Fundamental Rights, Martial law and Armed forces
Q. Which of the following is/are true?
1) Declaration of martial law results in the suspension of the writ of habeas corpus.
2) Article 33 empowers the Parliament to restrict the fundamental rights of the members of armed forces.- Published on 21 Feb 17a. Only 1
b. Only 2
c. Both 1 and 2
d. Neither 1 nor 2
ANSWER: Only 2
- Recently there were videos posted by soldiers on social media sites complaining about their conditions.
- 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 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.
- Any such law made by Parliament cannot be challenged in any court on the ground of contravention of any of the fundamental rights.
- Various Acts enacted thus, 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 martials (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.
- 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 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.
- The expression ‘martial law’ has not been defined anywhere in the Constitution.
- It means ‘military rule’.
- Here civil administration is run by the military authorities according to their own rules and regulations framed outside the ordinary law.
- 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 authorizes the executive to declare martial law.
- But, 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.
