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Balancing Armed Forces’ Rights, Martial Law, and National Security

March 27, 2024 950 0

Introduction

Articles 33 to 35 of the Indian Constitution pertain to the rights of members of the armed forces and their limitations in certain circumstances. These articles provide provisions that empower the government to restrict or modify the fundamental rights of armed forces personnel for reasons related to national security, discipline, and maintenance of order. They outline the scope of such restrictions and the conditions under which they can be imposed, ensuring a balance between the rights of individuals and the exigencies of military service.

About Armed Forces And Fundamental Rights

Article Subject Matter
Article 33
  • It says Parliament can restrict or abrogate, by law, FRs in the application to:
  • Members of Armed forces, Paramilitary Forces, police forces, intelligence agencies and analogous forces.
  • Forces charged with the maintenance of public order.
  • Aim: To ensure the proper discharge of their duties and the maintenance of discipline among them.
  • Parliamentary Authority: Parliamentary law enacted under Article 33 can also exclude the Court Martials (tribunals established under the Military law) from the writ jurisdiction of SC and HC, so far as enforcement of FR is concerned.
    • Power to make laws under Article 33 is conferred only on Parliament and not on state legislatures.
    • Any such law cannot be challenged in any court on the ground of contravention of any of the FR.
    • Parliament enacted various laws such as Army Act (1950), the Navy Act (1950), the Air Force Act (1950), the Police Forces Act, 1966, etc 
      • These regulations curtail their freedom of expression, right to form associations or unions, engage in political activities, interact with the media, participate in public gatherings or demonstrations, etc
  • Non-Combatant Employees: The expression ‘members of the armed forces’ also covers such employees of the armed forces as barbers, carpenters, mechanics, cooks, chowkidars, bootmakers, and tailors who are non-combatants.
Article  34
  • When Martial Law is in force in any area within the territory of India, the FRs can be restricted.
  • Indemnification and Immunity: It empowers the Parliament to indemnify any government servant or any other person for any act done by him. 
    • The Act of Indemnity made by the Parliament cannot be challenged in any court on the ground of contravention of any of the FR.
  • SC: declaration of martial law does not ipso facto result in the suspension of writ of habeas corpus.
  • Concept of Martial Law: Borrowed from the English common law.
  • Undefined: The expression ‘martial law’ has not been defined anywhere in the Constitution.
    • No specific or express provision in the Constitution that authorizes the executive to declare martial law, it is implicit in Article 34.
Martial law literally means ‘military rule’. It refers to a situation where civil administration is run by the military authorities according to their own rules and regulations framed outside the ordinary law. It thus implies the suspension of ordinary law and the government by military tribunals. It is different from the military law that is applicable to the armed forces.
Article 35 It lays down that the power to make laws, and to give effect to certain specified fundamental rights, shall vest only in the Parliament and not in the state legislatures.

  • Ensures there is uniformity throughout India with regard to the nature of those FRs and punishment.
  • Parliamentary Jurisdiction: Parliament shall have (and legislature of a state shall not have) power to make laws with respect to:
    • Article 16: Prescribing residence as a condition for certain employment or appointments.
    • Article 32: Empowering courts other than SC and HC to issue directions, orders and writs.
    • Article 33: Restricting or abrogating the application of FR to members of armed forces, police forces, etc.
    • Article 34: Indemnifying any government servant or any other person for any act done in martial law.
    • Legislative Authority Regarding Offenses: Parliament shall have (and the legislature of a state shall not have) powers to make laws for prescribing punishment for those acts that are declared to be offenses under the FR. These include the following:
  • Article 17: Untouchability.
  • Article 23: Traffic in human beings and forced labour.
  • Article 35 extends the competence of the Parliament to make a law on the matters specified above, although some of those matters may fall within the sphere of the state legislatures (State List).

Difference between Martial Law and National Emergency

Martial Law National Emergency (Art.352)
Affects only Fundamental Rights. Affects not only Fundamental Rights but also the Centre-state relations, distribution of revenues and legislative powers between centre and states and may extend the tenure of the Parliament.
It suspends the government and ordinary law courts. It continues the government and ordinary law courts.
Imposed to restore the breakdown of law and order due to any reason. Imposed only on three grounds–war, external aggression or armed rebellion.
Imposed in some specific areas of the country. Imposed either in the whole country or in any part of it.
No specific provision in the Constitution. It is implicit. Specific and detailed provisions in the Constitution. It is explicit.
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Conclusion

  • These provisions of the Indian Constitution delineate the necessary balance between the fundamental rights of armed forces personnel and the exigencies of military service, providing provisions for restrictions when deemed essential for national security, discipline, and maintenance of order.
  • Article 35 guarantees consistency like these rights and the penalties for their violation throughout India.

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Comprehensive coverage with a concise format
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हिंदी में भी उपलब्ध
Quick Revise Now !
UDAAN PRELIMS WALLAH
Comprehensive coverage with a concise format
Integration of PYQ within the booklet
Designed as per recent trends of Prelims questions
हिंदी में भी उपलब्ध

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