An IDC Analysis


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)     There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:

Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

(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.


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.


Back to Top

Disclaimer   Copyright