Armed Forces and Fundamental Rights – Article 33 – UPSC Notes

Fundamental Rights are important rights that are the foundation of the Indian Constitution. They apply to all Indian citizens. However, there are certain situations where restrictions can be placed on these rights for specific groups of people. For example, members of the Armed Forces or those responsible for maintaining public order may have limitations on their Fundamental Rights under Article 33. This article allows the Parliament to control or even remove some fundamental rights for members of the armed forces, paramilitary forces, police forces, intelligence agencies, and similar groups. The goal is to make sure they can perform their duties effectively and maintain discipline among themselves.

Concept of Fundamental Rights

The concept of Fundamental Rights in the Indian Constitution is significant, as it grants these rights to every Indian citizen, outlined in Part III (Articles 12 to 35) of the Constitution.

These rights are crucial because they serve as the foundation for an individual to develop into an independent, intellectual, responsible, moral, and spiritually developed citizen. The Constitution ensures that all people are guaranteed fundamental rights without any discrimination.

Fundamental Rights uphold the equality of all individuals, the dignity of each person, the larger public interest, and national unity. They act as a barrier against the establishment of authoritarian and despotic rule, protecting the liberties and freedoms of the people from state interference.

Fundamental Rights also act as checks on the tyranny of the executive and the formulation of arbitrary laws by the legislature. In essence, they aim to establish “a government of laws, not of men.”

Originally, the Constitution included seven Fundamental Rights:

1. Right to equality (Articles 14–18)
2. Right to freedom (Articles 19–22)
3. Right against exploitation (Articles 23–24)
4. Right to freedom of religion (Articles 25–28)
5. Cultural and educational rights (Articles 29–30)
6. Right to property (Article 31)
7. Right to constitutional remedies (Article 32)

However, the 44th Amendment Act of 1978 removed the Right to property from the list of Fundamental Rights, re-establishing it as a legal right under Article 300-A in Part XII of the Constitution. Consequently, there are currently only six Fundamental Rights.

Restrictions of Fundamental Rights of the Armed Forces

Article 33 grants the Parliament the authority to limit or abolish the fundamental rights of members of the armed forces, paramilitary forces, police forces, intelligence agencies, and similar forces.

• The purpose of this provision is to ensure that they carry out their duties properly and maintain discipline among themselves.
• Article 33 grants the power to make laws only to Parliament, not to state legislatures.
• Any such law enacted by Parliament cannot be challenged in a court of law on the basis of a violation of any of the fundamental rights.
• The Armed Forces have imposed restrictions on a limited number of fundamental rights, as specified in Articles 14, 15, and 19 of the Constitution.
• The provisions of these special acts (Army Act, Air Force Act, or Navy Act) cannot simply be challenged on the grounds that they violate fundamental rights. This is because these acts are laws duly enacted by Parliament in the exercise of its plenary legislative jurisdiction, as stated in Article 33 of the Indian Constitution.
• Aside from the three branches of the armed forces, these rights have been revoked in respect of members of the police and paramilitary forces, persons employed in intelligence or counter-intelligence services, and communication systems set up for the aforementioned organizations.
• The Central Government, in exercising its rule-making power under the Army Act of 1950 (as well as the Air Force Act), has limited the rights to freedom of speech and expression, freedom of assembly, and freedom to form associations and unions enshrined in Article 19 of the Constitution.
• In the case of the Navy, this was done by Parliament under Section 12 of the Navy Act itself.

The Supreme Court has ruled that these rights can be limited even for members of the armed forces who serve in non-combat roles.

Martial Law vs National Emergency

Criteria	Martial Law	National Emergency
Scope of Impact	Affects only Fundamental Rights	Affects not only Fundamental Rights but also influences state–state relations, distribution of revenues, and legislative powers between the centre and states, and may extend the tenure of the Parliament.
Effect on Governance	Suspends the government and ordinary law courts	Continues the government and ordinary law courts
Imposition Reasons	Imposed to restore the breakdown of law and order due to any reason	Can be imposed only on three grounds—war, external aggression, or armed rebellion
Geographical Scope	Imposed in some specific area of the country	Imposed either in the whole country or in any part of it
Constitutional Status	Has no specific provision in the Constitution; it is implicit	Has specific and detailed provisions in the Constitution; it is explicit

Related Constitutional Provisions

Article 33 of the Constitution deals with Parliament’s power to modify fundamental rights. It states that the Parliament may, by law, determine to what extent any of the rights conferred by this Part shall apply to:

1. Members of the Armed Forces; or
2. Members of the Forces charged with maintaining public order;
3. Persons employed in any bureau or other organization established by the State for intelligence or counterintelligence purposes; or
4. Persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau, or organization referred to in clauses (1) to (4).

These rights may be restricted or abrogated to ensure the proper discharge of their duties and the maintenance of discipline among them.

Article 34 further classifies certain restrictions on fundamental rights in any area where martial law is in effect.

Thus, Articles 33 and 34 empower the Parliament to limit, modify, or revoke the fundamental rights of members of the armed forces, paramilitary forces, police forces, intelligence agencies, or similar services.

The modification power, which restricts fundamental rights, is available only to Parliament and not to the state legislature.

Reasons for Restrictions on Fundamental Rights of Armed Forces

The Parliament implemented these limitations, taking into account the crucial role of the Armed Forces in safeguarding our country’s sovereignty, maintaining public order, and fostering discipline within their ranks.

These restrictions are put in place because certain fundamental rights, such as freedom of expression/speech and the right to form unions based on various criteria, may pose obstacles to the efficient, effective, and impartial execution of their duties.

The objective is to ensure that the Armed Forces can carry out their vital responsibilities without undue hindrance. By placing limitations on specific fundamental rights, Parliament seeks to strike a balance between safeguarding individual liberties and enabling the Armed Forces to fulfill their duties effectively in the interest of national security and public order.

Criticism of Judicial Approach to Military Personnel’s Fundamental Rights:

• Over the past five decades, the Supreme Court has expansively interpreted fundamental rights, aligning with international covenants India is part of. Notably, the right to life and personal liberty received broad interpretation.
• However, concerning the fundamental rights of military personnel, the Supreme Court’s interpretation has been notably narrow. In contentious cases, the Court often seems to choose the path of least resistance by favoring the military.
• There is a prevailing belief in the courts that any negative remarks about military higher-ups could undermine military discipline. The judiciary, acting in good faith, appears to support the organization, providing an opportunity for the military hierarchy and the government to address governance and justice system flaws.
• Consequently, in instances of alleged bias, rights denial, or injustice by a commander, the courts may lean towards ruling out culpability or malice on the part of the superior, possibly to maintain cohesion and discipline within the military.

Related Judgements

In the 1964 case of Ram Sarup, the Supreme Court based its decision on the submission of the Attorney General. It asserted that each provision of the Army Act is a law made by Parliament. If any provision appears to impact fundamental rights, it should be presumed that Parliament, exercising its authority under Article 33, has made the necessary modifications to affect the respective fundamental right.

This interpretation is open to scrutiny, and it may be considered an incorrect understanding of the constitutional provision. Given the passage of time and the evolution of law, a reevaluation of this interpretation may be warranted.

While being citizens of India, individuals in the Armed Forces constitute a unique class, subject to special laws enacted by Parliament. They hold a crucial responsibility in safeguarding the nation, both in times of peace and war. It is essential that members of the armed forces enjoy similar rights and protections as other citizens, albeit with certain limitations to uphold discipline. Ensuring the protection of their human rights and fundamental freedoms within their institution is key to fostering a commitment to upholding these values while fulfilling their duties.

FAQs on Armed Forces and Fundamental Rights

1. What are Fundamental Rights in the Indian Constitution?

• Fundamental Rights in the Indian Constitution are essential rights granted to every Indian citizen, outlined in Part III (Articles 12 to 35) of the Constitution. They serve as the foundation for an individual to develop into an independent, responsible, and morally developed citizen.

2. How do Fundamental Rights contribute to Indian democracy?

• Fundamental Rights uphold the equality of individuals, the dignity of each person, and act as a barrier against authoritarian rule. They protect liberties and freedoms from state interference, ensuring a government of laws, not of men.

3. What were the original seven Fundamental Rights, and why was one removed?

• The original seven Fundamental Rights included the Right to Property, which was removed by the 44th Amendment Act of 1978. It was re-established as a legal right under Article 300-A in Part XII of the Constitution, resulting in the current six Fundamental Rights.

4. How are Fundamental Rights restricted for the Armed Forces?

• Article 33 grants the Parliament the authority to limit or abolish Fundamental Rights for members of the Armed Forces, paramilitary forces, police forces, intelligence agencies, etc., to ensure effective duty performance and discipline.

5. What rights are commonly restricted for members of the Armed Forces?

• Members of the Armed Forces may face limitations on rights specified in Articles 14, 15, and 19, including the rights to equality, freedom, and freedom of speech and expression.

6. Why does Parliament have the power to modify Fundamental Rights for specific groups?

• Parliament has the power under Article 33 to modify Fundamental Rights for groups like the Armed Forces, ensuring they can perform their duties effectively and maintain discipline, with the laws enacted not subject to challenge in a court of law.

7. How do the Armed Forces limit Fundamental Rights through specific acts?

• The Central Government, under the Army Act of 1950, has limited certain Fundamental Rights, like freedom of speech and expression, for the Armed Forces. Similar restrictions apply through acts such as the Air Force Act and Navy Act.

8. Why are restrictions placed on Fundamental Rights for the Armed Forces?

• Restrictions are implemented to balance individual liberties with the Armed Forces’ ability to fulfill their responsibilities in safeguarding the country’s sovereignty, maintaining public order, and fostering discipline.

9. How has the Supreme Court approached cases involving the Fundamental Rights of military personnel?

• The Supreme Court has been criticized for narrowly interpreting the Fundamental Rights of military personnel, often favoring the military in contentious cases. This approach is seen as prioritizing military discipline over individual rights.

10. What legal basis supports the restrictions on Fundamental Rights for the Armed Forces?

• The legal basis for restricting Fundamental Rights in the Armed Forces lies in Articles 33 and 34 of the Constitution, empowering Parliament to limit, modify, or revoke these rights to ensure proper discharge of duties and maintenance of discipline.

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