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The Arms Act, 1959 governs matters related to acquisition, possession, manufacture, sale, transportation, import and export of arms and ammunition. It defines a specific class of ‘prohibited’ arms and ammunitions, restricts their use and prescribes penalties for contravention of its provisions. Section 7 of the Act forbids the manufacture, sale, and use of prohibited arms and ammunition unless it has been specially authorised by the central government.1 Section 27(3) prescribes that any contravention of Section 7 that results in the death of any person 'shall be punishable with death'.2 Section 27(3) of the Act was challenged in the Supreme Court in 2006 in State of Punjab vs. Dalbir Singh. The final verdict in the case was pronounced last week. The judgment not only affects the Act in question but may have important implications for criminal law in the country. Legislative history of Section 27 When the law was first enacted, Section 27 provided that possession of any arms or ammunition with intent to use the same for any unlawful purpose shall be punishable with imprisonment up to seven years and/ or a fine. This section was amended in 1988 to provide for enhanced punishments in the context of escalating terrorist and anti-national activities. In particular, section 27(3) was inserted to provide for mandatory death penalty. The Judgment The Supreme Court judgment says that Section 27(3) is very 'widely worded'. Any act (including use, acquisition, possession, manufacture or sale) done in contravention of Section 7 that results in death of a person will attract mandatory death penalty. Thus, even if an accidental or unintentional use results in death, a mandatory death penalty must be imposed. The bench quotes relevant sections of an earlier judgment delivered in 1983, in Mithu vs. State of Punjab. In this case, the court had looked into the constitutional validity of mandatory death sentence. The final verdict had ruled that a provision of law which deprives the Court of its discretion, and disregards the circumstances in which the offence was committed, can only be regarded as 'harsh, unjust and unfair'. The judgment goes on to say that the concept of a 'just, fair and reasonable' law has been read into the guarantees under Article 14 (Equality before law) and Article 21 (Protection of life and personal liberty) of the Constitution. A law that imposes an irreversible penalty such as death is 'repugnant to the concept of right and reason'. Therefore, Section 27 (3) of the Arms Act, 1959 is unconstitutional. Section 27(3) is also unconstitutional in that it deprives the judiciary from discharging its duty of judicial review by barring it from using the power of discretion in the sentencing procedure. What happens now? Under Article 13 of the Constitution, laws inconsistent with the Constitution shall be null and void. Therefore, Section 27(3) of the Arms Act, 1959 shall now stand amended. Courts shall have the discretion to impose a lesser sentence. It is noteworthy that the Home Minister had also introduced a Bill in the Lok Sabha on the 12th of December, 2011 to amend the Arms Act, 1959. The Bill seeks to remove the words ‘shall be punishable with death’ and replace these with ‘shall be punishable with death or imprisonment for life and shall also be liable to fine’. This Bill is currently being scrutinized by the Standing Committee. Notes: 1) Section 7 of the Arms Act, 1959: “7. Prohibition of acquisition or possession, or of manufacture or sale, of prohibited arms or prohibited ammunition. No person shall -- (a) acquire, have in his possession or carry; or (b) use, manufacture, sell, transfer, convert, repair, test or prove; or (c) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof; any prohibited arms or prohibited ammunition unless he has been specially authorised by the Central Government in this behalf.” 2) Section 27(3) of the Arms Act, 1959: “27(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death.” Sources: Arms Act, 1959; Supreme Court judgment
In the run up to the Budget session of Parliament, the Cabinet has decided to accept some of the key recommendations of the Select Committee on the Lokpal and Lokayuktas Bill, 2011. The Bill, passed by the Lok Sabha in December 2011, was referred to a Select Committee by the Rajya Sabha. The Select Committee gave its recommendations on the Bill a year later in November 2012. At the Cabinet meeting held on January 31, 2013, the government has accepted some of these recommendations (see here for PRS comparison of the Bill, Select Committee recommendations and the approved amendments). Key approved amendments Lokayuktas: One of the most contentious issues in the Lokpal debate has been the establishment of Lokayuktas at the state level. The Bill that was passed by the Lok Sabha gave a detailed structure of the Lokayuktas. However, the Committee was of the opinion that while each state has to set up a Lokayukta within a year of the Act coming into force, the nature and type of the Lokayuktas should be decided by the states. The Cabinet has agreed with the suggestion of the Committee. Inclusion of NGOs: Currently, “public servant” is defined in the Indian Penal Code to include government officials, judges, employees of universities, Members of Parliament, Ministers etc. The Bill expanded this definition by bringing societies and trusts which receive donations from the public (over a specified annual income) and, organizations which receive foreign donations (over Rs 10 lakh a year) within the purview of the Lokpal. The Committee had however objected to the inclusion of organisations that receive donations from the public on the ground that bodies such as a rotary club or a resident’s welfare association may also be covered under the Lokpal. Bringing such entities within the Lokpal’s purview would make it unmanageable. The Cabinet decided not to accept this recommendation stating that this view had been accepted by the Standing Committee while examining the version of the Bill introduced in the Lok Sabha. However, the government has exempted trusts or societies for religious or charitable purposes registered under the Societies Registration Act. Procedure of inquiry and investigation: A key recommendation of the Committee was to allow the Lokpal to directly order an investigation if a prima facie case existed (based on the complaint received). The Cabinet has accepted this suggestion but suggested that the Lokpal should, before deciding that a prima facie case exists, call the public servant for a hearing. An investigation should be ordered only after hearing the public servant. Also, the Cabinet has not accepted the recommendation of the Committee that a public servant should be allowed a hearing only at the end of the investigation before filing the charge-sheet and not at any of the previous stages of the inquiry. Power to grant sanction: One of the key reasons cited for delays in prosecuting corrupt public officials is the requirement of a sanction from the government before a public servant can be prosecuted. The Bill shifts the power to grant sanction from the government to the Lokpal. It states that the investigation report shall be considered by a 3-member Lokpal bench before filing a charge-sheet or initiating disciplinary proceedings against the public servant. The Committee recommended that at this point both the competent authority (to whom the public servant is responsible) and the concerned public servant should be given a hearing. This has been accepted by the Cabinet. Reforms of CBI: There are divergent views over the role and independence of the CBI. The Committee made several recommendations for strengthening the CBI. They include: (a) the appointment of the Director of CBI will be through a collegium comprising of the PM, Leader of the Opposition of the Lok Sabha and Chief Justice of India; (b) the power of superintendence over CBI in relation to Lok Pal referred cases shall vest in the Lokpal; (c) CBI officers investigating cases referred by the Lokpal will be transferred with the approval of the Lokpal; and (d) for cases referred by the Lokpal, the CBI may appoint a panel of advocates (other than government advocates) with the consent of the Lok pal. All the recommendations regarding the CBI has been accepted by the Cabinet except one that requires the approval of the Lokpal to transfer officers of CBI investigating cases referred by the Lokpal. Eligibility of Lokpal member: According to the Bill, any person connected with a political party cannot be a member of the Lokpal. The Committee’s recommendation was to change the term connected to affiliated to remove any ambiguity about the meaning. This suggestion was accepted by the government. Now the interesting question is what happens if the Rajya Sabha passes the Bill with these amendments. The Bill will have to go back to the Lok Sabha for its approval since new amendments were added by the Rajya Sabha. If the Lok Sabha passes these amendments, the office of the Lokpal may finally see the light of day. (See here for PRS analysis of the Lokpal and Lokayukta Bill, 2011).
