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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,

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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

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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

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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,

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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

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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

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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

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             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

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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

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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,

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             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.

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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

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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

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             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