Congressman John Rowan of Kentucky once said that “Society will never submit life to the discretion of a military court, except under the most absolute and imperious necessity, in which a civil court cannot interfere, particularly during war.” When martial law is asserted, civil liberties, such as the right to free movement, freedom of speech and expression or protection from unreasonable searches, can be suspended. The justice system that typically handles issues of criminal and civil law is replaced with a military justice system, such as a military tribunal. Civilians could also be in remission for violating curfews or for offences that, in normal times, would not be considered serious enough to warrant detention. Laws relating to habeas corpus that are designed to forestall unlawful detention can also be suspended, permitting the military to detain individuals indefinitely while not the chance of recourse.
Martial Law or Military Law
Generally, people mistake martial law as military law however, it has been understood for an extended time now that Martial Law and Military Law don’t seem to be the same, as these are determined as two entirely different laws of a particular state.Expounding the character of Martial Law, Sir Matthew Hale in 1713 ascertained that Martial Law, owing to the circumstances that make it necessary, “in Truth and Reality isnot Law, but something indulged rather than allowed as Law.” He conjointly asserted thatthe exercise of Martial Law, owing to its nature, is not to be permitted when civilian courts are functioning.
Confusion was caused by the 1792 opinion delivered by Lord Chief Justice Loughborough in Grant v. Sir Charles Gouldbecause in this case the phrase Martial Law was understood by Lord Loughborough as akin to what we today would call Military Law, i.e. laws that apply to members of the military and armed forces. By 1870, though, it was clearly understood that Martial Law and Military Law are not the same things. By 1902, this distinction became very clear, as Military Law is statutoryand is applicable to members of the military and armed forces whereas Martial Law is the law of necessity and inevitably exists for the protection of society when, and where, civilian authorities and courts are unable to operate.
A sequel of Martial Law
In a state when the military acts independent of the civilian authorities and courts, the civilian authorities and courts may be allowed to function, but they function not as of right but, “in subordination to the military authority and to the will of the general or other officer in command, by whose permission it is exercised, and under whose direction they conduct judicial business and administer the law.”
Under Martial Law, it is upon military commander’s will to have it applied, so far as ordinary matters of litigation are concernedbycivilian courts.If, civilian authorities and courts function in a state of Martial Law, they function because the military commander allows them to function. The case of 1830, illustrate the point.
In Elphinstone v. Bedreechund from the Supreme Court of Bombay where Elphinstone, who was the sole commissioner of a territory in British India, proclaimed Martial Law in the said territory and appointedCaptain Robertson as the military commander of the area. Captain Robertson seized and imprisoned the treasurer of the local prince (who surrendered one month after the treasurer was imprisoned) and forced the treasurer to give up money that was the property of the prince. The executor of the treasurer sued Captain Robertson andElphinstone for the money in the Supreme Court of Bombay.The court held that, “the Courts being open, the war was over at the time when the treasurerwas thus imprisoned, that the property belonged to the treasurer, and that thereforethe executorcould recover it.” In the words of Frederick Pollock, “the absence of visible disorder and the continued sitting of the courts are not conclusive evidence of a state of peace.” Therefore, the functioning of civilian authorities and courts does not mean we are not in a state of Martial Law. Rather, the important question is whether the military is under the control of the civilian authority or whether it is acting independent of the civilian authority. If the military is acting independent of the civilian authority and the courts, such would be a state of de facto Martial Law whether or not it is so called.
Army Forces Special Powers Act 1958 (AFSPA)
The AFSPA is a very peculiar piece of legislation. It was enacted in 1958 in the wake of violence that had become, “the way of life in north-eastern States of India” which the state administration was unable to contain.It therefore became necessary that the state administration be aided by the military in order to contain this violence (caused by the Naga rebellion) and restore normalcy in the state. Accordingly, choosing a ‘quintessential military response’ on September 11, 1958, the Indian Parliament enacted the AFSPA.
The phrase ‘armed forces’ is defined in the AFSPA to mean, “the military forces and the air forces operating as land forces, and includes other armed forces of the Union so operating.” The AFSPA comes into force only when a normal law and order situation becomes so deteriorated that the state police force is not able to contain it. When the AFSPA starts operating in an area, the military ‘virtually replaces’ the civilian administration.It grants extraordinarily wide powers to commissioned officers, warrant officers and non-commissioned officers or any other officer of an equivalent rank of the military that are operating under this law.
In Naga People’s Movement of Human Rights v. Union of India, the constitutional validity of the infamous Armed Forces Special Powers Act, 1958 (AFSPA) was challenged before the Supreme Court of India. Since the case involved a ‘substantial question of interpretationof the Indian Constitution and, as required by the Indian Constitution, the case was referred to a Constitution Bench of five judges of the Supreme Court. The Court delivered a unanimous opinion. Justice Agrawal delivered the opinion of the Court in which all four other judges concurred. The unanimous Court upheld the validity of the AFSPA and rejected all constitutional challenges raised in the case. Also, it appears from this case that the real reason the Supreme Court declared that the military should be independent of the civilian authority is because of the complete and utter failure of the civil authority in that state.
Martial Law in India
Therefore, in 1804 the Bengal State Offences Regulation (Regulation X of 1804) was passed. Its main provisions were that, during the existence of any war in which the government might be engaged as well as during the existence of open rebellion against the authority of the government, the Governor-General in Council might suspend the functions of the ordinary courts and might establish martial law and direct the immediate trial by court martial of all persons owing allegiance to the British government in India, who should be taken in arms in open hostility to the government or in the act of opposing its authority by force of arms, or in the actual commission of any overt act of rebellion against the State, or in the act of openly aiding and abetting the enemies of the British government. On 13 April 1919, the British government had decided to put most of the Punjab under Martial Law. The legislation restricted a number of civil liberties, including freedom of assembly; gatherings of more than four people were banned.
Initially, it was seen that the Rowlatt Act started a rebellion. After passing of the Rowlatt Act an immediateagitationstarted in Punjab. TheAct allowed certain political cases to be tried without juries and permitted internment of suspects without trial.The objective of the Rowlatt Act was to replace the repressive provisions of the Defence of India Act, 1915 by a permanent law. It was based on the report of Justice Sidney Arthur Taylor Rowlatt’s committee of 1918. The British government’s decision to extend its war-time suspension of civil liberties which included restrictions on freedom of press and arrests without a warrant inflamed the Indian public, with many taking to the streets in protest and participating in strikes called by MahatamaGandhi in April.
The agitation was not violent, till the time British government decided to deal with it in a total ruthless manner. With the declaration of Martial Law on 13th April, 1919, all hell broke loose! More than ten thousand people were grounded and Martial Law courts sentenced people to death and life imprisonment. Properties of various people were confiscated. The Commanding Officer in Lahore was Lieutenant Colonel Frank Johnson. There is a record of a long list of persons hanged to death or imprisoned for life.
The famous Sir Michael O’Dwyer was responsible for the Jallianwala Bagh Massacre, where thousands were gunned down without any mercy. Unable to leave the enclosed area, in a shooting spree that lasted up to 15 minutes, some 379 people were killed and thousands injured. Among them were many women and children. The killings sparked widespread outrage, and most of Punjab was kept under martial law for several months. The episode was so horrific that it helped galvanize support for the freedom movement in Punjab, and among moderate Indians who until then saw British rule as benign.
The declaration of martial law could be a rare and significant call for a civilian government to make. When martial law is declared, civilian control of some or all aspects of government operations is ceded to the military. This implies that, in the case of elected governments, the representatives chosen by the voting population aren’t any longer in power.
We can see this as a privilege that after India got independent,until currently there has been no need for it to implement Martial Law in the state. Declaring martial law is a last resort reserved for situations where law and order is rapidly deteriorating. Therefore,it may only be declared to reign in protests, civil unrest, in a state of war or insurrections.
Frequently Asked Questions (FAQs)
- What is Martial Law?
Martial law in simple words is a law administered by the military rather than a civilian government under the extraordinary circumstances like war, invasion, insurrection, rebellion, riot or any violent resistance to law. Basically, its justification is to rebel force through force to bring normalcy for maintaining or restoring order in the society.
- How is Martial law different from Military law?
Military Law is statutory and is applicable to members of the military and armed forces whereas Martial Law is the law of necessity and inevitably exists for the protection of society when, and where, civilian authorities and courts are unable to operate.
- What happens when Military acts independent of civilian authorities and courts?
In a state when the military acts independent of the civilian authorities and courts, the civilian authorities and courts may be allowed to function, but they function not as of right rather in subordination to the military authority and to the will of the general or other officer in command, by whose permission it is exercised, and under whose direction they conduct judicial business and administer the law.
- Why was Armed Forces Special Powers Act, 1958 enacted by the Parliament?
The AFSPA is a very peculiar piece of legislation. It was enacted in 1958 in the wake of violence that had become, “the way of life in north-eastern States of India” which the state administration was unable to contain. It therefore became necessary that the state administration be aided by the military in order to contain this violence (caused by the Naga rebellion) and restore normalcy in the state. Accordingly, choosing a ‘quintessential military response’ on September 11, 1958, the Indian Parliament enacted the AFSPA.
- Where is Martial law defined in the Indian Constitution?
Martial law is not described anywhere in our constitution but, Article 34 of the Indian Constitution mentions the same. It imposes restrictions on fundamental rights while martial law is in force in any area within the territory of India. It empowers the Parliament to indemnify any government servant or others for any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force.
- Has Martial law ever been declared in India post-independence?
Martial law has never been declared in India post-independence but there are number of occasions when martial law has been declared before India got its freedom.
Grant v. Sir Charles Gould, 126 Eng. Rep. 434, 449 (1792).
Naga People’s Movement of Human Rights v. Union of India, (1998) 85 AIR 431