Article 355 of the Constitution of India
- Part 2 -

Naorem Umakanta Singh *

In fact entries 1 to 4 of List I of Seventh Schedule mainly deal with armed forces. Article 355 of the Constitution of India reads as under :-

"355. Duty of the Union to protect States against external aggression and internal disturbance. It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution."

52. The word "aggression" is a word of very wide import. Various meanings to the word have been given in the dictionaries, like, "an assault, an inroad, the practice of setting upon anyone; an offensive action or procedure; the practice of making attacks or encroachments; the action of a nation in violating the rights especially the territorial rights of another nation; overt destruction; covert hostile attitudes."

53. The word "aggression" is not to be confused only with "war". Though war would be included within the ambit and scope of the word "aggression" but it comprises many other acts which cannot be termed as war. In Kawasaki v. Bantahm S.S. Company 1938 (3) All ER 80, the following definition of "war" as given in Hall on International Law has been quoted with approval :-

"When differences between States reach a point at which both parties resort to force, or one of them does acts of violence, which the other chooses to look upon as a breach of the peace, the relation of war is set up, in which the combatants may use regulated violence against each other, until one of the two has been brought to accept such terms as his enemy is willing to grant."

54. In Introduction to International Law by JG Starke (Chapter 18) it is said that the war in its most generally understood sense is a contest between two or more States primarily through their armed forces, the ultimate purpose of each contestant or each contestant group being to vanquish the other or others and impose its own conditions of peace.

With the passage of time, the nature of war itself has become more distinctly clarified as a formal status of armed hostility, in which the intention of the parties, the so-called animus belligerendi may be a decisive factor. The modern war may involve not merely the armed forces of belligerent States but their entire population.

In Essays on Modern Law of War, LC Green the author has said that in accordance with traditional international law, "war is a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases.". The framers of the Constitution have consciously used the word "aggression" and not "war" in Article 355.

55. Article 1 of Chapter 1 of the Charter of the United Nations gives the purposes of the United Nations and the first is to maintain international peace and security, and to that end : to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggre- ssion or other breaches of peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustments or settlement of international dis- putes or situations which might lead to a breach of peace.

On account of use of expression "acts of aggression" it was thought nece- ssary to define "aggression" and explain what it exactly means. The International Law Commission defined the term "aggression" as any act of aggression including the employment of armed forces by a State against another State for any purpose other than national or collective self- defence or any decision by a competent organ of the United Nations. But at the 1954 Assembly, there was opposition to this definition.

In his book Conflict Through Consensus, Julius Stone (1977 Edn.), describes in detail how after twenty years of discussion by a Special Committee on "aggression" a consensus was arrived at and an agreed definition was approved by the United Nations Assembly on 12th April, 1974 vide Resolution No.3314 (XXIX).

The Soviet Union pressed for inclusion of "ideological aggression" and also "the promotion of the propaganda of fascist- nazi views, racial and national exclusiveness, hatred and contempt for other peoples."

Iran pressed for inclusion of "indirect aggression, of intervention in another State's internal or foreign affairs", including "direct or indirect incitement to civil war, threats to internal security, and incitement to revolt by the supply of arms or by other means.". Many States wanted the definition to include "economic aggression".

Shri M. Jaipal of India advocated that in view of "modern techniques of coercion" the definition of aggression should have included "economic pressures" and "interventionary and subversive operations" (See page 97 of the book) Julius Stone has quoted the following comments of Charles de Visscher, on the notion of aggression : "aggression, in the present state of international relations, is not a concept that can be enclosed in any definition whatsoever : the finding that it has occurred in any concrete case involves political and military judgments and a subjective weighing of motives that make this in each instance a strictly individual matter."

Rapporteur Spiropoulos explained to the International Law Commission that a determination of aggression "can only be given in each concrete case in conjunction with all constitutive elements of the concept of the definition". According to the author what needs also to be kept in mind is that this is precisely because the "aggression" notion is a fact value complex of such vast range. (See pages 108-109 of the book).

Therefore, "aggression" is a word of very wide import having complex dimensions and would to a large extent depend upon fact situation and its impact. 34. There was a large scale influx of persons from the then East Pakistan into India before the commencement of December 1971 Indo-Pak war. On 3rd November, 1971, one month before the actual commencement of the war, Dr.Nagendra Singh, India's representative in the Sixth Committee of the General Assembly on the Definition of Aggression, made a statement, wherein he said :-

"......The first consideration, in the view of the Indian Delegation, is that aggression must be http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 44 comprehensively defined. Though precision may be the first virtue of a good definition, we would not like to sacrifice the requirement of a comprehensive definition of aggression at any cost. There are many reasons for holding this view. Aggression can be of several kinds such as direct or indirect, armed in nature or even without the use of any arms whatsoever. There can be even direct aggression without arms......

We would accordingly support the categorical view expressed by the distinguished delegate of Burma, the U.K. and others that a definition of aggression excluding indirect methods would be incomplete and therefore dangerous.

For example, there could be a unique type of bloodless aggression from a vast and incessant flow of millions of human beings forced to flee into another State. If this invasion of unarmed men in totally unmanageable proportion were to not only impair the economic and political well-being of the receiving victim State but to threaten its very existence, I am afraid, Mr. Chairman, it would have to be categorized as aggression.

In such a case, there may not be use of armed force across the frontier since the use of force may be totally confined within one's territorial boundary, but if this results in inundating the neighbouring State by millions of fleeing citizens of the offending State, there could be an aggression of a worst order......

What I wish to convey, Mr. Chairman, is the complexity of the problem which does not permit of a four-line definition of aggression much less an ad-interim declaration on it."

[See Vol. 11 (1971) Indian Journal of International Law p. 724]

This shows that the stand of our country before the U.N.O. was that influx of large number of persons from across the border into India would be an act of aggression.

To be continued....