Wednesday, August 17, 2016

What if President Overrules Orders of PM to Use Nuclear Weapons? Whose Orders Shall Indian Military Follow?

There has been serious ambiguities left in Indian Constitution in relation to management of defence of India. Unlike written constitution of sovereign nations, Indian constitution is silent on political management of defense. India today is a nuclear power. What if President as supreme commander of defense forces overrules PM over orders of firing of nuclear weapons by Military? Whom shall military obey? This is a doubt which exists in many military minds and needs clarification.

To further understand above let us see what does constitution says on management of defence?

Our constitution was actually designed for a dominion nation with No well defined  military responsibilities. It was drafted by British and copied with suitable amendments when India gained freedom.

What was the arrangement during British period just before freedom?

1. Indian military and defense of India was controlled by British Govt in London.

2. Viceroy India only dealt with internal security of India related to law and order and had no jurisdiction over defense of India.

3. Cdr in Chief Indian Army was solely responsible for execution of military strategy as approved by British Govt in London. On military strategy, Cdr in Chief was not required to consult viceroy but only keep him in information loop if required.

4. However to cut the British cost of defense, Indian military was attached to Central Govt of India for administration. All cost of salaries, equipment and administration of military in India  was borne by Indian budget.

5. Ministry of defense was structured only to provide administrative support to military.

While status of dominion of India under commonwealth was being structured not much change in administrative arrangement for defence of India was envisaged.  Though Governor General of India became responsible for immediate border defence of India, however Indian military was expected to evolve a strategy coordinating it with military strategy of Commonwealth.  Structure of Defence Ministry was not tempered and Indian military remained attached with Central Govt of India only for administration respecting independence of military power.

Constitution of free India surprisingly didn't  change the basic arrangement of higher political management of defense. Let us see what does constitution say:

1. Indian military still remains attached with Central Govt of India respecting its independence from political structure of India as was the case during British Period.

2.  Basic structure and role of Defence Ministry remains same as it was during British period to provide administrative support to Indian military bearing its all cost.

3. Instead of Queen in British India or Governor General in Dominion of India, President becomes Cdr in Chief of the Defense Forces. Under article 53 (II) Executive Military Authority has been separated from Executive Political Authority. Under article 53 military power is not subordinate to civil political power. These are two separate hats over the head of president.

4. As per Oath, it becomes responsibility of president to defend India. That means supreme executive military authority is vested in President. PM doesn't take oath to defend constitution. Chief Justice takes oath to defend constitution but only for upholding rule of law.

5. Military Officers are given commission by President and their parchment letters are signed by a military officer under a warrant from President.

6. All higher commander are given certain military powers under authority of warrants given by president.

7.  As per oath of military officers they have to OBSERVE first before OBEYING orders of President and any other military officer put over them as their commanding officers.  Command is legally defined word and can not be delegated or exercised under advice. That means even President can not delegate his powers of command to PM or the powers of command as per definition can also not be exercised on advice. Means while exercising his powers of command, President is not bound by advice of cabinet as military commands are absolute authority.

8. In practice it is Cabinet which advices president in his functions and under article 74 this advice is mandatory on President to follow. On matters of defence it is cabinet committee on security which takes all executive political decisions to advice President.

Now the question is "Is article 74 applicable on Military Authority of Command by the President and his subordinate Military Officers"? Further, article 34 gives military powers to declare martial law suspending civil political authority? There exists a serious ambiguity.

1. What is the correlation between article 74 and powers of military command of supreme commander?  As per legal definition of command it can not be delegated or exercised under advice. Does that means advice of cabinet on military matters are not binding on president and he can exercise his military authority of command without any reference to cabinet?

2. What is the correlation between article 73 and article 34? Article 34 gives powers of declaring martial laws to military commanders.

What if orders of President and Cabinet to military are different? Whose orders military officers shall observe to check its political correctness and then obey it? They take oath to observe and obey the orders of the president. Military orders are absolute in nature. Military officers if go by their oath then shall follow the orders of President and not the PM.

As per law, Military Chiefs hold appointment under a warrant of President. By oath and warrant their loyalties are towards president and not the PM.

Constitution is vague and leaves a serious gap in decision making on matters of defense.

Article 53, in fact demands a law for the president to exercise his military authority. Unfortunately same is missing.

India is a nuclear power today. What if President overrules PM on usage of Nuke?
Defence of India shall not be left into such deep vagueness.

Law makers shall debate this issue and make suitable legal provisions on

1. For President to exercise his military authority in accordance with law as envisaged under article 53.

2. For functioning of Cabinet Committee on Security and process of declaring war and peace by President. Defense of India is as serious a matter as passing a finance bill. Surprisingly procedure on finance bills are so clearly defined but decision making process on defence is missing.

3. To clarify correlation between article 34 and 53 (II) on one hand and article 74 on other.

4. To make laws for service conditions of defense personals under article 309 to 313 removing serious gaps in management of military personals. Practice of defense regulations are more followed under monarchy. Surprisingly Indian military still has many provisions regulated through such regulations and laws are missing.

The vagueness as existing in higher political and military management of defence in India is serious cause of concern specially so when India is a nuclear power. Management of defense of India needs clear constitutional provisions and law makers shall consider same.

Let good sense prevail