Article 34 of the COI

Introduction

Martial Law means the suspension of ordinary law and the Government of a country or part of it by military tribunals. Article 34 of the Constitution of India, 1950 (COI) contains provision in reference to Martial Laws.

Origin of Martial Law

• The concept of martial law has been borrowed in India from the English common law.
• The expression ‘Martial Law’ has not been defined anywhere in the Constitution.
• However, it is implicit in Article 34 of the COI under which martial law can be declared in any area within the territory of India.

Article 34 of the COI

• This Article deals with the restriction on rights conferred by Part III while martial law is in force in any area.
• It states that 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 martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.
• This Article provides Parliament to make any law for indemnifying any person for acts done during the operation of martial law.
• The power of Parliament under this Section is subject to the following two conditions:
  • The act must have been done in connection with the maintenance or restoration of order.
  • Martial law must be in force in the area where the act was done.

Essential Characteristics of Martial Law

• It affects only Fundamental Rights.
• It suspends the government and ordinary law courts.
• It is imposed to restore the breakdown of law and order due to any reason.
• It can be imposed only on three grounds–war, external aggression or armed rebellion.
• It is imposed in some specific area of the country.
• During the operation of martial law, the military authorities are vested with abnormal powers to take all necessary steps.
• The Supreme Court held that the declaration of martial law does not ipso facto result in the suspension of the writ of habeas corpus.

Case Law

• In the case of A.D.M Jabalpur v. S. Shukla (1976), the Supreme Court observed that Martial Law is of a restricted application and envisages the taking over of the situation by military authorities. Such a taking over is certainly outside the provision of Article 359(1) of the COI.