National Emergency

[Somesh Sharma]

What is the difference between terms war and external aggression in article 352 of Indian constitution?

[Dr. Ashok Dhamija]

The expressions “war” and “external aggression” used in Article 352 of the Constitution have not been defined in the Constitution. The expression “external aggression” is also used in Article 355. In the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 : AIR 2005 SC 2920, a 3-judge bench of the Supreme Court has distinguished between these expressions and has explained what is external aggression. Some of the relevant observations of the Supreme Court in this case are as under:

“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”.

“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. Bantham S.S. Co. [(1938) 3 All ER 80 (KBD)] the following definition of “war” as given in Hall on International Law has been quoted (All ER p. 82 D) 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.”

“In Introduction to International Law by J.G. Starke (Chapter 18) it is said that 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 by L.C. 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.”

“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 3-11-1971, 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 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 UK 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 categorised 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 UNO was that influx of large number of persons from across the border into India would be an act of aggression.”

“…one of the most respected and learned Judges of the 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 very wide meaning. Its meaning cannot be explained by a straitjacket formula but will depend on the fact situation of every case.”

“The definition of “aggression” as adopted by UN General Assembly Resolution No. 3314 (XXIX) was, however, for a limited purpose, namely, where the Security Council or the United Nations Organisation 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.”

“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.”

It may also be pointed out that in the recent case of Assam Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 1 : AIR 2015 SC 783, a 2-judge bench of the Supreme Court has referred, inter alia, the following question to be decided by a Constitution bench (of 5 judges) of the Supreme Court:

“Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”?”

Generally, it may be said that the meaning of the expression “external aggression” is much wider than the meaning of the word “war”. While every “war” may also generally be called an “external aggression”, the reverse may not always be true.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Somesh Sharma]

Thank you sir.

[Author]

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