The right to form associations or unions is a fundamental right under Part III of our Constitution. However, it is not available to every Indian. Article 33 of the Constitution gives Parliament the power to modify the fundamental rights of the members of the Armed Forces, intelligence services, and those employed in the telecommunication systems of these organisations ‘for ensuring the proper discharge of their duties’ and ‘for the maintenance of discipline among them’. The legislations governing the Armed Forces and central police forces restrict the members’ fundamental right to form a trade union, to attend or address any political demonstration and to communicate with the press. The state governments, too, have restricted these fundamental rights of police personnel. 

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In the last three decades, the Armed Forces of most developed democracies have been subjected to substantial reforms due to the change in the nature of perceived threat and the obligation of the Armed Forces to respond to a wide spectrum of tasks. The Armed Forces of some countries have become smaller in number, cost-effective, more lethal and civilianised. They have also become subject to greater pressure from the civil society. Equality of rights, discrimination in wages as compared to their civilian counterparts, compensation and pension have appeared on the social agenda of the Armed Forces. The issue of freedom of association of military personnel and the right to form trade unions has been debated in several countries. The recent solidarity among the retired military fraternity in our country for ‘One-Rank-One-Pension’ was unbelievable. A large number of serving military personnel and their families supported the movement, albeit covertly, forcing the government to take a positive decision on a long-pending grievance.

This raises a few questions. Do military personnel deserve human rights? If so, then to what extent? Can all the rights mentioned in Part III of the Constitution be abridged or restricted for defence personnel by legislation? The Vienna Conference on Human Rights, held in 1993, emphasised that all human rights are universal, indivisible, interdependent and interrelated. It is the duty of the States to promote and protect all human rights and fundamental freedoms for everyone.

A union may offer certain advantages to its members in attaining increased wages and benefits. An effective military union can be of great service in increasing the status of a military career in the eyes of the general public, and solve the problem the Indian Army is currently facing as regards attracting officers to the service. A union can also perform a vital function in establishing a grievance process for its members in seeking an audience for their complaints and remedies to their problems. An established union, kept within reasonable bounds, could help enforce discipline in the organisation. 

Many European countries permit military personnel to form associations to deal collectively with matters affecting their living and working conditions. For example, trade unionism is an integral part of the Dutch military. Military trade unions are allowed to promote their work at military academies from where they can recruit new members. Dutch military personnel have the right of consultation with regard to wages and pensions. However, they have limited freedom of speech and do not have the right to strike. In fact, with the exception of Sweden, none of the unions or associations of military personnel in Europe have the right to strike. In Italy, where military personnel do not have the right to join professional associations or trade unions, the Italian Constitutional Court has questioned whether the ban is in line with the European Convention on Human Rights. Discontent among the British Armed Forces has prompted calls for an association to represent the rights of serving personnel. 

By and large, unions and associations appear to have contributed to improvements in pay and benefits and to the general working and living conditions of military personnel. Military officials feel that they have improved communication and resolved personnel problems and conflicts, and not affected military discipline, efficiency, or morale. In Canada, two separate studies have shown that more than one-third of military members think positively about forming a union. In South Africa, the General Regulation of 1999 provides for organisational rights of military trade unions.

Present-day military personnel in India are more conscious of their fundamental, human and natural rights, even though they are denied certain rights under the law. The arbitrariness of governance in service matter and justice delivery systems has been questioned in a large number of cases referred to the higher courts. 

The law relating to the Armed Forces remains static and requires to be changed, keeping in view the changes effected by other democratic countries. We can no longer ignore the challenges of remodelling the governance of Armed Forces and protecting the fundamental rights of its personnel. There is a need for a more authentic projection of the military as it cannot be disconnected from the civilian realm. The government must redefine the rights and duties of military personnel to ensure that the military as an employer is capable of attracting and retaining the best talent. 

The author is a retired Wing Commander. Views are personal.