Constitution of India provides Fundamental Right under part III to each person irrespective of their religion, race, caste, sex, place of birth or any of them. But these fundamental rights are not absolute, even these are subject to certain conditions.

One among them is Article 33. This article provides the Power to the Parliament to modify the rights conferred by Part III in their application to the Forces. This Article was substituted by the Constitution (Fiftieth Amendment) Act, 1984, Section 2 for article 33 (w.e.f 11/09/1984).

Under Article 33 the forces mentioned are members of the armed forces, person employed in any bureau or other organizations that are established by the state, members of forces charged with maintenance of public order, the persons employed in or having connection with telecommunication systems set up for any Force, organization, or bureau.

The present article seeks to analyze the Fundamental Rights provided to the Armed Forces, visa vis extent of restriction on those fundamental rights by Parliament. The paper further analyses relevant case laws discussing the applicability of fundamental rights on Armed forces.

Introduction To Fundamental Rights
Constitution of India has a long historical background. The historical events and process that led to its emergence and present form gives a better and deeper insight into the Constitution. Constitution has been defined as the basic law of the State that outlines the framework and procedure of the Government, which defines its power and functions. This provides how constitutional changes may be made and, in a democracy, it usually guarantees the citizens certain protections against arbitrary Governmental actions.[1]

In simple words, Constitution is the collection of written and unwritten principles or body of fundamental rules which provides the establishment, the powers and functions, constitutional organisations, manner in which the powers are to be utilised and exercised, the relation between the organs and people of the country, the fundamental rights and duties of the citizens of India, the Directive principles of the State Policy, legislative-executive and judicial power and functions of the organs, Relation between Union and State etc.

Fundamental Rights guaranteed under Part III of the constitution of India are considered essential for the development of human personality. Part III is also considered as the Magna Carta of Constitution of India as "These rights enable a man to chalk out of his own life in the manner he likes best".[2] Article 12-35 of the constitution provides every citizen of India with Fundamental Rights which are backed by law. If any of the fundamental rights of a citizen of encroached or violated then a person can go to court to get justice or get the rights enforced.

The development of a citizen's personality, the pursuit of his profession or vocation and the manner in which he seeks to enjoy the pleasure and comforts of life are basically his individual concern. The state can interfere with this basic right only if considerations of public good justify such interruption. [3]

The Supreme court in the case of M. Nagraj V. Union of India AIR 2007 SC 71 observed that "Fundamental rights are important as they possess intrinsic value. Part III does not confer fundamental rights but it confers their existence and provides them protection, the purpose is to withdraw certain subjects from the area of political controversy and place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the court."

A right becomes a fundamental right because it has fundamental value as they cannot be taken away or curtailed by or abridged as they are provided by the Constitution. They can be abridged only by the way of Amendment as they form part of the Basic Structure of our Constitution thus, they may be abridged, but cannot be destroyed or abrogated.[4]5

The following is the classification of the Fundamental rights guaranteed to every citizen:

1. Right to Equality is provided from Article 14 to Article 18
2. Right to Freedom is provided under Article 19 to Article 22
3. Right against Exploitation are guaranteed under Article 23 and Article 24
4. Right to Freedom of Religion is guaranteed under Article 25 to Article 28
5. Cultural and Constitutional Rights are provided under Article 29 and 30
6. Right to Constitutional Remedies are enriched under Article 32 to Article 35

 

Article 33

Article 33 of the Constitution of India states the power of the Parliament to modify the application of the fundamental Rights to the members of the Armed Forces or Police forces to ensure that there is proper discharge of their duties and maintenance of discipline amongst them. According to this article, the Parliament has the power to Modify, restrict or have the rights abrogated which are conferred by Part III of the constitution. Parliament may by law determine the extent of the application to various forces to whom the rights have been conferred in Part III be restricted or abrogated so as to ensure that there is proper discharge of their duties and maintenance of discipline among them.

The "Forces" mentioned above are as mentioned below:

1. Members of the Armed forces
2. Members of the forces which are charged with the maintenance of public orders
3. The persons employed in bureaus or other organisations which are established by the state for the purpose of counter intelligence or intelligence
4. The persons employed in or having connection with the telecommunication system which is set up for the purpose of any Bureau, organisations, or Force referred to in Clause (a) to (c)


Armed Forces and Fundamental Rights
Its relevant to mention that the term "Armed Forces" above in clause A has been interpreted liberally by the courts. It includes Non-combat Employees of the Defence Establishment such as bootmakers, tailors, mechanics, barbers etc.

The expression "Forces charged with the maintenance of public orders" in clause B refers to the Police Forces.[7][8]

The object of Article 33 is to ensure there is proper discharge of duties assigned to the officers/persons stated in clause A-D of article 33 and also to maintain discipline among them. The Parliament has the exclusive authority to limit the scope of Fundamental right in their applications to the armed forces and other similar organisations.

In exercise of these power several Acts have been enacted by the parliament to impose such restrictions on the Fundamental rights of the members of the Armed and Police Forces. Some of these Acts areThe Army Act 1950, The Air Force Act 1950, Police Forces (Restriction of Rights) Act 1966, Naval Forces (Miscellaneous Provisions) Act 1950.

The major reason for the implementation of the restriction is to safeguard the interest of the people performing such duties so that while discharging their duties and obligations towards the country, some of the fundamental rights don't create a hindrance.

One of the drawbacks is that the laws made by the parliament cannot be questioned in any court of law. The Hon'ble Supreme Court had liberally interpreted the fundamental rights over the last decades while keeping in mind the international treaties and covenants India is a party to. While interpreting Article 14, Article 15 and Article 19 they are given the broadest interpretations but in case of military personnel's Fundamental rights the Hon'ble Supreme court interprets such rights in narrower form.[9]

Article 13(2) provides that no law shall be made by the State that abridges or takes away the fundamental rights which are guaranteed under Part III of the Constitution. Any law implemented or made to such contravention shall be to such extent of contravention be Void. But Article 33 creates an exception to Article 13(2). For e.g., Section 21 of the Indian Army Act, 1950 states the Power to modify certain fundamental rights in their application to persons subject to the Army act.

It states that "Subject to the provisions of any law for the time being in force relating to the regular Army or to any branch thereof, the Central Government may, by notification, make rules restricting to such extent and in such manner as may be necessary the right of any person subject to this Act:
1. to be a member of or to be associated in any way with any trade union or labour union or any class of trade or labour unions or any society, institution or association, or any class of societies, institutions or associations.
2. to attend or address any meeting or to take part in any demonstration organised by any body of persons for any political or other purposes.
3. to communicate with the press or to publish or cause to be published any book, letter or other document.
Section 21 of the Air Force Act 1950 states the Power of the Central Government to modify certain fundamental rights in their application to persons subject to the Act. "Subject to the provisions of any law for the time being in force relating to the Air Force or to any branch thereof, the Central Government may, by notification, make rules a restricting in such manner and to such extent as may be specified the right of any person subject to this Act:
1. to be a member of or to be associated in any way with any trade union or labour union, or any class of trade or labour unions or any society, institution or association or any class of societies, institutions or associations;
2. to attend or address any meeting or to take part in any demonstration organised by any body of persons for any political or other purposes;
3. to communicate with the press or to publish or cause to be published any book, letter or other document."
The above provision make it clear that the Armed forces has imposed certain restrictions upon limited number of fundamental rights like Article 14, Article 15 and Article 19 of the constitution of India. In number of judgements the question as to whether these Fundamental rights can or are being infringed by the armed forces or not has been discussed in instances related to pay, allowances, in matters of Promotions, Pension related matters, Matters relating to posting and conditions of service etc.

Article 21 of the Constitution guarantees the Protection to personal liberty and life of every citizen of India which also includes the Armed forces and other institution mentioned in Article 33. It extends only to the point to maintain discipline and to ensure that there is proper discharge of service and duties by the armed forces personnel.[12] Though by power vested in Parliament it has the power to curtail or restrict the fundamental rights of the armed forces but no Act or any other legislation in the country restrict the members of the armed forces right to life and liberty as guaranteed under Article 21 of the Indian Constitution.

It is thus clear from the above said discussion that the framers of the Constitution have kept the functioning of the Forces and other institutions above the scope of the Fundamental Rights guaranteed to everyone. The scope of the Fundamental Rights can be limited by the Parliament to maintain discipline and oversee that there is proper discharge of duties by such Forces.

Still, the judiciary have failed to define the proper scope of Article 33 and to what extent the parliament can restrict or curtail the fundamental rights of the Armed Forces while dealing with such cases.

Case Analysis:
1. In the recent judgement of Rovinder Singh vs. Union of India (High Court of Jammu & Kashmir and Ladakh) [13] Hon'ble Mr. justice Sanjeev Kumar observed that that Rule No 129 of the BSF Rules (Border Security Forces Rules), 1969 to is ultra vires to Part III of the Constitution of India. The denial of certified copies of the statements which are recorded during the trial infringes Article 21 of the Constitution which guaranteed fair trial to every person.
    
2. In the case of Ram Sarup vs. Union of India and another (1965) [14] the bench compromised of 5 Judges and the judgement was delivered by Hon'ble Justice Raghubar Dyal J. The bench observed that "even if a fundamental right is affected by any rule under the Army Act, 1950, the provision cannot by itself become void, it could be taken that the parliament had exercised its power under Article 33 as Parliament has the power to requisite modification to affect the respective fundamental right".
    
3. In the Landmark Judgement of Secretary, Ministry of Defence vs. Babita Puniya[15] , which was delivered by Hon'ble Justice D.Y. Chandrachud the Hon'ble Supreme Court discussed Section 12 of The Army Act, 1950 which prohibit the recruitment of "Females" into the army except and to the extent the Central Government allows. The court held there was clear violation of article 14 i.e Equality before law and equal protection of the law under the Constitution, Article 33 grants the power to the parliament to restrict fundamental rights but that restriction is only to the extent to which is necessary to ensure proper discharge of duties and maintenance of the discipline. Thus, the court held that All the women serving officers on SSC (Short Service Commission) be considered for Permanent Commissions irrespective of the fact that whether they have crosses fourteen years or not.
    
Conclusion
The Armed forces work rigorously for the people of India. Just like every citizen's right such as Fundamental Right are subject to restrictions, the Fundamental rights guaranteed to the Armed forces and other institutions are not absolute but subject to Article 33. There have been many discussions relating to the limitations imposed subject to Article 33 on Armed forces by curtailing and limiting their Fundamental rights for maintenance of discipline and proper discharge of duties by the members. But in recent years the judiciary has taken a better approach on the Application of Article 33 and Fundamental rights.

This is an important step as it not only throws light on the fundamental rights but also on its application with Article 33 and its effect on the Armed forces. Though the right balance is yet to be found by the judiciary as the Special acts cannot be merely challenged on the ground of them Contradicting with the Fundamental right guaranteed. To create balance between Fundamental Rights and Armed Forces rights it still remains a challenge for the Indian Judiciary.

Bibliography
Books:

• Prof. Kailash Rai relating to The Constitutional Law of India, Central Law Publications, 8th Edition
• Durga Das Basu relating to Introduction to the Constitution of India, Prentice-Hall of India Private Limited, 12th Edition
Statutes/Acts:
• The Constitution of India, 1950
• The Army Act, 1950
• The Air Force Act, 1950
Websites:
• https://www.legalserviceindia.com/legal/article-1913-do-members-of-armed-forcesin-india-enjoy-their-fundamental-rights.html
• https://www.calq.in/post/retrospective-diagnosis-of-article-33-analysis-of-itsconstitutional-evolution
• https://indconlawphil.wordpress.com/category/article-33-armed-forces/
• https://blog.ipleaders.in/secretary-ministry-defence-vs-babita-puniya-ors-case-study/
• https://indiankanoon.org/doc/117198144/
• https://www.casemine.com/
• https://www.indiacode.nic.in/show-data?actid=AC_CEN_28_38_00018_195045_1517807325980§ionId=3150§ionno=21&orderno=21
• https://prepp.in/news/e-492-armed-forces-and-fundamental-rights-indian-polity-notes
Journals:
• Retrospective Diagnosis of Article 33: Analysis of its Constitutional Evolution by Ishant S Joshi (2022)
• Military power and the constitution by Sudhir Krishnaswamy and Madhav Khosla
• Indian Constitutional Law and Philosophy, Gender Equality in the Armed Forces by Gautam Bhatia (2020)
References:
1. R.W Brewster Government in Modern Society (2nd Ed.), Houghton Mifflin: United States (1963) pp 44-45
2. Golak Nath vs. State of Punjab, AIR 1967 SC 1643
3. P.B. Gajendragadkar's, The Indian Parliament and fundamental rights, Eastern Law House: Calcutta, (1972), p. 39, quoted in Cases and materials on the constitution of India by Dr. H.K Saharay, p. 26
4. Prof. Kailash Rai (2009), The Constitutional Law of India (Eighth Edition), Central law Publications: Allahabad 5 Keshvanand Bharti v. State of Kerala, AIR 1973 SC 1461
5. Durga Das Basu (1989), Introduction to the Constitution of India (Twelfth Edition), Prentice-Hall of India Private Ltd: New Delhi
6. The Constitution of India (1950)
7. O.K.A Nair v. Union of India, AIR 1976 SC 1179
8. R. Viswan v. Union of India, AIR 1983 SC 658
9. Patil Amruta, "Armed Forces and Fundamental Rights (Article 33) Indian Polity Notes", https://prepp.in/news/e-492-armed-forces-and-fundamental-rights-indian-polity-notes, retrieved on 24th November 2022
10. The Army Act, 1950, Act No. 46 of 1950
11. The Air Force Act, 1950, Act No. 45 of 1950
12. Ram Swarup v. Union of India AIR 1965 SC 247
13. WP(C) No.255 of 2020, decided on 28th April 2022
14. AIR 247, 1964 SCR (5) 931
15. Civil Appeal No. 1210 of 2020



Written By: Umang Sharma