India vs Pakistan: A Contrast of their Armies and Democracies

[Bhadra]

The US Constitution has Amendment II which addresses a conflict between the government and the constitution.

In case of the shortest ever American constitution the position is very clear.

Even in case of India the SC in the case of Menka Gandhi Vs UOI has clearly ruled that the govt no matter what majority it may have can alter the basic structure of the Constitution of India.

 

[tramp]

Article 34 in The Constitution Of India 1949

34. Restriction on rights conferred by this Part while martial law is in force in any area Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area

The civilian administration has to hand over the specific area to the military for the martial rule to come into being. The article speaks of suspension of certain rights while the army rule in force.

 

[Bhadra]

@tramp

Army Act ... Definitions..

17. Martial Law Regulations, —Since the main object of imposition of martial Law is to restore law and order and the functioning of essential services vital to the community, the military commander should issue Martial Law Regulations, specifying therein the Martial Law offences, punishments for such offences, and constitute military courts for the trial of offenders against Martial Law.

 

[Bhadra]

The civilian administration has to hand over the specific area to the military for the martial rule to come into being. The article speaks of suspension of certain rights while the army rule in force.

Those are the provisions of CrPC

 

[Bhadra]

Army Act :

16. Establishment of Military Law. —Martial Law means the suppression of the civil authority, by military authority, whose sole object is to restore conditions, as expeditiously as possible, to enable the civil authority to resume charge. By imposing Martial Law a military commander assumes the appointment of Martial Law Administrator and takes control of the affected area. He may, however, require the civil authorities to discharge their normal functions under such conditions as may be prescribed by him. Being an extreme step, the decision to declare Martial Law has to be taken at the highest level possible. Before imposing Martial Law, as far as practicable, the military commander should obtain the approval of the Central Government. Where the situation is grave, and the circumstances are such that it is not possible to obtain the prior approval, of the Central Government the military commander may, on his own, assume supreme authority for the maintenance of law and order. He should, however, inform the Central Government as soon as possible after Martial Law is proclaimed. He -should also issue proclamation for the information of the inhabitants that Martial Law has been declared.

 

[tramp]

Those are the provisions of CrPC

My point is the Constitution does not allow armed forces take over of federal or state administration. President has to issue an order bringing an area under army rule for the military to intervene.

 

[Yusuf]

Article 34 in The Constitution Of India 1949

34. Restriction on rights conferred by this Part while martial law is in force in any area Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area

Who takes the decision to enforce Martial Law?

 

[W.G.Ewald]

Martial Law in India, Pakistan, and Ceylon - Joseph Minattur - Google Books

 

[tramp]

Army Act :

16. Establishment of Military Law. —Martial Law means the suppression of the civil authority, by military authority, whose sole object is to restore conditions, as expeditiously as possible, to enable the civil authority to resume charge. By imposing Martial Law a military commander assumes the appointment of Martial Law Administrator and takes control of the affected area. He may, however, require the civil authorities to discharge their normal functions under such conditions as may be prescribed by him. Being an extreme step, the decision to declare Martial Law has to be taken at the highest level possible. Before imposing Martial Law, as far as practicable, the military commander should obtain the approval of the Central Government. Where the situation is grave, and the circumstances are such that it is not possible to obtain the prior approval, of the Central Government the military commander may, on his own, assume supreme authority for the maintenance of law and order. He should, however, inform the Central Government as soon as possible after Martial Law is proclaimed. He -should also issue proclamation for the information of the inhabitants that Martial Law has been declared.

Dear friend, the founding fathers of our Constitution were wise enough to foresee such situations. That is why President is the Supreme Commander of the Armed Forces and he acts on the recommendations of the Council of Ministers headed by the Prime Minister. You are drawing up the emergency provisions which are there for the civilian administration to use in case of emergency situations.

 

[Bhadra]

Dear friend, the founding fathers of our Constitution were wise enough to foresee such situations. That is why President is the Supreme Commander of the Armed Forces and he acts on the recommendations of the Council of Ministers headed by the Prime Minister. You are drawing up the emergency provisions which are there for the civilian administration to use in case of emergency situations.

But who said that the Martial law will be imposed by the COAS...

Ha Ha Ha....

But there is a provision for Martail Law..

and by whoes advise the President of India act when the Parliement is dissolved and may be there is care taker govt ?? are they elected.. not necessarily..

 

[tramp]

The most important difference between India and Pakistan as democracies is that India got the Constitution adopted by January 26, 1956.
But Pakistan was not that much lucky probably because its founder Jinnah became incapacitated soon after Independence and died in 1948. The legal document adopted in 1956 was abrogated by Iskandar Mirza who was dethroned by Ayub Khan who decreed a new constitution in 1962. A constitution worth the name was passed only in 1973.

 

[tramp]

But who said that the Martial law will be imposed by the COAS...

Ha Ha Ha....

But there is a provision for Martail Law..

and by whoes advise the President of India act when the Parliement is dissolved and may be there is care taker govt ?? are they elected.. not necessarily..

Even when the parliament is dissolved the Council of Minister will remain in power and the President has to act necessarily on the advice of the Council of Ministers chaired by the Prime Minister.

 

[anoop_mig25]

all above agruments are valid till army remains unpolitical

What happen when army takes power what would President would do then

IS THIS ONLY REASON that gov has raised para-militraly force whose number goes on increasing every year

 

[tramp]

all above agruments are valid till army remains unpolitical

What happen when army takes power what would President would do then

IS THIS ONLY REASON that gov has raised para-militraly force whose number goes on increasing every year

Administratively there is no unified command for the three wings of the Indian armed forces, though President is the Supreme Commander. If there was a military takeover possible it should have happened in the infancy of Indian democracy. But, whatever his drawbacks, Nehru's towering presence prevented an army takeover. He was also able to nurture independent institutions which are the mainstay of Indian nation.
Youngsters who now clamour for army rule do not know the kind of pitfalls it can bring upon a nation. Our neighbour is the best example that we would not want to follow.