Power of parliament and Suspension of Fundamental Rights: Article 33 & 34

Article 33 & 34 maintain that parliament has the power to modify the application of the fundamental rights to the members of armed forces and Police forces. This is required to make the proper discharge of their duty.

This article means that in cases of a disaster or other situations such as Martial law, Curfew etc. the parliament by law may indemnify the persons of these forces for their acts.

Article 35 provides that the freedoms guaranteed under the article 19 automatically get suspended on the proclamation of National Emergency. For this Article 359 empowers the president to suspend the fundamental rights given by other articles also. However, Article 20 (protection in respect of conviction for offences) and Article 21 (Protection of life and personal liberty) cannot be suspended by any order under article 359.

Article 33 empowers the Parliament to restrict or abrogate the application of the fundamental rights in relation to the armed forces, paramilitary forces, police etc. But it does not mean that the article itself would abrogate any rights. The operation of this article depends upon the parliamentary legislation, though these legislations don’t need to refer this article. Such legislation by parliament of India may restrict the operation of any fundamental rights such as Equality, Freedom of Expression, Freedom of association, Personal Liberty etc. One such article is Police Forces (Restriction of Rights) Act, 1966. This act was even challenged in Supreme Court but was held valid. Some acts such as Army Act 1950, Navy Act 1950, Air Forces Act 1950 were the major acts enacted by parliament of India as per this article 33 of constitution of India.

Now, the question is that why there is limitation of fundamental rights to these people who serve the nation?

The answer itself is in the question-because they are serving the nation. We can imagine that if the members of armed forces are given right to demonstrations, strike, form association, form unions, what would have happened. Even, the barbers, musicians, carpenters, mechanics etc. who are employees of the armed forces also don’t have all the fundamental rights which are available to the citizens.

Parliament is empowered to make a law determining “to what extent any of the right shall, in their application to (a) the members of the Armed forces or (b) the members of the armed forces charged with the maintenance of public order”, be restricted or abrogated so as to ensure the proper discharge of their duties. They need to maintain discipline and that is what this article demands.

Now, here is an important question, which needs our attention. Article 32 gives right to constitutional remedies by means of writ petitions. Article 33 blocks some of the fundamental rights. Then are the members of armed forces allowed to file a writ petition in Supreme Court or High court?

The answer is Yes. Here, we have to note that Article 136(2) and 227 (4) exclude the appellate jurisdiction of the Supreme Court and the supervisory jurisdiction of the High Court in case of Court Martial. But at the same time, they also don’t exclude the operation of article 32 and 226 (powers of SC and HC to issue writs). This means that the honorable Supreme Court as well as the High Court CAN intervene in the Court martial cases too, provided that there is a substantive fundamental right is excluded by law made under article 33. The Supreme Court CAN intervene if the sentence provided under court martial is disproportionate to the crime.

Article 34 pertains to the restrictions on the fundamental rights conferred by this part while martial law is in force in any area. The article gives indemnity by law in respect to acts done during operations of martial law. Here we have to note that the Constitution does not have a provision of authorizing the proclamation of martial law. The article simply means that if there is a Government servant on duty, then he/ she is indemnified for the acts done by him or her in connection with maintenance of law and order in the area where martial law is in force. This act of indemnity CAN NOT be challenged in any court on the ground of contravention with any of the fundamental rights.

The question is what is martial law? As states above, Constitution does not define it. It has been borrowed from English common law and simply refers to military rule. So, any administration which is carried out by armed forces is martial law. Martial law CAN be declared in any area under the territories of India. It is generally imposed under situations like insurgency, war, invasion, rebellion, riots or any other violent activities.