The Contradictory Interplay between Fundamental Rights of the Military Personnel and Article 33 of the Indian Constitution

Broadsword: MoD courts trouble

by Manisha Sarade       24 July 2020

Armed forces are a fundamental part of a democratic state and society. By fulfilling their defence and national-security functions, the armed forces play a crucial role in aiding a security environment that allows us to enjoy the absolute rights and freedoms to which we are all entitled as human beings. As representatives of the state structure, armed forces personnel are bound to respect human rights and international humanitarian law in the course of their duties. But only when their rights are ensured within their own institution will armed forces personnel be expected to uphold these in the discharge of their tasks — both when in peace and during operations. Examining the human rights of armed forces personnel in different countries presents some substantial challenges. Despite some admirable studies on definite legal systems and certain aspects of this issue, it is not a subject that has been widely researched, with insufficient publications rendering much consideration to the rights of armed forces personnel in peacetime. Certainly, it remains a question whether the fundamental rights are really that fundamental to the military personnel.

It is important to observe that a person bound by military law whether an officer or a soldier has a dual relation; one, his external relation towards his fellow citizen and the other, his internal relation towards the member of the army and particularly towards his military superiors. As a part of his military character, a soldier inhabits a position completely unalike from a civilian, he does not enjoy the same freedom in addition to his duties as a citizen. It is true that civil courts have jurisdiction to determine the persons subject to military law. However, the issues of military duty and discipline lie under the solitary cognizance of the military authorities arranged by the military law and the distressed officer or soldier has little to no remedy under the ordinary law. Moreover, it cannot be denied that in the interest of military efficiency, military law imposes more strict penalties for offences like disobedience to orders which simply breach of contract under the ordinary law.

The Preamble to the Constitution of India safeguards to all its citizens Right to Justice, Liberty, Equality and Fraternity. Article 33 of the Constitution is an exception to the Fundamental Rights contained in Part III. It empowers 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 maintenance of discipline amongst them. It is thus ironical that under Article 33 of the fundamental rights, which were to be integral and characteristic of every individual sovereign member, were made to look as a favour given at pleasure by the executive. Sri. Lokmanya Tilak’s words, “freedom our birthright” have somewhere lost their character and sense.

Article 33 states that the 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 organization established by the state for the purpose of intelligence or counterintelligence; or

(d) Persons employed in, or in connection with, the telecommunication system set up for the purpose of any force, bureau or organization 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.

Hence, this provision is an exception to fundamental rights. The upkeeping of law and order being a state subject the state law cannot abrogate a fundamental right of the members of such forces charged with the maintenance of public order. This can only be done by the Parliament under Article 33. Article 33 applies to the armed forces, i.e., army, navy and air force and also the forces in charge of the maintenance of the public order. Article 33 has come before the Apex Court repeatedly in erratic circumstances; sometimes as an incidental reference and frequently by challenging it directly in other occasions. Numerous cases have been pronounced as biased and arbitrary under Article 21 of our Constitution.

In a landmark case, Lt. Col. Prithi Pal Singh Bedi versus Union of India, the petitioner who was to be tried by General Court-martial for breach of army discipline, interrogated the legality and legitimacy of the order summoning the General Court-martial, more particularly, its composition. In each of the three writ petitions under Article 32 of the Constitution, it was contended that to satisfy the requirements of Article 33 the law must be specific in which a specific provision imposing restriction or even abrogation of fundamental rights should be made. In another instance, R. Viswan and Others versus Union of India and Other, all petitioners were civilian employees of General Reserve Engineering Force (GREF), who had been brought under the provisions of Army Act. Two among them had proceeded on leave. As per the typical trend in civilian employees in the tribal belt they did not re-join their duties on time and AA, 1950, was for the first time invoked in the history of GREF in their case. Others had been charged with offence of holding demonstrations, collective insubordination. They were tried by a Court-martial and on being convicted were dismissed from service. These petitioners questioned several grounds in a challenge against the order of their dismissal from service by a Court-martial before the Apex Court. The Apex Court annulled all these arguments put up by the petitioner with one lash of Article 33 and held that in view of Article 33 every action on the part of the State was valid.

Throughout the period of more than half a century of the Constitution’s enforcement, never the Article 33 has been challenged and its implications on the members of the Armed Forces of the Union, nor has its pros and cons inspected, reflected or measured either by the legislator or the judiciary. It may be specified that Article 33 is a provision of the Constitution which is in direct contradiction with Article 13. Under no other service law governing any other service of the State, domestic service tribunal has been conferred with the authorities over the life and liberty of a servant for misconduct in service.


About the author

The author of the article is a First-year student, pursuing her Bachelor’s degree in law from Maharashtra National Law University, Mumbai. She has a keen interest in Political Theory, Strategic Security, Defence and Constitutional law.

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