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Article 34: MARTIAL LAW AND FUNDAMENTAL RIGHTS

Amith

 

🔹 Intro to Article 34

  • Article 34 of the Constitution says that when Martial Law is imposed in any area of India, Fundamental Rights (FRs) can be restricted.

  • Parliament can also protect (indemnify) government servants or Army officers for actions taken during Martial Law, so that those actions cannot be challenged in court.

  • Martial Law means military rule over civilians when normal government and courts fail due to rebellion, war, or large-scale violence.

🔹 Small Example

Imagine in a city:

  • A big violent rebellion breaks out. Police cannot control it.

  • Govt declares Martial Law in that city.

  • Army takes charge:

    • Curfew from 6pm,

    • No public meetings,

    • If rioters attack, Army fires on them.

After order is restored, some people may say:

“Army violated our Fundamental Rights (like right to movement or speech). We will go to court.”

👉 But Article 34 allows Parliament to pass a law saying:

  • Army cannot be punished for those actions.

  • Those restrictions on FRs were legal under Martial Law.

🔹 What is Article 34?

  • Article 34 says that when Martial Law is in force in any area of India, Fundamental Rights (FRs) can be restricted.

  • It also allows Parliament to protect (indemnify) any government servant or military person for actions they took to restore law and order.

  • This means: if the Army or government takes tough steps (like curfew, punishment, property seizure) during Martial Law → later, Parliament can pass a law saying those actions cannot be challenged in court.

🔹 What is Martial Law?

  • Literally means: “Military Rule.”

  • Normally, police + courts keep law and order.

  • But if there is war / rebellion / very big riots and police totally fails → the Army takes control of administration.

  • That is called Martial Law = “Military rule over civilians.”

👉 Martial Law = Army rules over civilians when there is complete breakdown of law and order.

🔹 When is Martial Law imposed?

(Not clearly defined in the Constitution, but implicit in Article 34)

  • During extraordinary situations like:

    • War

    • Invasion

    • Armed rebellion

    • Insurrection (violent uprising)

    • Large-scale riots

    • Violent resistance to law

👉 Aim = repel force by force and restore order in society.

🔹 Powers of Military during Martial Law

  • Suspension of ordinary law & civil courts.

  • Civilians can be punished by military tribunals (even death sentence possible).

  • Restrictions on Fundamental Rights (like movement, speech, assembly).

  • Extraordinary powers to military → curfews, censorship, control of press, arrests without trial, etc.

⚖️ But important:
Supreme Court has said → Just declaring Martial Law does NOT automatically suspend writs like Habeas Corpus. (People can still approach courts unless Parliament restricts it).

🔹 Indemnity under Article 34

  • Parliament can pass an Indemnity Act.

  • Meaning: Any act done by soldiers or officials during Martial Law → cannot be challenged later in courts.

  • Example: If Army fires on rioters during Martial Law, those actions cannot be taken to court later for violation of FRs.

🔹 Martial Law vs National Emergency (Very Important for UPSC)

Aspect Martial Law (Art. 34) National Emergency (Art. 352)
Effect Affects only Fundamental Rights Affects FRs + Centre-State relations + distribution of revenue + Parliament’s tenure
Civil Govt Suspended; rule by military tribunals Civil govt & ordinary courts continue
Reason Breakdown of law & order (any reason: riots, rebellion, invasion) Only 3 grounds: War, External Aggression, Armed Rebellion
Area of Application Specific area of the country Whole country or part of it
Constitutional Basis Implicit (not directly defined) Explicit (detailed provisions in Constitution)

🔹 Example to Understand

Suppose in a city, a huge violent rebellion starts. Police fails, courts can’t function.
👉 Government declares Martial Law.

  • Army takes over → imposes curfew, bans gatherings, arrests leaders, even sets up its own tribunals.

  • Parliament later passes a law indemnifying (protecting) all Army actions → so no one can challenge them in court as violation of Fundamental Rights.

Who can declare Martial Law in India?

  • The Constitution of India does NOT clearly say who declares Martial Law.

  • Article 34 only talks about what happens after Martial Law is imposed (restriction of Fundamental Rights, indemnity by Parliament).

  • But from practice and understanding of English Common Law (from where India borrowed the idea):

    • The Executive (Government / President) can declare Martial Law in extraordinary situations like war, rebellion, or complete breakdown of law and order.

    • Once Martial Law is declared, the Army takes control of administration in that area.

    • Later, Parliament can pass an Indemnity Act to protect military officers or government servants from court cases.

🔹 Key Points to Remember

  1. Article 34 → FRs restricted during Martial Law.

  2. Indemnity Act → protects govt servants/Army for their actions.

  3. Martial Law = Military rule over civilians, different from Military Law.

  4. SC Judgment → Martial Law ≠ automatic suspension of Habeas Corpus.

  5. Different from National Emergency (broader, explicit, affects Centre-State relations).

🔹 MCQs for Revision

Q1. Martial Law under Article 34 is:
a) Explicitly defined in Constitution
b) Implicit, not directly defined
c) Declared only by President
d) Same as Military Law
👉 Answer: b) Implicit, not directly defined

Q2. During Martial Law:

  1. Fundamental Rights can be restricted.

  2. Civil courts continue functioning normally.

  3. Parliament can indemnify officials.
    👉 Correct: 1 & 3 only

Q3. Which of the following is different in Martial Law vs National Emergency?
a) Scope of effect
b) Continuation of civil govt
c) Constitutional provision
👉 Answer: All of the above

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