War powers must have no grey area

LAST WEEK, the US Senate — by a 53-47 vote — decided not to bar the Trump administration from initiating further military action against Iran, turning down a war powers resolution introduced by Senator Tim Kaine.

The US Constitution splits the prerogative to initiate armed hostilities, colloquially referred to as war, between Congress and the President due to a twilight expanse of overlapping authority.

Article 1 of the US Constitution singularly vests in its Congress the power to initialise kinetic action, recruit, train and mobilise armed combatants and superintend their deployment. Oxymoronically, Article 2 of the Constitution titles the President as the commander-in-chief of the US armed forces.

The War Powers Resolution or the War Powers Act was enacted in 1973. The Vietnam War raging at that time. The relentless bombing of Cambodia and Laos was intensifying. Concurrently, domestic disenchantment was exacerbating against the Richard Nixon administration’s prosecution of the war.

Under such circumstances, the US House Foreign Affairs Committee observed that the dichotomy between the war-making functions of Congress and the President was a grey area of contemporaneous power, lacking precision on when the President can act independently vis-à-vis when congressional sanction becomes sacrosanct.

The War Powers Resolution was therefore approved with the resolve to reaffirm Congress’ role in deploying US armed forces for conflicts overseas. The resolution provided the President with just enough leverage to act with dispatch whenever imperative. It was done disregarding the veto of President Nixon. It laid down presidential reporting imperatives and Congressional processes predicated upon reaffirming the statutory responsibility of Congress in necessitating the deployment of US forces in armed conflict abroad.

Moving the said resolution in the context of President Donald Trump’s decision to bomb three nuclear sites in Iran, Tim Kaine said on the Senate floor, “Only Congress declares war.”

He pointed out that the founding fathers of the US Constitution, way back in 1787, were so circumspect of bestowing the control of opening hostilities on any individual that they deliberately chose not to even delegate this function to George Washington, the first commander-in-chief. The imprimaturs of the Constitution, therefore, ordained that the United States of America would not go to war without a Congressional vote.

Had the measure passed muster, it would have compelled the Trump administration to obtain Congress approval before launching further bombing and other forms of armed combat against Iran.

This raises an obvious question in India — from a constitutional standpoint, who has the power to declare war? Is it the President as the Supreme Commander of the Armed Forces on the Cabinet’s advice provided in writing or Parliament or none of these entities?

The answer seems to be “none”, for the Indian Constitution does not really contemplate resolving disputes through the force of arms. The question, therefore, remains: did we fight wars in 1947, 1965, 1971 and 1999 without a formal declaration of war? This seems to be the case.

On December 5, 1971, in a letter to US President Richard Nixon in the wake of a Pakistani air attack, Prime Minister Indira Gandhi wrote: “We are left with no other option but to put our country on a war footing. We have, therefore, declared an emergency for the defence of India…” She did not say India had declared war on Pakistan.

This anomalous situation perhaps has something to do with the peculiar context in which the Indian Constitution was conceptualised. India had just emerged from a unique non-violent and pacifist struggle, thanks to which it gained independence. Moreover, the world was still recovering from the ravages of World War II that had left 81 million people dead. The UN Charter had also just been adopted. Article 2(4) of the charter proscribed the “use of force” as a means of surmounting transnational disagreements. Under the UN framework, armed force may only be used in “self-defence” or when authorised by the Security Council under Chapter VII of the Charter. India’s Constitution, to a substantial extent, imbibed the spirit of this provision.

What then are the provisions of the Indian Constitution dealing with war? There seem to be none explicitly. Article 352 allows the proclamation of an emergency when a threat of war, external aggression or armed rebellion is imminent. It does not confer a power. It essentially lays down a procedure.

When there is an emergency because of “external aggression”, the President can make a proclamation, the condition precedent being a decision of the Council of Ministers communicated in writing. It also requires that Parliament ratify the proclamation within one month. The Constitution ordains that Parliament be summoned and requested to either ratify or reject it.

Then there is Entry 1& 2 of the Union List — Article 246, Seventh Schedule. Entry 1 delineates what the Union Government must do for the “defence of India” in times of war — from prosecution to demobilisation. “Defence of India” is the operative phrase here.

It, however, does not extend so far as to provide the legislative basis to the Union of India to declare war. Entry 2 only provides an exclusive field of legislation to the Union vis-a-vis the armed forces.

Article 51 in the Directive Principles of State Policy further mandates that the government undertake a peaceful approach to international relations.

In essence, the Union of India may initialise the full spectrum of options to counter a war, plan and train for a response to it, enact legislation to mobilise the materials and resources critical to its success, but constitutionally it is not authorised to initiate war as an exercise of sovereign will. It is a delicate but critical particularity. India, therefore, constitutionally is a defensive State not just in disposition, but in its very constitutional construction.

Given the rather ‘interesting’ times we live in, there must be a crisp and clear constitutional provision laying down precisely who has the power to declare war, why and under what circumstances? Is it the President on the aid and advice of the Council of Ministers or Parliament? It could also be a hybrid like Article 352, whereby the proclamation is issued by the executive but ratified by Parliament within a month.

Manish Tewari is lok Sabha MP and former I&B Minister.