By Manish Tewari
An anecdote narrated by a colleague in Parliament about how a particular president perceived his role as Supreme Commander of the Armed Forces provoked a question: Why did the founding fathers not vest this supreme command in the Council of Ministers headed by the Prime Minister, given that they made a conscious choice that India would be a parliamentary democracy, not an executive presidency?
Article 53 of the Constitution states that the executive power of the Union shall be vested in the President of India. Article 53(2) has a rather interesting formulation: “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”. The powers of the presidency are, of course, circumscribed by Article 74 which states that the president shall exercise his functions only on the aid and advice of the council of ministers headed by the prime minister.
Interestingly, if one peruses the debates of the Constituent Assembly on draft Article 42 that corresponds to Article 53 of the Constitution, there is absolutely no discussion on vesting the supreme command of the defence forces in the president. It almost seems that the Constitution framers had taken it as a given that the supreme command of the armed forces would be vested in the presidency. It is incredible that such an important aspect, even though the president of India is only a titular head, was not even debated by the Constituent Assembly.
However, any and every constitutional scheme has enough play in the joints to be interpreted in various ways, especially when a constitutional crisis comes to a head or an external emergency manifests. The term “defence forces of the Union” is nowhere defined in the Constitution.
A clue as to why the supreme command came to be vested in the presidency can possibly be found in the articulation of KM Munshi in the Constituent Assembly debates. While speaking on an amendment moved by Professor KT Shah on draft Article 42, Munshi argued that “The strongest government and the most elastic executive has been found to be in England and that is because the executive powers vest in the Cabinet supported by a majority of the lower house which has financial powers under the constitution. As a result, it is the rule of the majority in the legislature for it supports its leaders in the cabinet which advises the head of the state namely the king or the President. The King or the President is thus placed above the party. He is made really the symbol of the impartial dignity of the Constitution.”
However, neither does Dr Ambedkar’s opening speech introducing the draft constitution or closing speech on the conclusion of its deliberations mention the aspect of the president being the Supreme Commander of the Defence Forces.
Was it, therefore, the un-verbalised desire of the founding fathers that the supreme command of the armed forces must vest in a constitutional entity that is perceived to be above partisan politics, thereby underscoring the apolitical character of the armed forces — that is, that they belong to the nation and not to any dispensation that may concurrently at a given point in time hold the reigns of executive power?
Or were they just being guided by the British practice where the supreme command of the armed forces is vested in the monarch? While designing the Constitution, the framers were both following certain British traditions while simultaneously trying to break with them.
The British constitutional interpretations written by Michel de Montaigne and other scholars were not the only ones that the founding fathers took on board in their grand study of constitutional jurisprudence. The first French Constitution created by the French National assembly in 1791 embodying the principles contained in the Rights of Man and of the Citizen equally animated them. It is another matter that France has had 15 constitutions between then and 1958. Equally, they were inspired by the American Constitution, and more so, the Bill of Rights ratified on December 15, 1791.
In both the American and French constitutional schemes, the supreme command of the armed forces vests in the president. However, both these countries have an executive presidency. Nearer home, there was another country that was born — the People’s Republic of China on October 1, 1949 — just as the Indian constitutional deliberations were winding down.
China had an interesting institution dating back to 1925 called the Central Military Commission and, fascinatingly, after China assumed its present avatar, the general secretary of the Chinese Communist Party has been invariably triple-hatted whereby he is also the president of the republic and chairperson of the Central Military Commission, except for a brief while when Deng Xiaoping and Jiang Zemin in the late 1980s and early 2000s held this position singularly.
Interestingly, in Pakistan, Article 243-1A, as amended by the Constitution Eighteenth Amendment Act 2010, states: “Without prejudice to the generality of the foregoing provisions, the Supreme Command of the Armed Forces shall vest in the President” However, that has not stopped Pakistan from being convulsed by a series of coup d’etats going back to 1958.
It is, therefore, quite evident that rather than any deliberate plan or design to impose civilian control over the armed forces, as conventional wisdom or subsequent myth-making make it out to be, the President of India ended up becoming the Supreme Commander of the Indian Armed Forces for the simple reason that the members of the Constituent Assembly decided to follow British precedent. A study of the making of the Constitution can throw up some interesting revelations.
(The writer is a lawyer, MP, former I&B minister. Views are personal. This article first appeared in The Indian Express)