Under Article 33, Parliament has the authority to restrict the Fundamental Rights of members of the armed forces, paramilitary forces, police forces, intelligence agencies, and similar forces. It is to ensure that they carry out their duties properly and maintain discipline. In this article, we will discuss the topic Armed Forces and Fundamental Rights (Article 33) in great detail.

Concept of Fundamental Rights

• The Indian Constitution bestows fundamental rights on every Indian citizen, which are enshrined in Part III (Articles 12 to 35) of the Indian Constitution.
• Fundamental rights are essential in nature because they are the foundation for an individual to develop into an independent, intellectual, responsible, moral and spiritually developed citizen.
• The Constitution guarantees all people fundamental rights without discrimination.
• They defend the equality of all individuals, the dignity of the individual, the larger public interest, and national unity.
• They prevent the establishment of authoritarian and despotic rule in the country and defend the people's liberties and freedoms from invasion by the state.
• They serve as checks on the executive's tyranny and the legislature's arbitrary laws. In a nutshell, they want to establish "a government of laws, not of men."
• Originally, the Constitution established seven Fundamental Rights, namely,
  • Right to equality (Articles 14–18)
  • Right to freedom (Articles 19–22)
  • Right against exploitation (Articles 23–24)
  • Right to freedom of religion (Articles 25–28)
  • Cultural and educational rights (Articles 29–30)
  • Right to property (Article 31)
  • Right to constitutional remedies (Article 32)
• The right to property, however, was removed from the list of Fundamental Rights by the 44th Amendment Act of 1978.
• Article 300-A of Part XII of the Constitution establishes it as a legal right.
• As a result, there are currently only six Fundamental Rights.

Restrictions of Fundamental Rights of the Armed Forces

• Article 33 gives 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 that they 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.

Related Constitutional Provisions

• Article 33 of the Constitution deals with Parliament's power to modify fundamental rights, stating that the Parliament may, by law, determine to what extent any of the rights conferred by this Part shall apply to:
  • members of the Armed Forces; or
  • members of the Forces charged with maintaining public order;
  • persons employed in any bureau or other organization established by the State for intelligence or counterintelligence purposes; or
  • 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), be restricted or abrogated in order to ensure the proper discharge of their duties and the maintenance of discipline among them
• Article 34 further classified 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 above-mentioned modification power, which restricts fundamental rights, is available only to parliament and not to the state legislature.

Reasons for Limitations on the FR of Armed Forces

• The Parliament imposed these restrictions after considering their pivotal role in discharging their duties and responsibilities to secure our country's sovereignty and integrity, maintain public order, and promote discipline among themselves.
• This is done as some of the fundamental rights (such as freedom of expression/speech, to form unions on various bases) may create a hindrance in the efficient, effective, and impartial performance of their duties.

Criticism

• The Supreme Court has liberally construed fundamental rights over the last five decades, keeping in mind the international covenants to which India is a party.
• For example, the right to life and personal liberty has been given the broadest possible interpretation.
• When it comes to military personnel's fundamental rights, the Supreme Court's interpretation of the constitutional provision has been very narrow.
• In any contentious case, the Supreme Court has frequently taken the path of least resistance by siding with the military.
• The courts are generally of the opinion that any negative comment on military higher-ups may erode military discipline.
• The judiciary believes, in good faith, that by supporting the organization, they are giving the military hierarchy and the government a chance to correct the flaws in governance and the justice delivery system.
• As a result, in cases of alleged bias, denial of rights, or injustice at the hands of a commander, courts may be tempted to rule out the possibility of culpability or malice on the part of the superior.

Related Judgements

• In the case of Ram Sarup in 1964, the Supreme Court relied on the Attorney General's submission.
• It stated that each provision of the Army Act is a law made by Parliament and that if any provision tends to affect fundamental rights, it must be assumed that Parliament, under Article 33, has made the necessary modification to affect the respective fundamental right.
• This was possibly an incorrect interpretation of the constitutional provision, which must be reconsidered in light of the passage of time and the evolution of law.

Conclusion

Members of the Armed Forces, while they are citizens of India, belong to a distinct class of people governed by special laws enacted by the Parliament, and they play a critical role in safeguarding the nation, whether in war or peace. Members of the armed forces must have the same rights and protections as everyone else, with some limitations imposed to maintain discipline. When their human rights and fundamental freedoms are protected within their institution, they are more likely to uphold these while performing their duties.