Are military HQs; namely Army HQ, Air HQ or Navy HQs and others, part of the govt of India? This issue is generally subject of key discussions. This article, briefly makes an attempt to clarify the correct legal position of the subject matter.
The status of all govt ministries, departments, secretariats and offices; attached and subordinate both, are decided by Govt of India allocation of business rules 1961 and as amended up to 2017. These rules are issued by the president of India under article 77 (3) of the constitution of India, which reads, ‘ The President shall make rules for the more convenient transactions of the business of govt of India, and for the allocation among ministries of the said business’. Accordingly business rules have been issued by the President. https://cabsec.gov.in/writereaddata/allocationbusinessrule/completeaobrules/english/1_Upload_1187.pdf
These rules identify various organs of the central govt as ministries, departments, secretariats, offices. The offices are further divided into attached offices and subordinate offices. Attached offices are those which exercise executive functional autonomy as per the law. All military HQs like Army HQs, Air HQs and Navy HQs etc as is known are attached offices to ministry of defence.
What is the definition of attached offices? The manual of office procedure defines these offices as ‘where the execution of the policy of the Government requires decentralisation of executive direction and the establishment of field agencies, a Ministry has under it subsidiary offices which are called attached and subordinate offices‘. Please note the word ‘decentralisation of executive directions‘. So military HQs as per this definition have executive powers of govt vested in them.
The issue is further clarified in rule 2 of Govt Business Rules, which says, ‘Allocation of Business – The business of the Government of India shall be transacted in the Ministries, Departments, Secretariats and Offices specified in the First Schedule to these rules (all of which are hereinafter referred to as “departments”). Please note highlighted portion. For all functional purposes offices shall be referred as Govt Departments. Therefore legal status of the all Military HQs is that of a Govt Department. It makes it absolutely clear that Military HQ are part of the govt and are supposed to function as department of the govt as per the executive authority as vested in them by law.
Please note that every govt department functions under the respective given laws. Military HQs draw their powers from various military laws and regulations. Please also note that these executive authorities as delegated by President to commissioned officers under article 53 (1) of the Constitution are supposed to be exercised in accordance with oath and laws and also president’s warrants as given to top military leaderships. The said article reads, ‘The executive power of the union shall be vested in the president and shall be exercised by him/her either directly or through officers subordinate to him in accordance with this Constitution”. All commissioned officers are subordinate to President. Now read the presidents parchment as given and read its language and also do not forget oath which makes it mandatory for every commissioned officer to observe legality of command before obeying it.
The above explanation makes it clear that Military HQs and every commissioned and Junior Commissioned Officer are also part of govt or govt and shall exercise their authority as vested in them by law.
Now other key question, which may pop up here is, why are military HQs attached offices but a department of govt. It is simple. India is a democracy and military leaders are surely not required in day to day functioning of the civil govt. However, the same also holds true for civil govt, wherein they are by Constitution prevented from taking military decisions within military domain which is solely a prerogative of the military leaders. Our Constitution separates out hard powers of the state from the soft power. Moreover the President is also a supreme commander of defence forces so naturally, it becomes an attached office to civil govt which represents the soft power of the state.
Please note that being an attached office, military HQs enjoy complete autonomy within military domain that is hard power of the state and they shall function as military govt as per laws.
Defence Ministry has a defined role. As per website of ministry of defence, “The principal task of the Defence Ministry is to obtain policy directions of the Government (means Cabinet Committee of Defence) on all defence and security related matters and communicate them for implementation to the Services Headquarters”. Please note word ‘obtain’. Who is the seeker here? Military HQs, in fact carry a big responsibility to help civil govt in drafting defence policies as civil govt lacks military expertise. The MOD website also says ‘The Raksha Mantri (Defence Minister) is the head of the Ministry of Defence‘. Please note highlighted words. Defence Minister is not in military command.
It becomes very clear from above that as far defence of India is concerned military leaders are responsible for drafting of national defence polices, take civil govt directions and execute these with total autonomy under the authority of military command.
So in nutshell stop blaming, stop creating silly excuses like military is not govt or no one listens to you blah blah and for god’s sake start doing your work. Military leaders can not let down nation and democracy as far as its defence is concerned. Do your job and don’t look towards civil govt for every direction. Don’t wait for orders as no orders will come from civil govt because they are not supposed to give it. Even the national defence polices are supposed to be drafted by military top leadership. In Indian structure of democracy military govt is a govt within civil govt. It remains dormant during peace time and becomes dominant during wars, disturbances or emergencies and if state fails it has sole duty to defend or reboot democracy.