# REV. MONS. SEBASTIAO FRANCISCO XAVIER DOS REMEDIOS MONTEIRO v. STATE OF GOA

- **Citation:** [1970] 1 S.C.R. 87
- **Court:** Supreme Court of India
- **Decided:** 1969-03-26
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rev-mons-sebastiao-francisco-xavier-dos-remedios-monteiro-v-state-of-goa-4720
- **Pages:** 16

## Headnote

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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-'0ccupction' under A.rt. 47 whether continues after aniiexation and subjugationTr•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 ratified 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 Occupying 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 terri10ry. There is no definition of the ierm 'occupied' in the Geneva Conventions 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 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
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 terriIOries, giving an option to those desirous df retaining their previous cidmiship or nationality of another country to make a declaration to that effect
witbi• one month or the Order.
88
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 appealed unsuccessfully to the Court of Session.
His
revision ~tition being
rejected by the Judicial Commissioner, he appealed by special leave to
tlm

## Text

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ii
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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-'0ccupction' under A.rt. 47 whether continues after aniiexation and subjugationTr•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 ratified 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 Occupying 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 terri10ry. There is no definition of the ierm 'occupied' in the Geneva Conventions 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 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
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 terriIOries, giving an option to those desirous df retaining their previous cidmiship or nationality of another country to make a declaration to that effect
witbi• one month or the Order.
88
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 appealed 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 protection 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 principle 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 country 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 regulatin& tho entry, residence and eviction of alien•. Therefore the application of the Foreigners Act, the Registration elf. Foreigners Act and Orders
puoed under them, to the appellant wbo bad chosen Portuguese national~ 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, refe<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 Convention. 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 reprdin& 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 conA
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MONTEIRO v. GOA STATE
89
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 excluded 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 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 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 distinguish 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 Government. In subjugation which is recognised as one of the modes of acquiring title not only the de facto but also the de ;11re title passes to the conqueror.
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
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SUPREME COURT REPORTS
[ 1970] I S.C.R.
World War have shown that lransfer
(If title to territory by conquest is
A
still recognised.
If ctssion after defeat can create title, occupation combin<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.
B
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 lawful.
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:
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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.
F
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
G
the choice of becoming an Indian national or retaining Portuguese
nationality.
He choose the latter and was registered as a for~i211er.
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
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has the same force and validity as ii made by the Central Government.
Rev. Father Monteiro clisobeyed the order, and in consequence 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 protected 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 Territories 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.
92
SUPREME COURT REPORTS
[1970] I S.C.R.
The <;:entra! 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 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 ................ ".
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Pursuant to this Order, on April 27,
1962, Rev. Father
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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 International Law and it is this. Rev. Father Monteiro by his declaration 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
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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 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 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. Gardiner 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 occupation, 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 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 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 .
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 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
&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 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 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 displacement 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 extent, 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.
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MONTEIRO v. GOA STATE (Hidayatul/ah, C.l.)
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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 relation to Art. 4 7 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 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 International Law by the use of force does not confer any title .. Occupation, 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 precisely the mischief ,,Pught to be met and the Conventions now
become a part of the Jaws 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 crunnot
cease by a unilateral act of annexation by incorporating the territories 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 denunciation 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 annexation 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 contention 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 Territories 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.
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MONTEIRO v. GOA STATE (Hidayatullah, C.J.)
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 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 Conventions.
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 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 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 deported 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
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SUPREME COURT REPORTS
(1970] I S.C.R.
in 1940 could not be implemented as the Second World War
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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, cootinues still and as President· Max Huber said ;
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"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 Regulations 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 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 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
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MONTEIRO v. GOA STATE (Hidayatul/ah, C.l.)
99
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 supplementary to Sections II and III 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
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, belligerent 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 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) Ufflted 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.
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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 Oppenheim 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 aniicipated 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 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 ar the end of
one year.
Otherwise also, occupation, which means belligerent
occupntion.