Martial Law: The Concept

In one line

Martial law is not a law at all; it is what happens when the ordinary courts cannot function and the military governs by force, and its legality is decided afterwards.

In the wording a student can write in an exam: martial law has no definition in the Constitution, which mentions it only in article 34, and no statute in India confers a power to declare it. In its proper sense it means the suspension of ordinary law and its administration by the military authorities in an area where the civil administration and the ordinary courts cannot function, the military assuming the government of the area and punishing offences by its own tribunals. It rests on the common law principle that force may be repelled by force, and its legality is tested afterwards, by the ordinary courts, on the question whether a state of war in fact existed; which is why an Act of Indemnity conventionally follows, and why article 34 authorises Parliament to pass one.

The three senses of the phrase

MU's question asks what martial law is, and the answer must first separate three things that the phrase is used to mean, because they are distinct in law.

Military law. The law governing the members of the armed forces, contained in the Army Act 1950 and its counterparts, administered by courts martial, and applying to soldiers at all times and everywhere. It has nothing to do with civilians and is not martial law at all. Its relation to the courts is worked in [Access to Courts and the Armed Forces: Articles 33 and 34].

Military government. The government by a military force of foreign territory occupied in war. It is a subject of international law and does not arise within a State's own territory.

Martial law properly so called. The suspension of ordinary law and its administration within a State's own territory, and the substitution of the will of the military commander, where the civil authority has ceased to be able to function. This is what article 34 contemplates, and it is what an answer must describe.

A candidate who separates the three at the outset has already distinguished himself, because the terms are used interchangeably in ordinary speech and never in law.

What martial law is not

It is not an emergency under article 352. An emergency is declared under a constitutional provision, approved by Parliament, and operates within the Constitution; the courts remain open and the civil administration continues. Martial law displaces both.

It is not AFSPA. Under the Armed Forces (Special Powers) Act 1958 the army acts in aid of the civil power, and Naga People's Movement of Human Rights v. Union of India, AIR 1998 SC 431, holds expressly that the word aid postulates the continued existence of the authority to be aided and that the armed forces may not supplant or act as a substitute for the civil power. Martial law is precisely the supplanting.