Status of  Military Conscription in India

Introduction

“Conscription is the vitality of a nation, the purification of its morality, and the real foundations of all its habits” -Napoleon Bonaparte.

Conscription means a mandatory enrolment in the service of the nation and could be introduced for various services for the public interest as desired by the state when it feels it’s necessary or not. Conscription as  described by the Oxford dictionary means a “practice of ordering people by law to join”[1]

Brief History of Conscription

Conscription has been a prevalent part of human history and has been in existence in many countries to date. Conscription has been one of the strategic pillars for many ancient empires for building a strong army and for invading and waging wars. In the ancient city-state concept of Greeks, there were also traces of a sort of conscription system. like in Athens, Athenians were liable for military service for no fewer than forty-two years of their lives, from the age of eighteen to sixteen.[2] A sort of mandatory serving in the army could also be traced to the Roman republic where it was more likely to be considered a privilege. It was then in the French republic of the 1790s that the traces of the modern-day conscription scheme were noted. Where a law was passed making conscription mandatory for the first time and the law stated that “Every Frenchman is a soldier and has to defend his country”[3]Then following the footsteps of the Napoleon army and the success it garnered many other fellow European countries started conscription. lately but today its dynamics have changed and thus who advocate for conscription now do so for the prime reason being to safeguard the country from external military threats.

Status of Conscription laws in India

India specifically doesn’t have any specific conscription laws. But by and large Indian armed forces and services in the Indian armed forces have remained voluntarily in nature. Even there is no evidence of forced conscription in the British Indian Army during British rule and it remains by and large a voluntarily form of government employment. But the absence of any explicit conscription laws doesn’t mean that the constitution doesn’t leave any scope for the introduction of any such provision or proposal by the government. Article 23 of the Indian constitution is related to forced labour whose clause (ii) states that the Union is free and not restricted by clause (i) of the same act (which abolishes & prohibits forced labour) for executing or implementing compulsory or mandatory services for public purpose or interest. If we see the clause (ii) it technically tries to keep away the phrase ‘forced labour’ away from being connoted with such ‘compulsory services’ which has been the case in the past where many of its opponents have opposed mandatory services by the government by labelling them as forced labour scheme. Moreover, the Union Government has the ground of ‘public interest’ mentioned in the clause (ii) of the same article that could allow it to label national interest as the wider “public interest” where if we note generally in most cases, mandatory conscription is introduced because of possible National threats and thus could be the mandatory conscription could be introduced in the wider interest of the public for securing the interest of the nation and thus being in the interest of the public and thus being unquestionable by the law in the context of this article and clause.

Background of constituent assembly debates

Moreover, in the constitutional debates while discussing the necessity of Conscription to be explicitly included in or not in the first entry of the seventh schedule related to the powers of the union when it comes to the defence of the country many included the Dr P S Deshmukh suggested of “including all such acts as may be necessary in times of war including, training, Conscription, demobilisation, etc ”[4] in the first entry explicitly. This was further supported by Prof. Shibban Lal Saksena and slightly differing Shri T. T. Krishnamachari stated that there was no need to explicitly mention the conscription as all means of procedures to secure the defence of the nation already includes conscription and other means which was finally accepted and the adopted in. This means that the constituent assembly i.e our fathers of the constitution  itself accepted the fact of the need for conscription and allowed for the scope of including conscription in the meaning of “preparation for defence and all such acts”[5] Further, in the constitutional debates itself, Dr B.R Ambedkar supporting the conscription laws stated that “In a political Organisation the free citizen has a duty to support the Government and therefore ‘compulsory military’ law was doing nothing more than calling upon the citizen to do the duty which he already owes to the State ”[6] Moreover, in the same debates commenting upon the infamous relation which was drawn by the opponents of the conscription laws related to Forced labour, Sri M. Ananthasayanam Ayyangar stated while taking a cue from the American Supreme Court’s judgement in the case of  Arver v. the US[7] “I do not think there is any danger of military conscription being ruled out as a power inherent in the Union because of the forced labour clause”[8] wherein in its judgement court sidelined labelling military conscription as something as forced labour or beggar and considered it as the legal right of the state specifically of the Congress (parliament) to call as much as a required man it thinks fit off in the interest of the nation.

Indian Cases related to conscription

In the first such case of The State vs Jorawar [9],  the court while discussing compulsory conscription said  “That Article 23 prohibits ‘begar’ and other similar forms of forced labour, except for compulsory service for public purposes. Conscription for the defence of the country, or social services, are possible instances of imposition of compulsory service for public purposes.” The case of Dulal Samanta v. The District Magistrate, Howrah[10] is one of the most renowned cases in the Indian judiciary known for its verdict surrounding the conscription and forced labour where the appellant was asked to perform a duty of a special police officer which he refused doing so and took excuses of many reasons including personal liberty of professing the desired profession, being forced into forced labour since he wasn’t paid any remuneration for it and thus denied collaborating with the police. In these circumstances, the court in its judgement said “Conscription for police or military service cannot, in my opinion, be considered as either (1) traffic in human beings or (2) begar.” Thus not in conflict with Article 23

Conclusion

Though In India there is no explicit conscription specific laws rather the constitution-makers of our country have left that decision to the Union Government to decide its position on the introduction of such schemes or not in the country by providing optimum scope in the laws for the backing of such schemes in case the Union Government feel so is the only last left option. Further the mention of the obligation to protect the integrity, sovereignty and unity of the country as the duty of the citizen to come forward for the defence of the country for the execution of national services if and when required in the Article 51A of the Indian constitution as fundamental duty further reinforced the original belief of the constitutional makers to include and accept mandatory conscription if and when the time demands of it or as the Union feel so is right in the interest of the nation.

Author(s) Name: Prashant Dound (NLU Nagpur)

References:

[1]Oxford Learner’s Dictionary, https://www.oxfordlearnersdictionaries.com/definition/english/conscription (Last Visited Apr. 05, 2022).

[2] Ridley Ronald Thomas, The Hoplite as Citizen : Athenian military Institutions in their social Context, L’antiquité classique 508, 521-522(1979).

[3] Alexander Grab, Desertion in France and Italy under Napoleon, 127 J. Napoleonische Expansionspolitik 102, 110-111 (2013).

[4] Constitution of India, https://www.constitutionofindia.net/constitution_assembly_debates/volume/9/1949-08-29( Last visited Apr. 06 , 2022).

[5] INDIA Const. art.246, cl.1.

[6] Constitution of India ,https://www.constitutionofindia.net/constitution_assembly_debates/volume/3/1947-05-01 (Last visited Apr. 07 , 2022).

[7] Arver Vs US ,245 U.S. 366 (1918).

[8] Constitution of India ,https://www.constitutionofindia.net/constitution_assembly_debates/volume/3/1947-05-01 (Last visited Apr. 07 , 2022)

[9] The State vs Jorawar, 1953 HP 18.

[10] Dulal Samanta V.The District Magistrate, Howarah,  AIR 1958 Cal 365.

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