________________________________________

The above is just a reflection of my research in the last few months. I highly encourage everyone to put their views and mobilize the IFG community towards filing the petitions challenging the prohibition of the import of guns. I have not ventured into too much details but if anyone is interested in further exploring the legal intricacies you are most welcome to mail me at [email protected]. I also recommend that we have a data base of the relevant judgments on the forum. I would gladly contribute the original texts of the Indian Supreme Court and other Courts across the globe.

For an in-depth study of gun rights I highly recommend "Gun Control & Gun Rights" by Andrew J. McClurg.

My research was a part of my Masters in Law programme which I am pursuing at UCLA under the supervision of Prof. Adam Winkler [http://law.ucla.edu/home/index.asp?page=757] who has been quoted by the US Supreme Court in its recent judgment on Second Amendment "District of Columbia v. Heller, 128 S. Ct. 2783 (2008)"

[Raj Khalid]

Thank you for this most useful train of thought. I would like to add a more basic and fundamental reason why the ban on import of fire-arms is illegal.

India is a signatory to the WTO, in fact India is a founder member of WTO. One of the main clauses in the WTO that imports cannot be restricted. A Government can restrict imports under some clauses like Environmental (goods like ewaste which can pollute the environment, Security of the State (explosives etc)

However there is one corollary to all the above. IF ANY ARTICLE IS MANUFACTURED AND SOLD FREELY IN THE COUNTRY THEN ALL SIMILAR GOODS OF FOREIGN ORIGIN ARE TO BE ACCORDED THE SAME TREATMENT. This is called Nationality Treatment. So if IOF can make and sell .22 and .32 revolvers, .12 bore shotguns, .30 06 rifles and various kinds of ammunition then similar items of foreign cannot be restricted via imports.
The Government cannot claim that a .32 Smith & Wesson or a Walther PPK can cause a security problem but an IOF manufactured pistol and revolver is "safe" this is nothing but a monopoly for IOF to sell shoddy fire arms at a huge price.

So if you want to import the fire arm go ahead and do so after informing your Customs authorities and I am sure you can make a good appeal to the Tribunal and the Supreme Court if necessary.

Raj Khalid

[raimanmeet]

Raj,

Under the WTO regime if a country imposes a ban on the imports from other country then the concerned or exporting country can approach the WTO and ensure that same is lifted. In case of firearms that is not the case. India has not imposed a ban on any nation from exporting firearms to India, on the contrary India is the among the largest importer of firearms. When it comes to civilian firearms they can be regulated by the government as enshrined in the act. The regulation has to be reasonable and this the point that I am making here. If I make the argument of WTO grounds the courts in India would not entertain the argument and neither does it fall under their jurisdiction. It can be raised if another country files a complaint before the WTO.

You need to understand that there are two kinds of law public international law and private international law. Public deals with the conflicts between the states (Countries) and private deals with the individual and the country and its implication on other countries. Here we are concerned with neither. Here we are dealing with the municipal i.e. domestic law.

Thee are many other commodities that are prohibited like radioactive materials that cannot be imported. DGFT does permit certain categories of people to import radioactive stuff who comply with the domestic laws. Similarly in cases of firearms DGFT allows sportsmen and people on transfer of residence to import a firearm. The argument that you give will fail before the legal forums. Even if India exports certain products to another country they can be regulated and in case of firearms there is no company who is importing firearms. Firearms come in a different category all together. I hope this makes it clear to you.

[ven99]

dear manmeet ,
we will give you 10 out 10 for your effort which is going in to this mess created by the govt to sell scrap for the best possible rate
i will also try to put my effort form my side to support you ...

warm regards
amreeth

[raimanmeet]

Thanks Amreeth,

I will be back in India in June and will get in touch with Abhijeet. Once we all agree on challenging the ban I will post RTI applications with adress of the authorities from where the information needs to be sought. We need to gear up with the facts and figures before we do anything. The govt. will try its best to defend its stand and we will have to fight this case on a Pan India basis till the Supreme Court.

Every man counts and every effort from each one of us will ensure that not only us but our future generations live as free citizens.

[jonahpach]

Now this looks like a motion that is worth 'seconding' and that too from a newbie.. Congratulations rainmanmeet and may the sun always shine on your young head! Good work. I am with you all the way.

Jonah

[amit888_2000]

Dear manmeet, in june, lets plan a joint meeting with all inputs, and lets start Compiling, the case, each one of us, is there with you in any mean, median, mode, what ever it takes,

Abhijeet, penpusher, and few more have really done a good work, i would request all and abhijeet to cordinate out 1st meeting with manmeet.....

))))cheers!!!!

Amit

[goodboy_mentor]

When it comes to civilian firearms they can be regulated by the government as enshrined in the act. The regulation has to be reasonable and this the point that I am making here.

Very good opinions and efforts in the right direction. In my opinion, Arms Act 1959 is suffering from vice of over delegation, the practically unlimited powers delegated by parliament to the executive by Arms Act for the so called "regulation" by government is the real cause of trouble in a corruption ridden country like India. It has reached such ridiculous levels, beyond anything "reasonable" to the extent of violating the fundamental rights and the Arms Act itself.

[MoA]

Good luck.

[ven99]

hi every one,
i think we should also collect informantion where the department rejects the application
and the applicant died by a hired gang or any other anti social elements ....

[Anand]

Way to go raimanmeet I will support any activity that increases popular RKBA.
Anand

[raimanmeet]

Thanks everyone for your comments. Feel free to make more suggestions as to how the arguments can be made more effective. Law is nothing but codified common sense. I look forward to materializing this project and approaching the court in the next couple of months.

@ Amit: I would be really happy if we could coordinate this and collect information. I had the opportunity to meet a few state representatives of NRA (National Rifle Association). One of the biggest reason that US govt. cannot restrict gun ownership in US is due to the fact that NRA has a big lobby. They conduct their own country wide surveys to show how gun ownership deters crime. They are the best when it comes to gun stats and would hire the best legal brains to argue their cases before the court. Unlike India where only the central govt. is responsible for the regulation of firearms, in US every state has its own set of gun laws. NRA collects and carefully monitors every state law that comes into picture with help of its members. As soon as any negative law comes into picture a central meeting is organized by NRA and it is challenged before the courts. The next big thing being argued after the Hellers case is the legality of the ban on possessing firearms in the city of Chicago which is sub judice before the US Supreme Court.

We can do the same and effectively advocate out objectives and goals. The more we sweat in peace the less we will bleed in war. Now is the time to act and prepare ourselves. The task is mammoth and we need every person to contribute his bit. I am in touch with Abhijeet and will very soon announce my arrival date in India after which we can plan a meeting to further decide our course of action.

[winnie_the_pooh]

Laudable sentiments,zero chance of success.

[goodboy_mentor]

WTP, may I ask, why do you feel that there is zero chance of success? And also what is the way to get more than 0% chance of success?

[raimanmeet]

The chances may be bleak but not zero. Until we jump into the pit we cannot be sure of its depth. The proposal might look funny and flimsy as of now but has bright chances of success provided we all are determined to work hard. Even M K Gandhi once quoted: First they ignore you, then they laugh at you, then they fight you, then you win.

WTP if you have any better ideas then do share them with us.