How Can that be? A question will immediately pop up. But that is true. Indian military did fight, few wars or war like operations and is still fighting on LOC, which had or has no approval of constitutional and administrative law.
Kargil War, Operation Parakram and ongoing war like deployment and missions on or across LOC, do not have proper constitutional sanction. Govt is somehow committing Indian Military in such wars without constitutional backing, which have huge risks and serious repurcussions for people and soldiers alike.
Indian constitution has been framed promoting India as peace loving nation, therefore it does not make any peace time provisions for committing military in war or war like military missions, within India or on or across borders or as international expeditionary force committed under UN or otherwise as part of a treaty. In peace time, military commanders can commit troops in aid to civil authority only under two circumstances:
- When an area or region or state has/ have been declared distrubed by the Governor of the state and army is given autonomous legal authority and powers by the state by applying Armed Forces Special Powers Act. Under this provision, army mobelises itself, to assist state govt in maintenance of law and order and military commanders of various ranks use military force as empowed by the said law on its own, following the principle of minimum force as directed by honourable Supreme Court. In distrubed areas state govts are also required to create special courts under Disturbed Area Special Court Act 1976, which none of the govts have done. Absence of such courts make military operations toothless and ineffective. It puts extra pressure on soldiers and in desperations, they sometimes use unlawful methods to eliminate terrorists. It not only causes miseries to the people but also exposes soldiers to various human right violation charges.
- When the military is requisitioned by district administration or state govt to assist them in law and order problems to disperse unlawful assemblies or in any other emergencies, like floods or natural disaster. The legal provisions for such military missions exist in IPC, CrPC and various other military laws and regulations. In such cases military is handed over situation for a very short time.
Provisions of wars have been made under emergency provisions of the Constituion under Part XVIII ‘Emergency Provisions’.
Article 352 (I) of the Constitution states ‘If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, made a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation Explanation A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is is imminent danger thereof
Under this provision emergency was declared by the President in 1962 and 1971 wars. Alongwith emergency, Defence of India Act was also applied to legally empower military to manage and conduct war. It also empowered civil autorities for providing due assistance to military for such war.
Article 352 (III) of the Constitution further states ‘The President shall not issue a Proclamation under clause (I) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank under Article 75) that such a Proclamation may be issued has been communicated to him in writing.
This article makes it mandatory for the President to sign such emergency in writing only on recommendations of the cabinet. PM or any other minister like Defence Minister or Home Minister have no constitutional authority to recommend imposition of such emergency. It is only cabinet committee on security chaired by PM, which can make such recommendation to The President who in turns then, ater satisfying himself, signs it in writing to impose emergency.
Article 352 (4) makes it mandotory for the govt to take approval of the Parliament for such imposition of the emergency.
Please note that imposition of emergency gives certain sweeping executive authority to the govt cabinet for taking certain decisions however it does not empower military for any action. Military draws its authority for mobelisation for war or manage and conduct of war or war like missions under Defence of India Act or Ordinance. Ordinance is signed by the President again in writing on recommendation of the cabinet.
Military thus is empowered to wage war by three main following executive actions
- Imposition of emergency as explained above. It is must.
- Application of Defence of India Act or Ordinance.
- Poltical direction for war to military by cabinet cammittee on security as per govt business rules.
It is therefore duty of military chiefs and army cdrs to ensure before committing troops for war or war like missions, that above three executive actions of the govt are in place and communicated to them in writing by the Ministry of Defence or Cabinet Sectt directly. Please note that Prime Ministers office is an attached office as per govt business rule and is not authorised to communicate cabinet decisions, which is a sole privilege of Cabinet Sectt.
During ‘Operation Blue Star’ though emergency was declared and State Govt dismissed imposing Presidents rule, but Defence of India Act or Ordinance was not applied. Military was employed in aid to civil authority under Disturbed Area and Armed Forces Special Powers Acts. The employement of military was legally covered as in aid to civil authority.
It may be understood that while empowering military for any war or military operation or mission, constitutional provisions can not violated. Military also needs to be empowered legally by required administrative laws as explained above. Any govt direction for any military operations or mission, which has not been taken after imposing emeregency or applying any administative law is constitutionally illigal. As per military laws, every commissioned officer is only required to observe and obey legal orders. If he or she violates such legal provisions, he or she is then liable for criminal proceedings not only under laws of the land but also under international laws like for war crimes. Absence of proper legal support also makes army or officers or soldiers liable to pay damages and also face criminal suites.
With above explanation now come to the issue of wars or war like missions or mobelisation for wars of India, which were not approved as per constitution. Main military operations are: Operation Pawan, Operation Parakram, Kargil War, ongoing military operations on LOC including surgical strike. In none of these military operations, emergency was imposed, no administrative law empowering military to wage war or conduct operation was applied. This is a serious constitutional failure on part of govt as well as military. These failures expose military leaders and officers to criminal liabilities in terms of framing of criminal charges, criminal suites or damages and also create a situation where govt applies compensation policies as per their whims and fancies.
It is very surpising that Indian army is carrying out war like military operations on LOC for last so many years, without any legal backing and also Govt ordered operations like surgical strikes without any lagal authrotiy.
There is an urgent need to plug such gaps to provide required legal framework to military leaders and officers as per best practices and ethics of democracies. Such laws will also help govts in upholding rule of law.
The objective of this article is to generate discussion on this key subject and help govt in framing proper laws. It will also prepare a ground for proposed PIL in Honourable Supreme Court to direct govt to frame such laws to prevent any constituional violations, if required.