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HIGH COURT OF ALLAHABAD
M.Katju
ANIL KUMAR
Versus
STATE OF U P
Decided On : 30 March 1993
Civil Misc. Writ No. 30666 of 1992
Arms License - Right to Self-Defense - Arms Act, 1959, Section 97 of IPC - Article 21, Article 14 of the Constitution
Fact of the Case:
The petitioner applied for a revolver license, which was rejected by the District Magistrate. The Commissioner upheld the rejection based on government orders directing arm licenses to be granted only to victims of heinous crimes or physically unfit heirs of such license holders, or to government officials needing arms for official duties. The petitioner challenged the rejection on the basis of unconstitutionality.
Finding of the Court:
The court found the government orders unconstitutional, affirming the right to carry arms as a fundamental right under Article 21 and the right of self-defense as part of Article 21 and Section 97 of IPC. The court criticized the lack of adequate protection by state authorities and held the government orders arbitrary and without jurisdiction.
Issues: Unconstitutionality of government orders directing arm licenses and the right to carry arms as a fundamental right.
Ratio Decidendi: The court established the right to carry arms as a fundamental right under Article 21 and the right of self-defense as part of Article 21 and Section 97 of IPC. It criticized the lack of adequate protection by state authorities and held the government orders arbitrary and without jurisdiction.
Final Decision: The petition was allowed, and the impugned orders and government orders were quashed.
This writ petition has been filed for a writ of certiorari against the impugned orders dated 15-2-1992 and order dated 27-6-1992.
2. I have heard Shri Noor Ullah holding the brief of Sri A. S. Diwekar Counsel for the petitioner and learned Standing Counsel On 1-9-1992 this court granted one months time to the standing counsel to file counter affidavit but no counter affidavit has been filed. In the circumstances I am treating allegations in the petition to be correct.
3. The petitioner had applied for licence for a revolver in 1990 before District Magistrate, Firozabad. This application was rejected by the District Magistrate by order dated 22-12-1990. Thereafter the petitioner filed an appeal before the Commissioner, Agra Division, who allowed the appeal on 22-10-1990 and remanded the matter to the District Magistrate vide Annexure No. 2. Thereafter the District Magistrate again dismissed the application on 15-2-1992 vide Annexure No. 3 and his order was upheld in appeal on 27-6-1992 vide order Annexure No. 6. Aggrieved this petition has been filed before this Court.
4. A perusal of the order of the District Magistrate dated 15-2-1992 shows that there was no averment or material indicating that there was any dacoity, murder or any other henious crime committed in the house of the applicant. Hence in view of the relevant G O. of the Government dated 23-3-19^0 the order of the District Magistrate was affirmed in appeal by the Commissioner on 27-6-1992 who has held that the application cannot be allowed. A perusal of this Government Order dated 23-3-19^0 (a copy of which has been annexed with this petition) shows that the government has directed that arm licences be granted only to such person who was victim of a henious crime because of which he was feeling unsafe or the heirs of such licence holder who are physically unfit, or to the Government officials who needed the arm in connection with the performance of official duties.
5. A supplementary affidavit has also been filed by the petitioner annex ing Government order dated 31- 3-1992 in which guidelines for grant of arm licence had been prescribed. Clauses 5, 6 and 7 of this G. O. is substantially similar to the Government order dated 23-3-1990.
6. In my opinion the G. O. s dated 23-3-1992 and 31-3-1992 are unconstitutional as being violative of Articles 14 and 21 of the Constitution.
7. . I have already held in Ganesh Chandra v. D. M. , Writ Petition No. 4723/93 decided on 12-3-1993 reported in 1993 J[c 490 that the right to carry arms is a fundamental right under Article 21. In the aforesaid judgment I have discussed the matter in great detail and have noticed the fact that now-a- days most of the criminals are armed with fire-arms of all kinds whereas decent persons are unarmed. The contents of Article 21 of the Constitution have been explained by the Supreme Court in its recent decisions which I have discussed in detail in my aforesaid judgment, and hence, I need not repeat or elaborate on the same.
8. I have also observed that it is unfortunate that the State authorities are not now-a-days providing adequate protection to the law abiding citizens. It is the duty of the State to provide adequate protection to the citizens, but since that is not being properly done the citizens must defend themselves.
9. The right of self-defence is to be deemed part of Article 2 { of the Constitution, and this right is also contained in Section 97 of IPC.
10. This right must be an effective right and it cannot be effective if the criminals are armed with fire- arms while the law abiding citizens are unarmed.
11. In my aforesaid judgment I have quoted the Statement of Objects and Reasons for enacting the Arms Act, 1959. The very first paragraph of the Statement of Objects and Reasons states :
"the Indian Arms Act, 1970, was intended to disarm the entire nation. Even after independence, the law declaring swords, daggers, spears, spearheads, bows and arrows as arms has been allo
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