Vishnu v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 ``` ## **`WP(C) NO. 7762 OF 2021`** ## **`PETITIONER :`** ``` VISHNU AGED 38 YEARS S/O.ASOKAN, RESIDING AT LEKSHMI, H.NO.12, RADHAKRISHNA LANE, VAZHAYILA, PEROORKADA.P.O, THIRUVANANTHAPURAM-695005. BY ADVS. G.RANJU MOHAN SMT.M.SANTHI (K/868/2011) ``` ## **`RESPONDENTS :`** ``` 1STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2THE DISTRICT COLLECTOR, COLLECTORATE, KUDAPPANAKUNNU, THIRUVANANTHAPURAM-695006. 3THE SUPERINTENDENT OF POLICE, THIRUVANANTHAPURAM RURAL, THIRUVANANTHAPURAM-695001. 4THE STATION HOUSE OFFICER, PEROORKADA POLICE STATION, PEROORKADA, THIRUVANANTHAPURAM-695005. 5THE STATE ELECTION COMMISSION REPRESENTED BY STATE ELECTION COMMISSIONER, “JANAHITHAM”, VIKASBHAVAN, THIRUVANANTHAPURAM-695033. ``` WP(C)No.7762 of 2021 2 ``` 6THE ELECTION COMMISSION OF INDIA, REPRESENTED BY CHIEF ELECTION COMMISSIONER, NIRVACHAN SADAN, ASHOKA ROAD, NEW DELHI-110001. BY ADVS. KODOTH SREEDHARAN SRI.DEEPU LAL MOHAN, SC, STATE ELECTION COMMISSION, KERALA SRI.DEEPU LAL MOHAN, SC, ELECTION COMMISSION OF INDIA SRI.VENUGOPAL, GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C)No.7762 of 2021 3 ## **J U D G M E N T** ## This writ petition has been filed seeking the ## following reliefs; “1) To issue a writ of mandamus, or any appropriate writ or direction directing the respondents 1 to 4 to strictly adhere to the guidelines there in the circular issued by the 6[th] respondent (Letter no.464/INST/2009/EPS dated 01.09.2009) in its true spirit while dealing with the deposit of arms during elections. 2) To declare that neither the 2[nd] respondent nor the 4[th] respondent has the power to direct the license holders of arms to deposit their arms during elections. 3) To issue a writ of certiorari, or any appropriate writ or direction to set aside Exhibit P3 as it is arbitrary and illegal. And 4) Such other Writ, Orders or Directions deem fit on facts and in the interest of justice.” 2. The petitioner, who is a holder of a gun license, had approached this Court being aggrieved by the fact that following the announcement of the elections WP(C)No.7762 of 2021 4 to the Kerala Legislative Assembly in the year 2021, the petitioner had been required to deposit the arms, which he was possessing in terms of Ext.P1 license. 3. The learned counsel appearing for the petitioner would contend that there is no provision in the Arms Act empowering the respondents to direct the deposit of the arms, which were being validly possessed by the petitioner in terms of the Arms license. It is the case of the petitioner that the deposit of arms is in terms of a circular dated 01.09.2009 issued by the Election Commission of India, which is referred to in Ext.P4 judgment of this Court in W.P.(C)No.9933 of 2009. It is submitted that there is considerable threat to the life of the petitioner, which subsists even during the time of elections and therefore, the direction to deposit the arms at the time of the election causes serious prejudice and hardship to the petitioner. The learned counsel also submits that it is clear from the judgment of this Court in **C.Chandran Nair v. State of Kerala;** [2015(1) KHC WP(C)No.7762 of 2021 5 351] that it is not for the State or its authorities to determine as to whether a citizen is facing a threat to his life and if the citizen apprehends that there is threat to his life, he has every right to apply for and obtain an arms license and once such arms license is issued, the citizen has a right to bear arms. To a specific query from the Court, it is submitted that the petitioner is having various businesses and he is also engaged in the running of various educational institutions and he faces a considerable threat to his life and safety. 4. The learned Standing Counsel appearing for the Election Commission of India and the State Election Commission and the learned Government Pleader would submit that the direction to deposit the arms held by the petitioner in terms of Ext.P1 license was taken by a Screening Committee constituted in terms of the circular dated 01.09.2009 issued by the Election Commission of India. It is submitted that, since the election in respect of which the petitioner was directed to WP(C)No.7762 of 2021 6 surrender his arms is already over and since the arms would have been returned to the petitioner, nothing survives for consideration in the writ petition. It is submitted that the question as to whether in a particular situation, a person has to be directed to surrender arms or not, is a decision to be taken by the Screening Committee, after assessing the situation on ground which will be different from election to election. It is submitted that the primary responsibility to protect the life and property of a citizen is with the State and if the contention of the petitioner is to be accepted, every citizen of this country can obtain an arms license and keep arms in his possession by simply stating that there is a threat to his life. It is submitted that right to bear arms is not a fundamental right as far as the law in this country is concerned and the right to bear arms can, therefore, be regulated by law. Reference is also made to Ext.P4 judgment of this Court, where this Court has held that the question as to whether a firearm in possession of the WP(C)No.7762 of 2021 7 citizen can be directed to be surrendered during elections, is to be decided strictly in terms of the circular referred to above. Reference is also made to the judgment of this Court in **Joseph K.A. v. District Collector, Kottayam and Others** ; [2019 (1) KLT 1034] where, again this Court has considered the terms of the circular and has directed the consideration of the matter in terms of the aforesaid circular. 5. Having heard the learned counsel for the petitioner, the learned Standing Counsel appearing for the Election Commission of India and the State Election Commission and the learned Government Pleader, I am of the view that there is considerable merit in the contentions taken by the learned Standing Counsel appearing for the Election Commission of India and the State Election Commission and the learned Government Pleader. The right to bear arms is not a fundamental right in this country. It can, therefore, be regulated in accordance with the law. It needs no reiteration at the WP(C)No.7762 of 2021 8 hands of this Court that the law and order situation at the time of election can be volatile and the authorities may, therefore, require any citizen, who is holding arms in terms of an Arms license issued under the provisions of the Arms Act, to surrender the arms held in terms of the license in order to ensure that law and order is maintained and there is no untoward incident during the run up to the elections. The power exercised by the authorities is not arbitrary and capricious and is guided by the terms of the circular issued by the Election Commission of India. In the absence of a challenge to the circular issued by the Election Commission of India, it cannot be held that the circular is bad in law. Taking into consideration the above and also considering the law laid down in Ext.P4 judgment, I am of the view that this writ petition can be closed, making it clear that, if at any future time the petitioner is required to surrender his arms, the matter shall be considered strictly in terms of the circular dated 01.09.2009 or any WP(C)No.7762 of 2021 9 other circular issued in replacement by the Election Commission of India. With these observations, this writ petition is closed. Sd/- **GOPINATH P., JUDGE** rkj WP(C)No.7762 of 2021 10 ## **`APPENDIX OF WP(C) 7762/2021`** ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF THE ARMS LICENSE OF THE PETITIONER. EXHIBIT P2TRUE COPY OF THE INTERIM ORDER DATED 11-12-2020 IN W.P(C)NO.27085/2020. EXHIBIT P3TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 20.03.2021. EXHIBIT P4TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 10.01.2011 IN W.P.(C)NO.9933/2009. ```