Are India-Pakistan At War? If Yes, Who Will Declare It? | Explained

Pakistan’s provocation and India’s strong retaliation on Thursday night begs the question – are the nuclear neighbours at war? If yes, how is a war formally declared in India?

News18 explains…

India addresses matters related to declarations of war through a mix of constitutional provisions, parliamentary oversight, and executive authority, unlike some countries with formal legislation on such declarations.

In India, the power to declare war resides with the President, but it is exercised based on the advice of the Union Council of Ministers led by the Prime Minister. The Indian Constitution does not explicitly detail a procedure for a formal declaration of war as some other nations do. However, the declaration of a National Emergency under Article 352 of the Constitution is the closest constitutional mechanism related to a war-like situation.

Who Is Involved?

• President of India: As the Supreme Commander of the Armed Forces (Article 53(2)), the President holds the constitutional authority to declare war or make peace. However, this authority is exercised based on the government’s advice. Article 53 of the Indian Constitution specifies that the executive power of the Union is vested in the President of India. Nevertheless, under Article 74, the President acts in accordance with the aid and advice of the Council of Ministers, led by the Prime Minister. Therefore, any formal declaration of war or peace by the President is made solely on the Cabinet’s advice.
• Union Cabinet: In practice, the decision to go to war or declare peace is made by the Union Cabinet (Council of Ministers) under the leadership of the Prime Minister. The Ministry of Defence, Ministry of External Affairs, and National Security Council provide crucial advice to the Cabinet in this process. Before reaching a decision, the Cabinet may seek input from military chiefs, intelligence agencies, and diplomatic channels. The Prime Minister heads the Cabinet, which is responsible for recommending a declaration of war to the President. According to the 44th Amendment Act of 1978, the President can declare a National Emergency (which applies in a war situation) only based on a written recommendation from the Cabinet.
• Parliament: Although Parliament is not constitutionally obligated to declare or pre-approve war, it maintains a role in oversight and funding: it oversees the defence budget; it has the authority to debate military actions and hold the government accountable; and, during prolonged military engagements, the government is expected to inform Parliament and seek political consensus. While the initial war declaration is made by the President on the advice of the Cabinet, it must subsequently be presented to both Lok Sabha and Rajya Sabha for approval.

Procedure On Paper

Procedurally speaking, if a formal declaration of war is to be made, the Union Cabinet, after assessing the situation, will make a written recommendation to the President. Upon receiving the written recommendation from the Cabinet, the President can issue a Proclamation of National Emergency under Article 352 on the grounds of ‘war’ or ‘external aggression’. This proclamation can be for the entire country or a part of it.

The Proclamation of Emergency must be laid before each House of Parliament. It will cease to operate after one month unless approved by resolutions passed by both Houses with a special majority (a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting).

Once approved by Parliament, the emergency remains in force for six months. It can be extended for further periods of six months with continued parliamentary approval through similar resolutions.

Finally, the President can revoke a Proclamation of Emergency at any time through a subsequent proclamation. Additionally, the 44th Amendment mandates that the President must revoke the emergency if the Lok Sabha passes a resolution disapproving its continuation.

But No Formal Rule Exists To Declare War

The Indian Constitution, however, does not have a specific article or procedure solely dedicated to the “declaration of war". The provisions related to National Emergency under Article 352 are invoked in situations of war or external aggression.

So What Happened In 1965, 1971 And Kargil Wars?

A formal declaration of war, in the traditional sense, was not made during any of the India’s military conflicts.

• India-Pakistan War of 1947-48 (First Kashmir War): This war began with the invasion of Kashmir by tribal militias and Pakistani forces. India responded after the Maharaja of Kashmir acceded to India. There was no formal declaration of war by either side.
• India-China War of 1962: This war started with a large-scale Chinese offensive along the disputed border. India was taken by surprise. There was no formal declaration of war from either India or China. China unilaterally declared a ceasefire and withdrew after about a month.
• India-Pakistan War of 1965: This war escalated from border skirmishes and Pakistan’s Operation Grand Slam in Kashmir. India retaliated by crossing the international border. Again, no formal declaration of war preceded the large-scale hostilities. The conflict ended with a UN-brokered ceasefire and the Tashkent Declaration.
• India-Pakistan War of 1971 (Bangladesh Liberation War): This war stemmed from the political crisis and humanitarian crisis in East Pakistan (now Bangladesh). India intervened in support of the Bengali liberation movement following a large influx of refugees. While the conflict was extensive, there was no formal declaration of war before India’s military involvement. Pakistan initiated air strikes on Indian airfields, which led to India’s full-fledged entry into the war.
• Kargil War of 1999: This conflict began with the infiltration of Pakistani soldiers and terrorists into Indian territory in the Kargil region. India responded with ‘Operation Vijay’, which was a limited conflict, and no formal declaration of war was made by either sides.