Martial Law & Effects Of Indemnity Granted & Emerging Regime Of New Rights & Remedies Under The Garb Of Fundamental Rights
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Category: Constitutional & Human Rights
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MARTIAL LAW & EFFECTS OF INDEMNITY GRANTED &
EMERGING REGIME OF NEW RIGHTS & REMEDIES
UNDER THE GARB OF FUNDAMENTAL RIGHTS
Adv. Vinodini Priya. S, LLM (Constitutional Law & Administrative Law), Government Law College, Vellore. Tamil Nadu
ABSTRACT
In this PART A: Martial Law & Effects of Indemnity Granted: Martial law temporarily replaces civilian rule with military authority during emergencies. Article 34 of the Indian Constitution allows restrictions on fundamental rights and grants indemnity to security forces for actions under martial law. Effects include immunity from prosecution, restrictions on fundamental rights (Articles 14 and 21), & legislative validation of military actions. Concerns arise over potential misuse, human rights violations, and limits on judicial review (e. g. , A. D. M. Jabalpur Case, 1976). Unlike emergency provisions (Articles 352, 356, 360), martial law involves direct military rule. Case law (Makhan Singh v. State of Punjab, 1964) affirm constitutional supremacy over martial law.
Legislative indemnity, as in the Armed Forces (Special Powers) Act, 1958 (AFSPA), has raised concerns over excessive force (e. g. , Extra-Judicial Execution Victim Families v. Union of India, 2017). Global precedents (Ireland v. UK, 1978; Prosecutor v. Milosevic,
2002) emphasize judicial oversight. Recommendations include defining
martial law explicitly, limiting indemnity for human rights violations, and strengthening judicial scrutiny. In this PART B: Emerging Regime of New Rights & Remedies: The Supreme Court has expanded fundamental rights beyond their original scope. Article 21 has led to the Right to Privacy (K.S. Puttaswamy, 2017), Right to a Clean Environment (M.C. Mehta, 1987), and Right to Die with Dignity (Common Cause, 2018). Article 14 has protected against sexual harassment (Vishaka, 1997), ensured transgender rights (NALSA, 2014), and decriminalized homosexuality (Navtej Johar, 2018). While progressive, this expansion raises concerns about judicial overreach and separation of powers. Socio-economic rights (e.g., Right to Education in Unni Krishnan, 1993) challenge legislative authority. Comparisons with the U.S. (Roe v. Wade,
1973) and European Court of Human Rights (Airey v. Ireland, 1979) show
global judicial activism. Balance is needed to prevent judicial law-making from overriding legislative functions.
PART A – MARTIAL LAW & EFFECTS OF INDEMNITY GRANTED
I.
INTRODUCTION:
Martial law refers to the temporary substitution of military authority for civilian government in an emergency. Unlike some Western constitutions, the Indian Constitution does not explicitly define martial law, but it recognizes its possibility under Article 34. • Article 34: It empowers Parliament to impose restrictions on fundamental rights during a period of martial law in any territory of India. • The imposition of martial law generally arises in situations where there is a breakdown of constitutional machinery, leading to the need for military intervention. • However, India follows a rule of law approach, meaning that even under martial law, the supremacy of the Constitution remains intact.
II. EFFECTS OF INDEMNITY GRANTED UNDER ARTICLE 34:
Article 34 not only recognizes martial law but also provides for indemnity to security forces or government officials for acts committed in such situations. The effects of such indemnity include: (a) Protection of Actions Taken During Martial Law • Military personnel and government officials cannot be prosecuted for actions taken under martial law, even if those actions would normally be illegal. • The indemnity applies to the acts done "in connection with" the restoration of order. (b) Limitation on Fundamental Rights & Judicial Review • Fundamental rights, particularly Article 14 (Right to Equality) and Article 21 (Right to Life & Personal Liberty), may be restricted.
Courts may refuse to entertain claims for damages against the government or security forces. (c) Legislative Validation & Immunity • Parliament can pass laws indemnifying past actions, making them immune from legal challenges. • Example: The Armed Forces (Special Powers) Act, 1958 (AFSPA) grants immunity to security forces for actions taken in disturbed areas. (d) Possible Misuse & Constitutional Safeguards • Indemnity provisions can be misused to justify human rights violations, leading to concerns over excessive state power. • The Supreme Court of India, through judicial review, can still examine whether actions taken under martial law were proportionate and necessary. • Landmark Case: A.D.M. Jabalpur v. Shivkant Shukla1 (1976), where the Supreme Court upheld restrictions on rights during the Emergency but was later criticized.
III. KEY DISTINCTIONS: MARTIAL LAW vs. EMERGENCY PROVISIONS:
Though martial law and constitutional emergency provisions (Articles 352, 356, and
360) may seem similar, they differ significantly:
Aspect Martial Law Emergency Provisions War, external aggression, Trigger Breakdown of law & order internal disturbances Role of Judiciary can review President's Limited judicial review Judiciary actions Not explicitly granted but may be Indemnity Granted under Article 34 covered under special laws (A) Article 34: Restriction on Fundamental Rights During Martial Law • Recognizes the power of Parliament to indemnify military or government officials for actions taken in martial law situations. • Allows the legislature to impose restrictions on fundamental rights when martial law is declared. Key Elements of Article 34:
1. Parliament can pass retrospective laws to indemnify officials for acts
committed during martial law.
2. It applies only to territories where martial law is imposed and does
not extend across the entire country.
3. Courts have limited authority to review acts indemnified under this
provision. (B) Other Relevant Constitutional Provisions • Article 352 (National Emergency): Does not directly relate to martial law but allows suspension of fundamental rights in extreme situations. • Article 356 (President’s Rule): Imposed when constitutional machinery breaks
down, ensuring that civilian governance continues, unlike martial law where military rule prevails. • Article 361 (Protection of President & Governors): Grants immunity to constitutional heads from legal proceedings while in office, similar to indemnity provisions.
IV. JUDICIAL PRECEDENTS & LANDMARK CASES:
(A) Indemnity & Suspension of Fundamental Rights
1. A.D.M. Jabalpur v. Shivkant Shukla2 (1976) – Habeas Corpus Case
Background: During the 1975 Emergency, the government suspended fundamental rights, including Article 21 (Right to Life & Personal Liberty). • Supreme Court Ruling: Held that during an Emergency, even if a person is unlawfully detained, they have no legal remedy. • Significance: The ruling was widely criticized and later overturned in K.S. Puttaswamy v. Union of India3 (2017), which reaffirmed the right to life and privacy. • Relevance to Indemnity: This case set a dangerous precedent where the government’s actions were granted de facto indemnity, shielding it from legal consequences. (B) Martial Law & Government Indemnity
2. Makhan Singh v. State of Punjab4 (1964) – Preventive Detention & Indemnity
Issue: Whether detention under Preventive Detention Act was subject to judicial review?
2 ADM Jabalpur v. Shivkant Shukla, [1976 (2) SCC 521: AIR 1976 SC 1207]
3 Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors., ((2017) 10 SCC 1]
4 Makhan Singh v. State of Punjab, [1988 AIR 1705: 1988 SCR Supl. (1) 613: 1988 SCC Supl. 526 JT: 1988 (3)
126: 1988 SCALE (2) 87]
Judgment: The Supreme Court ruled that: o Judicial review is not completely barred even when emergency laws or martial law is in effect. o Any law indemnifying state action must pass reasonableness tests.
V. LEGISLATIVE INDEMNITY: SPECIAL ACTS GRANTING PROTECTION:
Several legislations have provided indemnity to security forces, especially in areas facing internal conflict: (A) Armed Forces (Special Powers) Act, 1958 (AFSPA) • Grants sweeping powers to the army in "disturbed areas," allowing them to: o Arrest without a warrant o Use force, even lethal force, if deemed necessary o Be immune from prosecution unless sanctioned by the central government Judicial Review of AFSPA: • Naga People's Movement for Human Rights v. Union of India5 (1998): The Supreme Court upheld the constitutionality of AFSPA but stressed that the Act must not be misused. • Extra-Judicial Execution Victim Families v. Union of India6 (2017): The Supreme Court criticized the blanket indemnity granted under AFSPA, ruling that military excesses must be investigated. (B) Preventive Detention Acts & Indemnity • The Maintenance of Internal Security Act (MISA), 1971 and National
5 Naga People's Movement for Human Rights v. Union of India, [AIR 1998 SUPREME COURT 431, 1998 (2)
SCC 109, 1998 AIR SCW 8, (1997) 9 JT 431 (SC), 1997 (7) SCALE 210, (1998) 1 KER LT 11, 1998 SCC(CRI)
514, (1997) 10 SUPREME 169, (1997) 7 SCALE 210, (1998) 1 CAL HN 34, (1998) SC CR R 246]
6 Extra-Judicial Execution Victim Families v. Union of India, [(2017) 4 S.C.R 909]
Security Act (NSA), 1980 have provisions that limit judicial scrutiny of detention orders. • Courts have, however, ruled that excessive indemnity granted under these laws violates Article 21.
VI. CRITICAL ANALYSIS: MARTIAL LAW vs. RULE OF LAW IN INDIA:
Aspect Martial Law Constitutional Emergency Military rule replaces Nature Civil government continues civilian rule Restricted, possibly Some rights may be suspended Fundamental Rights suspended under Article 359 Limited role, may be Judiciary Judiciary retains some authority restricted Granted retrospectively by Actions must conform to Indemnity law constitutional provisions
Article 21 (Right to Life & Liberty).
3. Judicial Limitations:
o Courts are often unable to challenge indemnity laws due to constitutional restrictions. Balancing Indemnity & Accountability • Judicial Oversight: Courts must ensure indemnity does not become a shield for state-sponsored violence. • Parliamentary Review: Any indemnity law must be time-bound and subject to periodic review. • Public Interest Litigation (PIL): Citizen activism, as seen in PUCL v. Union of India7 (2002), plays a key role in challenging excessive indemnity provisions.
VII. COMPARISON OF INDIA’S APPROACH TO MARTIAL LAW & INDEMNITY
WITH INTERNATIONAL LAW:
India’s approach to martial law and indemnity under Article 34 and other special laws (such as AFSPA) can be contrasted with international law principles, including human rights treaties, customary international law, and judicial precedents from other democracies. While India’s framework provides indemnity for state actions under constitutional and statutory laws, international law imposes stricter accountability measures, emphasizing human rights protections even during emergencies.
7 People's Union of Civil Liberties (PUCL) v. Union of India, [2003 INSC 176: (2003) 2 S.C.R. 1136]
1. Comparative Analysis: India vs. International Law Aspect India International Law Recognized in customary law Implied in Article 34, but but restricted by International Legal Basis for not explicitly defined in the Human Rights Law (IHRL) Martial Law Constitution. & International Humanitarian Law (IHL). Granted under Article 34, Generally prohibited under Indemnity for State AFSPA, and Emergency human rights law; Actions laws. accountability emphasized. Limited during International courts (ICJ, ICC, emergencies, but courts ECHR) provide oversight over Judicial Review have intervened in extreme state actions during cases. war/emergency. Can be restricted or Non-derogable rights (Right Fundamental suspended, including to Life, Freedom from Rights during Article 14 (Equality) and Torture) cannot be Martial Law Article 21 (Right to Life). suspended, even in war.
Aspect India International Law Indemnity laws limit International law mandates Accountability for accountability unless criminal liability for war Human Rights judicially reviewed (e.g., crimes, torture, and Violations Manipur fake encounters extrajudicial killings. case, 2017). 2. International Law Framework on Martial Law & Indemnity (A) International Human Rights Law (IHRL)
1. Universal Declaration of Human Rights (UDHR, 1948)
o Article 3: Right to life must be protected at all times. o Article 5: No one shall be subjected to torture or degrading treatment, even under martial law.
2. International Covenant on Civil and Political Rights (ICCPR, 1966)
o Article 4(1): States can suspend certain rights during emergencies. o Article 4(2): However, certain rights—such as the right to life, freedom from torture, and recognition before the law—are nonderogable.
3. Case Study: Ireland v. UK8 (1978) – European Court of Human
Rights (ECHR) o The UK used emergency powers in Northern Ireland but was found guilty of human rights violations. 8 Ireland v. UK, {App No 5310/71, A/25, [1978] ECHR 1, (1979-80) 2 EHRR 25, IHRL 16 (ECHR 1978), 18th January 1978, European Court of Human Rights [ECHR]}
o Court’s ruling: Indemnity laws cannot protect against crimes such as torture or extrajudicial killings. (B) International Humanitarian Law (IHL)
1. Geneva Conventions (1949) & Additional Protocols (1977)
o Protect civilians and non-combatants during conflicts. o Any act of indiscriminate violence, torture, or war crimes cannot be indemnified.
2. Rome Statute of the International Criminal Court (ICC, 1998)
o Prohibits granting immunity for genocide, war crimes, or crimes against humanity. o Soldiers and officers can be tried even if national law grants indemnity.
3. Case Study: Prosecutor v. Milosevic9 (2002) – ICC War Crimes
Tribunal o Former Serbian leader Slobodan Milosevic was tried for war crimes, despite domestic laws granting immunity to military personnel. o Ruling: National indemnity laws cannot override international human rights obligations. 3. Case Study: India’s Approach vs. Global Precedents (A) India: Extra-Judicial Killings in Manipur10 (AFSPA Case, 2017) 9 Prosecutor v. Slobodan Milosevic, International Criminal Tribunal for the former Yugoslavia (ICTY), [IT-02-
54-T]
10 Naga People's Movement of Human Rights v. Union of India, [AIR 1998 SUPREME COURT 431, 1998 (2)
SCC 109, 1998 AIR SCW 8, (1997) 9 JT 431 (SC), 1997 (7) SCALE 210, (1998) 1 KER LT 11, 1998 SCC(CRI)
514, (1997) 10 SUPREME 169, (1997) 7 SCALE 210, (1998) 1 CAL HN 34, (1998) SC CR R 246]
Issue: Alleged fake encounters by the Indian Army under AFSPA in Manipur. • Supreme Court Ruling: o Indemnity under AFSPA cannot be absolute. o Ordered an independent investigation into cases of extrajudicial killings. o Recognized that military excesses cannot go unpunished even under emergency laws. (B) United States: Martial Law & Indemnity in Ex parte Milligan11 (1866) • Issue: US government imposed martial law during the Civil War and detained civilians without trial. • US Supreme Court Ruling: o Martial law cannot override constitutional rights when civilian courts are functioning. o Indemnity granted for unlawful detentions was struck down. (C) UK: Smith & Ors v The Ministry of Defence12, (2013) • Issue: British soldiers were accused of war crimes in Iraq and sought immunity under indemnity provisions.
• Ruling: o UK courts ruled that soldiers could be prosecuted for crimes committed during military operations. o Indemnity cannot be granted if fundamental human rights are violated.
11 Ex parte Milligan, {71 U.S. (4 Wall.) 2 (1866)}
12 Smith & Ors v The Ministry of Defence, [1 All ER 778; (2013) HRLR 27].
4. Key Takeaways: India vs. International Law (A) Strengths of India’s Approach • Parliamentary Oversight: Article 34 ensures that indemnity laws must be passed by Parliament, preventing arbitrary grants of immunity. • Judicial Review Exists: Although limited, Supreme Court interventions (e. g. , Manipur Case, AFSPA review) show that absolute immunity is not guaranteed. • Rule of Law Prevails: Unlike dictatorships, India retains constitutional supremacy even under martial law. (B) Weaknesses Compared to International Law • Broad Indemnity Provisions: Unlike ICCPR or Geneva Conventions, India’s laws allow sweeping immunity for state actions (e. g. , AFSPA). • Lack of Clear Martial Law Definition: Many democracies have strict legal frameworks defining martial law, whereas India lacks a specific law or limitations.
• Limited Enforcement of Human Rights Norms: Unlike the ECHR or ICC, India does not allow international human rights bodies to review indemnified state actions. 5. Recommendations India’s approach to martial law and indemnity is a constitutional necessity but requires stronger human rights protections to align with international law. Recommendations for India • Define Martial Law in the Constitution: A specific provision should be added to regulate its scope, duration, and judicial oversight. • Limit Indemnity in Cases of Human Rights Violations: Inspired by ICCPR and Geneva Conventions, absolute immunity should not be allowed for war crimes or torture.
Enhance Judicial Scrutiny: Courts must be empowered to review all indemnity laws, ensuring accountability for excesses. • Ratify the Rome Statute (ICC): India is not a signatory to the International Criminal Court—ratification would help ensure justice for human rights violations. While India’s constitutional framework balances security with democracy, adopting international human rights norms will ensure better accountability, stronger rule of law, and global legitimacy in handling martial law and indemnity.
VIII. CONCLUSION:
The Indian Constitution, while not explicitly defining martial law, provides a legal framework through Article 34 to indemnify actions taken during its imposition. While indemnity laws protect state actors, they must be balanced with constitutional morality to prevent misuse and human rights violations. The Supreme Court’s role in upholding rule of law and ensuring checks on excessive state power remains crucial in this context. Martial law and indemnity provisions under the Indian Constitution serve as necessary tools for state security but must be balanced with constitutional safeguards to prevent misuse. Judicial interpretations have evolved over time, ensuring that indemnity laws do not override fundamental rights or judicial review. While military necessity may justify limited indemnity, any blanket protection is against the principles of democracy and the rule of law.
PART B – EMERGING REGIME OF NEW RIGHTS & REMEDIES UNDER THE
emergence of new rights and remedies that were not originally envisaged by the framers of the Constitution but have now gained constitutional recognition through judicial activism. This phenomenon raises a crucial constitutional debate: • Is the judiciary creating new rights under the garb of fundamental rights? • Does this judicial law-making undermine the doctrine of separation of powers? • How does this expansion impact the constitutional framework of rights and remedies?
II. EXPANDING HORIZONS OF FUNDAMENTAL RIGHTS IN INDIA
Over the years, the Supreme Court has recognized several new rights by broadening the interpretation of existing fundamental rights. These include: A. Right to Life & Personal Liberty (Article 21) - A Mother Provision of New
Rights Through judicial creativity, Article 21 has evolved into an umbrella right covering numerous new rights and remedies:
New Right Judicial Recognition Key Case Hussainara Khatoon v. State of Bihar15 Right to Speedy Trial Part of Personal Liberty (1979) Olga Tellis v. Bombay Municipal Right to Livelihood Essential for Dignity Corporation16 (1985) Paschim Banga Khet Mazdoor Samity Right to Health Linked to Right to Life v. State of W.B.17 (1996) Common Cause v. Union of India18 Right to Die with Includes Passive Dignity Euthanasia (2018) • Judicial Expansionism: These rights were not explicitly written in the Constitution but were read into Article 21. • Impact: This expansion has made Article 21 the most interpreted and expansive provision in Indian constitutional law. B. Right to Equality (Article 14) – A Tool for Socio-Legal Evolution
Article 14 guarantees equality before the law and equal protection of the laws. Courts have used this provision to strike down arbitrary state actions and create new legal protections.
New Right/Remedy Judicial Recognition Key Case Reservation for National Legal Services Authority Affirmative Action (NALSA) v. Union of India20 (2014) Transgender Persons Decriminalization of Right to Equality & Navtej Singh Johar v. Union of India21 (2018) Homosexuality Privacy • Judicial Creativity: Courts have used Article 14 to create new rights, striking down discriminatory laws and policies. • Impact: Progressive rulings have reshaped India’s social justice and equality framework. C. Right to Freedom of Expression (Article 19) – Expanding Digital Rights
The digital age has led to new challenges regarding free speech, privacy, and internet access. • The Supreme Court has adapted Article 19 to include new-age rights: New Right Judicial Recognition Key Case
New Right Judicial Recognition Key Case K.S. Puttaswamy v. Union of India24 Right to Digital Online Data Protection Privacy (2017) • Judicial Expansionism: Courts have acknowledged digital rights as fundamental in today’s internet-driven world. • Impact: These rulings limit state censorship and ensure greater digital freedoms.
III. JUDICIAL ACTIVISM vs. SEPARATION OF POWERS:
The Debate: Are Courts Legislating Under the Garb of Fundamental Rights? Critics argue that the judiciary, through judicial activism, is:
1. Creating rights that were not originally intended by the Constitution.
2. Encroaching upon legislative power, violating separation of powers (Article
50).
3. Imposing policy decisions without democratic accountability.
Example: • Vishaka v. State of Rajasthan25 (1997): The Supreme Court laid down guidelines for sexual harassment at the workplace because Parliament had not enacted a law. • The Parliament later enacted the Sexual Harassment of Women at Workplace Act, 2013, based on the court’s guidelines. Ø Supporters argue that judicial intervention is necessary when the legislature fails to act.
24 Justice K.S. Puttaswamy (Retd.) and Anr. vs. Union of India and Ors., ((2017) 10 SCC 1]
25 VISHAKA AND ORS. vs. STATE OF RAJASTHAN AND ORS., [(1997) Supp. (3) S.C.R. 404]
Ø Critics argue that courts should not become lawmakers, as it disturbs constitutional balance.
IV. GLOBAL COMPARISON: INDIA vs. OTHER DEMOCRACIES:
Aspect India United States United Kingdom Parliamentary Expands rights via Strict originalism vs. Judicial Activism sovereignty limits interpretation judicial activism debate judicial activism No written Limited to express Recognition of Expansive use of Constitution, rights provisions & Unwritten Rights Article 21 evolve through amendments common law Strong privacy laws Right to internet Debate over internet Digital Rights but no explicit access recognized regulations fundamental right Key Takeaway: India’s judiciary has been more proactive in expanding rights compared to Western democracies, where courts often defer to legislative supremacy.
V. CONCLUSION:
A
CONSTITUTIONAL
NECESSITY
OR
JUDICIAL
OVERREACH?
(A) Why Expanding Rights is Necessary • Dynamic Interpretation: The Constitution is a living document and must evolve with societal changes. • Legislative Inaction: When Parliament fails to protect rights, the judiciary steps in as a guardian of the Constitution.
Global Influence: Many Supreme Court rulings align with international human rights norms. (B) Why Judicial Overreach is a Concern • Undermining Legislative Power: The judiciary is not elected, yet it creates laws through interpretation. • Unclear Boundaries: What prevents courts from expanding rights indefinitely? • Judicial Law-Making: Some argue that rights should emerge from Parliament, not courtrooms. (C) The Middle Path: Balancing Rights Expansion with Constitutional Morality • Courts must intervene when fundamental rights are threatened but should exercise restraint. • Legislature should proactively recognize and codify new rights, reducing judicial intervention. • Judicial interpretations should align with constitutional principles, ensuring long-term stability.
Final Thought The emerging regime of new rights under the garb of fundamental rights is a double-edged sword—it ensures justice for evolving societal needs but also challenges the democratic principle of separation of powers. The future of India’s constitutional development will depend on maintaining a balance between judicial activism and legislative responsibility.
REFERENCES:
(BOOK REFERENCES)
1. Udai Raj Rai. (2011), "Fundamental Rights and Their Enforcement", PHI Learning Pvt. Ltd. 2. Minattur, J. (2012), “Martial Law in India, Pakistan and Ceylon”, Netherlands: Springer Netherlands. 3. Suresh Mani Tripathi (2016), "Fundamental Rights and Directive Principles in India", Anchor Academic Publishing. 4. Ratnabali, K. and Jha, U.C. (2020), “Martial Law in India: Historical, Comparative and Constitutional Perspective”, VIJ Books (India) PVT Limited. 5. Rohan J. Alva. (2022), "Liberty After Freedom: A History of Article 21, Due Process and the Constitution of India", HarperCollins India. 6. Chaudhary and Chaturvedi (2020), "Law of Fundamental Rights", Delhi Law House, (5th Edition, Reprinted 2024).
(ONLINE REFERENCES)
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