Tuesday 13 November 2018

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Special Status

 

Goans must remember that elections to the Lok Sabha are due in about a year’s time and the Congress must be made to lose its deposit in both the seats, as it is the Congress mostly that is responsible for the mess that is Goa. If we fail to do so, it follows that we do not deserve special status.


The question whether after 19.12.1961, a resident of Goa could refuse Indian Citizenship and still claim a right to reside in Goa, reached the Supreme Court by way of appeal filed by Rev.Mons.Sebastiao Francisco Xavier dos Remedios Monteiro (better known as Fr.Chico Monteiro) against the judgment of the Judicial Commissioner. The appeal, was decided by a five member Bench of the Supreme Court, headed by Chief Justice M.Hidayatullah, as reported in AIR 1970 Supreme Court 329.

In the course of the judgment, the Court was called upon to determine all aspects by which Goa, came to be part of the Republic of India. The observations made by the Supreme Court are material, relevant and pertinent, viz:

            “18. The Hague Regulations, Arts.423-56, 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 counterpart 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 hostile army”.

            21. The definitions 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............

            23. 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 – The Modern Law of Land Warfare put it (p. 215) military occupation must be distinguished from subjugation, where a territory is not only conquered, but annexed by the conqueror.

            28. 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 Encrenos case, 1953 SCJ 47. 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.

            30. 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 Oppenheim (Vol. I 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 it likes, and can in particular grant or refuse them the same rights as those which its citizen by birth enjoy”.”

I have quoted above extracts verbatim, from the only judgment of the Supreme Court, which places in proper legal context Operation Vijay and its aftermath. I have not added any comment, as I have full confidence, in the intelligence of the reader. I have cited the Supreme Court, as is routinely done by every lawyer. So far, no one has been called anti national for citing the Supreme Court.

But of course, there are those who subscribe to Liberation Theology. And they are free to do so. But they must remember, the law in any democratic Country is as framed by Parliament and more importantly, as interpreted, by the highest Court of the land. It is in this context, that all politicians when faced with prosecution repeatedly say “I have full faith in the judiciary”. Even though, they do not really mean it!

 

Some five years after Operation Vijay, Goans were given the option, of deciding their future by way of an Opinion poll. Choice, was however limited. It was like a condemned man being given the option, of either the death penalty or life imprisonment. As any prudent person would do. Goans opted for life imprisonment. And it appears that conditions in Goa, are far superior, to what is available beyond the borders. And so, inmates from all over prefer Goa, to their native places, which is causing resentment among those who lived in the State prior to Operation Vijay and their descendants.

And for this reason, for the first time since Operation Vijay there is near unanimous demand, for special status for the State. Now, that even the ‘patriotic’ BJP is fully supporting special status, there will be no opposition whatsoever. It is so, because at the national level it is the BJP which is opposed to special status as provided under Art 370 to Jammu & Kashmir and Art 371-A and G to Nagaland and Mizoram. It is now for the Congress to back the unanimous demand from all corners of the political spectrum in Goa and grant it. If not, Goans must remember that elections to the Lok Sabha are due in about a year’s time and the Congress must be made to lose its deposit in both the seats, as it is the Congress mostly that is responsible for the mess that is Goa.  If we fail to do so, it follows that we do not deserve special status.

But wait a moment, before any decision is taken all parties must agree on what exactly is meant by special status. The term by itself can mean everything or nothing.




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Radharao Gracias

Radharao F.Gracias is a senior Trial Court lawyer and ex President of the South Goa Advocates Association. He is also former independent MLA of Goa. He has been an activist on issues related to Goa for more than three decades.

 

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