There is nothing in the Army, Navy, or Air Force Acts that speaks of any appointment, much less about its position in the chain of command, such as that of the Chief of Defence Staff. This can lead to a command crisis. The solution would be to bring in standalone legislation to do so.
On September 28, former Eastern Army Commander Lt General Anil Chauhan (Retd) was appointed the Chief of Defence Staff (CDS). I do not know him and nor does this piece intend to cast any aspersions on him.
The objective of this article is to delineate the avoidable incongruity created by circumventing Parliament and through a modification in the rules and regulations. The Army, Air Force and Navy Acts constitute the governing law. Any change, let alone reform of the magnitude of creating the position of CDS, and its implications on higher defence management should have been routed through amendments to the principal Acts.
Nothing in these Acts provides for the kind of seminal changes effected through the notifications since 2019 — one dated December 28, 2019 and other dated June, this year — that institutionalised the CDS, and as a result, the appointment criterion stood amended. Section 191 of the Army Act empowers the Centre to make rules to give effect to its provisions. This rule-making power inter-alia extends to matters relating to removal, retirement, release or discharge from service, assembly and procedures of courts of inquiry, court-martials and punishments. There is nothing in this Section that provides for the creation of a position that de facto ostensibly supersedes the Chief of Army Staff. In the Airforce and Navy Acts, the provision for a CDS has been made by amending the requisite regulations, and not even the rules. Regulations, as a function of delegated legislation, are thus considered non-statutory in character.
Amendments to rules that do not take into consideration the scheme of the parent act have the potential to create legal black holes. For instance, Section 88 of the Army Act defines “superior military authority”. Where would the CDS fit into this scheme of things? Should he not be the ex-officio superior military authority for any disciplinary proceedings for the purposes of Section 88 (b), given that, as Secretary of the Department of Military Affairs, he exercises superintendence over the Armed Forces of the Union, Integrated Headquarters of the Ministry of Defence and Territorial Army, to name but a few.SUBSCRIBER ONLY STORIESView All
Similarly, in terms of the amendments made on December 28, 2019, certain rules including 14, 15, and 15A of the Army Act and the analogous rules in the Airforce and Navy enactments are not to apply to the CDS. Rule 14 provides for termination of service by the Centre on account of misconduct. Rule 15 provides for termination of service if the officer is unfit for service due to inefficiency or physical disability. Rule 15A allows the release of an officer on medical grounds. How will the CDS be removed from office were an unfortunate eventuality to arise? In Rule 16-A Sub Rule 4 the new provision inserted gives powers to the Centre to extend the tenure of the CDS till the age of 65 and nowhere is the process of removal delineated.
On June 6, another gazette notification was issued by the government amending the Service Rules. The amendment to Service Rules of the Army states that the central government, in the public interest, may appoint a CDS out of a pool of serving or retired officers in the rank of Lieutenant General or General. A similar change was made to the Navy and Air Force rules. If a retired three-star officer returns as a four-star, it does not really make the CDS primus inter pares, or first among equals, given his operational remit and statutory tasking. He is de facto a notch above.
There is also a contradiction between the extant service regulations and the appointment of the current CDS. For instance, the Pension Regulations for the Army, Part I (2021), classify officers into “Active List” and “Retired List”. Section 4 (ii) states that an officer is on the “Active List” if he is in the army before retirement and the list shall not include recalled or re-employed servicemen. Similarly, Section 4 (xi) states that an officer is on the retired list once he retires and he shall be deemed to be on the list even if recalled. Should the current CDS be considered on the active or retired list?ADVERTISEMENT
There is nothing in the Army, Navy, or Air Force Acts that whispers, let alone speaks of any appointment, much less about its position in the chain of command, such as that of the Chief of Defence Staff. This can lead to a command crisis, especially during a National Security Situation. The following extract from the press release dated December 24, 2019, proclaiming the cabinet decision on creating a CDS speaks of this ambiguity: “The Chief of Defence Staff, apart from being the head of the Department of Military Affairs, will also be the Permanent Chairman of the Chiefs of Staff Committee. He will act as the Principal Military Adviser to Raksha Mantri on all tri-Services matters. The three Chiefs will continue to advise RM on matters exclusively concerning their respective Services. CDS will not exercise any military command, including over the three Service Chiefs, so as to be able to provide impartial advice to the political leadership”.
What happens if there is a difference of opinion on a crisis situation between the Principal Military Advisor (CDS) and the three service chiefs, individually or collectively? The short answer would be that the Defence Minister would take the final call. However, in strictly regimented and hierarchical organisations is such design abstruseness desirable?
A more elegant solution, therefore, would have been to bring standalone legislation before Parliament creating the institution of the Chief of Defence Staff, spelling out his role and responsibility and making consequential amendments to the other Service Acts, wherever necessary. It is still not too late to do so.ADVERTISEMENT
The writer is a lawyer, Congress MP and former Union Minister for Information & Broadcasting. Views are personal