Article 33 & 34 empower the Parliament to restrict, modify or abrogate the fundamental rights of the members of armed forces, para-military forces, police forces, members of intelligence agencies or similar services. This is required to make the proper discharge of their duties which are sensitive and urgent in nature. This power is available only with parliament and not state legislatures.
Further, such an act cannot be challenged in a court on the ground of its being of violative of fundamental rights. Further, court-martial (tribunals under the military law) have been exempted from the writ jurisdiction of the Supreme Court and the high courts under article 33.
Section 21 in The Army Act, 1950
Power to modify certain fundamental rights in their application to persons subject to this Act. 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.
Article 33 & 34 empower the Parliament to restrict, modify or abrogate the fundamental rights of the members of armed forces, para-military forces, police forces, members of intelligence agencies or similar services.
The Army personnel are only allowed to vote in the election as a citizen.
fundamental rights of armed forces
Let’s get some basics sorted out first. The Indian Army is and MUST remain an apolitical organization. However, that should not and does not mean that individuals who form part of the organization also need to be bereft of any political views as individuals, or that they should be prevented from the legal expression of those views in their individual capacities. This is part of their fundamental rights as citizens.
It is true that on joining the armed forces, an individual agrees to some of his or her fundamental rights being restricted.
Since the Army Act dates back to 1950, much before the advent of social media or the internet, it does not cover the conduct of persons subject to it online.
This gap is filled by instructions issued be service headquarters covering the Do’s and Don’ts for serving personnel while posting online.
They are as under:
1. Policy on Use of Social Media by all ranks is reiterated.
(a). use of internet an social media is permitted for private propose; however, under no circumstances, the army personnel will disclose their official identity in social media. Personal details to include rank, unit, formulations, and appointments, place of duty or move will not be uploaded on social network sites.
(b). operational or administrative matters, issues affecting the image of army and comments on matters related to policies/ activities on Indian Armed forces, MoD, Government of India will not be discussed. Photos in uniform/ background depicting army installations, equipment must be avoided.
(c). Online participation on polling, campaign related to armed forces or Government of India is prohibited. Army personnel must not create or be a member of group depicting religious sects, political groups, foreign military networks, hate groups etc and are prohibited from circulating chain mails, messages, posts etc on aspects of armed forces.
So, in effect, there is no rule prohibiting armed forces personnel from expressing their personal political views on social media individually. And that, I believe, is the way things should be.
And in this day and age of the feedback-driven world, wouldn’t it be unfair both to him and to those who represent him to deprive him of the freedom of expression which would convey his opinion to the political class and allow the same to be an input in their decision-making process.
That brings us to the disturbing fact that a large number of people suffer from this misconception, probably stemming from an idea of what they feel ‘ought to be’.
Post-independence, this mindset was difficult to shed by senior officers themselves, having been brought up in such an environment, and therefore they continued to discourage political thought.
This also suited the leaders of the nascent government, in whose minds the colonial regime’s fear of mutiny was replaced by dread of a political coup by the army.
The fact that until recently, there was no concerted effort by either the military or the civilian leadership to ensure that soldiers got to actually exercise their right to vote, is demonstrative of this.
Today, almost seven decades after independence, things have changed in a couple of ways.
The army has remained an apolitical organization, having repeatedly proved itself in war and in peacetime turmoil.
The spectre of a military takeover doesn’t haunt the political leadership (or at least, given the track record, it shouldn’t).
Also, and significantly, the soldiers and officers today are more connected to the ‘outside world’ thanks to increasing awareness and availability of improved tools including mobiles, internet and social media.
To say that a soldier in the 21st century would not have a political opinion would be naive.
And to deny him the expression of the same, within the framework of existing rules, would be curbing his fundamental rights over and beyond what is laid down in the Army Act.
Enlightened democracies world over have rational and liberal rules in this regard.
It is time, therefore, to shed our outdated perceptions about what does and does not constitute an apolitical army.
To put the record straight, it implies that while collectively and as an organization participation in politics and expression of political views are prescribed, there are no restrictions in doing so in an individual capacity.