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Armed Forces And Their Fundamental Rights Under Indian Constitution

Socio Legal Corp

Written by Surabhi Mathur

Introduction:

By the very nature of Fundamental Rights in Indian Constitution, we can observe that they try to create an invisible force on the citizens (non-citizens in some cases) restricting them to ‘what not to do’. It is evident and much argued that as they are commonly addressed as ‘negative rights’, it forces people to act in a certain manner. In a way, that should only be the whole purpose of law of the country. Surprisingly, there are some selected groups of people among the Indian population who are not governed by the rights mentioned under Part III of the Constitution, rather they have their own separate set of protocols. They are the members of the defense forces of India which specifically include members of Armed Forces, Para-Military Forces, Police Forces, members chaanrged with maintenance of public order, employees of Intelligence Bureaus and employees working in connection with telecommunication systems working for any forces.

The members of such forces are no doubt, are public servants but they constitute as an entirely different class of people all together. Article 33 & 34 of the Constitution of India, elaborates separate rights for Armed Forces and such other forces.[1] They specifically mention that Parliament has power to modify the rights of servants working in these forces. The main aim of these provisions is to ensure the proper discharge of their duties and the maintenance of discipline among them.[2] This is because of the very nature of work they are required to do, which includes mostly protection of civilians from external or internal threats or in some cases rescue missions during natural disasters. So, in order to keep them different from the common citizens of India, they have different protocols and laws being enacted by the Parliament. 

The code of conduct is to bind them to respect the sanctity of their profession with discipline and integrity. But there have been a lot of cases questioning the number of restrictions which are being put on them on the ground that in some situations the servants are unable to make a balance between individual interest and state’s interest. In some scenarios they are required to abandon their personal and social lives for the protection of their country. Also, it is difficult to ascertain that how far government is extending their help to fulfill the needs of these servants on daily basis. Are they given proper emoluments? While they are at country’s security borders, are they provided with safeguard measures from the government? How safe do their families feel when they are away from home? Or unfortunately, if any of the soldier sacrifices his/her life while fighting on the borders, does the family get the adequate compensation? These are some of the questions which are often debated because these services are considered to be the toughest of all requiring maximum dedication of an individual. So looking at all these problems being faced by them, are these restrictions justified enough?

Various Laws and system of Court Martial:

We now need to understand the laws which are enacted by Parliament which keep track of preservation of code of conduct of the officials in various forces as they are being tried in Armed Forces Tribunal (AFT) or Military Tribunals by following those enactments only. The Police Forces (Restriction of Rights) Act, 1966 restricts police forces to join any trade union, labour union or any political association.[3] The officials are prohibited to be a part of any social, political or religious meeting. They are even prohibited to publish their opinion in the form of any article or paper at any platform. Same abrogations are being put up by Army Act, 1950 and Intelligence Organizations (Restriction of Rights) Act, 1985. The violation of provisions under them is considered to be cognizable offences. Since, all these special laws have been put for charging and abrogating all officials, which is why the employees of Armed Forces are immune from getting arrested under Section 45 of CrPC, 1973[4] but this is subject to decision of central government.

It’s not a matter of chance once but it has been observed many times that government servants who are being covered under Article 33 have revolted against the provision to be against the basic fundamental right mentioned under Article 21.[5] The Supreme Court have constantly been stuck on the point that the Parliament has full veto in making any law for the Armed Forces whether it is restricting them from doing something or permitting.

The Military Tribunals are excluded from the appellate jurisdiction of the Supreme Court and also from power of superintendence of High Court under Article 227. But in some rare cases, the appeals have been allowed which come from writ petition filed in High Courts. These tribunals cannot be compared to the strict sense of ordinary courts and procedures though Indian Evidence Act, 1872 is applicable. It is more like a committee of officers to advice the accused officer so as to what obligations he/she has towards the post they hold.

Restriction on civilians under Article 34:

This provision gives power to the Armed Forces to confer their power of peace keeping in any particular area of the country. The requirement of ‘rule of martial law’ is said to be required in any part of the country where there is state of war, insurrection or rebellion situation. The Military forces are permitted to use their power in order to calm the breach of peace but only to the extent of that breach only, not beyond that. This situation should not be confused with that of emergency. Emergency is a mere threat of war, external aggression or armed rebellion and concerned with security of entire nation. On the other hand, martial law sprouts from a ‘necessity’ of such force in any part of the country.

Various laws have been enacted which give power to the Armed Forces, such as The Armed Forces (Assam and Manipur) Special Powers Act, 1958 which was enacted to look after the disturbed areas of a few north-eastern states. The Disturbed Area (Special Courts) Amendment Act, 1983 was enacted to establish special courts to resolve disputes in ‘disturbed areas’ as declared by central government.

Conclusion:

The contribution of defense forces and various other forces are commendable and deserve appreciation. But in India, their efforts are not recognized enough. Periodically, Pulwama and Uri attacks are happening in State of Jammu & Kashmir. Hence, there is a serious need to uplift the protection conditions for our brothers at the borders. It is unfortunate that they are living in a constant fight with enemy countries as well as their own government. It is high time Parliament should enact laws for betterment in protection, living conditions, health and emoluments of the employees of forces as well as their families. Even after facing all the hardships, they stand strong as a wall and every citizen of India salutes them for their courage and will continue to do so!


[1]INDIA CONST. Art. 33 ‘Power of Parliament to modify the rights conferred by this Part in their application to Forces etc.’ & Art. 34 ‘Restriction on rights conferred by this Part while martial law is in force in any area’.

[2] Mohammed Zubair v. Union Of India, (2017) 2 SCC 115.

[3] Delhi Police Non-Gazetted Karamchari Sangh v. Union Of India, AIR 1987 SC 379.

[4] Code of Criminal Procedure, 1973 (Act 2 of 1974), Sec. 45 ‘Protection of Members of the Armed Forces from arrest’.

[5] Prithi Pal Singh Bedi v. Union of India, AIR 1982 SC 1413.

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