iminal 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 Petition in No 55 of 1966
Edward Gardner OC 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 CJ
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 article 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 section 14 read with section 3 2 c of the 
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  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 QC 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 Union Territories and a reference to Goa was inserted in article 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 of 1955 the and the 
92 The Central Government also promulgated under section 7 of the  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 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 application of the  the 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
675676 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 vs Chun Teeong Toy1
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 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 articles 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 articles 1 12 27 29 34 47 49 51 52 53 59 61 73 and 143
1 94 We next come to articles 47 and 49 which are the crux of the matter and are relied upon for the protection
Mr Gardner points out that under article 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 articles 47 and 49 apply here
We may now read articles 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 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 article 47 is whether the occupation continues the annexation of the territory notwithstanding and in relation to article 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 s1 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 by the Conventions there was a Method of denunciation in article 158 but since the Convention is registered under article 159 even denunciation at a late stage was not possible
He relies upon article 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 article 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 96 pp
180 181 293 Oppenheim International Law Vol 1 7th Edn
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 makes dispunishable the conduct of Rev Father Monteiro must fail
To begin with the gives no specific right to any one to approach the Court
The Act was passed under article 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 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 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 articles 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 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 article 154 of the Geneva Conventions
The Hague Regulations articles 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 article 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 article 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 case1 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
The question thus resolves itself into this  Is occupation in article 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 Greenspan2 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
1947 U section 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 44852 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 p155
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 article 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 article 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 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 article 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 Ecrencs1 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 article 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 articles 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 11953 I C J 47
102 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
GC Appeal dismissed


Summary:
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 article 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 articles 1 12 47 and 49
By article 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
article 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 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 article 240 of the Constitution
Indian laws including the Citizenship Act of 1955 the and the were extended to Goa
The Central Government also promulgated under section 7 of the  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 article 239 of the Constitution ordered him to leave India
For disobeying the order he was prosecuted under section 14 read with section 3 2 c of the 
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 articles 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  the 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 Municipal Court to enforce his right
92 H 93 C Oppen them International Law Vol 1 pp
675676 Brierly Law of Nations p 217 and Musgrove vs Chun Teeong Toy  referred to
iiThe 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 iiiThe Geneva Conventions too did not support the appellant s claim to the benefit of article 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 article 47
aIn 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 ie 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 vs Attstoctter et tit 1947 US Military Tribunal Nuremburg LR 3 TWC 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 drafted the Convention were inclined to add the word alleged  before annexation  in article 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 article 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
CT69 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 fIn 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 article 47 had ceased the protection must cease also
101 C F Minquiers and Ecrenos 1953 ICJ 47 and Schwarzenburger  A Manual of International Law 5th Edn
p 12 referred to
ivThe 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