TODAY -

Article 355 of the Constitution of India
- Part 3 -

Naorem Umakanta Singh *



57. In the later part of nineteenth century large number of Chinese labour had started going to U.S.A. The U.S. Congress passed legislations to restrict and then to totally stop their entry in the country. One such Chinese labourer who had earlier worked there for over ten years and had a certificate to that effect came back after a visit to his home in China but was detained in the ship in San Francisco port.

His habeas corpus petition was dismissed by the circuit court and then an appeal was taken to U.S. Supreme Court. Certain observations made in the judgment, which is reported in 130 U.S. 581 (Chae Chan Ping vs. United States), are very illuminating and are being reproduced below: -

"To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character or from vast hordes of its people crowding in upon us.

The Government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth; and its determination, so far as the subjects affected are concerned, are necessarily conclusive upon all its departments and officers.

If, therefore, the Government of the United States, through http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 44 its legislative department, considers the presence of foreigners of a different race in the country, who will not assimilate with us to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.

The existence of war would render the necessity of the proceeding only more obvious and pressing. The same necessity, in a less pressing degree, may arise when war does not exist and the same authority which adjudges the necessity in one case must also determine it in the other." (Emphasis supplied)

58. China is not contiguous to the U.S.A. The journey from a port in China to San Francisco, as the facts of the case show, used to take about a month and having regard to the expenses involved and the carrying capacity of a ship in those days (1870-90) the number of Chinese labour coming to U.S.A. would have been miniscule compared to the influx of people from Bangladesh. Yet the U.S. Supreme Court viewed it as "aggression" and the presence of such foreigners as "dangerous to peace and security of the nation".

59. Lord Denning in his book "The Due Process of Law" has written an "Introduction" to Part Five - "Entrances and Exits" (page 155) and the opening paragraph thereof reads as under : "In recent times England has been invaded - not by enemies - nor by friends - but by those who seek England as a haven. In their own countries there is poverty, disease and no homes.

In England there is social security - a national health service and guaranteed housing - all to be had for the asking without payment and without working for it. Once here, each seeks to bring his relatives to join him. So they multiply exceedingly." (Emphasis supplied)

60. Thus, one of the most respected and learned Judges of recent times has termed the influx of persons from erstwhile colonies of Britain into Britain as "invasion". The word "aggression" is, therefore, an all comprehensive word having a very wide meaning. Its meaning cannot be explained by a straight jacket formula but will depend on the fact situation of every case.

61. The definition of "aggression" as adopted by UN General Assembly Resolution 3314 (XXIX) was, however, for a limited purpose, namely, where the Security Council or the United Nations Organization could interfere and adopt measures in the event of an aggression by one nation against another and the acts enumerated therein which may amount to aggression cannot restrict or curtail the meaning or the sense in which the word "aggression" has been used in Article 355 of the Constitution.

62. The very first sentence of the Statement of Objects and Reasons of the IMDT Act says:
"The influx of foreigners who illegally migrated into India across the borders of the sensitive Eastern and North-Eastern regions of the country and remained in the country poses a threat to the integrity and security of the said region."

It further says that "continuance of these persons in India has given rise to serious problems." The Preamble of the Act says that "the continuance of such foreigners in India is detrimental to the interests of the public of India."

The Governor of Assam in his report dated 8th November, 1998 sent to the President of India has clearly said that unabated influx of illegal migrants of Bangladesh into Assam has led to a perceptible change in the demographic pattern of the State and has reduced the Assamese people to a minority in their own State.

It is a contributory factor behind the outbreak of insurgency in the State and illegal migration not only affects the people of Assam but has more dangerous dimensions of greatly undermining our national security. Pakistan's I.S.I. is very active in Bangladesh supporting militants in Assam. Muslim militant organizations have mushroomed in Assam.

The report also says that this can lead to the severing of the entire landmass of the north-east with all its resources from the rest of the country which will have disastrous strategic and economic consequences.

The report is by a person who has held the high and responsible position of Deputy Chief of the Army Staff and is very well equipped to recognize the potential danger or threat to the security of the nation by the unabated influx and continued presence of Bangladeshi nationals in India. Bangladesh is one of the world's most populous countries having very few industries.

The economic prospects of the people in that country being extremely grim, they are too keen to cross over the border and occupy the land wherever it is possible to do so. The report of the Governor, the affidavits and other material on record show that millions of Bangladeshi nationals have illegally crossed the international border and have occupied vast tracts of land like "Char land" barren or cultivable land, forest area and have taken possession of the same in the State of Assam.

Their willingness to work at low wages has deprived Indian citizens and specially people in Assam of employment opportunities. This, as stated in the Governor's report, has led to insurgency in Assam. Insurgency is undoubtedly a serious form of internal disturbance which causes grave threat to the life of people, creates panic situations and also hampers the growth and economic prosperity of the State of Assam though it possesses vast natural resources.

63. This being the situation there can be no manner of doubt that the State of Assam is facing "external aggression and internal disturbance" on account of large scale illegal migration of Bangladeshi nationals.

It, therefore, becomes the duty of the Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose."

Whether the present situation in Manipur, since 3rd May 2023, will also come under one of the exemplified situations as given by the Hon'ble Supreme Court for invocation and imposition of Article 355 is for the relevant competent Authority to assess, decide and act.

However, there can be no doubt that Manipur is facing an unprecedented situation where the Governance of the State in accordance with the Constitution is under open challenge and threat. But is the present unprecedented situation in Manipur still falling short of imposing Article 355 or whether some of the interventions or assistance by the Union Government since 3rd May 2023 amounts to invocation of Article 355? The answer lies with the relevant competent authority.

However, some of the interventions and actions of the Union Government since 3rd May 2023 seems to indicate that Article 355 is in operation in the State of Manipur but in the absence of a formal declaration or a speaking order/clarification from the competent authority, the speculation as to whether Article 355 of the Constitution of India is imposed in the State of Manipur or not will remain amongst the people.

Concluded....


* Naorem Umakanta Singh (Advocate) wrote this article for The Sangai Express
This article was webcasted on May 16 2024.



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