Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 14
PETITIONER:
REV. MONS. SEBASTIAO FRANCISCO XAVIER DOS.REMEDIOS MONTEIR
Vs.
RESPONDENT:
STATE OF GOA
DATE OF JUDGMENT:
26/03/1969
BENCH:
HIDAYATULLAH, M. (CJ)
BENCH:
HIDAYATULLAH, M. (CJ)
SIKRI, S.M.
BACHAWAT, R.S.
MITTER, G.K.
HEGDE, K.S.
CITATION:
1970 AIR 329 1970 SCR (1) 87
1969 SCC (3) 419
ACT:
Geneva Conventions Act Fourth Schedule, Arts. 6, 47, 49-
Occupation’ under Art. 47 whether continues after annexation
and subjugation-True annexation distinguished from premature
annexation-Art. 47 refers to premature annexation only-Goa
annexed by India after swift military action-Benefit of
Arts. 47 and 49 whether available to Portuguese nationals in
Goa-Court’s power to give remedy.
HEADNOTE:
The Geneva Conventions Act 6 of 1960 was passed by the
Indian Parliament to enable effect to be given to the
International Conventions done at Geneva in 1949. India and
Portugal have both signed and ratified the Conventions. The
four Conventions were adopted in as many Schedules to the
Act. ’Mc Fourth Convention was meant to apply to all cases
of partial or total occupation of the territory of the
contracting parties and gave protection to persons who,
found themselves in case of a conflict or occupation in the
hands of a Party to the conflict or Occupying Power of which
they were not nationals. In the case of occupied territory
the Convention applies under Art. 6 for a period of one year
after the general close of Military operations, but during
the period of occupation the Occupying Power is bound by
certain Articles including, inter alia, Arts. 1-12, 47 and
49. By Art. 47 protected persons in 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 territory. There is no
definition of the term ’occupied’ in the Geneva Conventions
but the Hague Regulations to which the Conventions are made
supplementary defined a territory as occupied when it finds
itself ’in fact placed under the authority of a hostile
Army’.
The territory of Goa was a Portuguese colony for about 450
years, having been seized by force of arms. On December 19,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14
1961 Goa was occupied by Indian Armed Forces following a
short military action. It then came under Indian
Administration from December 20, 1961 and was governed under
the Goa, Daman and Diu (Administration) Ordinance 1962
promulgated by the President of India. The Ordinance was
replaced on March 27, 1962 by Act 1 of 1962. The same day
the Constitution (Twelth Amendment) Act 1962 was enacted and
was deemed to have come into force on December 20,, 1961.
By this amendment Goa was included in the Union Territories
and a reference to Goa was inserted in Art. 240 of the
Constitution. Indian laws including the Citizenship Act of
1955, the Foreigners Act 1946 and the Registration of
Foreigners Act 1939 were extended to Goa. The Central
Government also promulgated under s. 7 of the Citizenship
Act, 1955, the Goa, Daman and Diu (Citizenship) Order 1962.
The second paragraph of the order conferred Indian
Citizenship on certain classes of persons in these terri-
tories, giving an option to those desirous of retaining
their previous citizenship or nationality of another country
to make a declaration to that effect within one month of the
Order.
88
The appellant who was a resident of Goa made pursuant to the
above order his declaration of Portuguese nationality. He
was allowed to stay in India under a temporary residential
permit till November 13., 1964. After that date he did not
ask for a renewal of the permit. The Lt. Governor of Goa
empowered under Art. 239 of the Constitution ordered him to
leave India. For disobeying the order he was prosecuted
under s. 14 read with s. 3 (2) (c) of the Foreigners Act.
Being convicted he appealed unsuccessfully to the Court of
Session. His revision petition being rejected by the
Judicial Commissioner, he appealed by special leave to this
Court.
The contention on behalf of the appellant were based on the
Geneva Conventions which it was 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 ’force of arms could not
confer title. The amendment of the Constitution only
legalised the annexation so far as India was concerned but
in International Law the territory remained occupied because
it had neither been ceded, nor had the Occupying Power
withdrawn. As a result, it was contended, the protection of
Arts. 47 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
principle of international law that the reception and
residence of 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 the competence to exclude
aliens from the whole or any part of its territory.
Accordingly every country has adopted the passport system
which document certifies nationality and entry into any
State is only possible with the concurrence of the State.
Again a State exercises 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
Orders passed under them, to the appellant who had chosen
Portuguese nationality was legally competent. There is
authority for the proposition that an alien excluded from
the territory of a State cannot maintain an action in a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 14
Municipal Court to enforce his right. [92 H-93 C]
Oppen them International Law (Vol. 1) pp. 675/676, Brierly
Law of Nations p. 217, and Musgrove v. Chun Teeong Toy,
[1891] A.C. 272, referred to.
(ii)The Geneva Conventions Act also gives no specific right
to anyone to approach the Court. By itself it gives no
special remedy. It does give indirect protection by
providing for penalties for breach 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 the Conventions. Thus there
is only an obligation undertaken by the Government of India
to respect the Conventions regarding the treatment of
civilian population but there is no right created in favour
of protected 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 has to leave the matter to
the ’indignation of mankind’. [97 B-C]
(iii)The Geneva Conventions too did not support the
appellant’s claim to the benefit of Art. 49 of the Fourth
Convention on the basis that Goa continued, even after its
annexation by India, to be occupied territory B within the
meaning of Art. 47.
(a)In the Hague Regulations to which the Geneva Conventions
were supplementary the definition of ’occupation’ shows that
a territory is con-
89
sidered as occupied when it finds itself in fact placed
under the authority of a hostile army. This means that
occupation is by military authorities i.e. belligerent
occupation. Under belligerent occupation, which is a de
facto situation, the Occupied Power is not deprived of its
sovereignty or its statehood. All that happens is that pro
tempore the Occupied Power cannot exercise its rights, its
Government cannot function and authority is exercised by the
occupying force. In this connection the courts must take
the Facts of State from the declaration of the State
authorities. [99 C-F]
United States v. Attstoctter et tit, (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-G]
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 excluded
from the territory. Anticipated annexation by unilateral
action is not true annexation. True annexation is only so
when the territory is conquered and subjugated. [99 C-H; 100
A-B]
Oppenbeim : International Law (7th Edn.) pp. 846-847 (Vol.
1), 566 (Vol. 1), pp. 846-847 (Vol. 11), 430-439 (Vol. 11)
and 599 et seq (Vol. 11); Greenspan pp. 215 et seq 600-603,
Gould : Introduction to International 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 premature or anticipated annexation.
It was so held by the Nuremburg Tribunal and the experts who
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 14
drafted the Convention were inclined to add the word
’alleged’ before ’annexation’ in Art. 47 to distinguish
between annexation following conquest and subjugation and
annexation made while hostilities were going on subjugation
puts an end to the State of war and destroys the source of
authority of the existing 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 inhabitants must obey the
laws such as they are and not resist them. [10C-D]
(d) Under Art. 6 the Convention continues to apply to
occupied territory for one year after the general close of
hostilities for the reason that if the Occupied Power turns
victorious the land would be freed in one year, and if the
Occupying Power remains victorious, as hostilities cease,
strong measures against the civilian population are no
longer necessary. Otherwise also, occupation, which means
belligerent occupation comes to an end when hostilities
cease and the territory becomes a part of the Occupying
Power. [100 F-G]
(e) Title to new territory is not dependent on recognition.
Despite the Stimson doctrine the conquest of Abyssinia by
Italy was recognised because it was though that the State of
affairs had come to stay. Even after the adoption of the
United Nations Charter events since the Second 2Sup.
CT/69--7
90
World War have shown that transfer of title to territory by
conquest is still recognised. If cession after defeat can
create title, occupation combined with absence of opposition
must lead to the same result. [100 H-101 B]
(f)In the present case the military engagement was only a
few hours duration and there was no resistance at all. It
was hardly necessary to try to establish title by history
traced to the early days nor any room for Schwarzenburger’s
thesis that title is relative and grows with recognition.
True annexation followed here so close upon military
occupation as to leave no real hiatus. True annexation by
conquest and subjugation was complete on December 20, 1961
and the Geneva Convention ceased to apply ’from that date.
It was not disputed that the annexation was lawful.
Therefore since occupation in the sense used in Art. 47 had
ceased the protection must cease also. [101 C-F]
Minquiers and Ecrenos, 1953 (I.C.J.) 47 and Schwarzenburger
: A Manual of International Law, 5th Edn. p. 12, referred
to.
(iv)The national status of subject of the subjugated State
is a matter for the State and courts of law can have no say
in the matter. Having chosen Portuguese nationality the
appellant could only stay in India on taking out a permit.
He was therefore rightly convicted under the law applicable
to him. [101 H-102 B]
Oppenheim International Law, Vol. 1 p. 573, referred to.
[On the view taken it was not considered necessary to.
decide the question whether deportation was an Act of State
and the Municipal Courts could therefore give no remedy.]
[101 G]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: 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,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 14
Daman ,and Diu in Criminal Revision Petition in No. 55 of
1966.
Edward Gardner, O.C., A. Bruto Da Costa, M. Bruto Da Costa,
P. C. Bhartari, A. K. Varma and J. B. Dadachanji, for the
appellant.
Niren De, Attorney-General, G. R. Rajagopaul, 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 foreigner. He also obtained a temporary
residential permit which allowed him to stay on in India
till November 13, 1964. The period of stay expired and he
did not ask for its extension or renewal. He was ordered to
leave India by the Lt. Governor of Goa. The Lt. Governor
is empowered by a notification of the President of India
issued under Art. 239 of the Constitution to discharge the
functions of the Central Government and his order
91
has the same force and validity as if made by the Central
Government. Rev. Father Monteiro disobeyed the order, and
in consequence was prosecuted under 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 Commissioner, 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 can give him no redress against an
Act of State. In the appeal before us Mr. Edward Gardner
Q.C. appeared for Rev. Father Monteiro with the leave of
this Court.
To understand the case, a brief history of the annexation of
Goa and what happened thereafter is necessary. Goa was a
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 short military action. It
then came under Indian Administration from December 20, 1961
and was governed under the Goa, Daman and Diu
(Administration) 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 an Act of Parliament bearing the same title and
numbered as Act 1 of 1962. It was enacted on March 27, 1962
and came into force from March 5, 1962. It re-enacted the
provisions of the Ordinance and in addition gave
representation to Goa in 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 14
Union Territories and -a reference to Goa was inserted in
Art. 240 of the Constitution. Many Acts it,. 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.
92
The Central Government also promulgated under S. 7 of the
Citizenship Act, 1955, the Goa, Daman and Diu (Citizenship)
Order 1962 and as it directly concerns the present matter we
may re produce the second paragraph of the Order (in so far
as it is material to our purpose) here :
"2. Every person who or either of whose
parents or any of whose grand-parents was born
before twentieth day of December, 1961, in the
territories now comprised in the Union
Territory 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
writing 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-
december, 1961.
Provided further................"
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 of
the Lt. Governor was passed on June 19, 1965. Prosecution
followed the disobedience of the order.
At the outset it may be stated that Mr. Gardner concedes
that he does, not question the legality 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
declaration retained his Portuguese nationality. His
sojourn in India was subject to such laws as existed in
India in general and in Goa in particular. It cannot be
doubted that the reception and residence of 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
93
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, which document certifies nationality and
entry into any State is only possible with the concurrence
of that State. Again a State exercises 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 14
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 proposition and
it is sufficient to refer only to Oppenheim (Vol. 1) 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(1). The Lord Chancellor in that case denied that an
alien excluded from British territory could maintain an
action in a British Court to enforce such a right.
This proposition being settled, Mr. Gardner sought support
for 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. Gardiner relies on the provisions of the
Fourth Schedule relative to the protection of certain
persons in time of war. Ho refers in particular to Articles
1, 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 conflict even if the state of war is not
recognised by one of the parties and to all cases of partial
or total occupation of the territory 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 lays
down the beginning 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 Convention 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
exercise 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
94
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 Art. 48 even protected persons may in
no circumstance 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 shall 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 institutions or
Government of the said territory, nor by any
agreement concluded between the authorities of
the occupied territories and the Occupying
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 territory to the territory of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 14
the Occupying Power or to that of any other
country, occupied or not, are prohibited,
regardless of their motive.
Nevertheless, the Occupying Power may
undertake total or partial evacuation of -a
given area if the security of the population
or imperative military reasons so demand.
Such evacuation may not involve the dis-
placement of protected persons outside the
bounds of the occupied territory except when
for material reasons it is impossible to
-avoid such displacement. Persons thus
evacuated shall 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 extent, that proper accommodation
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 Occupying 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
demand.
95
The Occupying Power shall not deport or
transfer parts of its own civilian population
into the territory it occupies."
The point of difference between the parties before us in
relation to Art. 47 is whether the occupation continues, the
annexation of the territory notwithstanding; -and in
relation to Art. 49 whether the order of the Lt. Governor
amounts to deportation of a protected person.
Mr. Gardner’s submissions are : the order that has been made
is a deportation order and it is therefore ultra vires the
Geneva Conventions. These Conventions create individual
rights which cannot even be waived. So long as occupation
continues ,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 abandoned 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
Renunciation of War, the acquisition of territory in Inter-
national Law by the use of force does not confer any title.
Occupation, therefore, can only be of terra nullins, not now
possible. He invokes the rule in Heydon’s(1) case and says
that the history of the making of the Geneva Conventions,
shows that this was precisely the mischief sought to be met
and the Conventions now become a part of the laws of India
through Parliamentary Legislation. 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 cannot cease by a
unilateral act of annexation by incorporating the terri-
tories of Goa with India. If India did not care to be bound
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 14
by the Conventions, there was a ’Method of denunciation in
Art. 158 but since the Convention is registered under Art.
159 even denunciation at a late stage was not possible. He
relies upon Art. 77 and says that ’Liberated’ means when the
occupation comes to an end. The amendment of the
Constitution only legalises annexation so far as India is
concerned but in International Law the territory remains
occupied. 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 Occupying Power from the territory, both of which events
have not taken place. In support of his propositions be
relies upon Dholakia (International Law)
(1) (1584) 3 Rep. 76.
96
pp. 180, 181, 293; Oppenheim International Law (Vol. 1) 7th
Edn. pp. 574 et seq.; R. Y. Jennings : The Acquisition of
Territories in International Law pp. 53-56, 67.
The contention on behalf of the State is that by occupation
is meant occupation by armed forces or belligerent
occupation 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 passed
under Art. 253 of the Indian Constitution read with entries
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 of 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 deals 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 11 then deals with punishment of
offenders against the Conventions and the jurisdiction of
courts to deal with breaches by punishment them. Chapter
III lays down the procedure for the trial of protected
persons, for offences enabling a sentence of death or
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 14
imprisonment for a term of two years or more to be imposed
and for appeals etc. Chapter IV prohibits the use of Red
Cross and other emblems without the approval of Central
Government and provides for a penalty.
97
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 in 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 Conventions. Thus there is only an
obligation undertaken by the Government of India to respect
the Conventions regarding the 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 appellant 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 inadequately provided in Conventions and
treaties. The four conventions 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
collective 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 time when the Hague
Regulations were done, it was 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 of the Red
Cross produced a draft Convention which among other things
enjoined that the inhabitants of the occupied territory
should not be deported and civilians in enemy territory must
be allowed to return to their homes unless there were
reasons of state security and the internees must receive the
same treatment as prisoners of war. The Diplomatic
Conference of 1929 and the Red Cross Conference of 1934 made
useful studies but action scheduled to take place
98
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 civilians, the lessons of the Second World War
were different. We know the treatment of civilians by
Germany and the horried deaths and privations inflicted on
them. War, though outlawed, continues still and as
President Max Huber said:
"War, as it becomes more and more total,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 14
annuls the differences which formerly existed
between armies and civilian populations in
regard to exposure to injury and danger."
At the termination of the last war the International Red
Cross Conference at Stockholm prepared a draft in 1948,
which became the basis of the deliberations of the
Diplomatic Conference which met at Geneva from April 21 to
August 12, 1949 and the present Convention was framed. The
Regulations were not revised or incorporated. The 1949
Conventions are additional to the Regulations and it is
expressly so laid down in Art. 154 of the Geneva
Conventions.
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 Conventions 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 contains 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 Regulations generally charged the
occupying power to respect the persons and property of the
inhabitants of the occupied 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
protection 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 nullins but
something ’else. Since there is no definition of occupation
in the Geneva
99
Conventions, we have to turn to the definition in the Hague
Regulations. Article 154 of the 4th Schedule reads:
"154. Relation with the Hague Conventions :
In the relations between the Powers who are
’bound by the Hague Conventions respecting the
Laws and Customs of War on Land, 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
supplementary to Sections 11 and 111 of the
Regulations annexed 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 definition 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 authorities. In the Justice
case(1) it was stated that the laws 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 occupation.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 14
The question thus resolves itself into this : Is occupation
in Art. 47 belligerent occupation or occupation which
continues after the 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 situation 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,
belligerent occupation means that the Government cannot
function and authority is exercised by the occupying force.
Annexation, 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 sovereignty 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 and premature annexation, or as it is sometimes
called ’anticipated annexation’, on the other. Jurists
regard annexation as premature so long as hostilities are
continuing and there is an opposing army in the field even
if the Occupied Power is
(1) United States V. Attstoctter, et. al. (1947) U. S.
Military Tribunal, Nucmberg L. R. 3 T. W. C. vi, 34.
(2) The Modern Law of Land Warfare.
100
wholly excluded from the territory. Anticipated annexation
by unilateral action is not true annexation. True
annexation is only so when the territory is conquered and
subjugated [see Oppenheim International Law. (7th Edn.) pp.
846-847. (Vol. 1) 566 (Vol. 1), pp. 448/52 (Vol. 11), 430-
439 (Vol. 11) and 599 et seq (Vol. 11), Greenspan (ibid) pp.
215 et seq 600-603; Gould Introduction to International Law
pp. 652-656, 662-663; Brierly Laws of Nations p.[155].
The Conventions rightly lay dowin that annexation has no
effect on the protection. But they speak of premature or
anticipated annexation. Premature or anticipated annexation
has no effect. Such a plea was negatived for the same
reason by the Nuremberg Tribunal. In fact, when the
Convention itself was being drafted the experts were half-
inclined to add the word " alleged’ before ’annexation’ in
Art. 47 to distinguish between annexation following conquest
and subjugation and annexation made while hostilities are
going on. Subjugation puts an end to the state of war and
destroys the source of authority of the existing 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
inhabitants must obey the laws such as are made and not
resist them.
Thus the principle which is accepted is that the Occupying
Power must apply the Convention even when it claims during
conflict to have annexed the occupied territory. However,
when the conflict is over and there is no hostile army in
the field, annexation has the effect of creating a title to
the territory. It may be- asked why does Art. 6 then
mention a period of one year ? The reason given is that if
the Occupied Power turns victorious the land would be freed
in one year and if the Occupying 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 at the end of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 14
one year. Otherwise also, occupation, which means
belligerent occupation, comes to an end when hostilities
cease and the territory becomes a art of the Occupying
Power. Annexation may sometimes be peaceful, as for
example, Texas and Hawaiian Islands were peacefully annexed
by the United States, or after war, -as the annexation of
South Africa and Orange Free State by Britain.
The question, when does title to the new territory begin, is
not easy to answer. Some would make title depend upon
recognition. Mr. Stimson’s doctrine of non-recognition in
cases where a state of things has been brought about
contrary to the Pact of Paris was intended to deny root of
title to conquest but when Italy conquered Abyssinia, the
conquest was recognised because it was
101
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 War 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 having 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 can 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 -at all. It is hardly necessary to try to
establish title by history traced to the early days as was
done in the Minquiers and Ecrencs(1) case. Nor is there any
room for the thesis of Dr. Schwarzenberger (A Manual of
International Law, 5th Edn. p. 12 that title is relative and
grows with recognition . True annexation followed here so
close upon military occupation as to leave no real hiatus.
We can only take the critical date of true and final
annexation as December 20, 1961 when the entire government
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 and
subjugation. It must be remembered that Mr. Gardiner
concedes that the annexation was lawful. Therefore, since
occupation in the sense used in Art. 47 had ceased, the
protection must cease also. We are, therefore, of opinion
that in the present case there was 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 by 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 of State. In view of what we
have already held it is not necessary to pronounce our
opinion on this argument.
The national status of subjects of the subjugated state is a
matter for the State, and courts of law can have no say in
the matter. As Oppenbeim (Vol. 1 p. 573) puts it
"The subjugating state can, if it likes allow
them to emigrate, and to renounce their newly
acquired citizenship, and its Municipal Law
can put them in any position
(1)1953 (I. C. J.) 47.
102
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 14
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, rightly prosecuted under the law
applicable to him. Since no complaint is made about the
trial as such, the appeal must fail. It will be dismissed.
G.C. Appeal dismissed.
103