The Hindu Business Line : President as Supreme Commander — Need for law vesting powers and authority

India's President is a "paper super", being neither supreme nor a commander. He should have the right to approve the postings, promotions, transfers and punishments of officers of the rank of at least corps commanders and above; the authority to apply his mind independently to the selection, acquisition and purchase of means of warfare and weapons systems, and to the adoption of new technologies. His present position is anomalous and needs to be put on a sound footing, says B. S. Raghavan .

The review of fleet by the President, Mr A. P. J. Abdul Kalam, bears the stamp of his creative thinking on new responsibilities.

THE review of India's fleet by the President, Mr A. P. J. Abdul Kalam, off Visakhapatnam coast, and his volunteering to have a ride in a naval submarine have received a lot of media attention. Not the least so because in respect of both, Mr Kalam left his characteristic imprint. The Presidential naval review which, since Independence, had always been held off Mumbai, was shifted to the East coast for the first ever time at his behest; never before had a President thought of boosting the morale of the crew members of a submarine and giving them his company in a gesture of solidarity.

His address to the Navy personnel too bears the stamp of his creative thinking on the new responsibilities — the "fourth dimension", as he put it, of utilising space through communication and reconnaissance satellites — of the Navy and his ability to capture the imagination with an evocative turn of phrase, as when he portrayed the Indian Ocean as a "national treasure".

Sections of the media also made much about the President being the "Commander-in-Chief". This must have come as a surprise to those who were not Constitutional pundits or good in general knowledge. For aught the general public knows, and for aught even the officialdom cares, the President has nothing to do with Defence Forces, other than taking the ceremonial salute in such reviews, Republic Day parades and Beating the Retreat.

Actually, the President is nowhere described as the "Commander-in-Chief". The exact phraseology used by the Constitution is that "the supreme command of the Defence Forces of the Union shall be vested in the President and" (mark these words) "the exercise thereof shall be regulated by law."

India's founding fathers got the idea from Article II, Section 2 of the American Constitution, which says: " The President shall be commander-in-chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States... " (It is understandable that since, at the time the US Constitution was adopted in 1776, heavier-than-air flying machines were 125 years into the future, the US Constitution makes no mention of the Air Force. It is intriguing, though, that this provision is still left exactly as it was, making it seem as if the Air Force is outside the command of the President!)

Powers of US President

From authoritative commentaries, judicial pronouncements, Congressional resolutions and Presidential actions from time to time, the powers and functions of the US President as Commander-in-Chief emerge as follows:

directing the movements of the naval and military forces placed by law at his command, and employing them in the manner he may deem most effective to defeat the enemy;

invading the enemy country, and subject it to the sovereignty and authority of the United States, subject to the condition that it does not entail the annexation of any new territories to the US, or enlarge the functions of existing institutions and laws beyond the limits imposed by the Legislative Branch;

resolving important questions of military policy;

establishing and prescribing the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territories occupied by Armed Forces of the United States; (e) engaging secret agents to enter the enemy's lines and obtain information as to its strength, resources, and movements;

requisitioning property and compelling services from American citizens and friendly aliens who are situated within the theatre of military operations when necessity requires, on condition of rendering just compensation;

bringing hostilities to an end by arranging an armistice, and stipulating conditions with regard to the ensuing peace; and

exercising all the powers which are accorded by international law to any supreme commander.

He has, however, to refer to the Senate proposals to make any appointment of Defence personnel requiring its advice and consent. His power to dismiss an officer from the service, once unlimited, is today confined by statute in time of peace to dismissal "in pursuance of the sentence of a general court-martial or in mitigation thereof''.

But the provision is not regarded by Courts as preventing the President from displacing an officer of the Army or Navy by appointing another person in his place with, if needed, the advice and consent of the Senate. In times of war, the Congress has never interfered with the President's power of appointment, deployment or dismissal.

The US President's power to declare national emergencies is also contingent upon his adhering to certain transparent procedures laid down in the National Emergencies Act. For instance, to ensure that national emergencies are not continued for an indefinite duration, Congress has laid down that any emergency not otherwise terminated would expire one year after its declaration unless the President published in the Federal Register and transmitted to Congress a notice that the emergency would need to continue to be in force for a longer period for sound and valid reasons.

Curiously, the pros and cons of the President himself assuming personal command of Defence Forces in theatres of war had come up for discussion at one time.

The following passage from a 19th century commentary is excerpted purely for its entertainment value: "It would be dangerous to let him command in person, without any restraint, as he might make a bad use of it. The consent of both houses of Congress ought, therefore, to be required, before he should take the actual command... though the President might take the command in person, there was no necessity that he should, and there was no probability that he would... , except in extraordinary emergencies, and when he was possessed of superior military talents."

It was pursuant to these specified powers that Abraham Lincoln during the Civil War issued directives to his Generals on the conduct of battles, Woodrow Wilson in 1918 settled the question of an independent American command on the Western Front, Harry Truman, during the Korean War, stripped the legendary Second World War hero, General Douglas Macarthur, of his command, John Kennedy and Lyndon Johnson dragged America into the Vietnam war and the two Bushes invaded Kuwait and Iraq. In taking all these decisions, the President is assisted by the Joint Chiefs of Staff who report directly to him.

Importance of legislation

Compared to the American President, India's President is a "paper super", being neither supreme nor a commander. Even the oath he takes on the assumption of his office binds him only to preserve, protect and defend the Constitution and the law, and devote himself to the service and well-being of the people, and makes no mention of his responsibility as the Supreme Commander for the security of the nation and morale of the Defence Forces.

He is nowhere in the picture in the disposition of Forces at his command, leave alone having a say in any of the decisions taken by the Military or the Defence Ministry. In these, as in all other aspects of governance, the Constitution requires him to simply sign on the line dotted by the Prime Minister and his Cabinet.

Since damage to the morale and effectiveness of the Defence Forces can cause far more havoc, even imperilling the nation's survival, than in the case of civilian establishments, the Supreme Commander should have the right to approve the postings, promotions, transfers and punishments of officers of the rank of at least corps commanders and above.

He should also have the authority to apply his mind independently, with the help of such expert advice as he may seek, to the selection, acquisition and purchase of means of warfare and weapons systems, and to the adoption of new technologies.

In respect of cases involving favouritism or malfeasance coming to his notice, if he is to do justice to his role as Supreme Commander, he has an inescapable Constitutional obligation to satisfy himself on the propriety and justifiability of the action proposed to be taken. In any case, his present position is anomalous and needs to be put on a sound footing.

The Government and Parliament cannot, therefore, any longer burke their duty to bring forward legislation, as envisaged in the Constitution, which would make clear the role, functions, powers and authority of the President as the Supreme Commander so that people have the assurance that vital decisions pertaining to nation's Defence are in safe hands and will not become a prey to political vagaries.