Special Provisions for Fundamental Rights: Detailed Analysis of Articles 33 to 35 of the Indian Constitution

Articles 33 to 35 of the Indian Constitution address the regulation and implementation of Fundamental Rights. They provide Parliament with the authority to modify these rights for certain groups, such as armed forces, and to ensure uniform enforcement across the country. These articles also deal with indemnity during martial law and centralize legislative powers on specific rights matters.

Articles 33 to 35 of the Indian Constitution: Special Provisions for Fundamental Rights

Article 33: Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc:

• Authority to Restrict or Abolish Fundamental Rights: Article 33 of the Indian Constitution grants the Parliament the authority to restrict or abolish  the Fundamental Rights of members of the armed forces, paramilitary forces, police forces, intelligence agencies, and similar organizations. 
  • This provision is designed to ensure the efficient performance of their duties and to maintain discipline within these forces.
• Inclusion of Non-Combatant Employees: The term ‘members of the armed forces’ also covers the non-combatant employees of the forces like cooks, chowkidars, bookmakers, mechanics, barbers, carpenters, etc.
• Key points of Article 33 include:
  • Exclusive Parliamentary Power: Only the Parliament (not state legislatures) can legislate under Article 33. 
    • This power enables the Parliament to enact laws that might limit the fundamental rights of the aforementioned forces.
  • Laws Beyond Judicial Review: Laws made under Article 33 are immune from being challenged in courts on the grounds of infringing Fundamental Rights.
  • Enacted Legislations: The Parliament has passed various laws like the Army Act (1950), Navy Act (1950), Air Force Act (1950), and others, which impose restrictions on the rights of these forces, including freedom of speech, association, and assembly.

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Reason For Insertion Of Article 33

• Balancing Fundamental Rights: Article 33 of the Indian Constitution plays a critical role in balancing the fundamental rights of certain categories of personnel with the unique demands and disciplines of their respective services. 
• Reasons for Including Article 33: The primary reasons for including Article 33 are:
• • Maintaining Discipline and Order: The nature of duties performed by the armed forces, paramilitary forces, police forces, and intelligence agencies necessitates a high degree of discipline and order. 
    • Article 33 allows for the restriction or abrogation of certain fundamental rights to ensure that these forces operate under a framework conducive to their roles.
  • Efficient Functioning: For the effective functioning of these forces, it is often necessary to place restrictions on certain rights, such as the freedom of speech and expression or the right to form associations. 
    • These restrictions help prevent any actions that might compromise the operational integrity or discipline of these forces.
  • National Security and Sovereignty: Members of the armed forces and similar organizations play a crucial role in protecting national security and sovereignty. 
    • Article 33 enables the creation of a legal environment that supports their ability to perform these duties without the complications that could arise if all fundamental rights were applicable in the same way as they are to ordinary citizens.
  • Special Operational Requirements: The operational requirements of these forces are distinct from civilian entities, often involving sensitive information and activities critical to national interest. 
    • The restrictions enabled by Article 33 help safeguard against any breaches of security or protocol that might arise from the unrestricted exercise of certain fundamental rights.
  • Legal Precedent and International Practices: The concept of special provisions for military and similar forces is not unique to India. 
    • Many countries have similar legal frameworks to ensure that their defense and security forces can function effectively while maintaining strict discipline and secrecy.

• Significance of Article 33: Article 33 acknowledges the unique nature of the duties performed by certain forces and provides a constitutional mechanism to ensure that their functioning is not impeded by the standard application of Fundamental Rights. 
  • This allows these forces to operate in a manner that is both effective and aligned with the broader interests of national security and public order.

Article 34: Restriction On Rights Conferred By This Part While Martial Law Is In Force In Any Area

• Restrictions on Fundamental Rights During Martial Law: Article 34 provides for the restrictions on fundamental rights while martial law is in force in any area within the territory of India. 
• Parliamentary Indemnification Powers: It empowers the Parliament to indemnify any government servant or any other person for any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force. 
  • The Parliament can also validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such an area.

• Key Points of Article 34

• • Restrictions on Fundamental Rights: Article 34 allows for the imposition of restrictions on fundamental rights when martial law is in force in an area. 
    • This is to ensure order and public safety under extraordinary circumstances.
  • Indemnification Powers: It empowers the Parliament to indemnify government servants or others for acts done in connection with the maintenance or restoration of order where martial law is in effect. 
    • This means that actions taken during martial law, such as sentences, punishments, or forfeitures, can be legally validated and are protected from legal challenges.
  • Non-Challenge Ability: Any Act of Indemnity passed by Parliament under Article 34 is immune from being challenged in courts on the grounds of contravention of fundamental rights.
  • Martial Law Concept: Borrowed from English common law, ‘martial law’ in India refers to a situation where the military takes over civil administration to maintain or restore order, especially in times of war, invasion, insurrection, or riot. 
    • It is different from military law, which is applicable only to armed forces personnel.
  • Constitutional Basis: While the Constitution doesn’t explicitly define ‘martial law’ or expressly authorize the executive to declare it, Article 34 implicitly allows for its declaration. 
    • Under martial law, military authorities can exercise extraordinary powers over civilians.
  • Supreme Court’s Stance: The Supreme Court of India has clarified that declaring martial law does not automatically suspend the writ of habeas corpus, a legal instrument to prevent unlawful detention.
  • Difference from National Emergency: Martial law under Article 34 is distinct from a national emergency declared under Article 352. 
    • A national emergency affects the entire country and alters the balance of power between the Centre and states, 
    • While martial law is localized and specifically pertains to the suspension of civil authority in favor of military control in a particular area.

• Below table outlining the differences between Martial Law and National Emergency:

• Despite its intended role, Article 34 has faced criticism:

• • Potential for Abuse: The broad powers granted under martial law have the potential for abuse. 
    • Without stringent checks, there’s a risk of human rights violations.
  • Lack of Clear Definition: The absence of a clear definition of ‘martial law’ in the Constitution can lead to ambiguity and potential misuse.
  • Concentration of Power: Vesting military authorities with extensive control over civilians during martial law can lead to a significant power imbalance.
  • Impact on Civil Liberties: The suspension of fundamental rights under martial law can lead to significant infringements on civil liberties.

• Necessity of Article 34: While Article 34 is a necessary provision for ensuring public order in extraordinary situations, it must be applied with utmost caution and responsibility. 
  • Balance Between Measures and Democratic Principles: The provision recognizes the delicate balance between the need for exceptional measures during crises and the protection of fundamental democratic principles. 
  • Preparedness of the Legal System: The existence of such a constitutional mechanism underscores the preparedness of the legal system to address extreme challenges while maintaining a commitment to the rule of law.

Article 35: Legislation To Give Effect To The Provisions Of This Part

• Exclusive Power of Parliament: Article 35 of the Indian Constitution emphasizes the exclusive power of the Parliament to legislate on certain matters pertaining to Fundamental Rights, ensuring uniformity across India. 
  • This article restricts state legislatures from enacting laws on these specified areas.
• Purpose
  • Uniformity in Fundamental Rights: Ensures consistent application and enforcement of specific fundamental rights across all states in India.
  • Centralization of Authority: Places the responsibility solely with the Parliament to legislate on these sensitive areas.

Key Provisions

Exclusive Legislative Power of Parliament

• • State Legislature Restrictions: State legislatures are explicitly prohibited from making laws on the matters listed under Article 35.

• Matters Under Parliament’s Jurisdiction:

• • Article 16: Laws prescribing residence as a condition for employment in state/union territory/local authority.
  • Article 32: Empowering courts, other than the Supreme Court and High Courts, to issue writs for enforcing fundamental rights.
  • Article 33: Restricting or abolishing fundamental rights for armed forces and police.
  • Article 34: Indemnification for actions during martial law.

• Prescribing Punishment for Infringement of Fundamental Rights

• Mandatory Law Making by Parliament:

• • Article 17: Laws against untouchability.
  • Article 23: Laws against human trafficking and forced labor.
• Obligation on Parliament: To enact laws prescribing punishments for the violation of these rights.

• Continuity of Pre-Existing Laws: Validity of Existing Laws: Laws existing at the commencement of the Constitution continue until altered or repealed by the Parliament.

• • Extended Competence: 

    • Overriding State List: Article 35 authorizes the Parliament to legislate on certain matters that might typically fall under state jurisdiction, highlighting the importance of a unified approach in these areas.
  • Critical Role of Article 35 in the Indian Constitution: Article 35 is a critical component of the Indian Constitution, designed to maintain a uniform standard for fundamental rights across the nation. 
    • By centralizing legislative power in the hands of the Parliament for specific rights and matters, it ensures that fundamental rights are uniformly understood, implemented, and enforced throughout India. 
    • This approach reflects the balance between federal and centralized governance in the Indian constitutional framework.

• Overview of Articles 33, 34, and 35: Powers and Provisions Related to Fundamental Rights

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Conclusion

In essence, Articles 33 to 35 balance the need for discipline and effective governance with the protection of fundamental rights. 

• They enable Parliament to tailor rights for special cases, ensure legal consistency, and uphold the rule of law during extraordinary situations. 
• This framework supports both national security and individual freedoms.

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