Fundamental Rights enshrined in Part III of the Indian Constitution are available to all citizens and, in some cases, even non-citizens. However, the exercise of these rights by every individual in every situation might not be conducive to the effective functioning of certain essential services, particularly those involved in national security, public order, and defence. Article 33 carves out a necessary exception to the universality of Fundamental Rights, recognising the unique requirements of discipline and duty discharge within specific categories of personnel.
This article grants Parliament the exclusive power to make laws that can restrict or abrogate the application of Fundamental Rights to members of the armed forces and other related groups. This power is crucial for maintaining discipline, ensuring efficiency, and upholding national security interests, which might otherwise be jeopardized if such personnel were permitted unrestricted exercise of all fundamental freedoms in the same manner as ordinary citizens.
Original Text
33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.
Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,- (a) the members of the Armed Forces; or (b) the members of the Forces charged with the maintenance of public order; or (c) persons employed in any bureau or other organisation established by the State for purposes of intelligence; or (d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.
Detailed Explanation
Article 33 of the Constitution provides a specific power to the Parliament of India to legislate regarding the applicability of Fundamental Rights to certain categories of persons. It deviates from the general principle that Fundamental Rights are universally available by allowing their modification, restriction, or even abrogation for specific groups.
The article explicitly vests this power only with the Parliament. State Legislatures have no authority under this article to make laws restricting or abrogating the Fundamental Rights of these specified groups. This ensures uniformity across the nation regarding the treatment of these personnel concerning their fundamental rights.
The groups targeted by this article are clearly defined:
- Members of the Armed Forces: This includes the Army, Navy, Air Force, and any other armed forces of the Union.
- Members of the Forces charged with the maintenance of public order: This primarily refers to police forces (both central and state police forces, though state police are under state control, laws under Article 33 apply uniformly as enacted by Parliament), paramilitary forces like the CRPF, BSF, ITBP, etc.
- Persons employed in intelligence organizations: This covers personnel working in intelligence bureaus or other similar organizations established by the state (like the Intelligence Bureau, Research and Analysis Wing).
- Persons employed in or connected with telecommunication systems used by the above forces/organisations: This includes personnel maintaining communication lines and systems vital for the functioning of the armed forces, police, and intelligence agencies.
The purpose of such restriction or abrogation is clearly stated: “so as to ensure the proper discharge of their duties and the maintenance of discipline among them.” This highlights the operational necessity behind limiting the fundamental rights of these personnel. For example, unrestricted freedom of speech and expression (Article 19(1)(a)) might lead to insubordination or disclosure of sensitive information within the armed forces; the right to form associations (Article 19(1)(c)) might undermine the chain of command; the right to move freely (Article 19(1)(d)) might be inconsistent with deployment orders.
Laws made by Parliament under Article 33 are therefore constitutionally valid exceptions to the Fundamental Rights guaranteed in Part III. The courts generally have a limited scope of judicial review over such laws, primarily examining whether the law is actually made by Parliament and whether it falls within the scope and purpose defined in Article 33 (i.e., restricting rights for the purpose of ensuring proper discharge of duties and discipline among the specified groups).
Several laws have been enacted by Parliament utilising the power granted by Article 33, such as the Army Act, 1950; the Navy Act, 1957; the Air Force Act, 1950; and the Police Forces (Restriction of Rights) Act, 1966. These acts contain provisions that restrict or modify certain fundamental rights of the members of these forces, such as the right to form associations, freedom of speech, right to property (in certain service-related contexts), etc., to the extent necessary for maintaining discipline and efficiency.
Detailed Notes
- Article 33 is an exception to the Fundamental Rights contained in Part III of the Constitution.
- It empowers Parliament to restrict or abrogate the application of Fundamental Rights.
- This power applies specifically to certain categories of persons, not the general public.
- The categories include:
- Members of the Armed Forces (Army, Navy, Air Force, etc.).
- Members of Forces maintaining public order (Police, Paramilitary, etc.).
- Persons employed in intelligence organizations.
- Persons in telecommunication systems connected to the above.
- The sole authority to make such laws rests with Parliament, not State Legislatures.
- The purpose of such restriction/abrogation is strictly “to ensure the proper discharge of their duties and the maintenance of discipline among them”.
- Laws enacted under Article 33 can modify any right conferred by Part III in its application to these groups.
- Specific laws enacted under this article include the Army Act, Navy Act, Air Force Act, Police Forces (Restriction of Rights) Act.
- Judicial review of laws made under Article 33 is possible but limited, primarily checking if the law serves the specified purpose for the specified groups and is within Parliament’s power.
Additional Comments
- Article 33 represents a constitutional balance between individual liberties and the collective needs of national security, defence, and public order.
- The restriction or abrogation of rights is not absolute but is determined “to what extent” by Parliament through law, guided by the principle of ensuring duty discharge and discipline.
- The principle behind Article 33 is similar to restrictions placed on certain professions in other democracies to ensure efficiency and maintain necessary hierarchies or secrecy.
- This article underscores the importance of discipline as a bedrock requirement for the effective functioning of forces like the military and police.
- Article 35 of the Constitution reinforces Parliament’s exclusive power to make laws for prescribing punishment for acts contravening Part III and for giving effect to the provisions of Article 33 (and Article 16(3) and Article 32(3)).
Summary
Article 33 of the Indian Constitution grants the Parliament the exclusive authority to enact laws that can restrict or abrogate Fundamental Rights in their application to members of the armed forces, police forces, intelligence personnel, and associated telecommunication staff. This power is conferred specifically to ensure the proper performance of their duties and the maintenance of discipline within these essential services, recognizing that the full exercise of all fundamental rights might be incompatible with the demands of military discipline, public order, or national security operations. State legislatures do not possess this power. The laws made under Article 33, such as the various service acts, establish limitations on rights like freedom of speech, assembly, and association for these specific groups to the extent deemed necessary for operational effectiveness and discipline.