Retrospective Diagnosis of Article 33: Analysis of its Constitutional Evolution

Ishant S Joshi[*]

Introduction

Article 33 of the Indian Constitution empowers the Parliament to limit the scope of fundamental rights in their application to the Armed Forces, members of forces charged with maintaining public order, and other similar institutions, such as the police, Intelligence Bureau, etc. It is clear from the aforementioned provision that the framers of the Constitution kept the functioning of the Armed Forces and similar institutions above the scope of fundamental rights.

However, since the Constitution has come into force, the judiciary has failed to particularize the scope of Article 33 and the extent to which the parliament can go in curtailing or restricting the application of fundamental rights for the military and similar institutions. Fortunately, the judiciary has risen to this challenge. The most recent instance of this is the judgement passed by the Hon’ble High Court of Jammu & Kashmir declaring Rule 129 of the Border Security Forces Rules, 1969 ("BSF Rules"), ultra vires Part III of the Constitution. The author will be examining various judgements pertaining to Article 33 and will seek to explore the transformative change that has happened in the judicial landscape concerning Article 33.

Past Judicial Decisions

Under the ambit of Article 33, the Parliament enacted several statutes, such as the Army Act, 1950 and the BSF Rules. It should not come as a surprise that there were several judgements relating to Article 33 in the early judicial archive, but the courts failed to take advantage of this golden opportunity to delineate the scope of Article 33.

In Ram Swarup v. Union of India, the Hon’ble Supreme Court held that “even if a fundamental right had been affected by any rule under the Army Act, 1950, it could be taken that the parliament had exercised its power under Article 33.” This was a flawed interpretation, as Article 33 mandates that fundamental rights shall be restricted “so as to ensure proper discharge of duties and maintenance of discipline.” The judiciary could have emphasized this foundational requirement for the application of Article 33 because it is not necessary for all rules enacted under Article 33 to be requisite for the proper discharge of duties. On account of this judicial failure, certain instances resulted in the violation of fundamental rights that go beyond the scope of Article 33.

For example, in S.P.N. Sharma v. Union of India, the accused (an Armed Forces personnel) was not allowed to engage a lawyer of his choice, violating Article 22 of the Indian Constitution. The service authorities used the garb of Article 33 in their defence. The failure to provide the accused with a lawyer of his choice had no connection with his ability to effectively discharge his duties and maintain discipline as required under Article 33. The judiciary in this case should not have relied on a mere affidavit filed by the service authorities that the accused had made no reservation on his account. The judiciary held that "this, by itself, would not vitiate the finding and the sentence of the Court-Martial in question". The judiciary in the instant case gave full immunity to the service authorities from any constitutional challenge under Article 33. Instead, the judiciary should have critically scrutinized the case in tandem with the proper application of Article 33. Consequently, the judiciary should have concluded that the argument used by the service authorities does not hold water as there is a clear violation of fundamental rights, which is beyond the scope of Article 33. This would have been proper scrutiny of the case well within the requirements of Article 33.

Another example of constitutional misinterpretation of Article 33 can be found in R.V. Vishwan v. Union of India, wherein the Hon’ble Supreme Court held that the Parliament has “unrestricted power permitting the violation of the constitutional limitations”. Article 33 has its own importance in the grand scheme of things. It gives the Parliament the necessary liberty to manage the affairs of national security and public order. However, there must be a ceiling beyond which there cannot be a curtailment of fundamental rights for the Armed Forces personnel and similar government employees (police, IB, RAW, etc.). The judiciary failed to adhere to this initially.

The Change

“Nature gave women too much power; the law gives them too little.” This opening line from Justice Sanjay Kishan Kaul in his judgement for the Hon’ble High Court of Delhi in Babita Puniya v. The Secretary, may have inspired the judiciary to redefine the purview of Article 33.

In the Babita Puniya Case (2010), the Hon’ble High Court of Delhi agreed that the Court will not interfere in a policy decision pertaining to Armed Forces, but later categorically held that once a policy decision is taken, it cannot be applied arbitrarily. In the above-mentioned case, female IAF officers were promised permanent commission (PC) upon completion of training and other requirements. Though both male and female officers performed at parity, female officers were denied PC. This was violative of Articles 14, 16, and 21 of the Indian Constitution and it was held that judicial scrutiny would arise in this case. The judiciary, in this case, took a small step in the right direction and meliorated their approach. Though Article 33 was not explicitly mentioned, the Court implicitly held that Article 33 could not be used capriciously, laying the foundation for the delineation of Article 33. This re-created a perfect opportunity for the judiciary to rectify its stance on Article 33.

The landmark case of The Secretary, Ministry of Defence v. Babita Puniya is the most important judgement in this judicial landscape. In 2019, the Union Government issued a policy decision that allowed PC for female officers in the Army in ten non-combative streams. However, it was discovered that there was arbitrariness regarding its application for female officers.

In the above-mentioned case, the Union Government used Article 33 extensively as a defensive tactic, stating that: (i) “The provisions of the Army Act, 1950, insofar as they infringe fundamental rights, are protected by Article 33” (ii) “The union government is entitled to consider the inherent dangers involved, adverse conditions which include the absence of privacy, maternity issues, and childcare. These conditions are not open to judicial review.” The Hon’ble Supreme Court chastised the Union Government, and rightly so. Calling the submissions by the Union Government as being based on sex stereotypes, the Hon’ble Supreme Court called for a change in mindset in the Army. Furthermore, trying to delineate Article 33, the Hon’ble Supreme Court stated that the restrictions imposed must be necessary to ensure the proper discharge of duties and maintenance of discipline.

In the mentioned case, the judiciary dramatically altered the extent of Article 33 and was partially successful in limiting its scope as well. This is important. What this judgement will do is it will force the parliament to re-evaluate and analyze present and future enactments/provisions under Article 33. This will allow the personnel of the Armed Forces and other similar institutions to reap the benefits provided by our Constitutions.

Interestingly, the Hon’ble Supreme Court did not comment on the exclusion of combative streams (e.g., infantry) from the policy decision granting PC to women. Knowing where the judiciary stands right now, Article 33 would have defended the exclusion of combative streams for female officers. The judiciary needs to revisit this stance. Modern militaries, such as the US and the UK have opened all combat roles for women. The Armed Forces have been using various arguments for not allowing women into combat roles. Some of these include biological fitness and the threat of sexual harassment if captured. India needs to rectify this medieval mentality. This can be done through the combined effort of the judiciary, the parliament, and the armed forces.

Another intriguing judgement was rendered in the case of Rovinder Singh v. Union of India, dated 28th April, 2022, by the Hon’ble High Court of Jammu & Kashmir. In the above-mentioned case, the petitioner (a BSF personnel) was not allowed access to the documents relating to the proceedings of the investigation under the ambit of Rule 129 of the Border Security Force Rules, 1969. This rule clearly violates Article 21 of the Constitution. The Court declared Rule 129 ultra vires Part III of the Constitution. The Union Government once again argued by employing Article 33, but the Court rejected this, remarking that Rule 129 has no connection with the requirements of Article 33. This is another instance where the judiciary is trying to withdraw the free hand that it afforded to the Parliament, pertaining to Article 33.

Thus, it is evident that the judiciary has been relatively successful in streamlining the scope of Article 33, though the journey is far from over.

Conclusion

As far as our national security and public order are concerned, Article 33 has its own significance. However, from a plain reading of it, any rational person will conclude that the framers of our constitution would not have intended to limit the scope of fundamental rights in its application to the members of the Armed Forces more than what was necessary. The members of the Armed Forces and other similar institutions are citizens, and they have the right to enjoy the fruits of our Constitution (albeit in a constricted manner). The fundamental rights cannot be taken away whimsically. The judiciary failed to apply this principle. However, the judiciary was able to modify its approach for the better. In recent years, there have been a series of decisions by the Indian Judiciary that have been successful in delineating the scope of Article 33.

Subsequently, we can see that there is a development in the judicial landscape wherein there is a growing synchronization between Article 33 and the fundamental rights of the members of the Armed Forces and similar institutions. This is crucial as it not only allows for the effective usage of Article 33 (which is necessary for our national security), but it also allows for the fundamental rights to apply to the members of the Armed Forces. There is a definite scope for improvement. However, the invigorated approach of the judiciary in trying to find a perfect balance between the two prospects is a positive step, and it remains to be seen whether the approach of the Court will change in the future.

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[*] Ishant S Joshi, is a 2nd year student at the National Law University. Odisha.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.