Article 34 of the Indian constitution

Article 34: The Constitution’s Dormant Provision on Martial Law

Within the Indian Constitution’s chapter on Fundamental Rights lies Article 34, an extraordinary and as-yet-unused provision that deals with the consequences of imposing “martial law.”⁶ It serves as a constitutional mechanism to address extreme situations where a breakdown of civil order necessitates the use of military force to restore normalcy.⁷ This article does not authorize the imposition of martial law itself but anticipates such a scenario and grants Parliament the power to retroactively validate actions taken during that period, thereby balancing the need for decisive action in a crisis with the rule of law.

The Text and Its Implications

“Restriction on rights conferred by this Part while martial law is in force in any area.— Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martia⁹l law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area¹⁰.”¹¹

The key implications of this provision are:

1. Restriction of Fundamental Rights: It explicitly overrides the fundamental rights guaranteed in Part III of the Constitution within an area under martial law.¹²
2. Power of Indemnity: Its primary function is to empower Parliament to pass an Indemnity Act.¹³ Such an act protects government servants, military personnel, and even civilians from legal proceedings for actions they took in good faith to maintain or restore public order.¹⁴
3. Validation of Actions: Parliament can also legally validate sentences, punishments, or other acts carried out under the authority of martial law, which would otherwise be illegal under the normal civil legal system.¹⁵

What is “Martial Law”?

The term “martial law” is not defined anywhere in the Constitution.¹⁶ The provision is derived from English common law and is understood to mean the temporary imposition of military rule over a civilian population. It is an extreme measure taken when the civil administration has completely broken down due to invasion, insurrection, rebellion, or widespread rioting.

Under martial law, the military commander of the area assumes extraordinary powers. Ordinary laws and civil courts are suspended, and justice is administered by military tribunals according to their own rules and procedures. This situation is fundamentally different from simply using the army to aid the civil power; it is the replacement of civil power by the military.¹⁷

Martial Law vs. National Emergency

It is crucial to distinguish between martial law (implicit in Article 34) and a National Emergency (under Article 352). They are not the same.

The Indemnity Act: A Legal Shield

The central purpose of Article 34 is to allow Parliament to pass an Indemnity Act after martial law is lifted.¹⁸Since actions taken during martial law (such as detaining individuals without trial or seizing property) are illegal under the normal rule of law, the officials who performed these acts would be liable for legal action once civil authority is restored. An Indemnity Act prevents this by retrospectively legalizing those actions, shielding the officials from punishment. This ensures that military and civil officers are not afraid to take necessary and decisive action during a crisis.

Historical Context and Judicial Scrutiny

To date, martial law has never been declared in any part of independent India.¹⁹ The provision, therefore, remains a dormant one. Its inclusion in the Constitution was a precautionary measure by the framers, who were aware of the potential for extreme civil unrest.

While the Supreme Court has never had an occasion to directly interpret Article 34, its principles have been touched upon in related cases. The landmark case of A.D.M. Jabalpur v. Shivkant Shukla (1976), which dealt with the suspension of habeas corpus during the Emergency, highlighted the grave dangers of suspending fundamental rights.²⁰ The critiques of this judgment have reinforced the idea that any provision that curtails fundamental rights, including Article 34, must be viewed with extreme caution and would likely be subject to intense judicial scrutiny if ever invoked. The judiciary would almost certainly test the validity of the imposition of martial law itself and the scope of any subsequent Indemnity Act passed by Parliament.

Conclusion: The Constitution’s Ultimate Crisis-Management Tool

Article 34 is a constitutional provision designed for the gravest of national crises. It represents the acknowledgment that in moments of extreme disorder, the State may need to take extraordinary measures that temporarily supersede the normal legal and rights framework. By vesting the power of indemnity exclusively in Parliament, the Constitution ensures democratic oversight over such actions. While it remains a dormant and untested clause, Article 34 serves as a powerful reminder of the delicate balance the Constitution seeks to maintain between preserving order and protecting liberty, even in the most challenging of circumstances.