Martial Law : A Self Destructive Mechanism in Indian Constitution

Martial Law is an undefined as well as absolute power.

Declaration of Martial Law with enactment of Indemnity Act is a gold mine of absolutism available to the government under Article 34 of the constitution of India. It is a self-destructive mechanism of the Indian democracy. Article 34 reads as- "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 with in the territory of India where martial law was in force"

It is not a power, it is the absolute power in the constitution. Mysteriously, what is martial law, remained undefined by the constitution framers of this country. 

Neither there is any definition of martial law nor any legal precondition for exercising such unchecked power! It is no need to elaborate as to what is the nature and result of naked power when it is absolute and remains unchecked!

        Powers to proclaim emergency under article 352 to 360 are dwarfed in front of the power to declare martial law emanating from Article 34 of the constitution. Even the power to proclaim emergency is circumscribed with the precondition of existence of war or external aggression or armed rebellion. 

In case of declaration of martial law, all the Parliament of India is required to do is, to pass an Indemnity Act, post facto to ‘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’. 

      
By all standards it is an absolute power and for the governments, which are fond of absolutism it is a heavenly provision. 
Lawyers have a tendency not to read the dead letters of law. We don’t read the details of law unless we feel that it may actually be used! Courts leave those letters to be examined by academicians for further in-depth consideration. Article 34 of the constitution of India, prescribing martial law, don’t seem to be a dead letter!

Indemnity Act was needed as a result of the Great Plague in England.

Sir William Walworth, Lord Mayor of London, killing Wat Tyler in Smithfield,1381.

In 1348, England was visited by a great plague which reduced its population almost by half. A ripple effect came to the economy, labour became scarce and wages rose. Economy began to suit the peasant more than the landowner. Looking at the new found wealth of the laborers, king proposed new taxes on peasants. In 1380, Parliament allowed the king to assess a tax of one shilling on every man and woman over the age of fifteen. In May 1381, peasants’ revolted under rebel leader Wat Tyler, perhaps related to legendry Robin Hood. Tyler was killed and his followers were defeated. Most of them were executed without any form of trial or court. First Act of Indemnity was passed by King Richard II, to exempt his supporters from responsibility for any excesses committed by them in suppressing the rebellion.  

   Historically wherever English King’s armies marched they were followed by the Court of Marshal to deal summarily with all offenders. Martial law was Kings’ power only to serve the King.  Later when parliament won the battle from the English Kings in 1640, the Martial Courts and summary trials were discontinued and the jurisdictions and procedures of trials were made more open and codified, part of which we still follow in our courts.

Courts are barred too !

Article 34 of the constitution of India has a non obstante clause too! Martial law and Indemnity Act runs ‘notwithstanding anything’ in the chapter of fundamental rights of the constitution.

Fortunately enough, as an independent democratic country, we have never used martial law till date. Monarchs and colonial rulers used martial law and indemnity acts mostly in cases of rebellion. Still if it happens all justifiability of fundamental rights is capable to be suspended under this provision. In simple words it means that courts may not be able to protect us.

D.F. Marais vs General Officer Commanding (1902 A. C. 109) Privy Council

     Martial law was declared in the Cape Town. A person named D. F Marais was arrested by the military authorities citing only grounds of ‘military reasons’. Petitioner challenged his detention and argued that application of martial law was limited by the necessity of preserving peace and order and did not oust the jurisdiction of those civil courts which, notwithstanding the pressure of the military circumstances, were still administering the law of the land. Rejecting the argument Privy Council held that where actual war is raging, acts done by the military authorities are not justiciable by the ordinary tribunals.

Tilonko  vs Attorney General of Natal (1907 A.C.93) Privy Council

        Martial Law was proclaimed in Natal to suppress the unrest. After the suppression of rebellion an Indemnity Act of 1906 was passed to approve all the sentences passed by any court martial. Privy Council held that there is no analogy between court-martials, so called, administering punishments and restraining acts of repression and violence under the supervision of a military commander and the regular proceedings of Courts of justice. Where the local Legislature has declared sentences of this kind to be lawful, the Judicial Committee has no power to inquire as to their proprietary or as to the propriety of the legislation.

Clifford And O’Sullivan (1921 2 A. C. 570) House of Lords.

        This case is a landmark decision which defines the ‘nature of a criminal case’ and possibly the reason why High Courts in India till today doesn’t not entertain appeals in matters of criminal nature (except statutory appeals).

On December 10, 1920 the Lord-Lieutenant of Ireland proclaimed certain counties to be under martial law. Appellants in this case was sentenced to death by military authorities for merely bearing fire-arm. House of Lords dismissed the appeal and held that military courts during martial law have absolute power and no appeal lies against their decision.

Prescription of democratic republic given by the constituent assembly in the year 1950 to the Indians is full of contradictions. Anyone living with a utopian idea of India as a democratic republic must also be conscious that democracy in India is very limited in its nature and extent and the declaration of martial law is a bigger threat to us than emergency imposition. Martial Law is a self-destructive mechanism provided in the constitution of India!

Kartikey