Karnataka High Court Reserves Order On Plea Challenging Exemption Granted To Kodavas & Jumma Land Holders From Obtaining Firearms Licenses

Advocate B V Viyulatha appearing for the petitioner, Capt Chethan Y K (Retd), argued that the notification of the Central Government granting exemption lacks public interest: "Being a Coorg by race or holding jumma tenure, cannot be in public interest for the Central government to exercise its powers and grant exemption. What prevents them (Kodavas) from obtaining a license under Sections 3 and 4 of the Arms act?"

The petitioner referred to Article 14 of the Constitution of India and submitted that,

"By giving such an exemption they are promoting caste and class, when there are 12 to 13 more other races, who practice the same religion and customs and they are in Coorg, but they are not granted exemptions. Even other than Coorg, the whole of India, is taking license under the Arms Act, why only this particular race is given the exemption, there is no public interest forthcoming."

She added the exemption is not based on a geographical distinction, but it is by class.

It was also said that Section 41 of the Act gives power to the Central government to grant exemption only if there is a public interest, that criteria is not forthcoming in the present case. A custom followed by a race or community, cannot be a basis for granting exemption, it was urged.

Further it was contended that, "There is no application of mind. There is an arbitrary exercise of power by the Central Government by which it has created a class distinction among people living in Coorg and outside. There is not an iota of public interest for granting exemption on the basis of a person belonging to Coorg by race or by holding Jumma tenure land."

She concluded by saying, "The petitioner does not want exemption for himself, in fact, he wants the caste system to be abolished and not promoted in this way."

Additional Solicitor General M B Nargund appearing for the Union of India opposed the petition on grounds of maintainability and said, "There is no Fundamental right of the petitioner that is affected." It was added, "What can be gathered from the arguments that if you have given them an exemption (Kodavas), then why not to me."

Nargund also submitted that Kodavas are a special tribe, they have got different characteristics. They don't have classes, the caste system is not available in this particular tribe. What the Kodavas worship are Cauvery Mata (River Cauvery), Arms and they do one pooja. They don't have priestly classes also among them.

It was also submitted that the notification of October 29, 2019, was issued after the review of the Notification of the year 1963 as directed by the High Court. The review was done taking into consideration observations of various stakeholders, Home Department, Government of Karnataka, offices of Deputy commissioner and District Magistrate, Kodagu district and a report submitted by the local police authority and exemptions were granted. "The notification is valid for a period of ten years and issued after due deliberation and informed opinion."

Referring to the notification it was contended that, "Lot of precautions are taken and safeguards are put in place in the notification as regards number of weapons to be held and its specification and amount of ammunition to be held."

Nargund concluded by saying, "Even in Sikh community Kirpan is allowed to be used by members of the community and similarly Gorkha community is permitted to use kukri etc."

Senior Advocate Sajan Poovayya appearing for Respondents Kodagu Samaja Bangalore and Kodava Muslim Association opposed the petition. Referring to Section 2, 9 and 13 of the Arms Act, it was submitted, "Even in case of granting the exemption, Central and the State government have arrived at a methodology, it goes through a police verification and exemption certificate is issued by the police, thus it is akin to a license issued under the Act. There is no ipso-facto exemption which exists."

Further, he submitted that under Section 41 of the Act, nothing stops the petitioner to voluntarily ask for exemption from the Central Government and the government may consider granting exemption. He said, "While the petitioner has a positive right to apply for exemption, they do not get a negative right to assail the exemption granted under the Act without assailing the section under the Act."

Pressing that no blanket exemption has been granted to the community and due procedure is to be followed, Poovayya argued "It is not like that if there are 100 people in a house they can have 200 firearms in the house, the quantity of arms and ammunition and the types of arms are all specified."

Further, he said, "The petitioner has not challenged the validity of section 41 of the Act, if that is not challenged, then there is a presumption of constitutionality present. The exemption does not militate against the scheme of the Act and checks and balances are in place."

He concluded by saying Kodavas are a distinct race, the protection of Article 25 comes in and the conditions on Article 25 are morality, public order and other provisions. So, as long as none of the other Articles are violated, it can't be a scenario that a third person indicates as to why an exemption is granted to a community whilst it is not granted to him, when he does not apply for such an exemption.

Case Background:

In 2019, Karnataka High Court had disposed of the petition filed by Captain YK Chethan (Retired) questioning the exemption granted by the Government of India by its notification dated December 26, 1966. This was after the government had informed the court that a committee had been constituted by the Ministry of Home Affairs to review the Arms Act, including notification granting exemption to people of Kodagu.

Case Title: Capt. Chetan Y K (Retd) And Union of India.

Case No: WP 11948/2021