Article 33 – Power of Parliament to Modify Fundamental Rights
Constitutional Provision
- Article 33 empowers Parliament to restrict or abrogate the Fundamental Rights conferred by Part III in their application to certain categories of persons to ensure discipline and proper discharge of duties.
Persons Covered under Article 33
- Members of the Armed Forces.
- Members of forces charged with the maintenance of public order (e.g., police, paramilitary forces).
- Persons employed in any bureau or organisation established by the State for intelligence or counter-intelligence purposes.
- Persons employed in, or in connection with, telecommunication systems set up for the above forces or organisations.
Nature of Power
- Power vested exclusively in Parliament, not in State Legislatures.
- Parliament may determine the extent of restriction or abrogation of Fundamental Rights.
- Restrictions are not automatic; they require a specific law enacted by Parliament.
Objective of Article 33
- To ensure proper discharge of duties by security and intelligence personnel.
- To maintain discipline, hierarchy, and operational efficiency.
- To balance individual rights with national security and public order.
Scope of Restrictions
- Restrictions may apply to any Fundamental Right under Part III.
- Commonly affected rights include freedom of speech and expression, association, and movement.
- Restrictions must be linked to service requirements and discipline.
Judicial Interpretation
- Courts generally uphold Parliamentary laws under Article 33 if they are connected to discipline and operational necessity.
- Judicial review is limited but not completely excluded.
Significance
- Reflects the principle that Fundamental Rights are not absolute.
- Ensures national security and integrity are not compromised by unrestricted exercise of rights by armed and security forces.
- Demonstrates constitutional balance between individual liberty and collective security
Article 34 – Restriction on Fundamental Rights During Martial Law
Constitutional Provision
- Article 34 empowers Parliament to restrict the operation of Fundamental Rights in areas where martial law is in force.
Nature of Power
- Power is vested exclusively in Parliament.
- Parliament may act notwithstanding anything in Part III (overriding effect).
- Action requires a specific law passed by Parliament.
Scope of Parliamentary Power
Parliament may, by law:
- Indemnify any person in the service of the Union or a State, or any other person.
- Provide protection for acts done in connection with the maintenance or restoration of order.
- Validate sentences passed, punishments inflicted, forfeitures ordered, or other acts done under martial law.
Persons Covered
- Members of Union or State services.
- Any other person acting under martial law authority.
- Protection extends to acts done in good faith during the enforcement of martial law.
Effect on Fundamental Rights
- Fundamental Rights are not automatically suspended.
- Parliament may restrict or neutralize remedies for violation of Fundamental Rights in martial law areas through indemnity laws.
- Citizens may be barred from claiming compensation or legal redress for acts validated under such laws.
Martial Law vs Emergency
- Martial law is not defined in the Constitution.
- It is different from National Emergency (Article 352).
- Martial law involves military control over civilian administration in disturbed areas.
Judicial Position
- Courts generally respect Parliamentary validation under Article 34.
- Judicial review is limited once indemnity or validation laws are enacted.
Objective of Article 34
- To ensure effective restoration of order in exceptional situations.
- To protect officials and persons acting under extraordinary circumstances from legal consequences.
- To maintain authority and effectiveness of martial law administration.
Significance
- Reinforces that Fundamental Rights are subject to national security and public order needs.
- Complements Articles 33 and 352 in the constitutional scheme of emergency powers.
- Reflects constitutional realism during extreme internal disturbances.
Article 35 – Legislation to Give Effect to Fundamental Rights
Constitutional Provision
- Article 35 vests exclusive legislative competence in Parliament to make laws necessary for giving effect to certain Fundamental Rights under Part III.
Overriding Effect
- Operates notwithstanding anything in the Constitution.
- Limits the legislative powers of State Legislatures in specified matters relating to Fundamental Rights.
Exclusive Powers of Parliament
Parliament alone has the power to make laws with respect to:
- Matters Referred under Specific Articles
- Article 16(3): Residence requirements for public employment.
- Article 32(3): Empowering courts other than the Supreme Court to issue writs.
- Article 33: Restriction or abrogation of Fundamental Rights for Armed Forces and related services.
- Article 34: Indemnification during martial law.
- Punishment for Offences under Part III
- Parliament shall prescribe punishments for acts declared as offences under Fundamental Rights.
- Such legislation was mandated to be enacted as soon as possible after the commencement of the Constitution.
Position of State Legislatures
- State Legislatures do not have competence to legislate on the above matters.
- This ensures uniformity and national consistency in the application of Fundamental Rights.
Continuance of Pre-Constitution Laws
- Any law in force immediately before the commencement of the Constitution dealing with the above matters shall continue to operate.
- Such laws remain valid subject to:
- Their existing terms, and
- Adaptations or modifications under Article 372.
- These laws continue until altered, repealed, or amended by Parliament.
Explanation Clause
- The term “law in force” has the same meaning as under Article 372, covering pre-Constitution laws applicable in India.
Objective of Article 35
- To ensure effective enforcement of Fundamental Rights.
- To maintain national uniformity in sensitive constitutional matters.
- To prevent fragmentation of rights through divergent State laws.
Significance
- Strengthens the central role of Parliament in protecting Fundamental Rights.
- Acts as a supporting provision to Part III rather than an independent right.
- Ensures coherence between constitutional guarantees and legislative mechanisms.