Article 355 of the Constitution of India
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Naorem Umakanta Singh (Advocate)
Contd from previous issue
“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.
To be contd
Contd from previous issue
“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.
To be contd