Article 355 of the Constitution of India
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Naorem Umakanta Singh (Advocate)
Sometime back, the words Article 355 did the round in the State of Manipur. The Question that was being bandied around was - “Whether Article 355 of the Indian Constitution was imposed in the State of Manipur or not?”. The exact answer to this question can only be given and confirmed by the relevant competent authority but in the absence of such confirmation and also conflicting statements given by some public leaders and officials, the question remains unsatisfactorily answered.
But what exactly is Article 355 of the Indian Constitution? Article 355 is a provision found in Part XVIII of the Indian Constitution. Part XVIII of the Indian Constitution (starts from Article 352 up to Article 360) deals with the Emergency provisions in the country as provided in the Constitution of India. By these special Articles, the Union Government can declare a state of emergency and assume the power and function of the Government in the affected State/s or for that matter the entire country. As per the Emergency provisions as contained in Part XVIII of the Indian Constitution, the declaration of state of Emergency is done in 3(three) situations. Firstly, by invoking Article 352, when a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion; Secondly, by invoking Article 356 when there is failure of Constitutional machinery in the State and thirdly, by invoking Article 360 when there is a financial emergency. Now, where do Article 355 fits into this scheme of things. Let’s first understand the provision as contained in the Constitution.
Article 355 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.”
From the plain reading of Article 355, it can be seen and understood that a duty is mandated upon the Union Government to protect every State against external aggression and internal disturbance and the Article also further mandates the Union Government to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution.
Article 355 of the Constitution was initially absent from the Draft Constitution of 1948 but was later on introduced. The underlying principle and purpose of introducing Article 355, as explained by Dr BR Ambedkar, Chairman, Drafting Committee was that if the Union Government was to interfere in the administration of the State, it must be under some Constitutional provisions. The Constitution framers intended that Union Government intervention in the State by imposition of President Rule must be used sparingly. In other words, Article 355 was to be the precursor or the enabling power before the declaration of Emergency and imposition of Union Government rule. It is because of this Constitutional duty that is cast upon the Union Government to safeguard the Constitutional machinery in a State that the Union Government can intervene in by imposition of President Rule. In the case of SR Bommai–versus-Union of India as reported in (1994) 3SCC1, His Lordships, Justice Sawant and Justice Kuldip held that “Article 355 is not an independent source of power for interference with the functions of the State Government but is in the nature of justification for the measures to be adopted under Articles 356 and 357.”
However, in recent times there seems to be a change in the understanding as well as approach toward Article 355 of the Constitution. The Sarkaria Commission, which was mandated to study and review the Union and State relations, while submitting its report on 27/10/1987, explained the whole range of actions possible on the part of the Union Government under Article 355 of the Constitution depending on the circumstances of the case, the nature, the timing and the gravity of the internal disturbances. In some cases, advisory assistance by the Union to the State for the most appropriate deployment of its resources; in serious situations, augmentation of the State’s own efforts by rendering Union assistance in man, material and finances. If it’s a violent upheaval or a situation of external aggression (not amounting to grave emergency under Article 352), deployment of the Union Forces in the areas of the State. Normally, a State would actively seek assistance of the Union to meet such a crisis, but the scope of Article 355 is wide enough to enable the Union to render all assistance not-withstanding that the State Government has not made any specific request. The third limb of Article 355 cast a duty on the Union to ensure that the Government of the State is carried on in accordance with the Constitution. So if one was to read and understand the Sarkaria Report as well as certain observations and opinions of the Hon’ble Courts made in recent times, the ambit and scope of Article 355 seems to have widened. If a reference is to be made to judgement of the full bench of the Allahabad High Court in HSJain versus Union of India, (1997) 1OPCBEC594, the changing scope of Article 355 from merely being a justification for action under Article 356 to independent power and obligation as well can be apparent.
From the above discussions , one can fairly have an idea that Article 355 has been provided in the Constitution to enable the Union Government to intervene and assist in the affairs of the State if the State Government ability to govern as per the Constitution is under threat by “External Aggression” and “Internal Disturbance.” Accordingly, the invocation of Article 355 will arise, where there is an external aggression and internal disturbance, which may affect the Constitutional governance of the State. In that case, we need to understand the words and meaning of “Aggression” and “Internal Disturbance” in the context of Article 355.
‘Aggression’ is defined in the dictionary as ‘Violent behaviour’ ‘Readiness to attack’, etc. while ‘Internal Disturbance’ as per the International Committee of Red Cross (ICRC), defines it is as a situation where there is serious or lasting internal confrontations, which include acts of violence, from spontaneous isolated Act or Revolt to a struggle by groups in various stages of organisations against the authorities in power. These situations do not necessarily escalate into open struggle, but the authorities use large police forces and the armed forces, to restore order within the country.
Less than a score years back, the Hon’ble Supreme Court of India again had the occasion to deal with the provision of Article 355 and also discuss the word “Aggression” as contained therein while considering the Constitutional validity of the Illegal Migrants (Determination by Tribunal) Act, 1983 made applicable to the State of Assam in Sarbananda Sonowal versus Union of India as reported in (2005) 5SCC1655/AIR 2005 SC 2920. The relevant portions of the Hon’ble Supreme Court succinct discussion with regard to Article 355 and the word “Aggression” as found in paragraph 51 to 63 are quoted below :-
“51. The foremost duty of the Central Government is to defend the borders of the country, prevent any trespass and make the life of the citizens safe and secure. The Government has also a duty to prevent any internal disturbance and maintain law and order. Kautilya in his masterly work “The Arthashastra” has said that a King had two responsibilities to his State, one internal and one external, for which he needed an army. One of the main responsibilities was Raksha or protection of the State from external aggression.
The defence of the realm, a constant preoccupation for the king, consisted not only of the physical defence of the kingdom but also the prevention of treachery, revolts and rebellion. The physical defensive measures were the frontier posts to prevent the entry of undesirable aliens and forts in various parts of the country. (Arthashastra by Kautilya - translated by Shri LN Rangarajan, who was in Indian Foreign Service and Ambassador of India in several countries-published by Penguin Books 1992 Edn., page 676). The very first entry, namely, Entry 1 of List I of the Seventh Schedule is : “Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination of effective demobilization”.
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). (To be contd)
Sometime back, the words Article 355 did the round in the State of Manipur. The Question that was being bandied around was - “Whether Article 355 of the Indian Constitution was imposed in the State of Manipur or not?”. The exact answer to this question can only be given and confirmed by the relevant competent authority but in the absence of such confirmation and also conflicting statements given by some public leaders and officials, the question remains unsatisfactorily answered.
But what exactly is Article 355 of the Indian Constitution? Article 355 is a provision found in Part XVIII of the Indian Constitution. Part XVIII of the Indian Constitution (starts from Article 352 up to Article 360) deals with the Emergency provisions in the country as provided in the Constitution of India. By these special Articles, the Union Government can declare a state of emergency and assume the power and function of the Government in the affected State/s or for that matter the entire country. As per the Emergency provisions as contained in Part XVIII of the Indian Constitution, the declaration of state of Emergency is done in 3(three) situations. Firstly, by invoking Article 352, when a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion; Secondly, by invoking Article 356 when there is failure of Constitutional machinery in the State and thirdly, by invoking Article 360 when there is a financial emergency. Now, where do Article 355 fits into this scheme of things. Let’s first understand the provision as contained in the Constitution.
Article 355 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.”
From the plain reading of Article 355, it can be seen and understood that a duty is mandated upon the Union Government to protect every State against external aggression and internal disturbance and the Article also further mandates the Union Government to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution.
Article 355 of the Constitution was initially absent from the Draft Constitution of 1948 but was later on introduced. The underlying principle and purpose of introducing Article 355, as explained by Dr BR Ambedkar, Chairman, Drafting Committee was that if the Union Government was to interfere in the administration of the State, it must be under some Constitutional provisions. The Constitution framers intended that Union Government intervention in the State by imposition of President Rule must be used sparingly. In other words, Article 355 was to be the precursor or the enabling power before the declaration of Emergency and imposition of Union Government rule. It is because of this Constitutional duty that is cast upon the Union Government to safeguard the Constitutional machinery in a State that the Union Government can intervene in by imposition of President Rule. In the case of SR Bommai–versus-Union of India as reported in (1994) 3SCC1, His Lordships, Justice Sawant and Justice Kuldip held that “Article 355 is not an independent source of power for interference with the functions of the State Government but is in the nature of justification for the measures to be adopted under Articles 356 and 357.”
However, in recent times there seems to be a change in the understanding as well as approach toward Article 355 of the Constitution. The Sarkaria Commission, which was mandated to study and review the Union and State relations, while submitting its report on 27/10/1987, explained the whole range of actions possible on the part of the Union Government under Article 355 of the Constitution depending on the circumstances of the case, the nature, the timing and the gravity of the internal disturbances. In some cases, advisory assistance by the Union to the State for the most appropriate deployment of its resources; in serious situations, augmentation of the State’s own efforts by rendering Union assistance in man, material and finances. If it’s a violent upheaval or a situation of external aggression (not amounting to grave emergency under Article 352), deployment of the Union Forces in the areas of the State. Normally, a State would actively seek assistance of the Union to meet such a crisis, but the scope of Article 355 is wide enough to enable the Union to render all assistance not-withstanding that the State Government has not made any specific request. The third limb of Article 355 cast a duty on the Union to ensure that the Government of the State is carried on in accordance with the Constitution. So if one was to read and understand the Sarkaria Report as well as certain observations and opinions of the Hon’ble Courts made in recent times, the ambit and scope of Article 355 seems to have widened. If a reference is to be made to judgement of the full bench of the Allahabad High Court in HSJain versus Union of India, (1997) 1OPCBEC594, the changing scope of Article 355 from merely being a justification for action under Article 356 to independent power and obligation as well can be apparent.
From the above discussions , one can fairly have an idea that Article 355 has been provided in the Constitution to enable the Union Government to intervene and assist in the affairs of the State if the State Government ability to govern as per the Constitution is under threat by “External Aggression” and “Internal Disturbance.” Accordingly, the invocation of Article 355 will arise, where there is an external aggression and internal disturbance, which may affect the Constitutional governance of the State. In that case, we need to understand the words and meaning of “Aggression” and “Internal Disturbance” in the context of Article 355.
‘Aggression’ is defined in the dictionary as ‘Violent behaviour’ ‘Readiness to attack’, etc. while ‘Internal Disturbance’ as per the International Committee of Red Cross (ICRC), defines it is as a situation where there is serious or lasting internal confrontations, which include acts of violence, from spontaneous isolated Act or Revolt to a struggle by groups in various stages of organisations against the authorities in power. These situations do not necessarily escalate into open struggle, but the authorities use large police forces and the armed forces, to restore order within the country.
Less than a score years back, the Hon’ble Supreme Court of India again had the occasion to deal with the provision of Article 355 and also discuss the word “Aggression” as contained therein while considering the Constitutional validity of the Illegal Migrants (Determination by Tribunal) Act, 1983 made applicable to the State of Assam in Sarbananda Sonowal versus Union of India as reported in (2005) 5SCC1655/AIR 2005 SC 2920. The relevant portions of the Hon’ble Supreme Court succinct discussion with regard to Article 355 and the word “Aggression” as found in paragraph 51 to 63 are quoted below :-
“51. The foremost duty of the Central Government is to defend the borders of the country, prevent any trespass and make the life of the citizens safe and secure. The Government has also a duty to prevent any internal disturbance and maintain law and order. Kautilya in his masterly work “The Arthashastra” has said that a King had two responsibilities to his State, one internal and one external, for which he needed an army. One of the main responsibilities was Raksha or protection of the State from external aggression.
The defence of the realm, a constant preoccupation for the king, consisted not only of the physical defence of the kingdom but also the prevention of treachery, revolts and rebellion. The physical defensive measures were the frontier posts to prevent the entry of undesirable aliens and forts in various parts of the country. (Arthashastra by Kautilya - translated by Shri LN Rangarajan, who was in Indian Foreign Service and Ambassador of India in several countries-published by Penguin Books 1992 Edn., page 676). The very first entry, namely, Entry 1 of List I of the Seventh Schedule is : “Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination of effective demobilization”.
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). (To be contd)