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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
This article was published in the Indian Express on April 8, 2011
Dodging the Drafts
By Kaushiki Sanyal and C.V. Madhukar
Social activist, Anna Hazare’s fast unto death for the enactment of a strong Lok Pal Bill has provided an impetus to examine not only the Bill proposed by civil society activists but suggestions made by various experts.
The idea of establishing an authority where the citizen can seek redress against administrative acts of the government was first mooted in 1963 during a debate on Demands for Grants for the Law Ministry. Under the existing system, a citizen can either move court or seek other remedies such as petitioning his Member of Parliament. However, these remedies are limited because they maybe too cumbersome or specific grievances may not be addressed. Also, the laws that penalise corrupt officials do not have provision to redress specific grievances of citizens. Currently, corrupt public officials can be penalised under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. Both these laws require the investigating agency to get prior sanction of the central or state government before it can initiate the prosecution process in a court.
The office of the Lok Pal or an Ombudsman seeks to provide a forum for citizens to complain against public officials. The Lok Pal would inquire into such complaints and provide some redressal to citizens. The basic idea of the institution of Lok Pal was borrowed from the concept of Ombudsman in countries such as Finland, Norway, Denmark, Sweden, U.K. and New Zealand. Presently, about 140 countries have the office of the Ombudsman. In Sweden, Denmark and Finland, the office of the Ombudsman can redress citizens’ grievances by either directly receiving complaints from the public or suo moto. However, in the UK, the office of the Parliamentary Commissioner can receive complaints only through Members of Parliament (to whom the citizen can complain). Sweden and Finland also have the power to prosecute erring public servants.
The first Lok Pal Bill in India was introduced in 1968, which lapsed with the dissolution of the Lok Sabha. The Bill was introduced seven more times in Parliament, the last time in 2001. Each time it lapsed except in 1985 when it was withdrawn.
Several commissions have examined the need for a Lok Pal and suggested ways to make it effective, without violating Constitutional principles. They include: the First Administrative Reforms Commission (ARC) of 1966, the National Commission to Review the Working of the Constitution of 2002 and the Second Administrative Reforms Commission of 2007. The Lok Pal Bills that were introduced were referred to various Parliamentary committees (the last three Bills were referred to the Standing Committee on Home Affairs).
The First ARC report recommended that two independent authorities be created to redress grievances: first, a Lok Pal, to deal with complaints against the administrative acts of Ministers or secretaries of government at the centre and the state; and second, a Lokayukta in each state and at the centre, to deal with complaints against the administrative acts of other officials. Both these authorities should be independent of the executive, judiciary and legislature and shall be appointed by the President on advice of the Prime Minister, Leader of the Opposition and the Chief Justice of India.
The National Commission to Review the Working of the Constitution urged that the Constitution should provide for the appointment of the Lok Pal and Lokayuktas in the states but suggested that the Prime Minister should be kept out of the purview of the authority.
The Second Administrative Commission, formed in 2005, also recommended that the office of the Lok Pal be established without delay. It was in favour of including Ministers, Chief Ministers and Members of Parliament. However, it wanted to keep the Prime Minister outside the Lok Pal’s ambit. The ARC also recommended that a reasonable time-limit for investigation of different types of cases should be fixed.
The 1996, 1998 and 2001 Bill covered Prime Minister and MPs. The Standing Committee examining the 1998 Bill recommended that the government examine two basic issues before going forward with the Bill: first, MPs are deemed to be public servants under the Prevention of Corruption Act, 1988. If they are also brought under the purview of Lok Pal it may be “tantamount to double jeopardy”; and second, subjecting MPs to an outside disciplinary authority may affect supremacy of Parliament.
The 2001 Bill was also referred to the Standing Committee, which accepted that the Prime Minister and MPs should be included in the Bill. It further recommended that a separate legislation be enacted to ensure accountability of the judiciary. It however stated that the Bill did not address public grievances but focussed on corruption in high places.
The states have been more successful in establishing the Lokayuktas. So far 18 states have enacted legislation to set up the office of Lokayukta. While Karnataka Lokayukta is often hailed as a successful case, several other states have had limited success in combating corruption since all of them are recommendatory bodies with limited powers to enforce their findings.
A Group of Ministers is looking into ways to tackle corruption, including the establishment of a Lok Pal. A public debate on the issues raised by various committees would help iron out the weaknesses of any proposed legislation.
This article was published in the Indian Express on April 8, 2011
