Human Rights in the Indian Armed Forces: An Analysis of Article 33

By Dr. U C Jha and Dr Sanghamitra Choudhury

"The military plays an important role in nation-building and national security. Notwithstanding special requirements of military life, the members of the armed forces should enjoy the rights guaranteed in the Constitution and other relevant international human rights treaties which India has ratified to the extent that those rights are available to other citizens of the country. The guarantee of a fair trial should apply to all proceedings under the military legal system, including summary trial and summary systems of court martial. The government must ensure the economic, social, and cultural rights of military personnel including housing, medical care, education, free legal aid and social security. Derogations of the Fundamental Rights under Article 33 should not be carried so far as to create a class of citizens who are not entitled to the benefits of the liberal interpretation of the Constitution.
This book is aimed at all those who are involved in promoting, protecting, and enforcing the rights of not only the members of the armed forces, but also the other forces engaged in the security of the country. It will of relevance to parliamentarians, government officials, military authorities and members of the civil society who have a stake in the armed forces."

• Language: English
• Publisher: VIJ Books (India) Pty Ltd
• Release date: Mar 18, 2019
• ISBN: 9789388161244

Dr. U C Jha

Wing Commander Dr U C Jha is an independent researcher. He has an extensive academic experience in the fields of military law, international humanitarian law and human rights laws. He has been teaching these subjects for more than a decade and is a resource person for the United Service Institution of India, New Delhi. He has served in the Indian Air Force for 24 years. He obtained a Ph D degree in Law and Governance from Jawaharlal Nehru University, where his dissertation was on the Indian Military Justice System. He also holds master's degree in law, life sciences, business administration, and defence and strategic studies; with post-graduate diplomas in environmental laws, intellectual property laws, and international humanitarian law, refugee law and human rights laws.

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Preface

The Indian Constitution guarantees the essential human rights in the form of the Fundamental Rights (Part III) and the Directive Principles of State Policy (Part IV), which are the cornerstone of governance of the country. The important rights and freedoms granted under the Constitution are equal protection under the law, freedom of speech and expression, freedom of worship and religion, freedom of assembly and association, freedom of person, freedom against double jeopardy and against ex post facto laws. Article 13 of the Constitution states that the State shall not make any law which takes away or abridges the rights conferred by Part III and that any law made in contravention of this provision shall be void. The term ‘law’ includes any ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law within the territory of India.

A notable feature of the Constitution is that it accords a dignified and crucial position to the judiciary. Article 13 confers a power and imposes a duty and an obligation on the courts to declare a law void if it is inconsistent with a Fundamental Right. Article 32 gives the judiciary the power to protect the people’s fundamental rights from any undue encroachment by any organ of the State. The jurisdiction so conferred on the Supreme Court and high courts is a part of the inviolable fabric of the Constitution.

The Fundamental Rights have been liberally construed by the Supreme Court in the last five decades, keeping in view the International Covenants to which India is a party.¹ For instance, the right to protection of life and personal liberty, which is confined to 18 words in Article 21, has received the widest possible interpretation.² The Constitution Bench of the Supreme Court has held that access to justice is a Fundamental Right guaranteed to citizens by Article 14 and Article 21 of the Constitution. The Bench observed that if life implies not only life in the physical sense but a bundle of rights that makes life worth living, there is no juristic or other basis for holding that denial of access to justice will not affect the quality of human life so as to take access to justice out of the purview of the right to life guaranteed under Article 21.³

Article 33 of the Constitution, however, constitutes an exception to the Fundamental Rights. It empowers the Parliament to restrict or abrogate the fundamental rights of certain categories of government servants so as to ensure the proper discharge of their duties and the maintenance of duties amongst them. Besides the three wings of the armed forces, these rights have been abrogated in respect of members of the forces charged with the maintenance of public order, persons employed in any bureau or organization established for the purposes of intelligence or counter-intelligence, and those employed in communication systems set up for the purposes of any force, bureau or organization.

Article 33 does not by itself abrogate any right; its applicability depends upon parliamentary legislation. Parliament, in exercise of powers conferred by Article 33, can restrict or abrogate the Fundamental Rights in their application to the members of the armed forces. For example, it has abrogated certain powers of persons subject to the Navy Act, 1957, under Section 12 of the Act. In other cases, Parliament has empowered the Central Government to make rules to restrict certain Fundamental Rights of the members of the forces. For instance, the Central Government, exercising its rule-making power under the Army Act, 1950 and the Air Force Act, 1950 has abrogated certain Fundamental Rights of the members of the Indian Army and the Air Force. These rights relate to the freedom of speech and expression, the freedom of assembly, and the freedom to form associations and unions and are part of Article 19 of the Constitution.

The Indian Armed Forces are governed by the respective service Acts which owe their origin to British laws drafted in the post-Mutiny era to govern native soldiers, who were considered uneducated, uncultured and undisciplined. Unfortunately, no honest attempt has been made since Independence to modernize the military legal system, keeping in mind the expanding horizon of international human rights laws and the changes made by other democratic countries. Let us take an example. In 1982, the Supreme Court of India in PPS Bedi’s case, made a critical assessment of the Indian military legal system for the first time. It commented that the winds of change blowing over the world necessitated a second look to bring the provisions of military law in conformity with the liberty-oriented Constitution and the rule of law which formed the uniting and integrating force in our political society. The Supreme Court urged the Parliament to reform military law in view of the changed value system, and commented that fair play and justice could not always be sacrificed at the altar of military discipline. The government did nothing except making a few minor amendments to the legal system. Some of these amendments were made after the judiciary made scathing remarks on the antiquity of the military legal system, while others were made after the corresponding provisions of the civil criminal justice system was amended.

The Parliamentary Standing Committee on Defence (2005-06) in its Tenth Report said, … it is high time that these (service) Acts be reviewed in totality in the light of the judgments delivered by the courts to make their provisions more democratic. The Committee recommended that An expert committee be constituted to thoroughly review the Acts and make recommendations to bring them in tune with the norms being followed in other democratic countries. The Committee also desired that a common disciplinary code be created so as to bring uniformity in the dispensation of justice to the armed forces personnel.

The reaction of the government to these criticisms and recommendations has been indifferent and slow. Twenty-five long years after the Supreme Court’s comments in the PPS Bedi case, Parliament finally woke up and the Armed Forces Tribunal Act was passed to pave the way for the establishment of the Armed Forces Tribunal. The Tribunal has been functioning with congenital defects. It has no power of civil contempt and therefore its decisions cannot be enforced. It does not have jurisdiction in issues relating to leave, postings, summary trial, and summary court martial where punishment is less than three months of detention. In case of any dispute relating to these issues, the final authority remains with the military hierarchy or the central government. In other words, arbitrariness or unreasonableness on the part of the authorities in these matters cannot be questioned in any court of law.

The higher judiciary often chooses the path of least resistance by supporting the military organization in any controversial case. The few cases in which the courts have intervened have had little impact on military governance. The courts are generally of the opinion that any adverse comment on military higher-ups may erode discipline in the armed forces. The judiciary believes in good faith that by supporting the organization, they are affording an opportunity to the military hierarchy as well as the government to rectify the defects in governance and the justice delivery system.

In a hierarchical system, it is natural for the judiciary to assign greater weightage to the higher authority than the junior. Therefore, the benefit of the doubt always goes to the organization. Senior commanders are gratefully viewed by civilians as well as the judiciary as custodians of national security. Thus, in cases of alleged bias, or denial of rights, or injustice at the hands of a commander, the courts are tempted to rule out the possibility of culpability or malice on the part of the superior. Recently, while referring a case back to the Defence Minister, the Supreme Court said, We repose full faith in the Raksha Mantri and are confident that she would consider the entire matter in a totally dispassionate manner, with utmost objectivity and depicting total fairness. … and are hopeful that the decision shall be taken within a week.⁴

Outside the armed forces not many are aware that military personnel are at the mercy of an antiquated and outmoded legal system that has hardly been altered since the Mutiny Acts. Discontent with the system has driven an increasing number of military personnel to approach the armed forces tribunal and the Supreme Court for the resolution of their grievances. Cases of fratricide and suicide are on the rise in all three services, especially the army. There have also been a few disturbing incidents in which soldiers have used physical force against their officers or refused to carry out orders. In a couple of incidents they have refused to work in the undignified role of batman or orderly for their officer.⁵ The social media was exploited by some to air their opinions and grievances against their superiors and the organization. This trend is disturbing. In an attempt to find an answer, this book examines the following issues:

Can the rights contained in international human rights treaties to which India is a party, be denied to the members of the armed forces, even if they do not have any impact on their discipline or performance of duty?

Are the members of the armed forces entitled to enjoy the Fundamental Rights subject to the limitations imposed by Article 33?

Can they be denied every right contained in Part III/IV of the Constitution for the sake of maintenance of discipline and proper performance of duty?

Can they be subjected to forced labour and inhuman and degrading treatment at the hands of their superiors in the name of discipline?

Can they be forced to work under inhumane conditions and denied wages for extra work?

Do they have the right to suitable service accommodation, and respect for their private and family life?

Can the government force them to undertake peacetime functions endangering their life?

What remedy do they have when the privilege of grievance redressal granted by an Act of Parliament is made so coercive and marred by the regulation that it loses its effectiveness?

Can they be denied the right to a fair and just trial that is available to civilians under the criminal justice system?

Should they be subjected to the unfair, unjust and arbitrary system of summary courts martial when no other modern military in the world follows such a systems of trial?

Are the provisions of the three services Acts immune from challenges of unconstitutionality?

Does the higher judiciary have any positive duty in interpreting the Fundamental Rights of the members of the armed forces?

Is there a need to redefine the rights and duties of military personnel in India?

This book is divided into six chapters. The introductory chapter examines the position of the armed forces under the Constitution, the restrictions on the fundamental rights of the members of the armed forces under Article 33, and its relation to the Army Act, 1950 and other subordinate legislations made under the Act. Chapter II contains a discussion of the conditions of military service which have a direct bearing on the fundamental rights of armed forces personnel. This chapter raises a pertinent question: should the members of the armed forces be exposed to situations where their lives would be put at risk without a clear and legitimate military purpose or where the threat to life has been disregarded? Article 14 of the International Covenant on Civil and Political Rights provides that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Chapter III highlights how the right to a fair trial is violated under the military legal system in India. Chapter IV discusses the role played by the Supreme Court in analysing cases related to Article 33. Chapter V provides a brief analysis of the constitutions of a few States as regards the restrictions placed on the fundamental rights of the members of their armed forces. Chapter VI makes recommendations on safeguarding the rights of the members of the armed forces.

This book has two appendices. Appendix I contains the Constituent Assembly debate of 9 December 1948 relating to Article 33 of the Constitution, and the text of the Lok Sabha debate of 22 and 23 August 1984 on the Constitution (Fifty-Second Amendment) Bill. Appendix II provides the texts of the Supreme Court cases and a few high court cases relating to Article 33.

In this book, the terms ‘military’ and the ‘Army Act’ have been used in the generic sense and include the three services and laws relating to the air force and navy, unless specifically stated.

This book is dedicated to soldiers, sailors and airmen.

We thank Vij Books India Pvt Ltd, New Delhi for their cooperation in bringing out this book.

1People’s Union for Civil Liberty v. Union of India , (2005) 2 SCC 436.

2Article 21 of the Constitution lays down, No person shall be deprived of his life or personal liberty except according to procedure established by law.

3Anita Kushwaha v. Pushap Sudan , Transfer Petition (C) No. 1343 of 2008, with other petitions, decided on 19 July 2016.

4Union of India v. Maj Gen Manomoy Ganguly , Civil Appeal No. 5800 of 2018, decided on 1 August 2018.

5Wilkinson Steven I., 2015, Army and Nation: The Military and Indian Democracy since Independence , Ranikhet: Permanent Black.

Chapter – I

Introduction

The concept of the modern State has undergone numerous changes since its formal conception at the Peace of Westphalia in 1648. In international law, a State is defined as an independent political society, occupying a defined territory, the members of which are united together for the purpose of resisting external forces and preservation of internal order.¹ In a State, there is a need to have a predictable body of norms and rules from which various governmental organs can draw their powers and functions. A State in modern time does not confine to merely a ‘police’ and ‘law and order’ functions, it also tends to become a social welfare state. To meet this requirement, the constitution of a State establishes apex organs of government and administration, describe their structure, composition, powers and principal functions, and define their inter-relationship with one another.² In its narrower meaning, a constitution means a document having a special legal status which sets out the framework and principal functions of the organs of government and declares the principles or rules by which those organs must operate.³ Traditionally, the structure of a country’s government is divided into three institutional components in the constitution: (i) legislative to make laws; (ii) executive to implement and execute laws; and (iii) judiciary to interpret the laws and administer justice.⁴ The constitution may also create other organs which it may regard as significant; for instance, the Indian Constitution provides for the Election Commission to ensure free and fair elections in the country. An important aspect of the relationship between the government and the people is guaranteeing of certain Fundamental Rights to the people.

The Armed Forces and Constitution

The notion of State is somewhat akin to the concept of armed forces. Number-wise, the armed forces remain the most important organ of the State; their principal object is to fight and win wars. According to Finer (2006), the armed forces have three political advantages over civilian organizations: (i) a marked superiority in organization, (ii) a highly emotionalized symbolic status and (iii) a monopoly of arms.⁵ The highly peculiar features of the armed forces are: centralized command, hierarchy, discipline, intercommunication, and esprit de corps and self-sufficiency. The armed forces are unlike any other state organization because they are allowed to do things that no other organization is permitted to do (such as using lethal force), and their personnel are required to do things that no other employees are required to do (such as submit to military discipline or ultimately give up their lives in the line of duty).⁶ These special rights and obligations make the armed forces a very powerful organ of a State.

The armed forces world over are undergoing a profound shift in their core function. The emergence of new security challenges in the form of terrorism and insurgency, coupled with the increasing role in internal security situation have refocused military role in a modern state.⁷ Governments and societies have been contemplating the appropriateness of newly defined purposes for their armed forces, which extend beyond their core role of providing security against external threats.⁸ It is necessary that this power is used effectively and efficiently with respect for human rights and the principles of good governance.

The position of the armed forces in the Indian constitution is as follows. List 1, Entry 1 (Seventh Schedule), provides for the defence of India while Entry 2 provides for the naval, military and air forces of the Union. The President is the supreme commander of the defence forces of the Union and the exercise of this command is to be regulated by law.⁹ It is the duty of the Union to protect every state against external aggression and internal disturbance.¹⁰ In a federal state where internal security becomes the responsibility of the police, the function of protection against external aggression is performed by the Centre through its armed forces.

Fundamental Rights

The Indian Constitution is a unique document. It contains not only the fundamental principles of governance but also many administrative details such as the provisions regarding citizenship, official language, government services, electoral machinery, etc. The Constitution of India being written constitutes the fundamental law of the land. It is under this fundamental law that all laws are made and executed, all government authorities act and the validity of their functioning adjudged. No act of legislative, executive, judicial or quasi-judicial, or any administrative agency would be lawful if it is contrary to the Constitution.¹¹ The Indian Constitution guarantees essential human rights under Part III and directive principles of State policy in Part IV of the Constitution which are fundamental to the governance of the country. The Fundamental Rights cannot be taken away by any legislation; a legislation can only impose reasonable restriction on the exercise of the right.¹² Part III of the Indian Constitution guarantees that every person (limited to non-citizen in some cases) shall be entitled to certain Fundamental Rights irrespective of race, caste, creed, sex or place of birth. These rights are judicially enforceable which encompass all the civil and political rights and are contained in Articles 12 to 35.¹³ Unlike Constitutions of some developed States, no fundamental right in India is absolute in nature. Reasonable restrictions can be imposed on such Fundamental Rights. A reasonable restriction on the exercise of the right is always permissible in the interest of the security of the State.¹⁴ The Supreme Court of India has interpreted the Constitution’s Fundamental Rights guarantees expansively. The Court has held that in interpreting the Fundamental Rights, its approach should be dynamic rather than static, pragmatic and not pedantic, and elastic rather than rigid.¹⁵

Article 13 of the Constitution is a key provision as it gives teeth to the Fundamental Rights and makes them justifiable. Article 13 not only declares pre-constitution laws as void to the extent to which they are inconsistent with the Fundamental Rights, it also prohibits the State from making a law which either takes away totally or abrogates in part a fundamental right.¹⁶ The effect of Article 13(2) is that no Fundamental Right can be infringed by the State either by legislative or administrative action. Article 13 makes the Supreme Court, as the guardian, protector and the interpreter of the Fundamental Rights.¹⁷ A statue is declared unconstitutional and void if it comes in conflict with a Fundamental Right.

The Constitution guarantees the right to equality through Article 14-18. The underlying object of Article 14 is to secure all persons, citizens and non-citizens, the equality of status and opportunity referred in the Preamble to the Constitution. The rights protected by the Constitution include equality before the law and equal protection of the laws, which embody a broad guarantee against arbitrary or irrational state action. In course of time Article 14 has evolved into a very meaningful guarantee against any action of the administration which may be arbitrary, discriminatory or unequal.¹⁸ This manifests itself in the following propositions: (A) A law conferring unguided and unrestricted power on an authority is bad, as its use could be discriminatory; (B) Article 14 illegalizes discrimination in the actual exercise of any discriminatory power; and (C) Article 14 strikes at arbitrariness in administrative action and ensures fairness and equality of treatment.¹⁹

Article 19 confers to the citizen of India six freedoms: of ‘speech and expression’, ‘peaceable assembly’, ‘association’, ‘free movement’, ‘residence’ and ‘practicing any profession and carrying on any business’; although Parliament may legislate reasonable restrictions on some of these rights in the interests of the sovereignty and integrity of India, security of the state, or public order. These Fundamental Rights are basic rights and must be harmoniously construed so that they are properly promoted with a minimum of such implicit and necessary restrictions.²⁰

The term reasonable does not have a precise definition and each case is to be adjudged on its own merits, and no abstract or general pattern of reasonableness is applicable uniformly in all aces. The court evaluating the reasonableness on the restrictions imposed on a Fundamental Right guaranteed by Article 19 enjoys a vast discretion. The Supreme Court is of the view that the following principles and guidelines should be kept in mind while considering the constitutionality of a statutory provision upon a challenge on the alleged vice of unreasonableness of the restriction imposed by it:

(a) The restriction sought to be imposed on the Fundamental Rights guaranteed by Article 19 of the Constitution must not be arbitrary or of an excessive nature so as to go beyond the requirement of felt need of the society and object sought to be achieved.

(b) There must be a direct and proximate nexus or a reasonable connection between the restriction imposed and the object sought to be achieved.

(c) No abstract or fixed principle can be laid down which may have universal application in all cases. Such consideration on the question of quality of reasonableness, therefore, is expected to vary from case to case.

(d) In interpreting constitutional provisions, courts should be alive to the felt need of the society and complex issues facing the people which the Legislature intends to solve through effective legislation.

(e) In appreciating such problems and felt need of the society the judicial approach must necessarily be dynamic, pragmatic and elastic

(f) It is imperative that for consideration of reasonableness of restriction imposed by a statute, the Court should examine whether the social control as envisaged in Article 19 is being effectuated by the restriction imposed on the Fundamental Rights. ²¹

Article 20 of the Constitution prohibits ex-post facto laws, double jeopardy, and compelled self-incrimination. An ex-post facto law is a law which imposes penalties retrospectively, that is, upon acts already done, or which increases the penalty for the past acts. Article 20(2) which run as, No person shall be prosecuted and punished for the same offence more than once, contains the rule against double jeopardy.²²

Article 21, the core of all the Fundamental Rights provisions in the Constitution, states: No person shall be deprived of his life or personal liberty except according to procedure established by law. The Supreme Court has interpreted the term life to include the right to possession of each organ of one’s body and a prohibition of torture or inhuman or degrading treatment by Police. In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi,²³ the Supreme Court held that life couldn’t be restricted to mere animal existence, or physical survival. The right to life means the right to live with dignity and all that goes with it – the basic necessities of life such as adequate nutrition, clothing, shelter and facilities for reading, writing and expressing oneself."

The judiciary has interpreted ‘the right to life and personal liberty’ to encompass all basic conditions for a life with dignity and liberty. The expression ‘personal liberty’ was given an expansive interpretation by the Supreme Court in Maneka Gandhi v. Union of India.²⁴ The Court reiterated the proposition that Article 14, 19 and 21 are not mutually exclusive. This means that a law prescribing a procedure for depriving a person of ‘personal liberty’ has to meet the requirement of Article 19. In addition, the procedure established by law in Article 21 must answer the requirement of Article 14. Such an approach allows it to come down heavily on the system of administration of criminal justice and law enforcement. It also brings into the fold of Article 21 all those directive principles of state policy that are essential for a life with dignity.²⁵ While some people have a very simplistic notion of human dignity, that it’s just some sort of aura or something of property that hangs around people and can be violated. In fact, human dignity is a relation between people and one is respected by others as a human. Others respect one’s right, which doesn’t mean they can never violate them, but there have to be reasons and justifications that are sound in order to override one’s rights.

The Supreme Court has held that the Constitution guarantees the right to privacy ²⁶ and freedom from torture or cruel, inhuman, or degrading treatment.²⁷ It has also recognized a constitutional right to a fair criminal trial, including among other elements the presumption of innocence; independence, impartiality, and competence of the judge; knowledge by the accused of the accusations; trial of the accused and taking of evidence in his presence; cross-examination of prosecution witnesses; and presentation of evidence in defence.²⁸ The Court has held that speedy trial is a fundamental right implicit in the broad sweep and content of Article 21 of the Constitution; and the law must ensure reasonable, just and fair procedure.²⁹

The rights of a person, arrested and detained by the State authorities, are provided in Article 22 of the Constitution. These include the right to be informed of the grounds of arrest, the right to legal advice and the right to be produced before a magistrate within 24 hours of arrest (except where one is arrested under a preventive detention law). Individuals arrested and taken into custody must be provided with the basis for arrest as soon as may be and produced before a magistrate within 24 hours. The Supreme Court in its landmark case of D.K. Basu v. State of West Bengal, extended the Constitution’s procedural guarantees further by requiring the police to follow detailed guidelines for arrest and interrogation.³⁰ The Constitution also guarantees the right to counsel of the defendant’s choice; and the Supreme Court has held that legal assistance must be provided to indigent defendants at government expense.³¹ The insufficiency of legal aid to the accused during a court-martial is a serious defect of the present system; the most significant is the absence of the services of an experienced legal counsel for the accused.³²Article 23 of the Constitution prohibits forced labour not only against the State but also against private citizens.³³ The Supreme Court in the People’s Union for Democratic Rights v. Union of India has given an expansive significance to the term ‘forced labour’.³⁴

The Fundamental Rights are enforceable in a court of law. In fact, the remedial right of obtaining the enforcement of these is also a guaranteed constitutional right. These Fundamental Rights are rooted in the recognition of the dignity of the individual as well as the rights of groups and the rights of the society. The executive, legislature and judiciary have been entrusted with the job of balancing the rights of the individual and the interest of the society. However, if Fundamental Rights are to be restricted or abrogated, keeping in mind the good of the society as a whole, it has to be done by the Constitution itself. Article 33 is an exception to the general provisions contained in Part III of the Constitution. It gives Parliament the power to modify the rights conferred by Part III in their application to armed forces personnel.

Article 33

The makers of the Constitution specified, with great precision, the circumstances under which the Fundamental Rights may be curtailed or abrogated by the State in the interest of the nation or of social progress. One of the points that came up for consideration before the provisions related to the Fundamental Rights were given their final shape, was the extent to which these rights would apply to members of the armed forces. Their position made it necessary for them to be subjected to a code of conduct not entirely consistent with the exercise of the Fundamental Rights as they would apply to the ordinary citizen. This was recognized during the preliminary stages of the discussions of the sub-committee. It was provided in the draft that the Union Legislature would be entitled to determine the extent to which the Fundamental Rights should be restricted or abrogated in respect of the members of the armed forces or other forces charged with the maintenance of public order to ensure the fulfilment of their duties and the maintenance of discipline.³⁵ The sub-committee on Fundamental Rights accepted this reservation at its meeting of March 30, 1947; there was no controversy and no discussion.³⁶ The clause figured as Clause 31 in its report to the Advisory Committee. It was duly adopted by the committee and incorporated as Clause 23 of its interim report. The Constituent Assembly also adopted this provision without any discussion on 2 May 1947. The provision was later adopted by the drafting committee without any material change and figured as Article 26 of the draft Constitution of February 1948:

The Union Legislature may by law determine to what extent any of the rights guaranteed in this part shall in their application to the members of the armed forces or forces charged with maintenance of public order be restricted or abrogated so as to ensure the proper discharge of duties and the maintenance of discipline among them.

The article was non-controversial. No amendment of substance was moved and it was adopted by the Assembly on 9 December 1948, with a minor change suggested by Dr. Ambedkar substituting the words conferred by for guaranteed in. At the revision stage, the Drafting Committee numbered it as Article 33.³⁷

Power of Parliament to modify the rights conferred by this part in their application to Forces:- Parliament may by law determine to what extent any of the rights conferred by this Part shall, in their application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

The provision under Article 33 is an exception to the universal applicability of Fundamental Rights. The scope of Article 33 was enlarged in 1984. Clause 2 of the Constitution (Fifty-Second Amendment) Bill, 1984 states that for Article 33 of the Constitution, the following article shall be substituted, namely:-

"33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.- Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to-

(a) the members of the Armed Forces; or

(b) the members of the Forces charged with the maintenance of public order; or

(c) the members of the Forces charged with the protection of property belonging to, or in the charge of or possession of the state; or

(d) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or

(e) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (d)

be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them."

Upon an amendment moved by the Minister of Home Affairs, sub-clause (c) was deleted and consequential changes were made in sub-clause (d) and (e).³⁸ Section 2 of the Constitution (Fiftieth Amendment) Act, 1984 was adopted as follows:

For Article 33 of the Constitution, the following article shall be substituted, namely:-

"33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.- Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,-

(a) the members of the Armed Forces; or

(b) the members of the Forces charged with the maintenance of public order; or

(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or

(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c) be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them."

The 1984 amendment to the Article 33 enlarging the scope of the Article has been held valid and not destructive of the basic features of the Constitution.³⁹

Scope of Article 33

A reading of Article 33 suggests that Parliament can make a law abrogating or restricting the Fundamental Rights of members of the armed forces or the forces charged with the maintenance of public order only for two reasons. First, ‘for ensuring the proper discharge of their duties’ and, second, ‘for the maintenance of discipline among them’. However, Article 13 cl. (2) runs: The state shall not make any law which takes away or abridges the rights conferred by this part (Part III of the Constitution) and any law made in contravention of this clause shall, to the extent of the contravention, be void.

Article 33 is thus an exception to the provisions of Article 13 (2) of the Constitution. While recognizing the immutability of the Fundamental Rights, the Constitution has, under Article 33, provided for the suspension or the modification of Fundamental Rights under specific circumstances. The article applies not only to the armed forces but also to other forces such as the police and intelligence bureau. However, it does not apply to other classes of government servants not covered by the provision. Nor does it apply to those who have left armed forces. The article has given the power to abridge or abrogate the rights of the personnel covered by its provision only to the Parliament and not to the state legislature or the executive. The President exercising the power of the state legislature under Article 356 is not competent to make a law as contemplated by Article 33.⁴⁰

The Army Act, 1950

In pursuance of the provisions under Article 33 of the Constitution, Section 21 of the Army Act, 1950 states:

21. Power to Modify certain Fundamental Rights in their application to persons subject to this Act: Subject to the provisions of any law for the time being in force relating to the regular army or to any branch thereof, the central government may, by notification, make rules restricting to such extent and in such manner as may be necessary the right of any person subject to this Act:-

(a) to be a member of, or to be associated in any way with, any trade union, or any society, institution or association or any class of societies, institutions or associations;

(b) to attend or address any meeting or to take part in any demonstration organized by anybody or a person for any political or other purposes;

(c) to communicate with the press or to publish or cause to be published any book, letter or document. ⁴¹

Section 21 of the Army Act, 1950, empowers the Central Government to make rules restricting ‘to such extent and in such manner as may be necessary’ three categories of rights of any person subject to the Act. Briefly, these are: (i) to be member of a trade union, (ii) to attend or address political meetings, and (iii) to communicate with the press or publish any document. These rights are part of the Fundamental Rights under Article 19(1) cls (a), (b) and (c) and under the constitutional scheme they cannot be restricted by executive action unsupported by law. But the section 21 of the Army Act is saved by Article 33 which carves out an exception in so far as the applicability of Fundamental Rights to members of the armed forces and the forces charged with the maintenance of public order is concerned.

The Central Government exercising rules making powers under section 191 of the Army Act has made the Army Rules, 1954. The restrictions imposed by the Parliament under section 21 of the Army Act are found in Rules 19, 20 and 21 of the Army Rules, 1954. These are as follows:

Rule 19

Unauthorised organization

No person subject to the Act shall, without the express sanction of the Central Government:

(i) Take official cognisance of, or assist or take any active part in any society, institution or organisation, not recognised as part of the Armed Forces of the Union; unless it be of a recreational or religious nature in which case prior sanction of the superior officer shall be obtained;

(ii) Be a member of, or be associated in any way with, any trade union or labour union, or any class of trade or labour unions.

Rule 20

Political and non-military activities

(1) No person subject to the Act shall attend, address, or take part in, any meeting or demonstration held for a party or any political purposes, or belong to or join or subscribe in the aid of, any political association or movement.

(2) No person subject to the Act shall issue an address to electors or in any other manner publicly announce himself or allow himself to be publicly announced as a candidate or as a prospective candidate for election to Parliament, the legislature of a State or a local authority, or any public body or act as a member of a candidate’s election committee, or in any way actively promote or prosecute a candidate’s interests.

Rule 21

Communications to the Press, Lectures, etc

No person subject to the Act shall:-

(i) Publish in any form whatever or communicate directly or indirectly to the Press any matter in relation to a political question or on a service subject or containing any service information, or publish or cause to be published any book or letter or article or other document on such question or matter or containing such information without the prior sanction of the Central Government, or any officer specified by the Central Government in this behalf; or

(ii) Deliver a lecture or wireless address, on a matter relating to a political question or on a service subject or containing any information or views on any service subject without the prior sanction of the Central Government or any officer specified by the Central Government in this behalf.

Explanation; For the purposes of this rule, the expression service information and service subject include information or subject, as the case may be, concerning the forces, the defence or the external relation of the Union.⁴²

However, the restriction to communicate with the press or delivering lectures is not absolute, but is controlled by the Central Government.⁴³

The Rights of the Members of the Armed Forces

Nearly 1.4 million Indians serving in the armed forces, as well as retired members of the three service and their families have stake in the social and legal issues affecting the armed forces. No one would disagree with the fact that the armed forces, entrusted with the defence of a country, need to be highly disciplined and efficient. The government has to make every effort to ensure that its armed forces are capable of guarding the frontiers of the country. However, the large number of cases which have come up before the superior civil courts and the recently established benches of the Armed Forces Tribunal show that the governance and the justice delivery system of the armed forces has not been able to satisfy the aspirations of men in uniform. There has been an unusual increase in the filing of petitions by serving as well as retired military personnel. This trend shows a gradual erosion of faith in the system of governance as well as violation of human rights in the armed forces. The recent judgments of the Supreme Court and Armed Forces Tribunal have found the existing system of governance and military justice unjust and antiquated and out of step with the liberal spirit of the Indian Constitution.⁴⁴ India is also a signatory to a number of international human rights instruments.⁴⁵ The domain of these human rights instruments have tended to globalize the perspective of constitutional jurisprudence and extend the scope of fundamental human rights in India. In the recent past the governance and military justice system in most of the democracies has undergone a sea change. A few states see the members of the armed forces as citizen-in-uniform and have bestowed them with every constitutional right. There is thus a need to strike a fair balance between the pressures of a democratic society and the requirements of military discipline in India. The next two chapters consider certain rights of the members of the armed forces which may not have any impact on their discipline or performance of duty.

1Phillips O. Hood, 1987, Constitutional and Administrative Law , Seventh Edition, London, Sweet & Maxwell, ELBS, p. 5. The most accepted definition of the term State is contained in Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States, which sets the traditional criteria for statehood: the entity must possess a permanent population, a defined territory, an effective government, and capacity to enter into relations with other states. Crawford is of the view that States possess certain exclusive and general legal characteristics, which he has divided into five principles that constitute in legal terms the hard core of the concept of statehood. These are: (1) States have full competence to perform acts in the international sphere, such as entering into treaties. (2) States are exclusively competent with regard to their internal affairs. (3) States cannot be compelled to take part in international processes, settlements, or jurisdiction unless they consent to such exercise. (4) States are considered equal in international law. (5) Finally, it is only possible to derogate from these principles if it has been clearly established. Crawford J., The Criteria for Statehood in International Law, British Yearbook of International Law , Vol. 48, 1977, p. 93-182.

2Wade E.C.S. and Phillips George Godfrey, 1985, Constitutional and Administrative Law , Longman.

3Bradley, A.W., Ewing, K.D. and Knight, C.J.S., 2015, Constitutional and Administrative Law , UK: Pearson Education Limited, p. 4.

4Jain M.P., 2005, Indian Constitutional Law , Nagpur: Wadhwa & Company, p. 2.

5Finer Samuel E., 2002, The Man on Horseback: The Role of Military in Politics , USA: Transaction Publishers, p. 6.

6The Armed Forces, Roles and responsibilities in good security sector governance, SSR backgrounder, Geneva Centre for the Democratic Control of Armed Forces, Geneva: DCAF, 2015.

7Timothy Edmunds, What Are Armed Forces For? The Changing Nature of Military Roles in Europe, International Affairs , Vol. 82, No. 6, November 2006, pp. 1059-1075.

8Schnabel Albrecht and Marc Krupanski, Evolving Internal Roles of the Armed Forces, Prism , Vol. 4, No. 4, pp. 119-137.

9Article 53 (2) of the Constitution of India states: Without prejudices to the generality of the foregoing provision, the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law. Article 74 (1), Constitution of India provides that the President has to act on the advice of the Council of Ministers.

10 The Constitution of India, Article 355.

11 Jain, M. P., 2018, Indian Constitutional Law , Gurgaon: LexisNexis, p. 21.

12 Dharam Dutt v. Union of India (2004) 1 SCC 712.

13 The Part III of the Constitution consists of 26 Articles which are arranged under the following subheadings : (i) Articles 12 and 13, (ii) Right to Equality (Articles 14 to 18), (iii) Right to Freedom (Articles 19 to 22), (iv) Right against Exploitation (Article 23 & 24), (v) Right to Freedom of Religion (Articles 25 to 28), (vi) Cultural and Educational Rights (Articles 29 and 30), (vii) Right to Property (Articles 30A, 31 A, 31B and 31C), (viii) Right to Constitutional Remedies (Articles 32 to 35).

14 Basu Durga Das, 2012, Shorter Constitution of India , Vol. I, Gurgaon: LexisNexis Butterworths Wadhwa, p. 43.

15 Pathumma v. State of Kerala , AIR 1978 SC 771. The Supreme Court in Maneka Gandhi v. Union of India (1978) 1 SCC 248 held that the framing and structure of part III of the Constitution by the founding fathers calls for the guarantees embodied in it to be interpreted in a liberal way, so as to subserve the purpose for which the constitution-makers intended them, and not in any pedantic or narrow sense.

16 State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal , AIR 2010 SC 1476.

17 Brij Mohan Lal v. Union of India (2012) 6 SCC 5602.

18 YSrinivas Rao v. J Veeraiah AIR 1993 SC 929.

19 Jain, M. P., 2018, Indian Constitutional Law , Gurgaon: LexisNexis, p. 943.

20 Dharam Dutt v. Union of India (2004) 1 SCC 712; M H Devendrappa v. Karnataka State Small Industries Development Corporation , (1998) 3 SCC 732.

21 Papnasam Labour Union v. Madura Coats Ltd 1995 AIR 2200, 1995 SCC (1) 501.

22 The provisions of double jeopardy though not found under the Navy Act, 1957 and deleted in 1992 under the Army Act, 1950, still exist in the Air Force Act, 1950. Section 126 of the Act dealing with successive trials by a criminal court and a court martial, provides, A person convicted or acquitted by a court-martial may, with the previous sanction of the Central Government, be tried again by a criminal court for the same offence, or on the same facts. This is a gross violation of Article 20(2) of the Constitution.

23 AIR 1981 SC 746.

24 Maneka Gandhi v Union of India (1978) 1 SCC 248.

25 Olga Telllis v. Bombay Corporation , AIR 1986 SC 180.

26 Kharak Singh v. State of UP , AIR 1963 SC 898.

27 Francis Coralie Mullin v. Union Territory of Delhi , AIR 1981 SC 746.

28 State of Punjab v. Baldev Singh , AIR 1999 SC 2378.

29 Moti Lal Saraf v. State of J&K , (2006) 10 SCC 560.

30 D.K. Basu v. State of West Bengal , (1977) 1 SCC 416.

31 Article 22(1) of the Constitution gives a guarantee to a person arrested and detained to be defended by a legal practitioner of his choice. However, the law governing the armed forces does not provide the right to engage a counsel, when is accused marched in front of the commanding officer for determination of charges against him. It is only when the charges against an accused have been finalized, summary of evidence against him has been completed and the convening authority has issued an order for assembly of court martial; he is asked, whether he would like to be defended by a counsel, which he will have to arrange for himself, or a military office to be detailed to defend him at trial.

32 The Army Rules permit an accused to engage a civilian lawyer at his own expense or to be defended by a military officer known as the defending officer. In reality, very few of the accused can engage a civilian lawyer at their own expense and service officers normally detailed for the duty are inexperienced and unwilling to undertake this commitment. The infrastructure required to meet this obligation of legal aid has not been developed in the armed forces. Consequently, cases before the court martial are not adequately defended, which is in violation of the provisions of Article 22(1) of the Constitution.

33 The old British term orderly continued into the post-independence Indian Army. It has now, however, been replaced with the Hindi word sahayak , which translates as assistant or helper. There have been suggestions to do away with the practice, as the Indian Navy and Indian Air Force already have. In the Pakistan Army, civilian personal are employed in this role and are designated as NCB (Non-Combatant Bearer); they work only as a personal servant to each officer. In the US, the Department of Defence policy provides, "No officer may use an enlisted member as a servant for duties that contribute only to the officer’s personal benefit and that