Manish Tewari | Stealth not good mode for doing theatre commands

In 1934, Charles de Gaulle, in his book titled Vers l’Armée de Métier (Towards a Professional Army) cautioned the French regarding the outdated nature of trench warfare and advocated for the mechanisation of their military. However, the allure of pacifism and a misplaced sense of French superiority among the army elites led them to persist with the Maginot Line and trench warfare. Tragically, this choice proved fatal as the French army succumbed to the German blitzkrieg.

The nature of warfare is categorised by its ephemerality and its fluidity. It is imperative for one to constantly adapt with the changing time to survive. With the objective of modernising the structure of Indian Armed Forces, and adapting to the changing nature of modern warfare, the government introduced and subsequently passed the Inter-Services Organization (Command, Control and Discipline) Bill, 2023, in the Lok Sabha and Rajya Sabha, respectively, sans any substantive discussion in both houses of Parliament. The keywords used repeatedly by the defence minister while introducing the bill in Lok Sabha was jointness and integration.

A historical perspective is imperative for better context. The structure of the Indian Armed Forces to this day is influenced by its colonial legacy. The East India Company set up its legions, namely, the Bengal Army, Madras Company and the Bombay Army to protect its commercial interests. 

During the Company rule in India, the recruitment of soldiers in the Company army relied heavily on the Mughal system. Soldiers, or sepoys, were drawn from high-caste Hindu Rajputs, Brahmins, and Bengali/Awadhi Muslims. The Bengal Presidency, in particular, contributed around 80 per cent of the soldiers to the East India Company’s army.

However, post the First War of Independence of 1857, India came under direct control of the British Crown. The Crown reorganised the newly formed British Indian Army under the aegis of the Jonathan Peel Commission.

The Commission divided the population into two categories — the “martial” races, and the “non-martial” races. The martial races were those communities which had, by and large, supported at the instance of their native sovereigns, the British in controlling revolts, and consequently successive rebellions against the Crown.

These communities were regarded by the British as valiant, strong, but obedient enough to acquiesce to authority. Conversely, the non-martial race comprised largely of communities that resisted the Crown and were labelled as untrustworthy and ill-suited for battle. Hence the British proscribed their recruitment into the army.

 On February 1, 1949, the defence wing of the Press Information Bureau put out a release. It stated “that the Government of India has decided to abolish class composition based upon fixed percentages” in the Indian Army. This was a valiant first attempt to bury the pernicious martial race theory.  The implicit and unstated objective was to prevent concentration of power in any one single/ community or combination of communities. Hence, the doctrine of civilian supremacy over the military establishment was thereby sought to be embedded into India’s democratic ethos.

While India has achieved only very marginal success in changing the composition of its Armed Forces, with the bulk of the recruits still coming from the traditional stomping grounds, it has fallen woefully short in changing the structure of the Armed Forces.

Unfortunately, it still adheres to the traditional model of classifying service personnel into distinct branches — the Air Force, Army, and Navy — with each of these branches being governed by its respective provisions — the Air Force Act of 1950, the Army Act of 1950, and the Navy Act of 1957, respectively.

It was, therefore, imperative to establish a uniform law which enables the creation of an integrated inter-service armed forces system, designed to align with evolving changes in warfare and to enhance our military capabilities to compete against potential adversaries who have successfully reorganised their armed forces.

In pursuit of the aforementioned, the Union government brought the Inter-Services Organization (Command, Control and Discipline) Bill, 2023. The Bill, which shall have far-reaching implications regarding the defence apparatus of the country, was passed without even a perfunctory discussion in both Houses. My other objections pertain to the contents of the Bill.

First, the Bill falls short of introducing any meaningful provisions that would mitigate the current state of affairs. While the Bill’s objective is to establish a standardised framework for disciplinary and administrative authority, it’s important to note that Section 8 of the Army Act, 1950, already confers the Union Government with the authority to designate an officer and empower him to command armies, divisions, and brigades. Similarly, under Section 8 of the Air Force Act, 1957, and Section 6 and 7 read with Section 93 (3) (e) of the Navy Act, 1957, the Union government can make provisions for uniform disciplinary and administrative authority to operate. Thus, the Bill lacks novelty in terms of introducing fresh substantial provisions. On the contrary, since there are multiple laws on the same subject matter, the Bill would ultimately result in confusion and ambiguity.  

Second, the Bill provides the legal basis for the Union government to create theatre commands by restructuring armed forces without explicitly saying so and, more importantly, by-passing Parliament on this most significant reorganisation of the armed forces in 164 years since the Peale Commission. Thus, the Bill is a colorable exercise of legislative power, thereby arrogating to the Union government the right to transform the very structure of the armed forces without taking Parliament into confidence by bringing appropriate and substantive amendments to the respective service acts or a standalone legislation on theatre commands that is underpinned by the theory of seamless integration and non-discriminatory jointness. The law does not allow you to do indirectly what you cannot do directly.  The law, therefore, will be “ultra vires” of constitutional jurisprudence if it is used as the legal basis to create theatre commands.

Third, under Clause 3 (1) (b), the Bill defines a Chief of Defence Staff (CDS). However, no role has been ascribed to him by the Bill. I have long argued for a standalone legislation that defines and empowers the institution of CDS. The Bill, as it currently stands, would necessitate fleshing out the role of CDS through rules to provide a legal architecture that define the role and responsibility of the CDS. However, since those rules will relate to a substantive legal issue that would squarely lie within the domain of Parliament, these rules would constitute excessive delegation of legislative power.

This Bill has only one objective to provide the legal basis for theatre commands. It would have been far more appropriate if the government would have stated its intentions explicitly and allowed Parliament to contribute its institutional wisdom to this seminal reorganisation.