ii c REV. MONS. SEBASTIAO FRANCISCO XAVIER DOS REMEDIOS MONTEIRO v. STATE OF GOA March 26, 1969 [M. HmAYATULLAH, C.I., S. M. SIKRI, R. S. BACHAWAT, G. K. MITTER AND K. S. HEGDE, JI.]
Geneva Conventiolt.$ A.ct Fourdi Schedule, Arts. 6, 47, 49-'0ccupc- tion' under A.rt. 47 whether continues after aniiexation and subjugation- Tr•t annexation distlnguilhed from premature annexation-A.rt. 47 refer1 to premature annexation only-Goa annexed by India after swift military action-Benefit of Arts. 41 and 49 whether available
ro Portugwse nationals in Goa-Court'a power to give remedy. Tbe Geneva Convention1 Act 6 df 1960 was passed by the Indi .. Parliament to enable effect to be given to the International ConventiOll8 done at Geneva in 1949. India and Portugal have both signed and ratifi- ed th"' C.Onventions. The four Conventions were adopted
in as many Scliedules to the Act. The Fourth Convention was meant to apply to all cases of partial or total occupation of the territory of the contractini parties and gave protection to perS0118 who found themselves in, case of a conllict or occupation in the hands of a Party to the confiict or Occupy- ing Power of which they were not nationals.
In the CQf< of occupied t<rritory the Convention applies under Art. 6 for a period df one year after the general close of Military operations, but during the period of occupation the Occupying Power i• bound by certain Articles includiDJ. inter a/ia, Arts. 1-12, 47 and 49. By Art. 47 protected persons m occupied territory can not be deprived of the benefits of the Convention despite any change introduced as a result of the occupation or even annexation of whole or part of the territory by the Occupying Power. Art. -49 forbids the deportation of protected persons 'from the occupied terri- 10ry. There is no definition of the ierm 'occupied' in the Geneva Conven- tions but the Hague Regulations to which the Conventions are madtt supplementary defined a territory as occupied when it finds itself 'in fact placed under the authority of a hostile Army'.
The territory of Goa wu • Portuguese colony for about 450 years, having been seized by force of arms. On December 19, 1961 Goa was. eccupied by Indian Armed Forces following a short military action. It then came under Indian Administration from December 20, 1961 and
was aovemed under the Goa, Daman and Diu (Administration) Ordinance 1962 promulgated by the President of India. 'The Ordinance was replaced on March 27, · 1962 by A.ct I of 1962. The same day the Constitution (Twelfth Amendment) A.ct 1962 WM enacted and wu deem- ed to have come into force on December 20,, 1961. By this amend- ment Goa was included in the Union Territories and a reference to Goa wa.> inserted in· Art. 240 of tho Conatitution. Indian laws including the Citizenship Act of 1955. the Foreigners Act 1946 and the Registration of Foreignen Act 1939 were ox:tended to Goa. The Central Government also promulgated under•. 7 of the Citizenship A.ct, 1955, the Goa, Deman and Diu (Citizenship) Order 1962. The second paragraph of the order conferred Indian Citizenship on certain classes of pers0118 in these terri- IOries, giving an option to those desirous df retaining their previous cidmi- ship or nationality of another country to make a declaration to that effect witbi• one month or the Order.
SUPREME COUil! REPORTS (1970] I S.C.R. The appellant who was a resident of Goa made punuanl to the above Order his declaration c;f Portuguese nationality. He was allowed to stay in India under a temporary residential permit till November 13, 1964. Aft« that date he did not ask for a renewal of the permit. Tho Lt, Governor of Goa empowered under Art. 239 of the Constitution ordered him to leave India. For disobeying the order he was prosecuted
uuder s. I4 read with s. 3(2)(c) elf the Foreisners Acl. Betng convicted he appeal- ed unsuccessfully to the Court of Session. His revision ~tition being rejected by the Judicial Commissioner, he appealed by special leave to tlm Court.
The contention on behalf of the appellant were based on the Geneva Conventions which it w"' said had become a part of the law of India under Act 6 of 1960. It was urged that after the United Nations Charter the acquisition of territory in International Law by torce of arms could not coofor title. The amendment of tho Constitution only legalised the annexation so far as India was concerned but in International Law the territory remained occupied bccawe it had neither been ceded, nor bad the Occupying Power withdrawn.
As a result, it was contended, lhe pro- tection of Arts. 41 and 49 continued to be available to the appellant and by disobeying the deportation order he did not commit any offence. HELD : (i) The appellant's argument overlooked the cardinal princi- ple of international law that the reception and residence of an alien is a matter of discrc:ion and every State has by reason of its own territorial supremacy not only the legal rigbt but also the competence to exclude
aliens from the whole or any part of il!I territory. Accordingly every coun- try has adopted the passport system which document certifies nationality and entry into any Slate is only possible
with the concurrence of the State. Again a State exercises territorial supremacy over persons in its territory, whether its own subje.cts or aliens, and can make tilws fur regu- latin& tho entry, residence and eviction of alien•. Therefore the applica- tion of the Foreigners Act, the Registration elf. Foreigners Act and Orders puoed under them, to the appellant wbo bad chosen Portuguese nationa- l~ waa legally competent. There is authority for the proposition that an alien excluded from the territory of a State cannot maintain an action in a Municipal Court to enforce his right [92 H-93 CJ
Oopenheim International Law (Vol. I) pp. 675/676, Brierly Law or Natioiit p. 217, and M113grove v. Chun Tuong Tuy, [1891) A.C. 272, re- fe<red to. (ii) The Geneva Conventions Act aloo gives no specillc
rigbt to anyone to approach the Court. By itaelf it gives no special remedy. It doeo &iv1 indirect protection by providing for penalties for breach of Con- vention. Tho Conventions are not made enforceable by
Government apimt itself, nor docs the Act give a cause elf. •ction to any party for the enforcement of the Conventiom. Thus there is only an obligation undertaken by the OoTernment of India to reopect the Conventions reprd- in& the treatment of civilian population but there i• no right created In favour of protected persons which the court ha• been asked to enforce. If there is no provision Cit law which the courts can enforce the court may be powerleM and hRs to leave the matter tO the 'indignation of mankind'. [97 B-CJ
(iii) The Geneva Conventions too did not support the appellant's claim to the benefit of Art. 49 of the Founh Convention on the basis that Goa continued, even after itc; annexation by India, to he occupied tcrritorv within the meanin11 of Art. 47.
(a) In the Hague Regulations to which the Geneva Convention~ \\'Crc supplementary the definition of 'occupation' shows that a territory is con- c c MONTEIRO v. GOA STATE sidered as occupied wh~n it finds itself in fa<:t pl~ced und~r the auth<!f~ty of a hostile army. This means that occupation ts by m1htary author1t1es i.e. belligerent occupation.
Under belligerent occupation, which is a de fac10 situation, the Occupied Power is not deprived of its sovereignty or its statehood. AU that happens is that pro tempore the Occupied
Power cannot ex~cise itci rights, its Government cannot function and authority is exercised by the occupying force. In this connection the courts must take the Fact; of State from the declaration of the State authorities. [99 C.Fl
United States v. Attstoctter et al, (1947) U.S. Military Tribunal, Nuremburg L.R. 3 T.W.C. vi, 34. referred to. (b) Annexation as distinguished from belligerent occupation occurs when the Occupying Power acquires and makes the occupied territory its own. Annexation
gives a de jure right to administer the territory. Annexation means that there is not only possession but uncontested sovereignty over the territory. [99 F-Gl Greenspan, The Modern Law of Land Warfare, p. 215, referred to. There is however difference between true annexation on the one hand and premature annexation or 'anticipated
annexation' on the other. Annexation is premature so long as hostilities are continuing and there is an opposing army in the field even if the Occupied Power is wholly ex- cluded from the territory. Anticipated annexation by unilateral action is not true .annexation. True annexation
is only so when the tetritory is conquered and subi1wated. [99 C-H; 100 A-Bl Oppenheim: International Law (7th Edn.) pp. 846-847 (Vol. I), 566 (Vol. I), pp. 846-847 (Vol. II), 430-439 (Vol. II) and 599 et. seq (Vol. II); Greenspan pp, 215 et seq 600-603, Gould: Introduction to Inter- national Law pp. 652-656, 662-663; Brierly:
Law of Nations, p. 155, referred to. (c) When Conventions lays down that annexation has no effect they speak of prematnre or anticipated annexation. It was so held by the Nuremburg Tribunal and the experts who dra'fted the. Convention were inclined to add the word 'alleged' before 'annexation' in /\rt. 47 to distin- guish between annexation following conquest and subjugation and annexa .. tion made while hostilities were going on subjugation puts an end to the State of war and destroys the source of authority of the existing Govern- ment. In subjugation which is recognised as one of the modes of acquir- ing title not only the de facto but also the de ;11re title passes to the con- queror.
After subjugation the inhabilanls must obey the laws 111uch as they are and not r"'ist them. [100 C·D] ( dl Under Art. 6 the Convention continues to apply to occupied territory for one year after the general close of hostiHties for the reason that if the Occupied Po,ver turns victorious the land would be freed in
one year, and i~ the Occupying Power remains victorious, as hostilities cease, ·stron~ measures against the civilian population are no longer necessary. Otherwise al.tto, occupation. which means belligerent ·occµpation comes to an end when hostiJitie«: cease and the territory becomes a part or the Occupying Power. [100 F-G]
ff (e) Title to new territory is not dependent on recognition. Despite the Stim~~n ck?ctrine the conque.;;t of Abyssinia by Italy was recognised because Jt was thought that the State of affairs had come to stay. Even after the adoptirin of the United Nations Charter events since the Second .M12Sup. Cl/69-7
[ 1970] I S.C.R. World War have shown that lransfer (If title to territory by conquest is still recognised. If ctssion after defeat can create title, occupation com- bin<d wirh absence of opposition must lead to the sam0 result. (100 H-101 BJ
(f) In the present case rho military eng.i.gement was ooly a few hou11 duration and there was no resistance at all. It was hardly necessary to try to establish title by history traced lo the early days oor any room for Schwarzeoburger's thesis rhal title is relative and grows with rocognirioo. True annexation followed here so close upon military occupation as to leave no real hiatus. True annexation by conquest and 1ub1ugation was complete on December 20, 1961 and the Geneva Convention ceased to apply from that date. It was not disputed that the annexation was law- ful.
Therefore since occupation lo the sense used in Art. 47 had ceased the protection must cease also. rtOl C-Fl Minquitrs and Ecr<no.<, 1953 (I.CJ.) 47 and Schwarzenburger: Manual of lnlemational Law, 5th Edn. p. 12, referred to.
(iv) The national status of subject of the subjugated State is a mat:er for the State and cour~ of law can have no say in the matter. Having cbo6cn Portuguese nationality the appellant could only stay in India on taking out a permit.
He was therefore rightly convicted under the law applicahle to him. 1101 11-102 Bl Oppenheim !111erna1ional law, Vol. I p. 573, referred to. [On the view taken it was not considered necessary to decide the ques· lion whether deportation was· an Act of State and the Municipal Courts could therefore j!ive no remedy.] [IOI G)
CRIMINAL APPELLATE JUJUSDICTION : Criminal Appeal No. 50 of 1968. Appeal by special leave from the judgment and order dated August 7, 1967 of the Judicial Commissioner Court, Goa, Daman and Diu in Criminal Revision PetitiQn No. 55 of 1966.
Edward Gardner, Q.C., A. Bruto Da Costa, M. Bruto Da Co.Tio, P. C. Bhartari, A. K. Varma and J.B. Dadachanji, for the appellant. Niren De, Allorney-General, G. R. Rajagopau/, J. M. Mukhi
and R. H. Dhebar, for the respondent. The Judgment of the Court was delivered by Hidayatullah, C.J. The appellant (Rev. Father Monteiro) is a resident of Goa. After the annexation of Goa by India, he had
the choice of becoming an Indian national or retaining Portuguese nationality. He choose the latter and was registered as a for~i211- er. He also obtained a temporary residential permit
which allowed him to stav on in India till November 13. 1964. The period of stay expired and he did not ask for its extension or renewal. He was orde-ed to leave India by the Lt. Governor of
el Goa. The Lt. Governor is empowered by a notification of the Pr~ident of India issued under Art. 239 of the Constitution to discharge the function~ of the Central Government and his order c
MONTEIRO v. GOA STATE (Hidayatullah, C.J.) 9-1 has the same force and validity as ii made by the Central Govern- ment. Rev. Father Monteiro clisobeyed the order, and in conse- quence was prosecuted u.nder s. 14 read with s. 3 ( 2 )( c) of the Foreigners Act.
He was convicted and sentenced to 30 days' simple imprisonment and a fine of Rs. 50/ – (or 5 days' further simple imprisonment). He appealed unsuccessfully to the Court of Session and his revision application to the Court of the Judicial Commissiilner, Goa also failed.
He now appeals by special leave of this Court against the order of the Judicial Commissioner, Goa dated August 7, 1967. 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 ll 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, the Foreigners Act 1946 and the Registration of Foreigners Act, 1939. [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 ……………. ". c Pursuant to this Order, on April 27, 1962, Rev. Father 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 the 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 c
MONTEIRO v. GOA STATE (Hidayatullah, C.!.) 9 3 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 expression includes
those who at a given moment and in any 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. In the territory of Parties to the conflict, the application of the Conven- tion ceases on the general close of Military operations.
In the 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.
(1) [1891] A. C. 2 . [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. c c MONTEIRO v. GOA STATE (Hidayatul/ah, C.l.) ts 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.
[ 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 internee' as a person protected by the Fourth Convention and 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 the procedure for the trial of protected persons, for offences 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. c c MONTEIRO v. GOA STATE (Hidayatullah, C.J.)
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. 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 the
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. If there is no provision of law which the courts can ' enforce the court may be powerless and the court may have to leave the matter to what Westlake aptly described as indignation of mankind.
The appe!Jant has, however, sought the aid of the Geneva 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 war. In the ·past protection of civilian population was
in- . 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 regard for 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 (1970] I S.C.R.
in 1940 could not be implemented as the Second World War 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 ; "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 1l c MONTEIRO v. GOA STATE (Hidayatul/ah, C.l.) Conventiqns, we have to turn to the definition in the Hague Regu- , lations. Article 154 of the 4th Schedule. reads : "154. Relation with the Hague Conventions: In the
relations between the Powers who are bound by the 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 the 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 to administer the 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. 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. too (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. (7th Edn.) pp. 846-847. (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].
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 Nuremberg Tribunal. ln fact, when the Convention itself was 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. 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• the conflict is over and ther~ is no hostile army in the field, 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 against the civilian population are no longer .necessary.
In this. 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- ,uered Abyssinia, the conquest was recognised because it was c
c f 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 the two States. . If cession after defeat caii create title, occupation 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. 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. The Indian Government offered Rev. Father Monteiro Indian 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. G.C. Apptal dismiutd.