The Lede
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Why Depositing Legally Owned Guns Before Elections Is A Wasted Exercise 

While illegal weapons are a far bigger concern, owners of legal guns are forced to run from pillar to post instead

K Ramanujam

Immediately after the announcement of the schedule of any election, a flurry of directions flow from authorities that those who hold gun licences should deposit their guns till the election process is over.

Statistics of guns deposited in pursuit of these orders are viewed as a feather in the cap in the endeavour to maintain peace on the eve of elections, each district or state trying to outdo others.

The authorities are happy that they have done something in this direction that can be proved in quantitative terms, media outlets are happy that they have something news worthy of publication and the general public are happy that steps are being taken to curtail possible violence.

The only stakeholder left unhappy is the licence holder who is now the bull’s eye.

One issue that has been raised in protest against such a blanket order is that police armouries and private armouries do not have enough storage capacity for safe-keeping of the guns. This is a procedural problem than can be overcome with some planning and resources.

A greater concern, however, is whether this exercise does not result in an arbitrary curtailment of the right of the citizen. The licence is not one granted for the asking but is done after verification of the antecedents of the applicant. Police, as a matter of practice, do not like proliferation of weapons and do not readily recommend grant of licence. Should a licence granted after individual, critical review be withdrawn by a wholesale, mechanical order?

It was in 1996 that the Election Commission issued a direction about deposit of firearms on the eve of elections. But the order said that District Magistrates shall make a detailed and individual review and assessment and impound licensed arms if such impounding is considered essential in order to ensure maintenance of law and order and the conduct of free and fair elections. These arms were to be deposited with the district authorities.

Among cases which might need to be reviewed, according to the Election Commission, were the following:

(1) Persons released on bail

(2) Persons having a history of criminal offences and

(3) Persons previously involved in rioting at any time but especially during the election period

The Commission had clarified that this categorisation of licence holders liable to review is only illustrative but not exhaustive. The term District Magistrate generally denotes the district collector or the Commissioner of Police empowered to issue gun licences.

Frustrated Owners Of Legal Guns

A licence holder who received an order to deposit his gun on the eve of the elections in 2009 moved the Bombay High Court challenging the order. Interestingly, the High Court was inclined to dismiss the petition as infructuous because the elections were already over, the delay having arisen because some information sought by the Court was not furnished by the Election Commission.

However, the Court refrained from dismissing the case because it was brought to its notice that meanwhile some licence holders were facing prosecution for not complying with the blanket order to deposit their firearms.

The district authorities contended before the Court in this case that a committee had scrutinised the applications for return of the fire-arms deposited in response to the order to surrender the weapons.

The High Court pointed out that the Election Commission had envisaged a review before asking for deposit of guns and not a review after the deposit to determine whether the request for return of the weapon was justified or not.

Essentially, one can say that the action taken by the district authorities was like asking everyone to surrender their degree certificates or passports or ration cards, with the promise that they would be returned if they applied for the return furnishing reasons to the satisfaction of the authorities.

It is in this context that the Bombay High Court observed that a law abiding citizen to whom a licence to possess arms is issued for his safety may take an order directing him to surrender his arm as an affront to his dignity and status.

It set aside the order directing the deposit of firearm in this particular case and also issued a set of guidelines which were promptly incorporated by the Election Commission in its order No. 464/INST/2009/EPS dated 01 September 2009 stipulating the constitution of Screening Committees for a review to decide who should be asked to deposit their firearms.

Those released on bail, those who have a history of criminal cases and those who have used firearms in rioting especially during election times are the ones whose cases will be up for review.

Of course, the order says the categorisation is not exhaustive, but it is obvious that there must be a justification based on criminal grounds for asking someone to give up his gun even temporarily.

Screening Committees

The judgment of the Bombay High Court of 2009 points to an earlier judgment of 2000 to the same effect. It also points out that several orders issued were set aside during the previous elections on the ground that a Screening Committee was not in place and there was no prior review and assessment of arms licence holders.

In another case before the Allahabad High Court, it was pointed out that the Screening Committee is a higher authority than the licensing authority and therefore, the licensing authority cannot usurp the powers by deciding suo motu to issue a generalised order asking all licence holders to surrender their guns.

Even in the course of the ongoing elections, High Courts in many states have been moved challenging blanket orders demanding deposit of firearms, in spite of the fact that there are specific directions from the Election Commission on the correct procedure.

One reason why blanket orders are still being issued may be that the exercise of collecting information about individual licence holders will take time and effort. It will be easier to short circuit the process by promulgating a general order.

There are even complaints that people are told orally either in person or over phone to deposit their guns, obviously in an attempt to further shorten the process by eliminating paper work - and accountability - altogether.

Of course, it will be rather difficult to go through the screening after the elections have started but the preliminary work can be started much earlier. Transfer of officials who have completed three years in a station is done even before the code of conduct comes into play.

The Election Commission can give a prod towards a similar initiative about review of firearms, at least to provide a preliminary database.

Solutions To The Problem

The first category - persons who are on bail - is rather nebulous. Police stations do not maintain lists of persons on bail, grant of bail being mostly a matter between the accused and the court, except in cases where bail was granted by the station house officer himself or in cases where remarks of the prosecutor are sought by the court before grant of bail.

The police stations at best will have a list of persons against whom warrants are pending.

Another question is whether even those who are out on bail for minor traffic violations or other trivial offences should be subject to the order to deposit. This categorisation may be possibly replaced by the terms ‘persons involved in violent offences’.

It should also be mandated that any order directing deposit of firearm should specify the particular reason why a person is being asked to deposit it. He has a right to know involvement in which cases makes him liable for action.

Another reason for the continuance of the phenomenon of blanket orders could be ignorance on the part of officials - ignorance of the exact orders.

One has to concede that the sheer volume of instructions could seem deterring. It takes a search of 1591 pages of four volumes of the compendium of instructions of the Election Commission of India to locate the circular that dates back to 2009 about the procedure to be followed about Screening Committees.

As years pass by, the size of the compendium is bound to grow. Many of the instructions are quite verbose, often elaborating on the background and previous orders. Preciseness is often at the cost of conciseness. Some orders may be obsolete while a few may seem mutually contradictory. It will be useful to compile and publish a concise guide, on the eve of every election, laying down the main Do’s and Don’t’s to be observed by officials.

While dealing with the matter of issue of orders to deposit weapons without the backing of the Screening Committees, the Bombay High Court order points out that the Election Commission has the authority to issue directives and it should also reprimand those who do not abide by its directives.

It may be a good idea for the Election Commission to call for reports from all District Magistrates about implementation of the orders. The Commission could call for copies of Screening Committee proceedings and the material placed before such Committees, and study them at leisure after the elections are over, to devise measures to prevent recurrence of the one-size-fits-all approach. Prevention may be better than reprimand.

When such complaints of overzealous implementation of orders are reported, the Commission could issue press releases so that the public would have at least some material based on which they can confront the officials when faced with an order ostensibly backed by the Election Commission.

Not everyone will have the patience or the means to know about the Compendium and search through 1591 pages of written instructions.

There must be a sense of balance in imposing prohibitions.

In Tamil Nadu, there are very few cases of use of firearms in offences, especially during the elections. The massive exercise of withdrawing all weapons indiscriminately will serve little purpose.

Further, if at all anyone faces the prospect of staring down the wrong end of the barrel of a gun, the chances are that it is an illicit weapon rather than a licensed one.

Many licence holders may be happy if the only restriction is that they should not carry the firearms in public. They will be content to keep the weapon in the safety of their homes, being spared the labour of going to the police station or an armoury to deposit it.

The few who need to carry the gun all the time could apply for permission to do so during the election process. At the time of granting such permission, their criminal antecedents can be taken into consideration.

(The author is a former Director General of Police of Tamil Nadu and a former State Chief Information Commissioner of Tamil Nadu)