Fundamental Rights & Military Law in India
Author : Adv. Pragati Bharatrao Pagar
Part III of the Indian constitution conferred some basic fundamental rights to every citizen.
According to Art.13 of the constitution “A law inconsistent with part third of the constitution shall be invalid in nature. But Art.33 of the constitution says that Parliament has power to modify the rights conferred by part third in their application to armed forces, further Art.34 also states restriction on rights conferred by part third while martial laws is in force in any area.
We all know that defense services are supreme service. It is honor for every citizen to serve the nation. But while serving the nation defense personnel are liable to some restriction on their fundamental rights which are stated in the constitution itself! ,
What are restrictions on fundamental right? What is nexus behind it? Does it valid or threaten the right of person? It might be challenged? Or the Supreme Court or High Court have writ jurisdiction over it? These all questions would be discussed in this article.
As stated earlier, Part III of the Indian Constitution containing Articles 12 to 35 provides for various fundamental rights ensuring the welfare of the citizens.
Fundamental rights are those rights which have their source and are explicitly or impliedly guaranteed in the rights, without which a human being cannot exist or survive in dignified manner in a civilized society.
They are deemed to essential to protect the rights and liberties of the people , Fundamental rights are inherent for the survival of human life and hence , they are known as Basic Rights or Justiciable Rights.
They are also called as ‘Individual’ Rights or ‘Negative’ rights and imposed negative obligation on the state not to encroach on individual liberty. In America, they are called ‘Bills of Rights.
The State (Government) is shouldered with the responsibility
(i) To protect the rights of individuals;
(ii) to protects an individual, whose legal right is infringed by another. Sometimes , the state itself, by passing a legislation , government order ,ordinance may infringe (encroach upon) the fundamental or basic right of an individual. Such person can approach the court for enforcement of his/her fundamental right (by filling a petition in the High Court under Art.32 of the constitution.
Part-III of the Indian Constitution , containing different kinds of fundamental rights as stated hereunder:
1. Definition of state (Art.12)
2. Laws inconsistent with or in derogation of the fundamental right (Art.13)
3. Right to Equality (Art.14 to18)
4. Right to Freedom (Art.19 to 21)
5. Right against Exploitation (Art.23&24)
6. Freedom of Religion. (Art.25 to 28)
The Fundamental Rights are available to every citizen of India; Art. 5 of the Constitution of India provides that:
At the commencement of this Constitution every person who has his domicile in the territory of India and
Who was born in the territory of India; or
Either of whose parents was born in the territory of India; or
Who has been ordinarily resident in the territory of India for not less than five years preceding such commencement, shall be a citizen of India
Further, Art.13 of the Constitution of India further stipulates regarding Laws inconsistent with or in derogation of the fundamental rights, which provides that:
- All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
- The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
- In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
- Nothing in this article shall apply to any amendment of this Constitution made under Art. 368 Right of Equality.
The Fundamental Rights are the unique and forms the basis of Indian Constitution and are available to all citizen of India, however, there are certain reasonable classification where restrictions upon Fundamental Rights may be imposed upon some of the citizens, such as members of the Armed Forces or the members of the Forces charged with the maintenance of public order or persons employed in any bureau or other organization established by the State for purposes of intelligence or counter intelligence or persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organization be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.
Art.33 of the Constitution constitutes an exception to the Fundamental Rights.
A government servant is also entitled to enjoy Fundamental Rights. A person does not lose his Fundamental Rights shall in its application to-
- the members of Armed Forces; or
- the members of the forces charged with maintenance of public order; or
- person employed in any bureau or other organization established by the state for purposes of intelligences or counter intelligence or counter intelligence; or
- persons employed in or in connection with the telecommunications systems set up for the purpose of any forces, bureau or organization referred to in clauses (a), (b) and (c).
The tribunals known as the court martial, are established under the Military law. These tribunal have been excluded by Art.136(2) from the Supreme Court’s appellate jurisdiction and under Art.136(1), According to Art.136(2), nothing in Art.136(1) “shall apply to any judgment, determination, sentence or order passed or made by any Court or tribunal constituted by or under any law relating to the Armed Forces.”
These tribunals have also have been excluded from the power of superintendence vested in high court under Art.227.
The military tribunals are not however, exempt from the Supreme Court’s writ jurisdiction under Art.32 and High Courts writ jurisdiction under Art.226. A High court can, thus intervene if inter alia a Court martial is not properly constituted, or acts against natural justice, or acts outside its jurisdiction, or there is an error apparent on the face of record. Art.32 can be invoked if there is denial of any fundamental right.
However, the Fundamental Rights, of the armed forces can be curtailed under Art.33 under a parliamentary law and, to that extent, the court- martial can be excluded from the purview of Arts.32 and 226.
In India, Art.34 provide that, notwithstanding the guarantee of Fundamental Rights and the right to move the Supreme Court for their enforcement, parliament may pass a law indemnifying any government servant, or other person, in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where material law was in force, or validates any sentence passed, punishment inflicted, or forfeiture ordered, or other act done under martial law in such area.
Article 34 thus enables Parliament to enact an Act of Indemnify to protect government and military officers from any liability for the action taken by them for restoration of order during the martial law period.
Such an act cannot be questioned on the ground of infringement of Fundamental Rights of a person.
Further, under Art.34, Parliament can extend the immunity to any person other than a government servant as well.
The reason for this is that during martial law, it is not duty of the military officers but of all citizens to help in maintaining law and order.
Therefore , if a citizen does any such act , he should also be indemnified in the same way as government servants. The power of Parliament under Art.34 is subject to two condition:
- the act to be indemnified must have been done in connection with the maintenance or restoration or order, and
- martial law must be in force the area where the act was done.
The Hon’ble Supreme Court also observed that the provisions under the Acts of the Armed Forces do not infringe or abrogate the fundamental rights; some important verdicts have been discussed below:
In the case of Ram Sarup vs. The Union of India and another, a writ of habeus corpus and certiorari regarding abrogation of fundamental right of the petitioner at the time of his trial under Army Act was filed by the petitioner.
The Learned Attorney- General urged that the entire Act has been enacted by Parliament and if any of the provisions of the Act is not consistent with the provisions of any of the articles in Part III of the Constitution, it must be taken that to the extent of the inconsistency Parliament had modified the fundamental rights under those articles in their application to the person subject to that Act. Any such provision in the Act is as much law as the entire Act.
The Hon’ble Supreme Court concurred that every single arrangement of the Army Act is a law made by Parliament and that if any such arrangement will in general influence the principal rights under Part III of the Constitution, that arrangement doesn’t, on that account, become void, as it must be taken that Parliament has along these lines, in the activity of its capacity under Art. 33 of the Constitution, made the imperative adjustment to influence the particular central right.
The Hon’ble Supreme Court was, nonetheless, of the sentiment that the arrangements of Section 125 of the Act are not unfair and don’t encroach the arrangements of Art. 14 of the Constitution. The Hon’ble Court additionally saw that it isn’t contested that the people to whom the arrangements of sec. 125 apply do frame a particular class.
They apply to all. Every single arrangement of the Army Act is a law made by Parliament and that if any such arrangement will in general influence the major rights under Part III of the Constitution, that arrangement doesn’t, on that account, become void, as it must be taken that Parliament has in exercise of its capacity under Art. 33 of the Constitution made the imperative change to influence the individual fundamental right.
In Ous Kutilingal Achudan Nair and Others Vs. Union of India and Others, the Hon’ble Supreme Court observed that Article 33 of the Constitution provides an exception to the proceeding Articles in Part III including Article 19(1)(c).
By Article 33 Parliament is enabled to establish law deciding how much of the rights presented by Part III will, in their application, to the individuals from the Armed Forces or Forces accused of the support of open request, be confined or annulled in order to guarantee the best possible release of their obligations and the upkeep of control among them.
In exercise of its forces u/s 4 of the Defense of India Act, the Government of India has by warning dated 11.2.1972, gave that all people not being individuals from the Armed Forces of the Union, who are joined to or utilized with or following the customary Army will be dependent upon the military law. The Army Act, 1950, has likewise been made relevant to them.
By another notification dated 23.2.1972, gave under Rule 79, of the Army Rules, regular citizen representatives of the preparation foundations and Military Hospitals have been removed from the domain of the Industrial Disputes Act. Area 9 of the Army Act further enables the Central Government to proclaim by warning, people not secured by Section (I) of Section 3 additionally as people on dynamic administrations. In the perspective on these notices gave u/s 4 of the Defense of India Act and the Army Rules, the appellants can no longer guarantee any essential right under Article 19(1)(c) of the Constitution.
In Lt.Col. Prithi Pal Singh Bedi and Others V. Union of India and Others. the Hon’ble Supreme Court affirmed the validity of proceedings under the Army Act though abrogate the fundamental rights as the same proceedings empowered under Article 33 of the constitution.
The Hon’ble Supreme Court held in R. Viswan and Others v. Union Of India and others,that section 21of Army Act, 1950 is not ultravires the Constitution, since it is saved by Art 33 Constitution.
In Union of India (UOI) and Others Vs. Ex. Flt. Lt. G.S. Bajwa , the Hon’ble Supreme Court saw that Article 33 of the Constitution of India explicitly engages the Parliament to decide by law the degree to which any of the rights gave by Part III of the Indian Constitution, in their application, bury alia, to the individuals from the military, will be confined or repealed to guarantee the best possible release of their obligations and the upkeep of control among them.
The Parliament can therefore, in exercise of powers conferred by Article 33 of the Constitution of India restrict or abrogate the fundamental rights guaranteed under Part III of the Constitution in their application to the members of the armed forced.
The Hon’ble Supreme Court held that the provisions of the Air Force Act cannot be challenged on the ground that they infringe the fundamental right guaranteed under Article 21 of the Constitution of India.
Since the Air Force Act is a law properly ordered by Parliament in exercise of its whole administrative ward read with Art 33 of the Constitution of India, the equivalent can’t be held to be invalid simply in light of the fact that it has the impact of limiting or annulling the privilege ensured under Article 21 of the Constitution of India or thus under any of the arrangements of Chapter III of the Constitution.
The individuals from the Armed Forces however are the resident of India yet they have a place with an unmistakable class of people being represented by unique laws authorized by the Parliament, and they assume most significant job to protect the country whether in war or in harmony time.
The individuals from military secure the nation from adversary hostility or inward dissidents and furthermore keep up open request as and when necessities emerge.
The key rights accessible to the individuals from the military are dependent upon limitations forced by the enactment ordered by the Parliament, consequently, it has been understood by the Apex court at a few times that the Parliament can, in exercise of forces presented by Article 33 of the Constitution of India, confine or repeal the essential rights ensured under Part III of the Constitution in their application to the individuals from the outfitted constrained.
Along these lines, arrangements of these exceptional demonstrations (Army Act, Air Force Act or the Navy Act) can’t simply be tested on the ground that
they encroach the essential rights as these demonstrations are the laws properly authorized by Parliament in exercise of its whole authoritative ward read with Art 33 of the Constitution of India.
It is reasoned that however the individuals from military appreciate indistinguishable basic rights from a normal resident of India, yet under the specific limitations forced upon them by uprightness of enactments authorized by the Parliament under the Article 33 and 34 of the Constitution of India and these limitations have been forced by the Parliament having thought about their critical job in releasing their obligations and duties to make sure about the sway and trustworthiness of our nation, to keep up the open request; and to advance support of order among themselves as a portion of the essential rights (as opportunity of articulation/discourse, to shape associations on various premise) may make an impediment in productive, viable, unbiased execution of their obligations and obligations and would nullify the very point of their being an individual from Armed Forces.
 Civil Appeal No. 1821 of 1974, reported AIR 1976 SC 1179)
 Writ Petition Nos. 1513 of 1979, 5930 of 1980 and 4903 of 1981
 (1983 SCR (3) 60, 1983 SCC (3) 401)
 Civil Appeal No. 10383 of 1996, Reported in (2003) 104 DLT 618 : (2003) 4 JT 505 : (2003) 4 SCALE 494 : (2003) 9 SCC 630 : (2003) 3 SCR 1092: (2003) 3 SLJ 288: (2003) 2 UJ 849 : (2003) 2 UPLBEC 1479
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