MODULE 4[C]: ARTICLES 33, 34 & 35

TO THE INDIAN CONSTITUTION

Article 33: Power of Parliament to modify the rights conferred by this Partin their
application 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) personsemployedinanybureauorotherorganizationestablishedbytheState for purposes of

intelligence or counter intelligence; or

(d) persons employed in, or in connection with, the telecommunication systems setup 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.

1. Meaning:

The Article 33 of the Indian Constitution empowers or gives the power to the Parliament to
make laws through which they can modify, restrict or abrogate the fundamental rights of the
members of the Armed Forces or the members charged with the maintenance of public order
in order to discharge their duties properly.
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2. Explanation:

 The members of the Armed forces, forces charged with the maintenance of public
order, certain persons employed by the state etc., are employed for some special
purposes and their main aim is to serve the country and its citizen in one way or other.
 Thus, they cannot have or be entitled to the same and equal fundamental rights as
given to the other citizens of the country.
 Hence, the Parliament is empowered to make certain amends or modifications to their
entitlement of fundamental rights.
 The Parliament exercises this power to ensure that the said persons in the article can
properly discharge their respective duties.
 This article also says that the Parliament by law, can also determine the extent to which
the said persons are entitled to the fundamental rights.

However, this article in itself does not restrict the application of the fundamental rights of the
said persons, which means that the laws must be made exclusively for the same.

3. Need and importance:

 The main aim of the article is to ensure that the officials mentioned in the article such
as the Armed forces, police officials, employees of the organizations established by
the state etc., discharge their respective duties and maintain the discipline of their
position properly as the proper discharge of their duties is very crucial and important
for the country and maintenance of the public order.

 Since that is the case, certain fundamental rights cannot be given to them as it would
interfere with or hinder the proper discharge of their respective duties.

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  For instance, if an army officer wants to exercise his right to freedom in a particular
manner, under article 19 of the Indian Constitution, he would not be able to serve the
country properly and his exercise of this right would go against his duties as an army
officer.

 Hence, this article is very much important as it provides exemption of the said
persons, who are duty bound to maintain law and public order, from the entitlement or
application of certain fundamental rights in order to discharge their respective duties
properly and without any hinderance.

4. Author’snote:

I feel that the empowerment of the Parliament for making certain required and appropriate
modifications in the fundamental rights of the certain persons mentioned in the Article 33 of
the Indian Constitution is very much necessary. However, I feel that this power of the
Parliament should be limited in certain ways and the limitations should be clearly specified or
mentioned in the Constitution itself. I strongly believe that certain fundamental rights should
be available without any amends or alterations to the said persons and the required
restrictions (if any) should be clearly mentioned. For instance, the right to life and personal
liberty under Article21 or the right to freedom under the Article 19 must
beguaranteedinitswholesenseandifcertainreasonablerestrictionsarerequired to put upon these
people, they should be mentioned separately and exclusively for them in the Constitution
itself.

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Article 34: Restriction on rights conferred by this Part while martial law isin force in any
area.-

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
otherpersoninrespectofanyactdonebyhiminconnectionwiththemaintenance 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.

1. Meaning:

The Article 34 of the Indian Constitution indemnifies any person in the service
oftheUnionoranyStatefortheactsdonebyhim,inordertodischargehisduties properly or to obey
the orders given to him as per the requirement and in accordance with his duties conferred
upon him by the law, in any particular area
withintheIndianterritoryduringthetimewhenthemartiallawisinforceinthat particulararea.

2. Explanation:

 Here, the word “indemnify” means that the said person will not be punished for the
acts done by him during the enforcement of the martial law.
 His acts may
includeanysentencepassedbyhim,punishmentinflictedbyhimuponanyother person,
anything forfeited by him or any other act provided that it was done in order to
maintain the law andorder.

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  Here, the enforcement of the martial law in any area means any situation which
normally would not occur but has occurred due to any foreseen or unforeseen
contingency which leads to the suspension of the ordinary law and imposition ofthe
military rule such as state of emergency or crisis, curfew, any major disaster in that
particular area etc.

 However,thearticleitselfdoesnotexemptorgiveindemnitytothesaidpersons, the
indemnity has to be given by the Parliament exclusively by making the required laws
for the same.

3. Need and Importance:

 Themainaimofthisarticleistoindemnifythepersonsintheserviceoftheunion or any state

for the acts done by them in order to maintain law and order when
themartiallawinforce,providedthat,suchindemnityisgivenbytheParliament.
 This indemnity, provided under this article, is very much necessary as there are
certain acts which the said persons have to perform during any particular contingency
and if not performed, may hinder the maintenance of the law and order.
 In such situations it is impossible, rather very difficult, for them to think
whethertheactisrationalorirrational,or inaccordancewiththeordinarylawin
thatareaornot.
 Forinstance,anofficialmaykillortakeintocustodyanyperson on suspicion during curfew
in order to maintain the public order.
 Now, even if that person is innocent, the official did that being duty bound by the law
and just tomaintainthepublicorderandpeace,andhenceneedsindemnitybythelawfor his
act.

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4. Author’s note:

I feel that certain indemnities are required and essential for the persons in the service of the
Union or any State in order to ensure that their duties are properly discharged and the law and
order of the country is maintained during the time when the Martial law is in force. However,
I feel that this indemnity should not be provided for all the acts performed by them during
such time and situation as
thismayleadtothemisuseofsuchindemnitybythem.Onlythemostreasonable and rational
indemnities should be provided to them and the same should be clearly mentioned in the
Constitution itself.

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Article 35: Legislation to give effect to the provisions of this Part.-Notwithstanding
anything in this Constitution,-

(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws-

(i) with respect to any of the matters which under clause (3) of Article 16, clause (3)
of Article 32, Article 33 and Article 34 may be provided for by law made by
Parliament;and

(ii) for prescribing punishment for those acts which are declared to be offences under
this Part; and Parliament shall, as soon as may be after the commencement of this
Constitution, make laws for prescribing punishment for the acts referred to in sub-
clause(ii);

(b) any law in force immediately before the commencement of this Constitution
intheterritoryofIndiawithrespecttoanyofthemattersreferredtoinsub-clause
(i) of clause (a) or providing for punishment for any act referred to insub-clause

(ii) of that clause shall, subject to the terms there of and to any adaptations and
modificationsthatmaybemadethereinunderArticle372,continueinforceuntil altered or repealed
or amended by Parliament.

Explanation.-Inthisarticle,theexpression"lawinforce"hasthesamemeaning as in Article372.

1. Meaning:

The Article 35 of the Indian Constitution says that the power to make laws with respect to

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certain fundamental rights shall vest with the Parliament only and not with the Legislature of
any State.

2. Explanation:

 Clause (a)(i) of the article lists down certain articles with respect to which the
parliament shall have the power to make laws and it restricts the power of any State
legislature to make laws on the same matters.

 Those articles with respect to which only the Parliament has the power to make laws
are: (i) article 16(3), which empowers the Parliament to make laws prescribing the
residence as a requirement for equal opportunity for public employment or
appointment, for eg., Domicile of a particular state gets
employmentbasedonhisdomicilecertificate;(ii)article32(3),whichempowers the
Parliament to make laws in order to empower any other court to exercise within the
local limits of its jurisdiction all or any of the powers exercisable by
theSupremeCourttoissuewritsunderarticle32(2)oftheIndianConstitution;
(iii) article 33, which empowers the Parliament to make laws in order to modify fundamental
rights of certain people and; (iv) article 34 which empowers the Parliament to indemnify
certain persons for their acts during the enforcement of the Martial law.

Clause (a)(ii) of the article says that the power to make laws in order to punish
fortheviolationofcertainfundamentalrights,fore.g.,practicinguntouchability, human trafficking
and forced labour under article 23 etc., shall vest with the Parliament and not with any State
Legislature. The Parliament may exercise this power after the commencement of the Indian
Constitution.

Clause(b) of the article says that any law before the commencement of the Indian
Constitution will continue to be in force unless it has been repealed, altered or
modifiedoramendedbytheParliament.Inotherwords,itsimplymeansthatthis article empowers
the Parliament to make laws in order to amend, alter or modify the old laws which were into
the force before the commencement of this Constitution.
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Hence, it can be said that the article 35 of the Indian Constitution empowers the Parliament to
make laws with respect to certain fundamental rights even if the matters fall into the State list.

Explanation attached:

Theexplanationattachedtothisarticlesaysthattheexpression"lawinforce"has the same meaning

as in the Article 372 of the IndianConstitution

3. Need and Importance:

 The Parliament is empowered to make laws regarding the application and violation of
certain fundamental rights and this empowerment restricts any State legislature to
make laws on the same matters.
 This empowerment of the Parliament and restriction on the law making power of the
State legislatures is very much essential as different State Legislatures would like to
make and implement different laws for their respective states regarding the
application and violation of the fundamental rights.
 This may lead to instability and hinderance in the smooth functioning of the States
and the Country as a whole.
 Empowering
theParliamenttomakelawsonsuchmattersbringsuniformityandstability,leads to smooth
functioning of the country and further upholds the interests of the citizens equally and
uniformly.

 Hence, this article is very much needed and is an important part of the Indian
Constitution.

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4. Author’s note:

I feel that the exclusive power of the Parliament to make laws on the matters
mentionedinthearticleisnecessaryandtherestrictiononthelawmakingpower of the state
legislatures regarding certain matters is very much essential for
maintainingtheuniformityandaproperbalancebetweenthestatesandthecentre. However, I feel
that if any state legislature wants to make laws regarding any
particularmattermentionedinthearticle,thenitshouldbeallowed,providedthat the Parliament
after proper consideration and evaluation of that matter or issue allows the state legislature to
do so.

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