“What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms.”
--Thomas Jefferson.
Little must the founding father and third President of America have imagined that in the time to come, the very liberties he endeavoured to preserve for America’s citizens would be severely jeopardised at the altar of vouching for the rights of individuals. The recent blood-curdling incident in the US – the Uvalde school shooting -- where 16 children were gunned to death, has reignited the debate worldwide on whether there is a need to tighten regulation of the arms industry. In this context, it is interesting to understand the Indian narrative on the ‘right to bear arms’. We trace the history of the debate in India, critique the Constituent Assembly’s rejection of the ‘right to bear arms’, and analyse the position of the courts since.
During a Constituent Assembly discussion in 1948, H V Kamath first proposed an amendment to include the right to bear arms in the Constitution. He tried to impel the Assembly by referring to the Resolution on Fundamental Rights passed at the Karachi Session of the Indian National Congress in 1931, which enlisted the right of citizens to keep and bear arms in accordance with certain regulations. In view of the possibility of abuse of such a right, he proposed certain reasonable restrictions in the interest of public order, peace, and tranquility.
In his arguments, he pointed to the demand of the freedom movement to recognise this right as a constitutional one and harked upon the fact that whereas the ‘saboteurs’ would always have access to arms, the danger would befall those who didn’t have them. He believed that bestowing this right would, in turn, assure the citizens that they were trusted by the State and would also cater to their right of self-defence. But his proposal could not clear the vote in the Constituent Assembly.
Maulana Hasrat Mohani rose to sincerely support Kamath’s idea and brought the aspect of personal liberty and the Arms Act into the narrative. He contended that if the Constitution deprived the citizens of the right to bear arms and disregarded their individual liberties, they would be perpetuating the prejudices of the British. He voiced his contempt for the Indian Arms Act, 1878, introduced by the British, which denied any Indian the right to keep arms without a proper licence and imposed a strict restriction on the unsanctioned possession of arms.
Ambedkar’s view
Rebutting the arguments made by H V Kamath, Ambedkar reminded him that the structure of society presently was completely different from what it used to be in the pre-independence period. This was basically in response to Kamath’s contention that the document ‘Swaraj’, which was released during the Karachi Resolution, had guaranteed the right to bear arms. Ambedkar was categorical in stating that “I personally myself cannot conceive how it would be possible for the State to carry on its administration if every individual had the right to go into the market and purchase all sorts of instruments of attack without any let or hindrance from the State.”
What the courts have said
The position of the courts in India has largely been uniform in dealing with the issue of the right to bear arms. In the case of Kapildeo Singh vs. the State of Bihar, it was held that the right to bear arms is not a constitutional right. The court substantiated its reasoning by stating that the Second Amendment of the US Constitution, which guarantees the right to bear arms, has come under “carping criticism”. In the High Court’s view, the right had become synonymous with ‘gun running’, etc. Reiterating the above view, the Allahabad High Court held in the State of Uttar Pradesh v. Hridaya Narayan Tiwari, that there did not exist any right to bear arms.
The exception to the discourse is the case of Ganesh Chandra Bhatt vs District Magistrate where a single judge bench had held that the right to bear arms was a constitutionally guaranteed right under Article 21. To assert his reasoning, Justice M Katju used every argument from the reams of the Mahabharata to how Britishers disarmed the Indians. The judge also observed that numerous rights were read into Articles 14 and 19 of the Constitution. Was he hinting that the right to bear arms is covered under the three aforementioned rights?
The argument becomes too far-fetched when the judge says that though it is a duty of the State to protect the citizens of the country, if it is not possible for it to do so, then the citizens definitely have the right to bear arms. Obviously, the mechanism of self-defence is likely to increase in the event of failure of law and order.
However, in case of it being made a fundamental right, the citizens will have the right to approach the Supreme Court and High Courts of different states, effectively giving the ultimate scope to exercise their right.
However, the ruling in the aforementioned case was buried by successive judgements. A notable mention is that of the State of UP v. Mahipat Singh, in which Chief Justice Deepak Gupta and Justice D Y Chandrachud had criticised the ruling in the Ganesh Bhatt case. They held that licensed acquisition and possession of arms is a privilege and cannot be said to constitute an integral part of the right to life. Conclusively, the journey of the “right to bear arms” has indeed been a riveting one, and ultimately, it was not held to be within the purview of Article 21.
(The writers are students of
Dharmashastra National Law
University)