Armed Forces And Fundamental Rights
Members of the armed forces, paramilitary forces, police forces, intelligence agencies, and analogous forces have their fundamental rights restricted or abrogated under Article 33 of the Constitution. The purpose of this provision is to ensure that they carry out their responsibilities properly and maintain discipline among themselves. It goes like this:
Is Fundamental Rights Applicable To Armed Forces?
Article 33 {Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.} Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to, - a. the members of the Armed Forces; or b. the members of the Forces charged with the maintenance of public order; or c. persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or d. persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.
Only Parliament, not state legislatures, has the authority to make laws under Article 33. Any law passed by Parliament cannot be challenged in court because it violates one or more of the fundamental rights.
As a result, the Army Act of 1950, the Navy Act of 1950, the Air Force Act of 1950, the Police Forces (Restriction of Rights) Act of 1966, the Border Security Force Act, and so on were enacted by Parliament. These restrict their freedom of expression, right to form associations, right to join trade unions or political organisations, right to communicate with the press, and right to attend public meetings or demonstrations, among other things.
Non-combatants such as barbers, carpenters, mechanics, cooks, chowkidars, bootmakers, and tailors are included in the definition of'members of the armed forces.' In terms of the enforcement of Fundamental Rights, a parliamentary law enacted under Article 33 can also exclude court martials (tribunals established under military law) from the writ jurisdiction of the Supreme Court and the high courts.
Does Martial Law Affect Fundamental Rights?
While martial law is in effect in any part of India's territory, Article 34 imposes restrictions on fundamental rights. It goes like this:
Article 34 {Restriction on rights conferred by this Part while martial law is in force in any area} Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any person in respect of any act done by him in connection with the maintenance or restoration or order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.
It gives Parliament the power to compensate any government employee or other person for any act performed in connection with the maintenance or restoration of order in any area where martial law was in effect. Any sentence passed, punishment inflicted, forfeiture ordered, or other act done in such an area under martial law can also be validated by Parliament.
The Parliamentary Act of Indemnity cannot be challenged in court on the grounds that it violates any of the fundamental rights. The concept of martial law was borrowed from English common law in India. The term'martial law,' on the other hand, is not defined anywhere in the Constitution.
It literally translates to'military rule.' It refers to a situation in which the military authorities run the civil administration according to their own set of rules and regulations that are not governed by the law. As a result, it implies that ordinary law and administration will be suspended through military tribunals. It differs from military law, which applies only to the armed forces.
In addition, there is no specific or express provision in the Constitution that allows the president to declare martial law. Article 34, on the other hand, makes it clear that martial law can be declared in any part of India's territory. Martial law is imposed in exceptional circumstances such as war, invasion, insurgency, rebellion, riot, or any other form of violent resistance to the law. Its justification is to repel force with force in order to maintain or restore social order.
During the implementation of martial law, the military authorities are given extraordinary powers to take any action they deem necessary. They impose restrictions and regulations on civilian rights, and they have the power to punish and even execute civilians.
The Supreme Court ruled that declaring martial law does not automatically mean the writ of habeas corpus is suspended. The declaration of martial law under Article 34 differs from a national emergency declaration under Article 352.