The Constitution of India Sets Out No Procedure for Declaring War, and the 1961 Cabinet Rules Say a Declaration of a State of War Goes to the Cabinet, the Prime Minister and the President

No article of the Constitution says who declares war for India. It appears in the emergency provisions, Articles 352 and 358, and in the Union List of the Seventh Schedule, where entry 1 covers “Defence of India” and entry 15 reads “War and peace”. What answers the question in practice is an executive order, the Government of India (Transaction of Business) Rules, 1961, whose copy amended up to 13 January 2025 lists “commencement or cessation of a state of war” among the cases the Cabinet must decide.

Two earlier pieces cover the neighbouring ground: how the Union executive is organised and who can order a nuclear strike. This one follows the decision to use force from the constitutional text to the soldier deployed inside India.

What the Constitution says about war, and what it leaves out

Article 53(2), in force since 26 January 1950, vests the supreme command of the Defence Forces of the Union in the President and says the exercise of that command “shall be regulated by law”. Clause (3) lets Parliament give functions to authorities other than the President. According to the archive at constitutionofindia.net, the draft clause (draft Article 42) was debated on 10 December 1948 and 16 October 1949, and it said “of India” where the final text says “of the Union”.

Most of the rest is in the Seventh Schedule. Parliament alone may make laws on the Union List, by Article 246(1). Defence of India, preparation for it, “all such acts as may be conducive in times of war to its prosecution” and demobilisation afterwards come under entry 1. Entry 2 covers the naval, military and air forces and any other armed forces of the Union, and entry 15 covers war and peace. By Article 73, the Union’s executive power extends to every matter on which Parliament can legislate, so those entries also mark where the central government may act.

What the text omits is a procedure. Nothing in it says how a war begins, who announces it, or whether Parliament votes first. A directive principle in Article 51 tells the State to “promote international peace and security”, but Article 37 says the directive principles cannot be enforced by any court.

Who decides, under rules made in 1961

Under Article 74(1) the President must act on the advice of a Council of Ministers headed by the Prime Minister, and by Article 75(3) that council answers to the Lok Sabha. Day to day, the Transaction of Business Rules turn that into routine. President Rajendra Prasad issued them from Rashtrapati Bhavan on 14 January 1961 under Article 77(3).

Rule 7 says every case in the Second Schedule goes to the Cabinet, and entry (e) of that schedule names “Cases relating to commencement or cessation of a state of war and related matters”. Next to it is “a proclamation of emergency under articles 352 to 360”. A second step comes from rule 8 and the Third Schedule. Item 27A, “Declaration of commencement or cessation of a State of war”, must be submitted to the Prime Minister and the President before orders issue.

Neither the Constitution nor these rules defines a state of war or says what form a declaration takes. Legally the rules are an order, not an Act of Parliament. Rule 7(ii) lets the Prime Minister add to or cut the list of cases the Cabinet must see, and rule 12 lets the Prime Minister “permit or condone a departure” from the rules.

Where command sits and who advises

In the First Schedule, the Cabinet Committee on Security is assigned “all Defence related issues” and also law and order and internal security. That committee decided on 24 December 2019, according to the Press Information Bureau, to create the post of Chief of Defence Staff “to enhance the quality of military advice to political leadership”. A Department of Military Affairs was set up in the Defence Ministry, with the Chief of Defence Staff as its Secretary and as Permanent Chairman of the Chiefs of Staff Committee. The post’s first holder was appointed on 31 December 2019.

One class of case is routed differently. The third proviso to rule 7 sends the nuclear doctrine and the handling and deployment of strategic assets to the Political Council of the Nuclear Command Authority, headed by the Prime Minister.

What Parliament controls: the law, the money and the emergency vote

Parliament writes the laws the forces live under. Article 33, in its present form since 11 September 1984, lets Parliament decide how far the fundamental rights apply to members of the armed forces, “so as to ensure the proper discharge of their duties and the maintenance of discipline”. One such law is the Army Act, 1950. Martial law appears in one article only, Article 34, which says only that Parliament may protect anyone who acted to maintain or restore order in an area where martial law was in force, or validate sentences passed there. The Constitution does not define martial law or say who may declare it.

Money is the second lever. Under Article 113(2) the Lok Sabha may assent to a demand for a grant, refuse it, or cut it, and Article 114 then requires an Appropriation Bill. The Ministry of Defence announced on 1 February 2026 an allocation of Rs 7.85 lakh crore for 2026 to 2027, which it put at 2 percent of estimated GDP and 15.19 percent above the previous year’s budget estimate. Defence was 14.67 percent of central government expenditure, the Ministry said, the largest share of any ministry. How the Union Budget is passed explains the steps.

A third lever is Article 352. The President may proclaim a national emergency when the security of India is threatened by “war or external aggression or armed rebellion”, and may do so on imminent danger before any fighting starts, but only after the Union Cabinet’s decision reaches the President in writing. Both Houses must approve within a month. The emergency provisions have their own article. The Press Information Bureau’s timeline of the Emergency says the proclamations before 1975 came during the wars with China in 1962 and Pakistan in 1971. The Home Ministry’s report for 1967 to 1968 says the proclamation of 26 October 1962, after the Chinese aggression, continued until it was revoked on 10 January 1968. Its report for 1977 to 1978 records that the proclamation of 3 December 1971 was revoked on 27 March 1977.

No article requires a vote of Parliament before forces are used. After Operation Sindoor in May 2025, which has its own account, the Lok Sabha held a special discussion. Press Information Bureau releases record the Defence Minister speaking on 28 July 2025 and the Home Minister on 29 July. In his statement the Defence Minister told the House that after the Pahalgam attack of 22 April 2025 the Prime Minister held a high-level meeting and the armed forces were given freedom to take decisive action, and that the armed forces launched the operation on 6 and 7 May.

When the forces serve inside India

Under Article 355 it is the Union’s duty “to protect every State against external aggression and internal disturbance”. In the Union List, entry 2A, added by the 42nd Amendment from 3 January 1977, gives Parliament power over the deployment of Union armed forces “in aid of the civil power” in any state, which means helping the elected state government and its police. The State List’s entry 1, public order, carves out that same field, so a state legislature cannot legislate on it.

That amendment also inserted Article 257A, which in the Supreme Court’s quotation let the central government deploy forces for “any grave situation of law and order in any State” and placed them outside the state’s control. A later amendment, the 44th, omitted it from 20 June 1979.

Criminal procedure law offers the everyday route. The Bharatiya Nagarik Suraksha Sanhita, 2023, in force since 1 July 2024 and repealing the Code of Criminal Procedure by its section 531, carries it in sections 149 to 151. If an unlawful assembly cannot otherwise be dispersed and public security requires it, the District Magistrate or an Executive Magistrate he authorises may have the armed forces disperse it. Whoever commands the troops obeys “in such manner as he thinks fit” but must use “as little force, and do as little injury to person and property” as the task allows. Section 150 covers a case where no magistrate can be reached, and the officer must contact one once that becomes practicable. Section 151 bars prosecution of armed forces personnel for such acts without the Central Government’s sanction.

What the Supreme Court has said about the Armed Forces (Special Powers) Act

A second route is the Armed Forces (Special Powers) Act, 1958. Under its section 3, the Governor of a state, the Administrator of a Union territory or, since 1972, the Central Government may declare an area disturbed when of the opinion that using armed forces in aid of the civil power is necessary. Section 4 then lets officers, after such warning as they consider necessary, use force “even to the causing of death” against anyone breaking an order that bans assembly of five or more people or the carrying of weapons. It also lets them arrest without a warrant, search premises and destroy arms dumps. The Court noted that the first power depends on a prohibitory order issued by the state’s civil authorities. Section 6 bars prosecution without the Central Government’s previous sanction.

A five-judge Constitution Bench upheld the Act on 27 November 1997 in Naga People’s Movement of Human Rights v. Union of India. Counsel for the petitioners argued that the Act in substance handed public order, a state subject, to the armed forces, that deployment should stay under state control, and that it got around the limits in Article 352. The Union argued from its Article 355 duty. Authority came from entry 2A, the Court held, and the Act does not let the forces “supplant or act as a substitute for the civil power”, since the word “aid” assumes the civil authority keeps working. It held that the Centre may declare an area disturbed without consulting the state, though consultation is desirable.

The Attorney General told the Court that notifications would be reviewed at least once a year, and the Court asked for a review before six months have passed. Beyond that, the Court said the forces’ primary task is defence in war or against external aggression and that prolonged or too frequent deployment inside the country is “likely to generate a feeling of alienation”. The Court also held that the army’s “Do’s and Don’ts” are binding, that force must be minimal, and that the Centre must give reasons when it grants or refuses sanction under section 6.

Families of people allegedly killed in Manipur brought the next case. On 8 July 2016 Justices Madan Lokur and Uday Lalit followed the 1997 ruling that use of “excessive force or retaliatory force” by the forces “is not permissible”, including in a disturbed area and against militants. Arguing for the Union, the Attorney General had said offences by armed forces personnel belong before a court martial. The judgment replied that “there is no concept of absolute immunity from trial by the criminal court”.

Notifications still follow a six-month cycle. Home Ministry notification S.O. 1538(E) of 30 March 2025 declared Manipur disturbed for six months from 1 April 2025, excluding areas under 13 police stations in five districts, unless withdrawn earlier. UNI reported on 25 September 2026 that three Home Ministry notifications renewed the status for parts of Manipur, Nagaland and Arunachal Pradesh for six months from 1 October 2026.