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Armed Forces/ Martial Law and Fundamental Rights

Armed Forces/ Martial Law and Fundamental Rights

Introduction

  • Article 33 empowers the Parliament to restrict or abrogate the fundamental rights of the members of armed forces, para-military forces, police forces, intelligence agencies and analogous forces. The objective of this provision is to ensure the proper discharge of their duties and the maintenance of discipline among them.
  • The power to make laws under Article 33 is conferred only on Parliament and not on state legislatures. Any such law made by Parliament cannot be challenged in any court on the ground of contravention of any of the fundamental rights.
  • Accordingly, the Parliament has enacted the Army Act (1950), the Navy Act (1950), the Air Force Act (1950), the Police Forces (Restriction of Rights) Act, 1966, the Border Security Force Act and so on. These impose restrictions on their freedom of speech, right to form associations, right to be members of trade unions or political associations, right to communicate with the press, right to attend public meetings or demonstrations, etc.
  • The expression‘members of the armed forces’ also covers such employees of the armed forces as barbers, carpenters, mechanics, cooks, chowkidars, bootmakers, tailors who are non-combatants. A parliamentary law enacted under Article 33 can also exclude the court martial (tribunals established under the military law) from the writ jurisdiction of the Supreme Court and the high courts, so far as the enforcement of Fundamental Rights is concerned.

Martial Law

  • Martial Law (military rule) Not described in Indian Constitution. Civil administration is run by the military authorities according to their own rule and regulations framed outside the ordinary law, implying suspension of ordinary law and the government by military tribunals. It is imposed under the extraordinary circumstances like war, invasion, insurrection, rebellion, riot or any violent resistance to law to repel force by force for maintaining or restoring order in the society.
  • Abnormal powers including imposing restrictions and regulations on the rights of the civilians, can punish the civilians and even condemn them to death. The Supreme Court held that the declaration of martial law does not ipso facto result in the suspension of the writ of habeas corpus.

Martial Law And Fundamental Rights

  • Article 34 provides for the restrictions on fundamental rights while martial law is in force in any area within the territory of India. 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 area.
  • The Act of Indemnity made by the Parliament cannot be challenged in any court on the ground of contravention of any of the fundamental rights.
  • The concept of martial law has been borrowed in India from the English common law. However, the expression ‘martial law’ has not been defined anywhere in the Constitution. Literally, it 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 imply 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.
  • There is also no specific or express provision in the Constitution that authorises the executive to declare martial law. However, it is implicit in Article 34 under which martial law can be declared in any area within the territory of India. The martial law is imposed under the extraordinary circumstances like war, invasion, insurrection, rebellion, riot or any violent resistance to law. Its justification is to repel force by force for maintaining or restoring order in the society.
  • During the operation of martial law, the military authorities are vested with abnormal powers to take all necessary steps. They impose restrictions and regulations on the rights of the civilians, can punish the civilians and even condemn them to death. The Supreme Court held that the declaration of martial law does not ipso facto result in the suspension of the writ of habeas corpus.                                                            Armed Forces/ Martial Law and Fundamental Rights
  • The declaration of a martial law under Article 34 is different from the declaration of a national emergency under Article 352.

Difference With Respect To National Emergency

  • Martial law affect only Fundamental Rights, while national Emergency is broader in scope affecting Centre State Relationship, Fundamental Rights, Legislative powers, Revenue distribution.
  • Military law suspends ordinary law, But courts and government continues in National Emergency.
  • Martial law imposed to restore the breakdown of law and order due to any reason, while National Emergency can be imposed only on three grounds (Article 352) i.e. War, External aggregation or Armed rebellion.                                            Armed Forces/ Martial Law and Fundamental Rights
  • Martial law is always imposed only in some area of the country but National Emergency can be in some area or the entire country.

Laws for Effecting Fundamental Rights

Power to make laws, to give effect to certain specific fundamental rights shall vest only in the Parliament and not in the state legislatures, even if under state list to ensure uniformity throughout India.

  • Prescribing residence as a condition under Article 16.
  • Empowering courts other than the Supreme Court and the High Courts to issue directions, orders and writs of all kind for the enforcement of fundamental rights (Article 32).
  • Restricting or abrogating the application of Fundamental Rights to members of armed forces etc. (Article 33)
  • Indemnifying any government servant or any other person for any act done during the operation of martial law in any area (Article 34).

Parliament can also make laws for prescribing punishment for those acts that are declared to be offences under the fundamental rights. These include the following:

  • Untouchability – (Article 17)
  • Traffic in human beings and forced labour – (Article 23)
  • Law before independence will continue as such

 

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