Limits: Articles 33, 34 and 35

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

Article 34 is headed Restriction on rights conferred by this Part while martial law is in force in any area, and provides: "Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area."

Article 35 is headed Legislation to give effect to the provisions of this Part, and opens "Notwithstanding anything in this Constitution". By clause (a), "Parliament shall have, and the Legislature of a State shall not have, power to make laws" with respect to (i) any matter which under article 16(3), article 32(3), article 33 and article 34 may be provided for by law made by Parliament, and (ii) "for prescribing punishment for those acts which are declared to be offences under this Part"; and Parliament shall, as soon as may be after the commencement of the Constitution, make laws prescribing punishment for the acts referred to in sub-clause (ii). By clause (b), any pre-Constitution law in force on those matters continues "until altered or repealed or amended by Parliament". The Explanation states that "law in force" has the same meaning as in article 372.

Article 33, broken down

Only Parliament. Article 33 says "Parliament may by law". A State legislature cannot use it, and article 35(a)(i) puts that beyond argument by naming article 33 among the matters a State legislature "shall not have" power to legislate on. Nor may the executive act by order: the instrument must be a law.

"Any of the rights conferred by this Part". Not some of them. This is the widest such power in Part III: the whole of the Part is at Parliament's disposal for these classes of persons.

"Restricted or abrogated". Two different things, and the second is the striking one. To restrict is to cut down; to abrogate is to take away entirely. So a law under article 33 may remove a fundamental right altogether for the persons it covers.

Including article 32. The right to move the Supreme Court is itself a right conferred by Part III, dealt with in [Article 32 and the Writs], so on the plain words of article 33 it is among the rights Parliament may restrict or abrogate for these classes. That conclusion is drawn here from the article itself, not from any decision.

The four categories. Clause (a) is the armed forces; clause (b) reaches police and other forces charged with the maintenance of public order; clauses (c) and (d) reach intelligence and counter intelligence organisations and the telecommunication systems set up for them. Article 33 in this form was substituted for the original by the Constitution (Fiftieth Amendment) Act 1984, with effect from 11 September 1984. That is what the footnote in the official text records; what the original article said has not been read for this book.

The purpose clause is a limit, not decoration. The restriction or abrogation must be "so as to ensure the proper discharge of their duties and the maintenance of discipline among them". A law taking away a right from soldiers for an unconnected reason would not be a law under article 33 at all.

Article 34, broken down

What martial law is. The Constitution does not define it, and the phrase appears in article 34 alone. It describes the situation in which, order having broken down, military authority temporarily displaces the civil administration and the ordinary courts in a defined area. It is not authority the Constitution confers; article 34 assumes it and deals with the aftermath.

Three things it is not.

1. It is not military law. Military law governs members of the armed forces, everywhere and always, through courts martial; martial law is imposed on civilians in a locality.
2. It is not a Proclamation of Emergency. An Emergency is declared under article 352 and has its own consequences under articles 358 and 359. Article 34 is worded independently of them.
3. It is not the imposition itself. Article 34 gives a power to indemnify and to validate, not to proclaim martial law.

What "indemnify" means. To indemnify by law is to protect a person from legal liability: after such an Act, a suit or prosecution that would otherwise lie cannot be brought.

What "validate" means. A sentence passed or punishment inflicted under martial law has no ordinary legal foundation; Parliament may by law make it good, which is what "validate any sentence passed, punishment inflicted, forfeiture ordered or other act done" does.

"Notwithstanding anything in the foregoing provisions of this Part". The non obstante clause, which means "despite", is limited to the articles of Part III preceding article 34. An indemnity Act cannot therefore be attacked on the ground that it deprives the victim of a remedy for the breach of a fundamental right.

Article 35, broken down

It is not a limit on rights but on legislatures. Articles 33 and 34 authorise Parliament to cut rights down; article 35 says who may do the cutting, and answers: Parliament, exclusively.

The four subjects reserved to Parliament by clause (a)(i) are article 16(3), residence requirements for certain State employment, dealt with in [Reservation in Public Employment]; article 32(3), empowering other courts to exercise the Supreme Court's writ power; and articles 33 and 34.

The offences under Part III. Clause (a)(ii) gives Parliament power to prescribe punishment "for those acts which are declared to be offences under this Part", and directs it to legislate "as soon as may be after the commencement of this Constitution". Two articles declare offences in terms. Article 17 makes the enforcement of any disability arising out of "Untouchability" "an offence punishable in accordance with law", treated in [Untouchability and Titles]; article 23(1) makes any contravention of the prohibition of traffic in human beings and begar and other similar forms of forced labour "an offence punishable in accordance with law", treated in [The Right Against Exploitation]. Parliament has legislated on both; the Acts are not named here because their texts have not been read for this book.

Clause (b) is a saving. Pre-Constitution laws on those subjects continue until Parliament alters, repeals or amends them, the Explanation borrowing "law in force" from article 372.

The three articles compared

A worked example

Parliament passes an Act providing that members of a Force charged with the maintenance of public order shall not form associations, and that no member shall move any court over a transfer. A State legislature passes a similar Act for its own police. After serious disorder in one district order is restored by the army, and a Bill is introduced to protect the officers involved.

Step one, the Act on associations. Article 19(1)(c) is a right conferred by Part III, and members of a Force charged with the maintenance of public order fall within article 33(b). Parliament may restrict or even abrogate the right for them, provided the law is directed to the proper discharge of their duties and the maintenance of discipline.

Step two, the bar on moving any court. Article 32 is also a right conferred by Part III, so on the words of article 33 the same power extends to it. The purpose clause still applies, and the wider the abrogation the harder it is to show that it serves discipline rather than convenience.

Step three, the State Act. It fails at the threshold: article 33 gives the power to Parliament, and article 35(a)(i) says a State legislature "shall not have" power to make laws on any matter article 33 leaves to Parliament.

Step four, the indemnity Bill. If martial law was in force there, article 34 permits Parliament to indemnify those who acted in connection with the maintenance or restoration of order, and to validate sentences and punishments. If martial law was never in force, article 34 has nothing to operate on. Either way the Bill is Parliament's alone, by article 35(a)(i) read with article 34.

What it does NOT mean

It does not mean soldiers and police have no fundamental rights. Article 33 is a power to legislate, not a self-executing exclusion. Until Parliament makes a law under it, and so far as it does not, the rights apply in full.

It does not mean the executive can restrict rights for the forces by order. The article requires a law made by Parliament.

It does not mean article 34 authorises martial law. It is a power to indemnify and to validate after the event, and it says nothing about who may impose martial law or when.

It does not mean article 35 creates any right or offence. It allocates legislative power and directs Parliament to prescribe punishment for acts articles 17 and 23(1) have already declared offences.

On authority

There are reported decisions on all three articles, and none is among the judgments held for this book. Nothing is cited here and no case is named, because a citation that has not been read off a report is worth less than no citation at all. On these articles the text is itself the primary material, and it answers most of what is asked.

Quick revision

• Articles 33, 34 and 35 close Part III and are powers, not rights.
• Article 33: Parliament may by law restrict or abrogate any Part III right for four classes: the Armed Forces; Forces charged with maintaining public order; intelligence and counter intelligence organisations; and persons employed in connection with their telecommunication systems.
• The purpose clause governs: "to ensure the proper discharge of their duties and the maintenance of discipline among them".
• Article 33 in this form was substituted by the Constitution (Fiftieth Amendment) Act 1984, in force from 11 September 1984.
• Article 34: after martial law has been in force in an area, Parliament may indemnify persons for acts connected with maintaining or restoring order, and validate sentences, punishments, forfeitures and other acts.
• Martial law is not defined in the Constitution, is not military law, and is not a Proclamation of Emergency under article 352.
• Article 35: notwithstanding anything in the Constitution, only Parliament may legislate on articles 16(3), 32(3), 33 and 34, and on punishment for acts declared offences under Part III.
• Articles 17 and 23(1) are the articles that declare acts to be offences.

Test yourself

1. Article 33 uses two verbs, "restricted or abrogated". Why does the second matter, and what limits its use?

2. Can a State legislature restrict the fundamental rights of its own police force? Give the provision that answers this.

3. Distinguish martial law from military law and from a Proclamation of Emergency.

4. What does article 34 empower Parliament to do, and what does it not empower anyone to do?

5. Which articles of Part III declare acts to be offences, and what does article 35 direct Parliament to do about them?