Owning a licensed firearm in India is considered a privilege as opposed to a constitutional right in a country like USA, owing to some of the strictest gun laws in the entire world. Even .22 air guns or paintball markers, which have a maximum range of 20-30 meters and are effectively non-lethal, are required to be licensed. Obtaining a license for a firearm in India is a task that goes on for months. Such licenses are only issued after completion of a series of background checks and assessment by various authorities, such as magistrates and police officers. Even after such an assessment there is no guarantee that one will be issued a license. This is perhaps the colonial legacy, which entails the distrust of the government towards its citizens, when it comes to licensed firearms, due to the fear of revolt, revolutions or simply a resistance to authority by means of arms. The Central Government has currently monopolised the production of firearms, by imposing heavy restrictions and import duties. Thus, the only way one can acquire a new firearm is by purchasing a licensed one from the Indian Ordinance Factory. There, they are priced at extremely high rates and are of an inferior quality. This inferior quality has led India to be the second largest importer of arms and weapons. However, these imported arms are only for the armed forces and law enforcement agencies.
The Arms Act and the Amendment
The Arms Act, 1959 (“the Act”) lays down the law pertaining to civilian firearm ownership. One can be issued a license for a firearm for three primary reasons under Section 13 of the Act. Firstly, for target practice by shooters who are a part of a club or association recognised by the Central Government; secondly, for bona fide protection of crops. The third reason under, however, is not so plain and simple. Section 13(3)(b) provides that the licensing authority may issue a license if the person requiring the license has a good reason for obtaining the same. The term ‘good reason’ is not defined anywhere in this act; however, the provision is generally used to issue licenses for the purpose of self-defence and defence of one’s property. If the licensing authority is satisfied that there is a threat to a person’s life or property, it is entitled to issue a license by virtue of the said provision.
In December 2019, the NDA government passed the Arms (Amendment) Act, 2019 (“Amendment”), which among other things, restricted the number of licensed firearms a person can own, from three to two under Section 3 of the Act.. The Statement of Objects and Reason for the aforementioned Amendment cites the need to curb the growing proliferation of illegal and illicit firearms as the main object for the Amendment. It specifically states that law enforcement agencies have found a relation between illegal weapons and commission of crimes. It further goes on to introduce stricter punishments for violation of the Act and adds some novel offences as well, such as forcefully taking a firearm from a police officer or an officer of the armed forces and celebratory gunfire. The Amendment also makes the Arms Act the first legislation in the country to define the term ‘organised crime’.
Stringent laws and the proliferation of the illegal arms industry
Amending only the provision that prescribes the limit of licensed firearms serves no purpose. According to the data by National Crime Records Bureau, out of all the firearms seized, less than 2 percent amount for licensed firearms. The other 97% are mostly either country made firearms of crude quality that are manufactured illegally, or firearms smuggled into the country by illegal means. This data is proof that licensed firearms are not being used to commit crimes, rather such strict laws have forced the proliferation of the illegal weapons industry.
Stringent laws, combined with a low market for quality firearms, have proved to be a disaster. The illegal weapons market is both commercially viable, and practically non-traceable. These factors make it a very lucrative and convenient trade. These illegal establishments have now been operating for decades and some even for centuries, ironically taking advantage of the strict laws to supply outfits with country made weapons. Factories all over Uttar Pradesh, Jharkhand and nearby states have, over a long period of time, adapted to the high demand of firearms. Places like Munger in Bihar, used to be hubs of arms manufacturing in colonial times. These skills were then passed down through generations of gunmakers.
A number of the illegal gunmakers today manufacture these arms because it is their only means of sustenance apart form it being a charm of easy money. Their rehabilitation to another industry, or even a legal arms industry like the ordinance factories, would be beneficial as it would serve two purposes; t first, the employees would work in a government run ordinance factory where they can put their skill to good use; second, such rehabilitation would incentivise people to move away from the illegal arms industry to the legal arms industry. Yet no such initiative has been undertaken by any authority.
In India, the control of the police force rests primarily with the state governments, which means it is up to the state law enforcement machinery to give effect to laws enacted by the Central Government. Hence, it is the burden of the state governments to crackdown on these illegal industries. Apart from these establishments, arms are also passed through high militancy and insurgency areas, like Jammu and Kashmir and the North-eastern states, which are very hard to patrol and monitor.
In terms of demand and supply, the demand for foreign firearms is very high mostly because the make of these guns, which are mostly European or American, is of superior quality as compared to that of the Indian origin. However, the supply of these firearms is next to none due to the strict import policies and extraordinary import duties on firearms. The result is that buyers resort to illegal arms industry, which has all kinds of options like country made pistols, cheap knock-offs of Kalashnikovs or pre-owned high quality European firearms. Above all, these grey and black markets offer their customers one thing that is of prime importance – non-traceability. Due to the nature of these sales, these weapons cannot be conclusively traced to either their point of purchase or of origin. This factor proves to be advantageous for almost any group or organisation that indulges in illicit or illegal activities on a regular basis. Due to the unregulated proliferation of the illegal arms, there is no way to put a number on how many Indians today possess illegal arms. It is not as if these industries operate in great secrecy or that their whereabouts are known at all. The demand for these guns comes from criminal outfits and other regular civilians. If they do not have a problem in obtaining such arms, surely the state law enforcement agencies can follow the supply source and trace these illegal arms manufacturers. Yet even after almost sixty years of enacting these laws, these industries continue to function.
Even though these laws were probably enacted with a bona fide view to curb gun crimes, they have inadvertently led to the creation and proliferation of the illegal arms industry. Thus, further tightening these laws, as in the case of the 2019 Amendment, will not be in furtherance of reducing illegal arms. Even though the amendment modifies certain existing offences like increase in punishments for dealing in prohibited arms including their manufacture, procurement, repair, sale, transfer, conversion, and introduces some new ones, such as celebratory gunfire and illicit trafficking, there is no rationale provided for decreasing the limit of licensed firearms. Moreover, it will not help in tackling the problem of the illegal arms market to a very great extent. We have witnessed over the past few decades that these laws have had little or no effect on the menace of illegal arms.
The way forward
A viable solution for the current situation would be the relaxation of gun laws, not just of licenses but also of imports and manufacture. The relaxation of gun ownership laws will lead to a higher gun ownership, i.e., more licensed weapons that can be easily traced and kept a track of for the purpose of more efficient law enforcement as opposed to illegal ones that are practically impossible to keep track of. Moreover, simultaneous relaxation in import policies will lead to the death of the illegal arms industry, as more legitimate purchase options will be readily available. These legitimate sales of arms can also be taxed and would also add substantially to the government revenue.
Further, liberalisation of gun laws in India will also help in the creation of job prospects in the defence sector. India does not export a lot of arms, because of their inferior quality, but this can also be changed by the entry of the private players in the market. New economic policies can be formulated to provide a conducive environment for new Indian defence companies, as well as for well reputed foreign ones. This move will be a welcome one as western arms manufacturers will get a chance to supply arms to the Asian market which is currently dominated by Russia and China. India will also have a logistical advantage in such a situation as the production of arms within the country itself will significantly reduce the import of such arms.
India is one of the best performers in competitive shooting, owing to which it has become a very popular sport in the country. Subsequently the demand for airguns has soared, and most of them are imported. Manufacturing these airguns in India will be beneficial for aspiring shooters and sportsmen, as the cost of acquiring these guns will decrease significantly.
Naturally, there is an argument against the proposed liberalisation, citing high gun related crimes and shootings in countries like the USA, where such gun laws are very lenient. One must note that there is no background check done by the authorities in the USA., because their right to bear arms is protected by the Second Amendment to their Constitution..
During the Constituent Assembly Debates, the idea of making the right to bear arms a fundamental right was also briefly discussed, but the same received high criticism and was never approved. While criticising the said proposed amendment, Dr. Ambedkar stated that, the need to bear arms was present during the freedom struggle as an alien government was occupying our territory and the same is not required anymore. Ironically, even after decolonisation of India, the scope of the Arms Act divide the people into two categories: the government and the subjects, where the state machinery has the statutory right to bear arms and the same is heavily restricted for civilians, a situation that starkly resembles the colonial mechanisms on gun control.
It is not being suggested that the right to bear arms be universal and absolute as that would come with its own pandora’s box of troubles, but merely that they be a little liberal. Even in the proposed amendment there existed a proviso which read:
“Nothing in sub-clause (h) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing, in the interests of public order, peace and tranquility, restrictions on the exercise of the right conferred by the said sub-clause. » Unregulated liberalisation of firearms is not the best way to go forward, but a controlled, regulated and duly licensed proliferation of firearms will serve multiple purposes such as a legitimate alternative to the illegal arms industry, point to point traceability of both arms, and ammunition. The process of granting a license in India is very thorough, as stated earlier, which is one of the major reasons why licensed weapons are not being misused in India; and this must be continued as background checks help in providing the licensing authority an insight as to whether it is safe for the person to possess a firearm.
This article has been authored by Utkarsh Dubey, student at National Law University, Jodhpur.