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