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New
Delhi, 19 September 2002
The
recent spat between the Government and the Election Commission
regarding Articles 74 and 324 of the Constitution, which has now
been referred to the Supreme Court by the President, has sparked off
this Military review of the Constitutional provisions relating to
matters of Security and Defence. The PM had spoken of likely war and
mobilised the Armed Forces and now Musharraf has also said so in New
York. (see media watch).
These
are serious matters. The makers of our Constitution left Defence out
of the book, as they were inexperienced on this subject. The UK has
no written Constitution, but the PM is powerful enough to take
decisions on security issues, a legacy left behind by Churchill.
In
India we have a written Constitution but it is unlike the US
Constitution, which we copied in parts, despite theirs being a
Presidential system. The US Constitution has many Articles to guide
Military organization and policy. It lays down the criteria for
selection of Chiefs and even the seniorities permitted to the post,
which encourage merit, and not seniority alone as in India.
The
founding fathers of India’s Constitution treated Defence as yet
another subject to be handled by the Council of Ministers under
Article 74, thus forcing the PM to consult them heavily. Today we
have the CCS, which handles matters but it is more important than
ever before to have some codification and this is a core subject for
the Council of Ministers.
We
are of the firm view therefore, that the Prime Minister has a very
serious fulltime responsibility to perform during times of war and
mobilization. The Dy. PM is not mentioned in the Constitution and in
the PM’s absence, as it happened in 1962 when Panditji was away
for a month, and again for three weeks during the Kargil War, vital
decisions were delayed.
When
the Armed Forces are mobilised, placed on alert or at war the PM has
to interact directly with the Chiefs, since there is no Chief of
Defence Staff per se with any powers, even if one is appointed to
replace the present temporary and mostly ceremonial CIDS, who is
junior to the Chiefs. This is more relevant with a 24 party
coalition when the Defence Minister is not from the majority party.
India is also now a nuclear power but with no Strategic Force
Commander and the Nuclear button, if there be one, is in the hands
of the PM or his National Security Adviser, another newly created
important post not recognised by the Constitution. In the absence of
PM like he is now in NY, the nuclear button should be in the
knowledge of the Dy PM –– unless there is nuclear bluff being
played out by Pakistan and India.
Our
Analysis may be treated as an academic discussion. At the CII
seminar held last week, the keynote speaker Ashley Tellis, Adviser
to the US Ambassador on India’s Nuclear Posture, praised India’s
recessed weapon capability as USA wants it so, but being a nuclear
power puts a grave responsibility on the Nation. The PM is de facto
C-in-C of India, so the three Service Chiefs, the Operators of the
Nuclear Strike must interact with the PM who holds the Nuclear
button’s key.
Present
Status
The
President of India is the Commander-in-Chief of the Armed Forces in
name. India copied this modus operandi in the Constitution from the
British system. But in UK unlike in India
the King or Queen are in direct touch with the Armed Forces
even as Colonel Commandants. The Royalty even join the Armed Forces.
The President of Singapore is in the same position but he
attaches a Lt Col/Equivalent to his office every month to act as his
aide. In this manner he is in touch with the pulse of the Armed
Forces and the senior officers learn of how the Government functions
vis a vis the President. In India the bureaucracy (IAS) controls the
Armed Forces so operational dysfunction is possible, because it is
interesting to know that the President and Council of Ministers
derive their status from the Constitution of India, a written
document. Certain provisions of the Constitution which have a
bearing on Defence are therefore
reproduced below for review and in passing one may say that
in 1965 a Joint Secretary ordered the Navy Chief not to operate too
close to Pakistan!
Article
52:
The
President of India: There shall be a President of India.
Article
53:
(1)
The executive power of the Union shall be vested in the
President and shall be exercised by him
either directly or through officers subordinate to him in accordance
with this Constitution.
(2)
Without prejudice to the generality of the foregoing
provision, the Supreme Command of the Defence
Forces
of the Union shall be vested in the President and the exercise
thereof shall be regulated by law.
(3)
Nothing in this article shall –
(a)
be deemed to transfer to the President any functions
conferred by any existing law of the
Government of any State or other authority;
(b)
prevent Parliament from conferring by law functions on
authorities other than the President.
Our
Analysis
The words ‘regulated by law’ are
confusing. In India we have the Supreme Court to adjudicate but in
UK the House of Lords is that body and being part of the Parliament,
there is no conflict.
Wherever the Constitution requires the
satisfaction of the President or the Governor for the exercise by
the President or the Governor of any power or function, the
satisfaction required by the Constitution is not the personal
satisfaction of the President or Governor but the satisfaction of
the Council of Ministers on whose advice the President or the
Governor generally exercises all his powers and functions. (1974) 2
SCC 832. This issue has been discussed in the case of the sacking of
Admiral Vishnu Bhagwat in the book “Admiral Vishnu Bhagwat Sacked
or Sunk” by Brig RP Singh and Cmde Ranjit B Rai (Manas). It is not
clear if the President gave his clearance or he was just informed by
the Defence Minister. The Modus Operandi needs to be specified for
the future.
Article
73:
Extent
of executive power of the Union. –
(1)
Subject to the provisions of this Constitution, the executive
power of the Union shall extend—
(a)
to the matters with respect to which Parliament has power to
make laws; and
(b)
to the exercise of such rights, authority and jurisdiction as
are exercisable by the Government of
India
by virtue of any treaty or agreement:
Provided
that the executive power referred to in sub-clause (a) shall not,
save as expressly provided in this Constitution or in any law made
by Parliament, extend in any State1 to matters with respect to which the Legislature of the
State has also power to make laws.
(2)
Until otherwise provided by Parliament, a State and any
officer or authority of a State may,
notwithstanding
anything in this article, continue to exercise in matters with
respect to which Parliament has power to make laws for that State
such executive power or functions as the State or officer or
authority thereof could exercise immediately before the commencement
of this Constitution.
Article
74:
Council
of Ministers to aid and advise President. –
(1)
o
(2)
The question whether any, and if so what, advice was tendered
by Ministers to the President shall not be inquired into in any
court.
Article
310:
Tenure
of office of persons serving the Union or a State: —
(1)
Except as expressly provided by this Constitution, every
person who is a member of a defence service or of a civil service of
the Union or of an all-India service or holds any post connected
with defence or any civil post under the Union, holds office during
the pleasure of the President, and every person who is a State
offical, holds office during the pleasure of the Governor of the
state.
(2)
Notwithstanding that a person holding a civil post under the
Union or a State holds office during the pleasure of the President
or, as the case may be, of the Governor of the State, any contract
under which a person, not being a member of a defence service or of
an all-India service or of a civil service of the Union or a State,
is appointed under this Constitution to hold such a post may, if the
President or the Governor, as the case may be, deems it necessary in
order to secure the services of a person having special
qualifications, provide for the payment to him of compensation, if
before the expiration of an agreed period that post is abolished or
he is, for reasons not connected with any misconduct on his part,
required to vacate that post.
Our
Analysis
From
the above it becomes clear that even a person under contract with
the Central or State Government has more rights than Defence Service
officers have, in the matter of protection of their tenure. The
draconian preamble in the Constitution for Service Officers, coupled
with Article 310 act extremely harshly in their case. We have stated
before that Article 310 is a relic of the British Empire and not
valid in independent India. In a democratic system every person has
a right to be heard. However, under Article 310 it is incumbent on
the President to terminate any officer’s commission –– even a
Chief of Staff, if the Council of Ministers so advise without giving
an officer a chance to be heard. Whether this advice is to be in
writing or oral is not specified. We feel this article must be
abolished as other measures such as Court Martial or prosecution in
a Court of Law are possible and feasible. Even if this Article has
to be invoked, the President must hear the Officer, especially if he
is of high rank and exercise his mind. In India political
vindictiveness has come to stay more and more, and as a democracy
service officers need safe guards.
President’s
Position
(Thanks
to Late Prof. Bal Krishnan’s manuscript in parts)
India
it must be noted has followed the British model, and therein lie
flaws.
In
Great Britain the Prime Minister has by an unwritten Constitution
acquired the character of a plebiscitary dictator over the entire
functioning of the British Polity. But in the case of India the
Union Prime Minister is not in a position constitutionally to become
a plebiscitary dictator by virtue of the above mentioned articles
especially Art 74, because of the special and unique features of the
Indian polity which are quite visible and now borne out by the
Election Commission having been challenged.
This
difference between the positions of the Prime Minister of Great
Britain on the one hand and the Prime Minister of the Indian Union
on the other, made the nature of the power equation between the
British Crown with the Prime Minister of his country quite different
from the power equation that was constitutionally provided for
between the President of India on the one hand and the Union Prime
Minister on the other hand.
Another
material difference between the position of the King or Queen of
Great Britain and that of the President of India is to be seen in
respect of their tenure of office. While in Great Britain the King
or Queen remains on his or her throne only so long as he or she
maintains a harmonious relationship with the Cabinet and the House
of Commons, notwithstanding their ascending the throne on the basis
of the hereditary principle, the President of India remains in
office for five years even though he may not be fully in harmony
with the Union Council of Ministers, the Union Prime Minister and
even the majority of the members of the Lok Sabha. He can only be
impeached and with today’s fragile majority, a two-thirds majority
is unlikely to be feasible.
This
brings us to Article 74 as it stands after the forty-second
amendment to the Constitution. It cannot compel the President as an
integral element of the Union Legislature to abide by the advice of
the council of ministers in all circumstances in the matter of the
promulgation of ordinances. He can also withdraw an Ordinance. This
does not mean that even if the council of ministers put forward
facts that would satisfy a reasonable person of the necessity of the
promulgation of an appropriate legislative measure to meet a
challenging situation which has arisen when the two Houses of
Parliament are not in session, the President shall be competent to
refuse to promulgate the legislative measure recommended by the
council of ministers. What is being urged is only that the President
must be satisfied of the necessity of the promulgation of the
recommended ordinance. No President who remains loyal to the oath of
his office will act arbitrarily in the matter. This happened
recently when President APJ Abdul Kalam sent the electoral bill
back. If on its return he had kept it in his drawer there would have
been a Constitutional crisis.
Apart
from the dangerous possibility of the misuse of the power of
promulgating ordinances undeniably there has been gross misuse of
the power of the declaration of Emergency as also the power of
dismissing the elected Govt. of the constituent states and the
establishment of the President’s rule therein.
This misuse became possible, as above said, because the term
‘President’ occurring in Articles 352 to 360 of the Constitution
was taken to mean the President as the Chief Executive of the Union.
In
this connection attention is drawn to the fact that Article 356 of
the Constitution is not subject to the amended Article 74. What even
the amended Article 74 provides is simply the inevitability of the
existence of a council of ministers at the Union level before it can
be held that the machinery provided for the running of the Union
govt. has been fully set up.
In
war there is little time for machineries to be set up. Further it
also provides that this council shall be legally competent to tender
advice to the President as the head of the Union Executive and the
President in that capacity shall abide by the advice tendered to him
by that council of ministers. But it does not provide that the
President as an integral element of the Union Parliament shall be
bound by the advice of the council of ministers. Again, Article 111
is very interesting and not subject to Article 74. In view of the
fact that a legislative Bill can be passed by the two Houses of
Parliament only if and when it is fully supported by the Union
council of ministers, there cannot arise any occasion for that
council to tender advice to the President to veto the Bill so passed
by the two Houses of Parliament. So when Article 111 grants power to
the President to veto a legislative Bill so passed by the two Houses
of Parliament, it contemplates that the President shall exercise
that power in accordance with his own individual judgment. Of
course, ordinarily, the President as an integral element of the
Union would give due weight to what the two Houses of Parliament
have done in respect of the concerned Bill, and would give his
assent to that Bill unless he strongly feels that the Bill is not in
the interest of the Nation or violates even indirectly the spirit of
the Constitution.
Conclusion
If
the above explanations on simple issues in our Constitution hold
water for doubts and confusion then in the cases of Defence, the
selection of Chiefs, the relations between the Chiefs of Staff and
the Prime Minister, Defence Minister and the National Security
Adviser, the National Security Council and the Cabinet Committee on
Security, need to be properly regulated in the Constitution for more
secure and proper decision making.
We
invite discussion and inputs as a Committee is at present sitting to
amend the Constitution.
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