In India, the relationship between martial law and fundamental rights is closely tied to the constitutional provisions that address emergencies. While the term “martial law” is not explicitly used in the Indian Constitution, the concept is associated with the declaration of a state of emergency and the subsequent suspension or limitation of certain fundamental rights.
- Article 352 – Proclamation of Emergency:
- Article 352 empowers the President to proclaim a state of emergency if he/she is satisfied that a grave emergency exists, threatening the security of India by war, external aggression, or armed rebellion. During a state of emergency declared under Article 352, fundamental rights can be curtailed or suspended through the issuance of a proclamation.
- Article 358 – Suspension of provisions of Article 19 during emergencies:
- Article 358 provides that when a proclamation of emergency is in operation, the State has the power to suspend the operation of the fundamental rights guaranteed by Article 19. Article 19 encompasses the right to freedom of speech and expression, the right to assemble peacefully, the right to form associations or unions, and the right to move freely throughout the territory of India. These rights can be suspended during an emergency.
- Article 359 – Suspension of the enforcement of the rights conferred by Part III during emergencies:
- Article 359 allows the President, by order, to suspend the enforcement of certain fundamental rights during an emergency. This is a broader provision than Article 358 and allows for the suspension of any or all of the fundamental rights guaranteed by Part III of the Constitution. However, Article 359 has limitations, and certain rights, such as those related to life and personal liberty (Article 21) and the right to constitutional remedies (Article 32), cannot be suspended.
- Article 33 – Power to Parliament to modify the rights conferred by this Part in their application to Forces, etc.:
- Article 33 allows Parliament to modify the application of certain fundamental rights to members of the armed forces, paramilitary forces, police forces, and intelligence agencies, both in normal times and during emergencies. This provision grants Parliament the authority to make laws restricting the exercise of fundamental rights by these forces in the interest of discipline and national security.
During a state of emergency, the relationship between martial law and fundamental rights becomes particularly significant, as the executive gains enhanced powers to respond to the perceived threat to the nation’s security. However, it’s crucial to note that the suspension or limitation of fundamental rights is expected to be temporary, and the Constitution envisions the restoration of normalcy as soon as the emergency conditions cease to exist. Judicial review remains an essential aspect of this relationship. The courts, particularly the Supreme Court, have the authority to examine the validity of emergency proclamations and the restrictions imposed on fundamental rights, ensuring that even in times of crisis, the principles of constitutionalism and the rule of law are upheld.
