Friday, September 13, 2019

CDS PART 6:THE CONSTITUTIONAL PROVISIONS FOR THE EXECUTIVE AUTHORITY OF THE INDIAN ARMED FORCES

SOURCE:
http://mycriticalreviews.blogspot.com/2016/

 https://signals-parivaar.blogspot.com/search?q=cOMMISSION+OFFICERS


CDS 

 Part 30 of N Parts
https://bcvasundhra.blogspot.com/2019/11/cds-jointness-pla-part-central-theater.html

 Part 29 of N Parts
https://bcvasundhra.blogspot.com/2019/11/part-29-cds-jointness-pla-strategic.html

 Part 28 of N Parts

Part 27of N Parts
https://bcvasundhra.blogspot.com/2019/10/chinas-future-naval-base-in-cambodia.html

 Part 26 of N Parts
https://bcvasundhra.blogspot.com/2019/10/part-26-cds-jointness-pla-n-strategic.html

Part 25 of N Parts
https://bcvasundhra.blogspot.com/2019/10/part-25-cds-jointness-pla-southern.html

 Part 24 of N Parts
https://bcvasundhra.blogspot.com/2019/10/part-24-cds-jointness.html

 Part 23 of N Parts
https://bcvasundhra.blogspot.com/2019/10/part-22-cds-jointness-pla-chinas-three.html

 Part 22 of  N  Parts

https://bcvasundhra.blogspot.com/2019/05/peoples-liberation-army-deployment-in.html


 Part 21 of  N  Parts 
https://bcvasundhra.blogspot.com/2019/09/cds-part-9-cds-jointness-pla-part-x-of.html

Part 16 TO Part 20 of N Parts

https://bcvasundhra.blogspot.com/2019/10/part-16-to-part-20-cds-jointness-list.html


 Part 15 of  N  Parts 
https://bcvasundhra.blogspot.com/2019/09/cds-part-10-pla-q-mtn-war-himalayan.html

 Part 14 of  N  Parts 
https://bcvasundhra.blogspot.com/2019/09/cds-jointness-pla-part-x-of-n-parts-new.html

 Part 13  of N Parts
https://bcvasundhra.blogspot.com/2019/09/cda-jointness-pla-pla-system-of-systems.html

Part 12  of N Parts
https://bcvasundhra.blogspot.com/2019/09/part-12-cds-jointness-pla-military.html

 Part 11 of N Parts
https://bcvasundhra.blogspot.com/2019/09/china-defense-white-papers1995.html

Part 10 of N Parts

https://bcvasundhra.blogspot.com/2019/09/part-10-cds-jointness-pla-series.html

 Part  9 of N Parts
https://bcvasundhra.blogspot.com/2019/08/cds-part-8-making-cds-effective-is.html

 Part  8 of N Parts
https://bcvasundhra.blogspot.com/2019/09/cda-part-goldwater-nichols-department.html

 Part 7 of N Parts
https://bcvasundhra.blogspot.com/2019/08/cds-part-6-chief-of-defence-staff-needs.html

Part 6 of N Parts:
https://bcvasundhra.blogspot.com/2019/08/the-constitutional-provisions-for.html

Part 5 of N Parts:
https://bcvasundhra.blogspot.com/2019/08/part-4-cds-or-gateway-to-institutional.html

Part 4 of N Parts:
https://bcvasundhra.blogspot.com/2019/08/chief-of-defence-staff.html

Part 3 of N Parts:
https://bcvasundhra.blogspot.com/2019/08/fighting-separately-jointness-and-civil.html

 Part 2 of N Parts:
  https://bcvasundhra.blogspot.com/2019/08/jointness-in-strategic-capabilities-can.html
                     

                   SECOND  PART OF THREE PARTS

                             
                                         CDS  OR  GATEWAY 
                                     TO
             INSTITUTIONAL DICTATORSHIP
                              VIA DILUTION 
                                     OF 
               CONSTITUTIONAL  POWERS


   THE CONSTITUTIONAL PROVISIONS 
                               FOR 
           THE EXECUTIVE AUTHORITY 
                             OF 
     THE INDIAN ARMED FORCES
                               BY
         COL ASHOK KUMAR SINGH

                      [ http://mycriticalreviews.blogspot.com/2016/ ]





Probability of rise of civilian dictators are more than rise of a military dictator. 

Baba Saheb Ambedkar therefore under this article, entrusted military a role of silent and invisible custodian of Indian democracy. 



Constitutional Military Executive Authority of the Soldiers comes out of the following Articles of the Constitution:

1. Article 18: respects the "Title of Ranks" of Soldiers even after his death. Soldiers never retire. Title of Ranks never die. 


2. Article 34:

  Gives military a political executive authority to intervene by declaring martial law only to restore democracy.  In India parliamentary democracy is supreme. This article makes Indian military as soldiers totally committed to democracy and "we the people". There may be situation where state fails to govern as per constitution or parliament is unable to function due to any reasons or rise of a civilian dictator endangers democracy or external/ internal aggression endangers it . In such situations constitution makes obligatory on military authorities to intervene to protect and restore democracy. Baba Saheb Ambedkar was a very wise man. He could sense that in independent India,

 probability of rise of civilian dictators are more than rise of a military dictator. 

 He therefore under this article, entrusted military a role of silent and invisible custodian of Indian democracy. 

  History of independent India is testimony to the fact that Baba Saheb was right. Military has been loyal to constitution and we the people whereas Indra tried to become dictator declaring unconstitutional emergency. Military did play its role to protect democracy, when then Army Chief cautioned Indra to remain within limits of constitution. In fact emergency was lifted as all three chiefs wrote a top secret letter to Indra Gandhi advising her to lift emergency and call for elections. Probably this is right time the content of this letter shall be disclosed to public. 

3. Article 52 read clubbed with Article 74:

 The sovereign authority of govt is vested in the President who wears two distinct hats. One of being head of civil political govt and other of supreme commander of defense forces. These two roles of the president are independent. Under this article the hard and soft national powers are identified and constitutionally divided. While the democracy under the pre-dominance of soft power functions under the leadership of Prime Minister and his cabinet, the total command authority over the hard power of military is denied to him/her ( Prime Minister ) . Baba Saheb was a visionary and had deep knowledge of Indian history. He wisely so separated national hard power from the national soft power. Baba Saheb knew if PM or defense minister are given total command authority over military it will give rise to many civilian dictators.  Therefore under this article if read clubbed with article 74, the political direction to military comes from cabinet headed by PM, administrative support comes from ministry of defense and military retains the authority and freedom to take military executive decisions and that is the reason precisely military is an attached organisation to the political govt. Constitutionally, military can not be subordinate to PM and his cabinet as President who is senior to PM is its head and also PM is not given command of military. In Indian democracy where PM exercises executive political authority and President is constitutional head of military, services HQ can only be integrated with civil govt and can not be merged as is the case in USA.  

4. Co-relation of Article 34 on Article 52 and 74. Articles 52 and 74 do not take away the authority as vested in supreme commander of defense forces and military commanders as Silent and Invisible Custodians of Indian Democracy. There could be situation where advice of PM (aspiring to become a dictator) and his cabinet to President could be detrimental to democracy. Under article 52 and article 74, president is left with no choice except to accept their advice after one review however under article 34 supreme commander of defense forces or military commanders can exercise military authority as vested in them only to defend constitution and democracy.
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What is Article 34,  of the Indian Constitution?
Article 34 of Constitution of India – Restriction on rights conferred by this Part while martial law is in force in any area Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.
>TDeclaration of martial law is a bit obscure and there is no specific provision in the constitution that authorises executive or any other higher authorities to declare it.
>Also, Indian armed forces can do it due to vagueness in its declaration procedure as defined by the Indian constitution.
>But, the ethos and working style of the Indian army is such that such a declaration is quite unlikely to happen.
>Also, it is implicit in Article 34 under which martial law can be declared in any area within the territory of India.
>He won’t be punished because he’s believed to have done that in order to maintain peace and this has to done by the Parliament by passing a law and therefore doesn’t provide an easy escape route for anyone.
>Martial law imposes restrictions and regulations on the rights of the civilians, can punish the civilians and even condemn them to death.
>The Supreme Court held that the declaration of martial law does not ipso facto result in the suspension of the writ of habeas corpus.
>The declaration of a martial law under Article 34 is different from the declaration of a national emergency under Article 352.


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What is Article 18,  of the Indian Constitution?

Article 18 in The Constitution Of India states
Abolition of titles 
No title, not being a military or academic distinction, shall be conferred by the State . No citizen of India shall accept any title from any foreign State. No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State .No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State .

In a true democracy, there is no space for artificial distinctions among the same society.
 Titles such as Maharaj, Rai Bahadur, Sawai, Rai Sahab, Zamindar, taluqdar etc were prevalent in medieval and British India. All these titles were abolished by article 18 of the constitution.


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What is Article 52,  of the Indian Constitution?


Article 52 of Indian Constitution

Chapter I {The Executive}

Article 52 {The President of India}

There shall be a President of India.

Article 53 {Executive power of the Union}

  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-
    1. Be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority; or
    2. Prevent Parliament from conferring by law functions on authorities other than the President.

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What is Article 52,  of the Indian Constitution?



 Article 74 of Indian 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.






 Co-relation of Article 34 on Article 52 and 74.

 Articles 52 and 74 do not take away the authority as vested in supreme commander of defense forces and military commanders as Silent and Invisible Custodians of Indian Democracy. 


















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