Martial Law and Fundamental Rights – UPSC Notes – Indian Polity

Martial Law means when the military takes over the regular civilian government and takes charge of all its duties.

Article 34 outlines limitations on fundamental rights during the imposition of martial law in a specific area in India. It gives the Parliament the authority to protect government officials or anyone else for their actions related to maintaining or restoring order in that area. Additionally, Parliament can approve and make valid any sentences, punishments, forfeitures, or other actions taken under martial law in that region.

The Parliament’s Act of Indemnity cannot be questioned in court for violating fundamental rights. In India, martial law is adopted from English common law, meaning military rule. Although not defined in the Constitution, it involves military authorities running civil administration with their own rules, suspending ordinary law, and using military tribunals. Unlike military law for armed forces, the Constitution doesn’t explicitly let the executive declare martial law. However, Article 34 implies its declaration during extraordinary situations like war, invasion, insurrection, rebellion, riot, or violent resistance to law, to maintain or restore order.

During martial law, military authorities have unusual powers, imposing restrictions on civilians’ rights, punishing them, and even sentencing them to death. The Supreme Court clarified that martial law declaration doesn’t automatically suspend the writ of habeas corpus.

Article 34’s declaration of martial law differs from Article 352’s declaration of a national emergency.

By whom is martial law declared?

The term ‘martial law‘ remains undefined in the Constitution, lacking specific authorization for the executive to declare it. Nonetheless, Article 34 implicitly grants the authority to declare martial law in any area within the territory of India. This provision empowers Parliament to indemnify government servants or other individuals for acts performed in connection with maintaining or restoring order in regions where martial law is enforced.

Rules of Martial Law

1. Declaration Authority: The authority to declare martial law lies with the president or the governor of the state.
2. Emergency Prerequisite: Martial law can only be proclaimed in the presence of a declared emergency.
3. Military Takeover: The army assumes control of all powers necessary to govern the specified area.
4. Local Authority Exclusion: Local authorities lose their control over the designated area during the imposition of martial law.
5. Military Commander’s Authority: The military commander becomes the primary decision-maker for the well-being of the residents in that specific area.
6. Fundamental Rights Limitation: The imposition of martial law entails a restriction on the fundamental rights of the citizens.

Suspension of Rights

The declaration of martial law resulted in the suspension of fundamental rights such as the right to speech and the right to movement. Additionally, military tribunals will likely handle all civil and criminal cases during this period. Consequently, individuals violating the law during martial law may face punishment under military laws.

Martial Law vs National Emergency

Although these two concepts sound very similar, there are subtle differences that distinguish them:

Criteria	National Emergency	Martial Law
Control Area	Has control over the relationship between the state and the Centre. All transactions and affairs are undertaken.	Only controls the fundamental rights of the people and is untouched by every other aspect.
Triggering Situations	Imposed in situations like war and armed rebellion.	Imposed in situations like social disturbance and breakdown of law.
Scope of Imposition	Can be imposed on a whole country.	Can be imposed on a particular area.

These differences highlight how National Emergency and Martial Law operate in distinct ways, influencing different aspects of governance and responding to varied types of crises.

Frequently Asked Questions (FAQs) on Martial Law in India:

1. What is Martial Law?

• Answer: Martial Law is a state of affairs where the military takes control of the regular civilian government, assuming authority over its functions and responsibilities.

2. What legal provisions govern Martial Law in India?

• Answer: Article 34 of the Indian Constitution outlines the limitations on fundamental rights during the imposition of martial law in a specific area. It grants the Parliament authority to protect individuals for actions taken to maintain or restore order in that region.

3. Can the Parliament’s Act of Indemnity be challenged in court for violating fundamental rights during Martial Law?

• Answer: No, the Parliament’s Act of Indemnity cannot be questioned in court for violating fundamental rights during Martial Law.

4. Is the declaration of Martial Law explicitly allowed in the Indian Constitution?

• Answer: While the term ‘martial law’ is not defined in the Constitution, Article 34 implicitly grants the authority to declare Martial Law in any area within the territory of India during extraordinary situations.

5. Who has the authority to declare Martial Law in India?

• Answer: The authority to declare Martial Law lies with the President or the Governor of the state.

6. What are the prerequisites for declaring Martial Law?

• Answer: Martial Law can only be proclaimed in the presence of a declared emergency.

7. What powers do military authorities have during Martial Law?

• Answer: Military authorities have unusual powers, including imposing restrictions on civilians’ rights, punishing them, and even sentencing them to death.

8. How does the declaration of Martial Law impact fundamental rights?

• Answer: The declaration of Martial Law results in the suspension of fundamental rights, such as the right to speech and the right to movement.

9. What is the difference between Martial Law and National Emergency?

• Answer: Martial Law controls only specific areas, focusing on fundamental rights, while National Emergency has control over the relationship between the state and the Centre and encompasses all transactions and affairs in the entire country.

10. Can National Emergency and Martial Law be imposed simultaneously?

• Answer: No, National Emergency and Martial Law are distinct concepts and are not imposed simultaneously; each has its own triggering situations and scope of imposition.

11. How are military tribunals involved during Martial Law?

• Answer: Military tribunals likely handle all civil and criminal cases during Martial Law, and individuals violating the law may face punishment under military laws.

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