Restriction on Fundamental Rights During Martial Law (Article 34)
Indian Polity › Fundamental Rights · Topic 6.12
Article 34 allows restrictions on Fundamental Rights while martial law is in force in an area and empowers Parliament to indemnify acts done to restore order. Martial law differs from National Emergency under Article 352.
5 min read · UPSC Prelims · Polity · Fundamental Rights
At a Glance
- What it is Restrictions on Fundamental Rights while martial law is in force in an area, and indemnity for acts done to restore order
- Article Article 34 (with Article 35)
- Origin of concept English common law; not defined in the Constitution
- Difference Martial law is not the same as National Emergency
- Exam link UPSC Prelims, Polity: Fundamental Rights
Where Does It Fit?
This is the twelfth topic of the category on Fundamental Rights. Article 34 deals with a rare situation in which military authorities run the civil administration of an area, and it empowers Parliament to restrict rights and to indemnify those who acted to restore order.
What Does Article 34 Provide?
Article 34 provides for restrictions on the Fundamental Rights while martial law is in force in any area within the territory of India. It empowers Parliament to indemnify any government servant or any other person for any act done in connection with the maintenance or restoration of order in an area where martial law was in force. Parliament can also validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law. An Act of Indemnity made by Parliament cannot be challenged in any court on the ground of contravention of any of the Fundamental Rights.
What Is Martial Law?
The concept of martial law is borrowed from English common law. The expression is not defined anywhere in the Constitution. Literally it means “military rule”. It refers to a situation in which the civil administration is run by the military authorities according to their own rules and regulations framed outside ordinary law, which implies the suspension of ordinary law and government by military tribunals. It is different from military law, which applies to the armed forces.
No specific or express provision authorises the executive to declare martial law, but it is implicit in Article 34. It is imposed in extraordinary circumstances like war, invasion, insurrection, rebellion, riot or any violent resistance to law; its justification is to repel force by force and maintain or restore order. During its operation the military authorities have abnormal powers: they impose restrictions on the rights of civilians, can punish civilians and even condemn them to death. The Supreme Court held that a declaration of martial law does not in itself result in the suspension of the writ of habeas corpus.
Martial Law Versus National Emergency
| Martial law | National Emergency |
|---|---|
| Affects only the Fundamental Rights | Affects Fundamental Rights, Centre-state relations, distribution of revenues and legislative powers, and may extend the tenure of Parliament |
| Suspends the government and ordinary courts | Continues the government and ordinary courts |
| Imposed to restore breakdown of law and order for any reason | Imposed only on three grounds: war, external aggression or armed rebellion |
| Imposed in some specific area | Imposed in the whole country or any part of it |
| No specific provision; it is implicit | Specific and detailed provision in the Constitution |
Article 35: Who Makes Laws on These Rights?
Article 35 lays down that the power to make laws to give effect to certain Fundamental Rights vests only in Parliament and not in the state legislatures. This ensures uniformity throughout India about the nature of those rights and the punishment for their infringement. Parliament alone can make laws on prescribing residence as a condition for certain employments (Article 16), empowering other courts to issue writs (Article 32), restricting rights of the armed forces (Article 33), and indemnifying persons for acts done under martial law (Article 34). It alone can prescribe punishment for untouchability (Article 17) and for traffic in human beings and forced labour (Article 23). Article 35 extends Parliament’s competence even to matters in the State List.
Why Is This Topic Important?
- Named exception Article 34 is another express limit on the rights
- Frequent comparison Martial law versus National Emergency is a standard Prelims table
- Article 35 The point that only Parliament makes certain laws is asked directly
What Came Next?
The next topic covers the Right to Education under Article 21A.
Key People and Terms
- Martial law Military rule in an area under abnormal circumstances
- Act of Indemnity A law protecting persons for acts done to restore order
- Military law The law that applies to the armed forces
- Court martial A tribunal under military law
- Habeas corpus A writ not automatically suspended by martial law
Exam Corner
Points to Remember
- Article 34: martial law; implicit authority, no express provision.
- Martial law affects only Fundamental Rights; National Emergency affects much more.
- Indemnity laws cannot be challenged for violating rights.
- Article 35: Parliament only.
Do Not Confuse With
- Martial law and military law Martial law is rule in an area; military law governs the armed forces
- Martial law and National Emergency Martial law suspends government and courts; emergency continues them
- Article 34 and Article 352 Article 34 is martial law; Article 352 is National Emergency
Memory Hook
Thirty-four is the soldier’s clause: military rule in an area, with Parliament able to indemnify afterwards.
Mains Angle
Questions on this topic usually ask for the difference between martial law and National Emergency. Use these points to add depth.
- No definition The Constitution does not define martial law and has no express power to declare it
- Indemnity Parliament can protect acts done to maintain order
- Scope Martial law is area-specific and affects only rights
- Judicial protection Habeas corpus is not suspended automatically
A Question You May Face
An original practice question, not a past paper question.
“Distinguish martial law from National Emergency with reference to the Constitution.”
How to Answer
- Introduction Article 34 and Article 352.
- Martial law Meaning, grounds and effects.
- National Emergency Grounds and wider effects.
- Conclusion Different scope, different provisions.
GS Relevance
Frequently Asked Questions
What does Article 34 provide?
Article 34 provides for restrictions on Fundamental Rights while martial law is in force in an area. It empowers Parliament to indemnify persons for acts done to maintain or restore order and to validate sentences and other acts, free from challenge on Fundamental Rights grounds.
What is martial law?
Martial law literally means military rule. The civil administration is run by military authorities under their own rules, with ordinary law suspended and government by military tribunals. The Constitution does not define it, and its authority is implicit in Article 34.
How does martial law differ from National Emergency?
Martial law affects only Fundamental Rights, suspends the government and courts, and is imposed in a specific area. National Emergency affects Centre-state relations and revenues too, continues the government and courts, and has detailed constitutional provisions.
Is martial law the same as military law?
No. No. Military law applies only to the armed forces. Martial law is the rule of military authorities over the civil administration of an area in abnormal circumstances such as war, invasion, insurrection, rebellion or riot, and it suspends ordinary law there.
Does martial law suspend habeas corpus?
The Supreme Court has held that the declaration of martial law does not in itself result in the suspension of the writ of habeas corpus, which remains a remedy against illegal detention. Its availability in a martial law area therefore depends on the facts.
What does Article 35 provide?
Article 35 gives only Parliament, not state legislatures, the power to make laws to give effect to certain Fundamental Rights, for example on residence requirements, writs by other courts, armed forces, martial law indemnity, and punishment for untouchability and forced labour.
PYQ Practice — Statement Analysis
1 Martial law is expressly defined in Article 34.
The term is not defined; the power is implicit.
2 Martial law suspends ordinary courts, whereas National Emergency continues them.
This is one of the differences.
3 An Act of Indemnity under Article 34 can be challenged for violating Fundamental Rights.
It cannot be challenged on that ground.
4 Article 35 gives state legislatures the power to make laws on Article 17 punishments.
Only Parliament has that power.
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