Martial Law & Effects Of Indemnity Granted & Emerging Regime Of New Rights & Remedies Under The Garb Of Fundamental Rights
- IJLLR Journal
- Feb 28
- 2 min read
Adv. Vinodini Priya. S, LLM (Constitutional Law & Administrative Law), Government Law College, Vellore. Tamil Nadu
ABSTRACT
In this PART A: Martial Law & Effects of Indemnity Granted: Martial law temporarily replaces civilian rule with military authority during emergencies. Article 34 of the Indian Constitution allows restrictions on fundamental rights and grants indemnity to security forces for actions under martial law. Effects include immunity from prosecution, restrictions on fundamental rights (Articles 14 and 21), & legislative validation of military actions. Concerns arise over potential misuse, human rights violations, and limits on judicial review (e.g., A.D.M. Jabalpur Case, 1976). Unlike emergency provisions (Articles 352, 356, 360), martial law involves direct military rule. Case law (Makhan Singh v. State of Punjab, 1964) affirm constitutional supremacy over martial law. Legislative indemnity, as in the Armed Forces (Special Powers) Act, 1958 (AFSPA), has raised concerns over excessive force (e.g., Extra-Judicial Execution Victim Families v. Union of India, 2017). Global precedents (Ireland v. UK, 1978; Prosecutor v. Milosevic, 2002) emphasize judicial oversight. Recommendations include defining martial law explicitly, limiting indemnity for human rights violations, and strengthening judicial scrutiny.
In this PART B: Emerging Regime of New Rights & Remedies: The Supreme Court has expanded fundamental rights beyond their original scope. Article 21 has led to the Right to Privacy (K.S. Puttaswamy, 2017), Right to a Clean Environment (M.C. Mehta, 1987), and Right to Die with Dignity (Common Cause, 2018). Article 14 has protected against sexual harassment (Vishaka, 1997), ensured transgender rights (NALSA, 2014), and decriminalized homosexuality (Navtej Johar, 2018). While progressive, this expansion raises concerns about judicial overreach and separation of powers. Socio-economic rights (e.g., Right to Education in Unni Krishnan, 1993) challenge legislative authority. Comparisons with the U.S. (Roe v. Wade, 1973) and European Court of Human Rights (Airey v. Ireland, 1979) show global judicial activism. Balance is needed to prevent judicial law-making from overriding legislative functions.
