Operation Blue Star; Was it Also Constitutionally Right?

Operation Blue Star; a regrettable military action, is a black chapter in Indian History. It was the worst case of political power game of Kutil Niti orchestrated by some from Delhi, going terribly wrong. A problem was presented for Pakistan to exploit. A situation of armed rebellion thus created, left no choice except the use of the army to disarm and arrest them. Army leadership too acted in haste without aligning military strategy to socio-political sentiments and not only caused avoidable damage to The Holy Golden Temple but suffered heavy fatal casualties too.

The operation, which caused a deep emotional wound among masses following Santan Dharma, still remains as a subject of debate not only from point of view of a questionable military action but also from point of view of Kutil Niti hich violated the constitutional mandate.

Known journalist Ramesh Inder Singh has written a column in Hindustan Times titled ‘Operation Blue Star; Who Moved My Army’. The article explains how the Governor of Punjab, requisitioned Army under the provisions of aid to civil authority and then army took actions under its legal powers as given in the Disturbed Area Act already in place.

The writer rightly so brings into the discussion, the legal provisions of calling the army in such situations. Were the procedures followed, comply with constitutional provisions? Especially so when President of India, who is also the supreme commander of Defence Forces, complained of he not being consulted while the cabinet ordered the army to disarm rebellions hiding in the golden temple.

This article takes the debate further to briefly point out certain gross violations of constitutional provisions.

Indian constitution does not empower the central cabinet or state govts to use military force during peaceful conditions. This provision has been made purposefully to separate out soft power of the state from the hard power of the union. It also keeps a check on central cabinet from temptations of using military force with party politics motives which could be harmful to democracy and fundamental rights of people as guaranteed in the constitution. It also prevents consolidation of hard power in hands of few thus reducing the risks of rising of a civilian dictator.

Indian constitution creates a robust legal framework for the state to use military forces against a military threat if required, with proper political checks and balances inbuilt in the decision making process.

Under Chapter Eighteen of Indian Constitution, clear provisions have been made to deal with threats to national defense. It says that The President of India has the power to impose emergency rule in any or all the Indian states if the security of part or all of India is threatened by “war or external aggression or armed rebellion”. The constitution also says that the cabinet will make such request to President to impose emergency in writing and President will then give his written orders accordingly. This part of constitution also makes it mandatory for the parliament to approve such imposition of emergency, within two months.

The legal framework for army to act then comes from cabinet decisions taken under emergency provisions giving political directions to military and army then acting under its own authority of military command and powers as given under Defense of India Act and Rules.

It is clear from above constitutional provisions, that army draws its legal powers to act in case of war, external aggression like Kargil or Pulwama or internal armed rebellion like in Punjab in this case, only when an emergency has been imposed by the supreme commander of defense forces and then the army has been given political directions by the cabinet under same emergency provisions in writing.

The constitutional provisions also makes parliamentary review of imposition of such emergency mandatory within two months.

Now the issue is, in the backdrop of the above legal framework, were right constitutional provisions applied while employing the army to disarm armed rebellions hiding in the golden temple? Certainly not.

Here it must be understood, that from point of view of constitutional provisions and law, following situations have been envisaged where military force can be used following due course of law:

  1. Under emergency provisions as explained above in the case of war or external aggression or internal or externally abetted armed rebellion. In this case, the employment of military remains in force as long as emergency is in place.
  2. In Aid to civil State Authority, where either an area has been declared disturbed by the governor of the concerned state and army is required to arrest armed or unarmed criminals causing disturbances or prescribed state authority has requisitioned army to disperse an unlawful assembly. In both cases, the deployment of the army is temporary in nature and the army must go back to its barracks as soon as possible.

Here it must also be understood that under aid to civil authority, the army works on the principles of minimum force as decided by the local army commanders. Whereas under the situation of war or external aggression or armed rebellion appropriate military power with maximum force is used to create the desired shock impact. In both cases approach to use military force is legally different.

Now few key questions are? Who will decide what kind of military threat exists? Is it a local disturbance or a state of armed rebellion? Is cabinet capable of making such military assessments without the advice of military commanders? Certainly not. The decision of the cabinet has to be based on assessments given by military commanders. The process of every member of cabinet consulting military commanders to rightly assess the quantum of military threat to national defense or national interests is inherent to discussions in the cabinet meetings before arriving at a political decision/ directions.

It is only once military commanders have presented their military assessments and every member of the cabinet has satisfied himself/herself, the cabinet shall make a decision on what constitutional and legal course shall be taken? Shall imposition of emergency be recommended to the president and also the supreme commander of defense forces or concerned state governor be asked to apply disturbed area provisions?

The constitutional and legal frameworks make it very clear that within the military domain, it is only military commanders who shall take the decision. The same rule applies when the army is called in aid to a civil authority or in case of national emergency. The assessment, if the state of armed rebellion exists or it is a temporary disturbed state is a military assessment and in case cabinet or governor has not taken appropriate military advice, then it is the job of military commanders to give such advice in writing and then ask govt to provide proper constitutional mandate. It is the duty of military commanders to ensure proper legal support to their military operations as per the constitutional provisions. This is how their oath, appotnment procedures and military laws are structured.

In the case of Operation Blue Star and also in cases of Operation Pawan, Kargil War, Operation Parakram, and Balakote airstrikes, proper constitutional provisions have not been followed. Though from the military point of view in Punjab, a state of armed rebellion prevailed, but the actions were taken under the disturbed area act. No proper military assessments were presented to the cabinet or governor and cabinet avoided taking the matter to the president. Military commanders, it appears accepted political directions without applying military thoughts.

Same is happening in Kashmir, army assesses the military threat as a proxy war but the state prefers to assess it as law and order problem under disturbed area act.

In a healthy democracy political misuse of military powers is fraught with serious consequences. It is not only detrimental to democracy but harmful to the fundamental rights of the citizens. When the proper provisions have been made in the constitution to deal with various military threats then why to violate these? Constitution does not empower any executive authority to make a poltical choice ignroing constituional provisions.

Maybe it is time to bring the subject matter in the debate so as to streamline decision making on matters of national defense as per the constitution. The issue gains more importance as it appears in case of Balakote Air Striles too, the right constitutional path was not followed. The matters of national defense shall not be allowed to go out of the review of president and parliament and military assessments must be made to help the cabinet in taking right political decisions on issues having military implications.

Operation Blue Star is a classic case of failure of constitutional apparatus where every institution of the state including military leadership failed in performing their respective duties. There can not be a debate on question of army disarming a military threat but willfully ignoring constitutional provisions led to a disastrous and regrettable military operation.

National defense is not a domain to play Kutil Niti as Indian politicians practice. It is a matter of national survival. The subject needs to be given all due respect as it deserves as per the constitution. Why shall Cabinet not recommend imposition of emergency when it exists? Recently US President proclaimed emergency to build a wall on Mexico borders. Why are military leaders executing military operations which have not been constitutionally mandated? No one is questioning the authority of the state to deal with threats to national defense but follow the procedures as given inbuilt checks and balances make such actions more rational and judicious. It is a question of upholding the law in the larger intrest of justice.

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2 thoughts on “Operation Blue Star; Was it Also Constitutionally Right?

  1. The use of Forces is governed by Constitution of India Article 355 Duty of the Union to protect States against external aggression and internal disturbance.

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