REV. MONS. SEBASTIAO FRANCISCO XAVIER DOS v. STATE OF GOA

The defence of Rev. Father Monteiro was that he was pro tected by the Geneva Conventions Act, 1960, that the order of the Lt. Governor for his deportation was ultra vires the Act and that he had committed no offence. The Judicial Commissioner and the two courts below have held, for different ·reasons, that the Geneva Conventions ceased to apply after Goa became a part of India and that the Municipal Courts in India Cllln give him no redress agafnst an Act of State. In the appeal before us Mr. Edward Gardner Q.C. appeared for Rev. Father Monteiro with the leave of tiiis Court. To understand the case, a brief history of the annexation of Goa and what happened thereafter is necessary. Goa was Portuguese colony for about 450 years, having been seized by force of arms. On December 19, 1961 Goa was occupied by the Indian Armed Forces following a s~ort military action. It then came under Indian Administration from December 20, 1961 and was governed under the Goa, Daman and Diu (Administratian) Ordinance 1962 promulgated by the President of India. Under the Ordinance all authorities were to continue performing their functions and all laws (with such adaptations as were necessary) were to continue in force and power was conferred on the Central Government to extend to Goa other laws in force in India. The Ordinance was later replaced by 8Jll Act of Parliament bearing the same title and numbered as Act I of 1962. It was enacted on March 27, 1962 and came into force from March 5, 1962. Tt re-enacted the provisions of the Ordinance and in addition gave representation to Goa illl Parliament amending for the purpose the Representation of the People Act. The same day (March 27. 1962), the Constitution (Twelfth Amendment) Act. 1962 was enacted and was deemed to have come into force on December 20, 1961. By this amendment Goa was included in Union Terri tories and a reference to Goa was inserted in Art. 240 of the Constitution. Many Acts in force in India were then extended to Goa and many Regulations and Orders were promulgated. Among the Acts so extended were the Citizenship Act of 1955, Foreigners Act 1946 and the Registration of Foreigners Act, 1939. 92 SUPREME COURT REPORTS [1970] I S.C.R. The <;:entra! Government also promulgated under s. 7 of the Citi zenship Act, 1955, the Goa, Daman and Diu (Citizenship) Order 1962 and as it directly concerns the present matter we may rc -produ~e the second paragraph of the Order (in rn far as it is rnatenal to our purpose) here: "2. Every person who or either of whose parents or any of whose grand-parents was born before twentieth ~ay of De~ember, ~961, in the territories now comprised m the Umon Terntory of Goa, Daman and Diu shall be deemed to have become a citizen of India on that day: Provided that any such person shall not be deemed to have become a citizen of India as aforesaid if within one month from the date of publication of this Order in the Official Gazette that person makes a declaration in writi.ng to the Administrator of Goa, Daman and Diu or any other authority specified by him in this behalf that he chooses to retain the citizenship or nationality which he had immediately before the twentieth day of De -cember, 1961. Provided further ................ ". B c D Pursuant to this Order, on April 27, 1962, Rev. Father E Monteiro made his declaration of Portuguese nationality and on August 14, 1964 applied for a residential permit. On his failure to apply for a renewal of the permit the order ot the Lt. Governor was passed on June 19, 1965. Prosecution followed the disobe «llence of the order. At the outset it may be stated that Mr. Gardner concedes that he does not question the legaUty of the military action or annexation. In fact, he is quite clear that we may consider the annexation to be legal. His contention, in brief, is that the order of the Lt. Governor is tantamount to deportation of Rev. Father Monteiro and the Geneva Conventions Act gives protection against such deportation during occupation which has not validly come to an end, and, therefore, no offence was committed by him. The argument overlooks one cardinal principle of Inter national Law and it is this. Rev. Father Monteiro by his declara tion retained his Portuguese nationality. His sojourn in India Wiie subject to such laws as existed in India in general and in Goa in particular. It cannot be doubted that the reception and residence -0f an alien is a matter of discretion and every State has, by reason ·of its own territorial supremacy, not only the legal right but also F H MONTEIRO v. GOA STATE (Hidayatullah, C.!.) 9 3 A B c the competence to exclude aliens from the whole or any part of its. territory. This proposition is so well-grounded in International Law that every country has adopted the passport system, whick document certifies nationality and entry into any State is only possible with the concurrence of that State. Again a State exer cises territorial supremacy over persons in its territory, whether its own subjects or aliens and can make laws for regulating the entry, residence and eviction of aliens. Therefore, the application of the Foreigners Act, the Registration of Foreigners Act and the Orders passed under them, to Rev, Father Monteiro was legally competent. A considerable body of writers on International Law support the pro9osition and it is sufficient to refer only to Oppen· heim (Vol. I) pp. 675/676 and Brierly Law of Nations p. 217. If authority were needed the proposition would be found supported in the decision of the Privy Council in Musgrove v. Chun Teeong Toy('). The Lord Chancellor in that case denied that an alien excluded from British territory could tnllintain an action. in a British Court to enforce such a right. This proposition being settled, Mr. Gardner sought support f0r his plea from the provisions of the Geneva Conventions Act of 1960. That Act was passed to enable effect to be given to the International Conventions done at Geneva in 1949. Both India and Portugal have signed and ratified the Conventions. Mr. Gar diner relies on the provisions of the Fourth Schedule relative to the protection of certain persons in time of war. He refers in particular to Articles l, 2, 4, 6, 8, 47 and 49. By Arts. 1 and 2 there is an undertaking to respect and ensure respect for the Con· ventions in all circumstances of declared war or of any other armed confiict even if the state of war is not recoguised by one of the parties and to all cases of partiaf or total occupation of the terri· tory of a High Contracting Party even if the occupation meets with no armed resistance. Article 4 defines a protected person and the those who at a given moment and in any expression manner whatsoever, find themselves, in case of conflict or occupa tion, in the hands of a Party to 'the conflict or Occupying Power·of which they are not nationals. Article 6 then Jays dowitt the begin~ ning and end of application of the Convention. The Convention applies from the outset of any conflict or occupation. territory of Parties to the conflict, the application of the Conven In the tion ceases on the general close of Military operations. case of occupied territories it ceases one year after the general close of military' operations but the occupying Power is bound for the duration of occupation, to the extent that such Power exercises the functions of Government in such territory, by Arts. 1-12, 27, 29·34, 47, 49, 51, 52, 53, 59, 61-73 and 143. includes In (1) [1891] A. C. 2 . E F G H 94 SUPREME COURT REPORTS [1970] I S.C.11.. We next come to Arts. 47 and 49 which are the crux of the .matter and are relied upon for the protection. Mr. Gardner points -Out that under Ari. 48 even protected persons may in no circum stance renounce in part or in entirety the rights secured to them by the Conventions. The case, therefore, depends on whether .Arts. 47 and 49 apply here. We may now read Arts. 47 and 49 : "47. Protected persons who are in occupied territory &hall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the i.n.stitutions or Government of the aaid territory, nor by any a~reement concluded between the authorities of the occupied territories and the Occu pying Power, nor by any annexation by the latter of the whole or part of the occupied territory." "49. Individual or mass forcible transfers, as well as deportation of protected persons from occupied terri tory to the territory of the Occupyi.ng Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may qndertake total or partial evacuation of a given area if the security of the population or imJ?Crative military reasons so demand. Such evacuat10n may not involve the dis placement ol protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shalJ be transferred back to their homes as soon as hostilities in the area in question have ceased. The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable ex tent, that proper accommpdation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated. The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place. The Occu pymg Power shall not detain protected persons in an area particularly exposed to the danger of war unless the security of. the population or imperative . military reasons so deman1. A I c D F G H A c 0 E F G MONTEIRO v. GOA STATE (Hidayatul/ah, C.l.) The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." The point 01 difference betwee.n the parties before us in rela tion to Art. 4 7 is whether the occupation continues, the annexa tion of the territory notwithstanding; and in relation to Art. 49 whether the order of the Lt. Governor amounts to deportatioo of a protected person. Mr. Gardner's submissions are ; the order that has beca made is a deportation order and it is therefore ultra vires the Geneva Conventions. These Conventions create individual righll which cannot even be waived. So long as occupation continuei these rights are available and the Geneva Conventions must not be looked at in isolation but read in conjunction with International Law as part of the- positive law. They should not be abal!ldoned lightly. According to him, conquest was a method of acquiring territory in the past but after the Covenant of the League of Nations, the Charter of the United Nations and.the General Treaty for the Renur.ciation of War, the acquisition of territory in Inter national Law by the use of force does not confer any title .. Occu pation, therefore, cal!l only be of terra nullins, not now possible. · He invokes the rule in Heydon's(') case and says that the history of the making of jhe Geneva Convention~ shows that this was pre cisely the mischief ,,Pught to be met and the Conventions now become a part of the Jaws of India through Parliamentary Legis lation:. He concedes that the war of liberation of Goa and the annexation were lawful but he contends that annexation does not deprive protected persons of the protection. According to him, once there is military action and occupation, occupation crunnot cease by a unilateral act of annexation by incorporating the terri tories of Goa with India. I,f India did not care to be bound by the Conventioos, there was a inethod of denunciation in Art. !58 but since the Convention is registered under Art. 159 even denun ciation at a late st11ge was not possible. He relies upon Art. 77 and says that 'Liberated' nieans when the occupation comes to 3111· end. The amendment of the Constitution only legalises annexa tion so far as India is concerned but in Lnternational Law the territory remains 09cupied. The· occupation is not ·at 'an end and it cannot be 'brought about unilaterally. The words of Art. 47 themselves are clear enough to establish this. In short, the con tention is that occupation does not come to end by annexation and, therefore, the protection continues till there is either cession of the territory or withdrawal of the Occupyine: Power from the territory, both of which events have not taken place. In support of his propositions he relies upon Dbolakia (Intemiitional Law) (I) (1584) 3 Rep. 76. SUPREME COURT REPORTS [ 1970] I S.CR. pp. 180, 181, 293; Oppenheim International Law (Vol. I) 7th Edn. pp. 574 e1 seq.; R. Y. Jennings: The Acquisition of Terri tories in International Law pp. 53-56, 67. The contention on behalf of the State is that by occuf;ation is meant occupation by armed forces or belligerent occupa ion and occupation comes to an end by conquest followed by subjugation. Reference is made to many works on International Law. We have to decide between these two submission. This is the first case of this kind and we took time to consider our decision. We are of opinion that the pleas of Mr. Gardner that the Geneva Conventions Act makes dispunishable the conduct of Rev. Father Monteiro, must fail. To begin with, the Geneva Conventions Act gives no specific right to any one to approach the Court. The Act was iiassed under Art. 253 of the Indian Constitution read with entnes 13 and 14 of the Union List in the Seventh Schedule to implement the agreement signed and merely provides for certain matters based on Geneva Conventions. What method an aggrieved party must adopt to move the. Municipal Court is not very clear but we need not consider the point because of our conclusions on the other parts ol the case. We shall consider the Conventions themselves. Before we consider the Geneva Conventions, which form Schedules to the Act, it is necessary to look at the Act itself to see what rights it confers in relation to the Conventions, and whether it gives a right to Rev. Father Monteiro in the present circumstances to invite the Court's opinion. Being a court of law, this Court must be satisfied about its own jurisdiction, the· foundation for which must be in some enforceable law. Prior to the Geneva Conventions Act of 1960 there were the. Geneva Convention Act of 1911 and the Geneva Conventions Implementing Act of 1936. We need not consider them because by the twentieth section of the present Act, the former ceases to have effect as part of the law of India and the latter is repealed. The Act is divided into five Chapters. Chapter I deal~ with the title and extent and commencement of the Act and gives certain definitions. Of these, the important definition is that of 'protected the Fourth Convention and internee' as a person protected by interned in India. Chapter II then deals with punishment of offenders against the Conventions and the jurisdiction of cou•ts to deal with breaches by punishing them. Chapter Ill lays down for offences for the trial of protected persons, the procedure enabling a sentence ol death or imprisonment for a term of two vears or mor<; to be imposed and for appeals etc. Chapter IV prohibits the use of Red Cross 311ld other emblems without the approval of Central Government and provides for a penally. A B c D E F G H MONTEIRO v. GOA STATE (Hidayatullah, C.J.) 97 A Chapter V gives power to the Central Government to make. rules. The Act then sets out the Conventions in its schedules and the Conventions which are four illl number are set out in as many Schedules to the Act. B c D E F G ·" It will thus be seen that the Act by itself does. not give any special remedy. It does give indirect protection by providing for penalties for breaches of Convention. The Conventions are not made enforceable by Government against itself nor does the Act give a cause of action to any party for the ·enforcement of Con ventions. Thus there is only an obligation undertaken by Government of India to respect the Conventions regarding t\le treatment of civilian population but there is no right created in favour of protected persons which the Court has been asked to enforce. enforce the court may be powerless and the court may have to leave the matter to what Westlake aptly described as indignation of mankind. If there is no provision of law which the courts can ' The appe!Jant has, however, sought the aid of the Geneva regard for Conventions to establish that he could not be compelled to leave , Goa and thus committed no offence. We may, therefore, say a few words about the Geneva Conventions, particularly Schedule. IV, which deals with the protection of civilian persons in time of in- In the ·past protection of civilian population was war. . adequately provided in Conventions and treaties. The four con ventions came at different times, the oldest in 1864 and the last in 1949. The Fourth Hague Convention of 1907 contained Arts. 42-56, but this protection was restricted to occupation by an enemy army. The Regulations merely stated the principles and enjoined maintenance of law and order and family rights, lives of persons and private property, and prohibited collec tive punishments. In effect, these were confined to the 'forward areas of war' and did not apply when 'total war' took place and the civilian population was as much exposed to the dangers of war as the military. The example of the First World War showed that civilian population was exposed to exactions. At the tin!e when the Hague Regulations were done, it wa~ thought that such matters as non-internment of the nationals of the adversary would be observed. But the First World War proved to the contrary. It was in 1921 that the International Committee o.f the Red Cross produced a draft Convention which among other things enjoined that the inhabitants of the occupied territory should not be deport ed and civilians in enemy territory must be allowed to return to their homes unless there were reasons of state security and the intennees must receive the ;same treatment as prisoners of war. The Diplomatic Conference bf 1929 and the Red Cross Conference of 1934 made useful studies but action scheduled to take place / SUPREME COURT REPORTS (1970] I S.C.R. in 1940 could not be implemented as the Second World War A broke out. Although the belligerent countries had accepted that the. 1929 Convention regarding prisoners of war was applicable to c1vd1ans, the lessons of the Second World War were different. We ~now the treatment of civilians by Germany and the horried deaths and privations inflicted on them. War, though outlawed, coo- tinues still and as President· Max Huber said ; B "War, as it becomes more and more total, annuls the differences which iormccly existed between armies and civilian populations in regard to exposure to injury 311d danger." At the termination of the last war the International Red Crou Conference at Stockholm prepared a draft in 1948, which became the basis of the deliberations of the Diplomatic Conference which 111et at Geneva from April 21 to August 12, 1949 ~d the present Convention was framed. The Regulations were not revised oc incorporated. The 1949 Conventions are additional to the Regu lations and it is expressly so laid down in Art. 154 of the Geneva Conv~tions. The Hague Regulations, Arts. 42-56, contained some limited and general rules for the protection of inhabitants of occupied territory. The Regulations are supplementary. Regulations 43 and 55 which have no counter-part in the Geneva Convention' must be read. They are not relevant here. Similarly, as there is no definition of 'occupation' in the Geneva Conventions, Art. '42 ·of the Regulation must be read as it cqntains a definition ; "42. A territory is considered as occupied when it finds itself in fact placed under the authority of a hostile army". The Regulations further charge the authority having power over the territory to take all measures to establish and assure law and order. The Ref.ulations generally charged the occupying power to respect the persons and property of the inhabitants of the occu pied territory. There was no provision showing when occupation commenced and when it came to an end. It is because of this omission that it is .claimed in this case that occupation continues so long as there is no cession of the territory by the conquered or withdrawal by the conqueror and that till then the protectiOJI of the Geneva Conventions obtains. However, Art. 6, which provides about the beginning and end of the application of the Conventions throws some light on this. matter. The question thus remains, what is meant by occupation? This is, of course, not occupation of terra nullius but something else. Since there is no definition of occupation in the Geneva c D E F G H MONTEIRO v. GOA STATE (Hidayatul/ah, C.l.) 99 A Conventiqns, we have to turn to the definition in the Hague Regu- , lations. Article 154 of the 4th Schedule. reads : 1l c 0 F G "154. Relation with the Hague Conventions: In the relations between the Powers who are bound by Hagiie Conventions respecting the Laws and ~ustoms of War on Lll!lld, whether that of 29th July, 1899, or that of 18th October, 1907, and who are parties to the present Convention, this last Convention shall be supple mentary to Sections II and III of the Regulations annex ed to the above-mentioned Conventions of the Hague." The definition of 'occupation' in the Regulations must be read since the Regulations are the original rules and the Conventions only supplement the Regulations. We have already quoted the de~tion and it ·shows that a territory is considered as occupied when it finds itself in fact placed under the authority of a hostile army. This means that occupation is by military authoriteis. In the Justice case(') it was stated that the Jaws of belligerent occu- · pation apply only to an occupation during the course of actual warfare and that once the enemy has been totally defeated those laws do not apply to the ensuing oc~upation. The question thus· resolves itself into this : Is occupation in Art. 47 belligerent occupation or. occupation which continues after tli_e total defeat of the enemy ? In this connection courts must take the Facts of State from the declaration of State authorities. Military occupation is a temporary de facto situ'ation which does not deprive the Occupied Power of its sovereignty nor does it take away its statehood. All that happens is that pro tempore Occupied Power cannot exercise its rights. In other words, belli gerent occupation means that the Government cannot function and authority is exercised by the occupying force. Annexatiqn, on the other hand, occurs when the Occupying Power acquires and makes the occupied territory as its own. Annexation gives a de jure right territory. Annexation means that there is not only possession but unconteSted 110vereigll1y over the territory. As Greenspan( 2 ) put it (p. 215) military occupation must be distinguished from subjugation, .where a territory is not only conquered, but ·annexed by the conqueror. to administer There is, however, a difference between true annexation on the one hand aind premature annexation, or as it is sometimes called 'anticipated annexation', on the other. Jurists regard anne xation as premature so long as hostilities are continuing and there is an opposing army in the field even if the Occupied Power is (1) Ufflted States v. Attstoctter, et. al. (1947)· U. S. Military Tribunal, Nucm berg L. R. 3 T. W. C. vi, 34. (2) The Modern Law of Land\ Warfare. SUPREME COURT REPORTS (1970] l SCR. .. holly excluded from the territory. Anticipated annexation by unilateral action is not true annexation. True annexation is only so when the territory is conquered and subjugaced (see Oppen heim International Law. (Vol. I) 566 (Vol. I), pp. 44li; 52 (Vol. 11), 430-439 (Vol. II) and 599 et seq (Vol. 11), Greenspan (ibid) pp. 215 er seq 600-60.l; Gould: Introduction to International Law pp. 652-656, 662-663; Brierly: Laws o~ Nat:~ns p. 155]. (7th Edn.) pp. 846-847. The Convention, rightly Jay duwJl that annexation has no effect on the protcclion. But they speak of premature or aniici pated annexation. Premacurc or anticipated annexation has no effect. Such a pica was negatived for the same reason by the ln fact, when the Convention itself was Nuremberg Tribunal. being drafted the experts we'e half-inclined to add the word 'alleged' before 'annexation' in Art. 47 to distingui'h between annexation following conquest and subjugation aJld annexation made while hosti!ilies are going on. Subjugation puts an end to the stale of war and destroys the source of authority of the exi,ting Government. In subjugation, which is recognised as one of the modes of acquiring title, not only the de facto but also the de jure title passes to the conqueror. After subjugation the inhabitant5 must obey the Jaws such as arc made and not resist them. in the Thus the principle which is accepted is that the Occupyin~ Power must apply the Convention evon when it claims dtJrill! conflict to have annexed the occupied territory. However, whe• field, the conflict is over and ther~ is no hostile army annexation has the effect of creating a title to !he terricory. It may be asked why does Art. 6 then mention a period 0f one year? The reason given is that if the Occupied Power turn' victorious the land would be freed in one year and if the Occupy ing Power remains victorious, as hostilities cease, strong measures In this. against the civilian population are no longer .necessary. as in other laws, a line is drawn arbitrarily and it is ar the end of one year. Otherwise also, occupation, which means belligerent occupntion. comes to an end whe,n hostilities cease and the territorv becomes a ~ort of the Occupyin.2 Power. Annexation may some tirilcs be peaceful, as for example, Te~as and Hawaiian Island~ were peacefully annexed by the United States, or after war, a• th• annexation of South Africa and Ora,nge Free State by Britain. The question, when does ticle to the new territory begin, is not e.·sy to answer. Some would make title depend upon recognition. !.-:r. Stimson's doctrine of n~n-recognition in cases wilere a state flf things has been brought about contrary to the Pact of Paris · ·as intended to deny root of title to conquest but when Italy con it was ,uered Abyssinia, the conquest was recognised because A D c D E F G H A B c D E f G H MONTEIRO .v. GOA STATE (Hidayatullah, C.J.) I 0 I thought that the state of affairs had come to stay. thus, although the United Nations Charter includes the obligation that force would not be used against the territorial integrity of other States (Art. 2 para 4), events after the Second World wa, have shown that transfer of title to territory by conquest is still recognised. Prof. R. Y. Jennings poses the question: What is the legal position where. a conqueror havi,ng no title by conquest is nevertheless in full possession of the territorial power, and not apparently to be ousted ?" He recommends the recognition of this fact between . If cession after defeat caii create title, occupation the two States. combined with absence of opposition must lead to the same kind of title. · In the present case •the facts are that the military engagement was only a few hours' duration and then there was no resistance ·"-! all. It is hardly necessary to try to establish title by history traced to the early days as was done ·in ·the Minquiers and · Ecrenos(') case. Nor is there any room for the thesis of _Dr. Schwarzenberger (A Manual of Inter,national La:w, 5th Edn. p. 12 that' title is relative and grows · with recognition • True ·:\nnexation followed here so close upon military occupation as to leave no real hiatus. We can only take the critical date of true and final an,nexation as December 20, 1961 when the entire gov ernment and administration were taken over and there was no army in occupation and no army in opposition. The occupation on December 20, 1961 was neither belligerent occupation nor anticipated occupation, but true annexation by conquest a,nd sub jugation. It must be remembered that Mr.· Gardiner concedes that the annexation was ]awful. Therefore, since occupation in the sense used in Art. 4 7 had ceased, the protection must cease also. We are, therefore, of opinion that in the present case there wa> no· breach of the Geneva Conventions. We were invited to look at the matter from another point of view, namely, even if the protection against deportation envisaged bv Arts. 47 and 49 were taken to be continued, what is the remedy which the Municipal Courts can give? It was said, the act was an Act cf State. In view of what we have already held it is not necessary to pronounce our opinion OJI this argument. Th~ national status of subjects of the subjugated state is a matter for the State, and courts of law can pave no say in the matter. As Oppenheim (Vol. I p. 573) puts it : . "TI1e subjugatin.:s state can, if it likes allow them to emigrate, and to renounce their newly acquired citizen ship, and its Municipal Law can put them in any position (I) 1953 o. c. J.) 47. 102 SUPREME COURT ltl!PORTS [ 1970] l S.C.ll. it likes, and can in particular grant or refuse them the same rights as those which its citizens by birth enjoy." The Geneva Conventions ceased to apply after December 20, 1961. Indian The Indian Government offered Rev. Father Monteiro nationality and citizenship which he refused and retained his Portuguese nationality. As a Portuguese national he could only stay in India on taking out a permit He was, therefore, rilditly prosecuted under the law apphcable to him. S\ncc no comp1aint IS made about the trial as such, the appeal must fail. It will be dismissed. A B G.C. / Apptal dismiutd.