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Do Members Of Armed Forces In India Enjoy Their Fundamental Rights

The Constitution of India confers fundamental rights upon every citizen of India, which are enshrined in Part-III (Article 12 to 35) of the Constitution of India. Fundamental rights are essential in nature in the form of rights which are the basis of an individual to groom into an independent, intellectual, responsible, moral and spiritual developed citizen.

These Fundamental Rights include:

  • Right to equality before law, Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth etc.,
  • Right of equality of opportunity in matters of public employment, abolition of un-touchability and titles,
  • Right to Freedom of speech and expression,
  • Right to assemble peaceably and without arms,
  • Right to form associations or unions or co-operative societies,
  • Right to move freely throughout the territory of India
  • Right to reside and settle in any part of the territory of India,
  • Right to practice any profession, or to carry on any occupation, trade or business,
  • Right of life and personal liberty,
  • Right to education
  • Right to individual piracy,
  • Right against arrest and detention in certain cases,
  • Right Against exploitation
  • Right to Freedom of Religion
  • Cultural and Educational Rights and
  • Right to Constitutional Remedies by means of writs such as Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto.

The Fundamental Rights are available to every citizen of India, article 5 of the Constitution of India provides that:

at the commencement of this Constitution every person who has his domicile in the territory of India and
  1. who was born in the territory of India; or
  2. either of whose parents was born in the territory of India; or
  3. who has been ordinarily resident in the territory of India for not less than five years preceding such commencement, shall be a citizen of India

Further, Article 13 of the Constitution of India further stipulates regarding Laws inconsistent with or in derogation of the fundamental rights, which provides that:

  1. All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
     
  2. The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
     
  3. In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
     
  4. Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality.

The Fundamental Rights are the unique and forms the basis of Indian Constitution and are available to all citizen of India, however, there are certain reasonable classification where restrictions upon Fundamental Rights may be imposed upon some of the citizens, such as members of the Armed Forces or the members of the Forces charged with the maintenance of public order or persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence or persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Article 33 of the Constitution deals with the power of Parliament to modify the fundamental rights, which provides that the Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to:
  1. the members of the Armed Forces; or
  2. the members of the Forces charged with the maintenance of public order; or
  3. persons employed in any bureau or other organization established by the State for purposes of intelligence or counter intelligence; or
  4. persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organization 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

The article 34 further classified certain restriction on fundamental rights while martial law is in force in any area Notwithstanding anything in the foregoing provisions of Part-III of the Constitution, 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.

Thus, Article 33 and 34 empower the Parliament to restrict, modify or abrogate the fundamental rights to the members of armed forces, para-military forces, police forces, members of intelligence agencies or similar services. The above power of modification, restricting the fundamental rights, is available only with parliament and not state legislatures.

The parliament also enacted various laws such as Army Act (1950), Navy Act (1950), Air Force Act (1950), Police Forces (Restriction of Rights) Act, 1966 etc. which restricts some of the fundamental rights. Here we are discussing restrictions on fundamental rights of the members of the armed forces only which include all persons subject to the Army Act, 1950 or the Navy Act, 1957 or the Air Force Act,1950.

The members of the Armed Forces, who secure the Nation's integrity and sovereignty whether during war time or in peace time, are thus governed by two laws- first is the Law of Land (applicable upon all citizen of India) and secondly the specific law for which they are subject to. Some of the important sections of these specific laws affecting fundamental rights of an Indian citizen have been described below:

Army Act, 1950:

  1. Section 12 of the Army Act, 1950 provides the ineligibility of females for enrolment or employment, as No female shall be eligible for enrolment or employment in the regular Army, except in such corps, department, branch or other body forming part of, or attached to any portion of, the regular Army as the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided that nothing contained in this section shall affect the provisions of any law for the time being in force providing for the raising and maintenance of any service auxiliary to the regular Army, or any branch thereof in which females are eligible for enrolment or employment.
     
  2. Section 21 of the Army Act, 1950 signifies the power to modify certain fundamental rights in their application to persons subject to this Act, which stipulates that Subject to the provisions of any law for the time being in force relating to the regular Army or to any branch thereof, the Central Government may, by notification, make rules restricting to such extent and in such manner as may be necessary the right of any person subject to this Act-
    (a) to be a member of, or to be associated in any way with, any trade union or labour union, or any class of trade or labour unions or any society, institution or association, or any class of societies, institutions or associations;
    (b) to attend or address any meeting or to take part in any demonstration organised by any body of persons for any political or other purposes;
    (c) to communicate with the press or to publish or cause to be published any book, letter or other document.

Air Force Act, 1950:

  1. Section 12 of the Air Force, 1950 provides the ineligibility of females for enrolment or employment stipulating that : No female shall be eligible for enrolment or employment in the Air Force, except in such corps, department, branch or other body forming part of, or attached to any portion of, the Air Force as the Central Government may, by notification, specify in this behalf:

    Provided that nothing contained in this section shall affect the provisions of any law for the time being in force providing for the raising and maintenance of any service auxiliary to the Air Force or any branch thereof in which females are eligible for enrolment or employment.
     
  2. Section 21 of the Air Force Act, 1950 provides that Subject to the provisions of any law for the time being in force relating to the Air Force or to any branch thereof, the Central Government may, by notification, make rules restricting in such manner and to such extent as may be specified the right of any person subject to this Act—

    (a) to be a member of, or to be associated in any way with, any trade union or labour union, or any class of trade or labour unions or any society, institution or association, or any class of societies, institutions or associations;

    (b) to attend or address any meeting or to take part in any demonstration organised by any body of persons for any political or other purposes;

    (c) to communicate with the press or to publish or cause to be published any book, letter or other document.

Indian Navy Act, 1957:

(i) Section 9 of the Indian Navy Act, 1957 states certain eligibility for appointment or enrolment which are:
  1. No person who is not a citizen of India shall be eligible for appointment or enrolment in the Indian Navy or the Indian Naval Reserve Forces except with the consent of the Central Government: Provided that nothing in this section shall render a person ineligible for appointment or enrolment in the Indian Navy or the Indian Naval Reserve Forces on the ground that he is a subject of Nepal.
     
  2. (2) No woman shall be eligible for appointment for enrolment in the Indian Navy or the Indian Naval Reserve Forces except in such department, branch or other body forming part thereof or attached thereto and subject to such conditions as the Central Government may, by notification in the Official Gazette specify in this behalf.

    (ii) Section19 of the Indian Navy Act, 1957 provides that:
    (1) No person subject to naval law shall, without the express sanction of the Central Government-
    (a) be a member of, or be associated in any way with, any trade union, labour union, political association or with any class of trade unions, labour unions or political associations, or
    (b) be a member of, or be associated in any way with, any other society, institution, association or organisation that is not recognized as part of the Armed Forces of the Union or is not of a purely social, recreational or religious nature.
    Explanation: If any question arises as to whether any society, institution, association or organisation is of a purely social, recreational or religious nature, the decision of the Central Government thereon shall be final.
     
  3. No person subject to naval law shall attend or address any meeting or take any part in any demonstration organised by any body of persons for any political purposes or for such other purposes as may be specified in this behalf by the Central Government.
     
  4. No person subject to naval law shall communicate with the press or publish or cause to be published any book, letter or other document having bearing on any naval, army or air force subject or containing any fact or opinion calculated to embarrass the relations between the Government and the people or any section thereof or between the Government and any foreign country, except with the previous sanction of the Central Government.
     
  5. No person subject to naval law shall whilst he is so subject practise any profession or carry on any occupation, trade or business without the previous sanction of the Chief of the Naval Staff.

From the above provisions it is makes clear that the Armed Forces have imposed restrictions upon a limited number of fundamental rights more specifically provided in the Article 14, 15, and 19 of the Constitution, therefore, an obvious question emerges, whether Fundamental Rights of the members of the armed forces can be infringed in the pretext of above mentioned provisions? The above question has been raised time and again before competent courts in matters of promotion, posting, pay and allowances, conditions of service and pension etc. of the members of the armed forces.

The Hon'ble Supreme Court also observed that the provisions under the Acts of the Armed Forces do not infringe or abrogate the fundamental rights, few important verdicts have been discussed below:
  1. In the case of Ram Sarup vs. The Union of India and another,{1965 AIR 247, 1964 SCR (5) 931}, a writ of habeas corpus and certiorari regarding abrogation of fundamental right of the petitioner at the time of his trial under Army Act was filed by the petitioner.

    The Learned Attorney- General urged that the entire Act has been enacted by Parliament and if any of the provisions of the Act is not consistent with the provisions of any of the articles in Part III of the Constitution, it must be taken that to the extent of the inconsistency Parliament had modified the fundamental rights under those articles in their application to the person subject to that Act. Any such provision in the Act is as much law as the entire Act.

    The Hon'ble Supreme Court agreed that each and every provision of the Army Act is a law made by Parliament and that if any such provision tends to affect the fundamental rights under Part III of the Constitution, that provision does not, on that account, become void, as it must be taken that Parliament has thereby, in the exercise of its power under Art. 33 of the Constitution, made the requisite modification to affect the respective fundamental right.

    The Hon'ble Supreme Court was, however, of the opinion that the provisions of Section 125 of the Act are not discriminatory and do not infringe the provisions of Art. 14 of the Constitution. The Hon'ble Court further observed that it is not disputed that the persons to whom the provisions of sec. 125 apply do form a distinct class.

    They apply to all. Each and every provision of the Army Act is a law made by Parliament and that if any such provision tends to affect the fundamental rights under Part III of the Constitution, that provision does not, on that account, become void, as it must be taken that Parliament has in exercise of its power under Art. 33 of the Constitution made the requisite modification to affect the respective fundamental right.
     
  2. In Ous Kutilingal Achudan Nair and Others Vs. Union of India and Others, (Civil Appeal No. 1821 of 1974, reported AIR 1976 SC 1179), the Hon'ble Supreme Court observed that Article 33 of the Constitution provides an exception to the proceeding Articles in Part III including Article 19(1)(c).

    By Article 33 Parliament is empowered to enact law determining to what extent of the rights conferred by Part III shall, in their application, to the members of the Armed Forces or Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. In exercise of its powers u/s 4 of the Defence of India Act, the Government of India has by notification dated 11.2.1972, provided that all persons not being members of the Armed Forces of the Union, who are attached to or employed with or following the regular Army shall be subject to the military law. The Army Act, 1950, has also been made applicable to them.

    By another notification dated 23.2.1972, issued under Rule 79, of the Army Rules, civilian employees of the training establishments and Military Hospitals have been taken out of the purview of the Industrial Disputes Act. Section 9 of the Army Act further empowers the Central Government to declare by notification, persons not covered by Section (i) of Section 3 also as persons on active services. In the view of these notifications issued u/s 4 of the Defence of India Act and the Army Rules, the appellants can no longer claim any fundamental right under Article 19(1)(c) of the Constitution.
     
  3. In Lt.Col. Prithi Pal Singh Bedi and Others Vs. Union of India and Others (Writ Petition Nos. 1513 of 1979, 5930 of 1980 and 4903 of 1981) the Hon'ble Supreme Court affirmed the validity of proceedings under the Army Act though abrogate the fundamental rights as the same proceedings empowered under Article 33 of the constitution.
     
  4. The Hon'ble Supreme Court held in R. Viswan and Others vs Union Of India and Others (1983 SCR (3) 60, 1983 SCC (3) 401), that section 21of Army Act, 1950 is not ultravires the Constitution, since it is saved by Art 33 Constitution.
     
  5. In Union of India (UOI) and Others Vs. Ex. Flt. Lt. G.S. Bajwa {Civil Appeal No. 10383 of 1996, Reported in (2003) 104 DLT 618 : (2003) 4 JT 505 : (2003) 4 SCALE 494 : (2003) 9 SCC 630 : (2003) 3 SCR 1092: (2003) 3 SLJ 288: (2003) 2 UJ 849 : (2003) 2 UPLBEC 1479}, the Hon'ble Supreme Court observed that Article 33 of the Constitution of India expressly empowers the Parliament to determine by law the extent to which any of the rights conferred by Part III of the Constitution, in their application, inter alia, to the members of the armed forces, shall be restricted or abrogated to ensure the proper discharge of their duties and the maintenance of discipline among them.

    The Parliament can therefore, in exercise of powers conferred by Article 33 of the Constitution of India restrict or abrogate the fundamental rights guaranteed under Part III of the Constitution in their application to the members of the armed forced. The Hon'ble Supreme Court held that the provisions of the Air Force Act cannot be challenged on the ground that they infringe the fundamental right guaranteed under Article 21 of the Constitution of India.

    Since the Air Force Act is a law duly enacted by Parliament in exercise of its plenary legislative jurisdiction read with Art 33 of the Constitution of India, the same cannot be held to be invalid merely because it has the effect of restricting or abrogating the right guaranteed under Article 21 of the Constitution of India or for that reason under any of the provisions of Chapter III of the Constitution.

  6. In Secretary Ministry Of Defence vs Babita Puniya (Civil Appeal Nos. 9367- 9369 of 2011) , the Hon'ble Supreme Court observed, while considering the abrogation of fundamental rights of women by virtue of section 12 of the Army Act 1950 in not granting permanent commission to the women Short Service Commissioned Officers, that Article 33 of the Constitution empowers Parliament to determine by law the extent to which the rights conferred by Part III of the Constitution shall be restricted / abrogated in their application inter alia to the members of the Armed Forces so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

    The impact of Article 33 is to enable Parliament to limit or abrogate the fundamental rights in their application to the members of the Armed forces. But such a restriction or abrogation must be by law. Moreover, the restriction or abrogation must be enacted to ensure the proper discharge of duties and the maintenance of discipline. The Hon'ble Supreme Court held that (a) All serving women officers on Sort Service Commission (SSC) shall be considered for the grant of Permanent Commissions irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service; (b) The option shall be granted to all women presently in service as SSC officers.

  7. In Union Of India vs Ld. Cdr. Annie Nagaraja, (Civil Appeal Nos 2182-87 of 2020 @ SLP (C) Nos. 30791-96 of 2015), the petitioners, seventeen in number, were women officers who joined the Indian Navy as Short Service Commissioned Officers in the Logistics and Air Traffic Controller cadres and the Education branch. Six of them were officers in the Logistics cadre, nine in the Education branch and two in the ATC cadre. Their grievance is that despite completing fourteen years of service as SSC officers, they were not considered for the grant of Permanent Commissions and were discharged from service.

    The case which was set up before the High Court was that women SSC officers of the Indian Army and Air Force had been granted PCs by the judgment of the Delhi High Court in Babita Puniya v Union of India. The Air Force implemented the decision of the Delhi High Court. The Indian Army was in appeal before this Court against the judgment in Babita Puniya.

The Hon'ble Supreme Court observed:
We have considered the case of these women officers who were denied being considered for the grant of PCs. The interim order of this Court was based on the policy dated 26 September 2008 which envisaged the grant of PCs on a prospective basis to officers- to be inducted‖ in the future.

The prospective application of the policy dated 26 September 2008 has been held to be invalid. We cannot ignore the fact that it was because of a restricted interim order passed by this Court that the above five respondents were not reinstated during the pendency of the appeals. Had they been reinstated, as directed by the High Court, they would have been in service in the interregnum and would have been entitled to be considered for the grant of PCs together with all other consequential benefits.

These officers must be provided restitution for the consequences suffered by them by the failure of the authorities to have considered them for the grant of PC, and despite of the order of the Delhi High Court which had directed their reinstatement.

Where a situation which detrimentally affects the rights of citizens arises as a result of an order of the Court, it is the duty of the court to remedy the situation and to rectify the injustice to the extent that is possible. As we have noted, the right of women SSC officers to be considered for the grant of PCs in the Logistics and Education cadres arose by virtue of the policy letter dated 25 February 1999.

The non-consideration of the case of these five officers for the grant of PCs arose out of the actions of the Union Government in issuing a restricted policy dated 26 September 2008 which has caused serious prejudice to these women officers. These officers were among the first inductee batches of women SSC officers in the Navy and committed themselves to serving in the cause of the nation. The second to sixth respondents who had been released prior to 2008 have been out of service for twelve years and more.

Consistent with the exigencies of service, it would not be appropriate to direct their reinstatement. However, following the logic of the directions of this Court in Babita Puniya, we are of the view that a one-time measure should be issued in exercise of the powers under Article 142 of the Constitution. These officers who were released prior to 2008 after completing their engagement should be deemed to have completed substantive pensionable service and to have qualified for the grant of pension on the basis that they have fulfilled the minimum qualifying service in a substantive capacity.

In addition to the grant of pensionary benefits, as a one-time measure, respondents two to six should be directed to be paid a lump sum amount of Rs 25 lakhs each as compensatory measure for lost years of service and the serious injustice which has been meted out to them. We clarify that our decision to award compensation is not a reflection of any malice on the part of the Naval authorities but a measure of compensation for the women officers who have been deprived of a valuable opportunity to render service and shoulder responsibilities.

The Hon'ble Supreme Court hold that:
  1. The statutory bar on the engagement or enrolment of women in the Indian Navy has been lifted to the extent envisaged in the notifications issued by the Union Government on 9 October 1991 and 6 November 1998 under Section 9(2) of the 1957 Act;
     
  2. By and as a result of the policy decision of the Union Government in the Ministry of Defence dated 25 February 1999, the terms and conditions of service of SSC officers, including women in regard to the grant of PCs are governed by Regulation 203, Chapter IX, Part III of the 1963 Regulations;
     
  3. The stipulation in the policy letter dated 26 September 2008 making it prospective and restricting its application to specified cadres/branches of the Indian Navy shall not be enforced;
     
  4. The provisions of the implementation guidelines dated 3 December 2008, to the extent that they are made prospective and restricted to specified cadres are quashed and set aside;
     
  5. All SSC officers in the Education, Law and Logistics cadres who are presently in service shall be considered for the grant of PCs. The right to be considered for the grant of PCs arises from the policy letter dated 25 February 1999 read with Regulation 203 of Chapter IX Part III of the 1963 Regulations. SSC women officers in the batch of cases before the High Court and the AFT, who are presently in service shall be considered for the grant of PCs on the basis of the vacancy position as on the date of judgments of the Delhi High Court and the AFT or as it presently stands, whichever is higher;
     
  6. The period of service after which women SSC officers shall be entitled to submit applications for the grant of PCs shall be the same as their male counterparts;(vii) The applications of the serving officers for the grant of PCs shall be considered on the basis of the norms contained in Regulation 203 namely:
    a. availability of vacancies in the stabilised cadre at the material time;
    b. determination of suitability; and
    c. recommendation of the Chief of the Naval Staff.
     
  7. Their empanelment shall be based on inter se merit evaluated on the ACRs of the officers under consideration, subject to the availability of vacancies;
     
  8. SSC officers who are found suitable for the grant of PC shall be entitled to all consequential benefits including arrears of pay, promotions and retiral benefits as and when due;
     
  9. Women SSC officers of the ATC cadre in Annie Nagaraja's case are not entitled to consideration for the grant of PCs since neither men nor women SSC officers are considered for the grant of PCs and there is no direct induction of men officers to PCs. In exercise of the power conferred by Article 142 of the Constitution, we direct that as a one-time measure, SSC officers in the ATC cadre in Annie Nagaraja's case shall be entitled to pensionary benefits. SSC officers in the ATC cadre in Priya Khurana's case, being inducted in pursuance of the specific representation contained in the advertisements pursuant to which they were inducted, shall be considered for the grant of PCs in accordance with directions (v) and (vi) above;
     
  10. All SSC women officers who were denied consideration for the grant of PCs on the ground that they were inducted prior to the issuance of the letter dated 26 September 2008 and who are not presently in service shall be deemed, as a one-time measure, to have completed substantive pensionable service. Their pensionary benefits shall be computed and released on this basis. No arrears of salary shall be payable for the period after release from service;
     
  11. As a one-time measure, all SSC women officers who were before the High Court and the AFT who are not granted PCs shall be deemed to have completed substantive qualifying service for the grant of pension and shall be entitled to all consequential benefits; and
     
  12. Respondents two to six in the Civil Appeals arising out of Special Leave Petition (C) Nos 30791-96 of 2015, namely Commander R Prasanna, Commander Puja Chhabra, Commander Saroj Kumar, Commander Sumita Balooni and Commander E Prasanna shall be entitled, in addition to the grant of pensionary benefits, as a one-time measure, to compensation quantified at Rs 25 lakhs each.

Conclusion
The members of the Armed Forces though are the citizen of India yet they belong to a distinct class of persons being governed by special laws enacted by the Parliament, and they play most important role to safeguard the nation whether in war or in peace time. The members of armed forces secure the country from enemy aggression or internal rebels and also maintain public order as and when needs arise.

The fundamental rights available to the members of the armed forces are subject to restrictions imposed by the legislation enacted by the Parliament, hence, it has been construed by the Apex court at several times that the Parliament can, in exercise of powers conferred by Article 33 of the Constitution of India, restrict or abrogate the fundamental rights guaranteed under Part III of the Constitution in their application to the members of the armed forced. Thus, provisions of these special acts (Army Act, Air Force Act or the Navy Act) cannot merely be challenged on the ground that they infringe the fundamental rights as these acts are the laws duly enacted by Parliament in exercise of its plenary legislative jurisdiction read with Art 33 of the Constitution of India.

However, in recent judgements of the Hon'ble Supreme Court some of the provisions of aforesaid special acts, which affect the fundamental right on the basis of gender bias and equal opportunity of employment, have been ruled out as in the cases of Secretary Ministry of Defence vs. Babita Puniya and Union Of India vs. Ld. Cdr. Annie Nagaraja etc, in the realm of global democratic acceptance of gender equality.

It is concluded that though the members of armed forces enjoy the same fundamental rights as an ordinary citizen of India, yet under the certain restrictions imposed upon them by virtue of legislations enacted by the Parliament under the Article 33 and 34 of the Constitution of India and these restrictions have been imposed by the Parliament having considered their pivotal role in discharging their duties and responsibilities to secure the sovereignty and integrity of our country, to maintain the public order; and to promote maintenance of discipline among themselves as some of the fundamental rights (as freedom of expression/speech, to form unions on different basis) may create a hindrance in efficient, effective, impartial performance of their duties and responsibilities and would defeat the very purpose of their being a member of Armed Forces.

Written By: Advocate Kapil Kishor Kaushik

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