The events and the occurrences of these two enclaves remind of the opening lines from the literary masterpiece, A Tale of Two Cities by Charles Dickens:
“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair.”
On 12-4-1960 the International Court of Justice delivered the judgment in Case Concerning Right of Passage over Indian Territory (Portugal v. India)1, which the Republic of Portuguese had initiated against the Republic of India on 22-12-1955. It was the first proceeding initiated against India before the International Court of Justice, at Hague. The brief history of how Portuguese came into occupation of these enclaves, events leading to the initiation of the proceedings before the international court, the defense of India, the arguments of Shri Motilal Setalvad, the first Attorney General for India, the judgment of the international court and how the two enclaves and later Goa, Daman and Diu got integrated into India are a fascinating part of legal history.
The decision of the International Court of Justice became the death knell of Portuguese colonial rule in India. The judgment is a precursor to the integration of the 2 enclaves and 3 districts into India and with it the end of Portuguese empire in India. The two enclaves came to be integrated by the Constitution (10th Amendment) Act, 19612 which amended the First Schedule3 to the Constitution by which Dadra and Nagar Haveli became the 7th Union Territory of India. It also inserted Article 240(1)(c)4 in the Constitution, granting power to the President to make regulations for the Union Territory of Dadra and Nagar Haveli. According to Article 2395 the President administers the Union Territories through an administrator appointed by the President.
The Portuguese occupation in India is the oldest and longest period of colonisation which started with Vasco da Gama reaching the shores of India in 1498-1499 uptill 1961 when India launched Operation Vijay against the Portuguese army, and with their surrender on 18-12-1961, India occupied the territories of the three districts from 20-12-1961, and Goa, Daman and Diu came to be acquired and became part of India as per Article 1(3)(c).6 It is by way of the Constitution (12th Amendment) Act, 19627 that Goa, Daman and Diu became the 8th Union Territory of India. The amendment also inserted Article 240(1)(d) adding Goa, Daman and Diu under Article 240 which granted the President the power to make regulations for the peace, progress, and good government of the Union Territories. Both the Bills were introduced in the Lok Sabha by Shri Jawaharlal Nehru, then Prime Minister of India who in his speech at the Red Fort on 15-8-1961, proudly announced that “the two parts of India that had been separated from the motherland were now reunited with it”.8
It was the best of times, it was the season of light, it was the spring of hope as India ushered into a new era of freedom and development after years of freedom struggle and subjugation from colonial rule, it got unified and became a single entity as 565 rulers of various States signed the treaty of accession and merged their Princely States into India that is Bharat. The Constitution9 came into force on 26-1-1950 and Article 1 provided that India shall be a Union of States and the State and the territories were specified in the First Schedule. Part III of the Constitution granted the citizens fundamental rights which never existed during colonial rule. The State was under the obligation to protect the citizens from arbitrary, discriminatory State actions and grant equal protection of laws. Several colonial legislations which violated fundamental rights were struck down by the newly constituted Supreme Court of India, which became the true guardian of the fundamental rights of the citizens. It was the dawn of the age of wisdom.
It was the worst of times, it was the age of foolishness, and it was the age of darkness for the inhabitants of Goa, Daman and Diu as though it was the end of the age of imperialism but not for them. The Portuguese refused to leave for they strongly believed that “Goa was Portugal”.
Dr A. Furtado, the Administrator of Dadra and Nagar Haveli describes in his book Before and After Liberation of Dadra and Nagar Haveli that “Throughout the colonial era the Adivasisand other backward tribes were ruthlessly exploited by the Portuguese officials and saucers who were in alliance with the colonial rulers.” The Social Economic Survey carried out in 1966 of Dadra and Nagar Haveli brought out horrific details of the state of affairs in these enclaves during colonial rule. The survey found that “there was not even a single good manufacturing factory in the whole of the territory except a government distillery, a sawmill, and a rice mill, all at Silvassa and one very small rice mill at Khanvel. Agriculture remained in a depressed condition and almost at less than subsistence level. Modern agricultural techniques were unheard of till liberation.”10 Dr A. Furtado further mentions that:
“The entire history of the Portuguese domination is full of revolts suppressed, rebellions crushed, patriots massacred, and legitimate aspirations of the people stifled.”
The Portuguese historian Oliveira Martins records his opinion about the life in Goa in his book, Historia de Portugal, Vol. 3, p. 324, as follows:
“In Goa, the capital, life is a combat. There are battles on the roads and unburied corpses. Even inside the churches, shots are heard, men are seen falling victim at the assassin’s hands. Savage anarchy prevails and surely the natives lamented their evil fate which condemned them to suffer to so many cruelties. This is the real record of the Portuguese in India.”
The people of these districts were struggling to get freedom from foreign rule despite several movements, which were being suppressed by the Portuguese. Local inhabitants felt extremely oppressed and subjugated under the Portuguese rule. The Portuguese enacted the Colonial Act, 1930, which curtailed civil liberties, censorship of the press, discriminated the Goan residents and treated them as second-class citizens. The Colonial Act, 1930, was condemned on the floor of the legislative Council in Panaji and from then started the fight for the Goan people’s right to self-determination.
Brief history of how these territories came under Portuguese occupation
Battle of Goa: 1510
Goa situated on the west coast of India was ruled by the Vijayanagara empire in the first half of the 15th century. In the later part it was taken over by the Muslim Bahmani Sultanate. The Bahmani Sultanate was sub-divided into number of successor States and after 1482, Goa passed into the power of Yusuf Adil Khan, the Muslim King of Bijapur.11 The city was conquered from local rulers in 1510 when a force led by Portuguese Viceroy Afonso de Albuquerque, seized the port. Goa was the first territorial possession of the Portuguese in Asia and later became the capital of the whole Portuguese empire in Asia.12
Goa with an area of about 1301 square miles is located South of Bombay and is contiguous to the Indian administrative districts of Ratnagiri, Kolhapur, Belgaum and North Kanara in the States of Bombay and Mysore (Present Karnataka).
Before the arrival of the Portuguese, both Daman and Diu (which are separated by the Gulf of Khambhat) were part of the Sultanate of Gujarat, an independent kingdom comprising present day Gujarat and neighbouring areas during the 15th and 16th centuries.
Early in the 16th century, the Sultan of Gujarat, Bahadur Shah, was being threatened by the Mughal Emperor Humayun from the north and Portuguese from the west coast. The first attack by the Portuguese was in 1529. After that the Sultan decided to remain on conciliatory terms with the Portuguese and that ensued a series of negotiations between them which resulted into the Treaty of Bassein in 1534 in favour of the Portuguese, ceding Diu as well as other territories of his empire such as Vasai and the islands that today form Mumbai. According to the treaty, the Portuguese empire gained control of the city of Bassein (Vasai), the islands that constitute Mumbai and the seas. Mumbai was not much developed that time and was not so significant for the Portuguese, the Islands of Bombay passed from the Portuguese to the English in 1661 as part of the dowry of Catherine of Braganza who married King Charles II, the King of England, Scotland, and Ireland. Bombay much later became a major trade center for the British empire.
Diu is about 14 square miles in area and situated in South of Saurashtra Peninsula.
Around 1550s the Portuguese began to realise the strategic importance of Daman necessary for the security of Bassein province. In the memoir of History of Daman, Antonio Francisco Moniz, describes the “cession” of Daman by the Portuguese. Portuguese had induced the King of Cambay to grant the territories of Daman to the Crown of Portugal. But Daman at that time was under the control of Abyssinian by the name of Sidi Bofeta. In 1559, the Portuguese Viceroy Dom Constantino de Braganza who had the Supreme Command of the Portuguese India, attacked and conquered Daman by defeating the Abyssinian Chief Sidi Bofeta.13 The Viceroy attacked the Abyssinian defence with a fleet of more than 100 vessels with 2000-3000 soldiers on board. In spite of the entire defence planned by the Abyssinian Chief, they could offer no resistance and Portuguese landed at Daman and the town and fortress fell into the hands of the Portuguese.14 There is an inscription in the Moti Daman Fort which states “Bastiao da Fortaleza de Abexim Sidi Bofeta Tomada Pelos Portuguezes em 1559” (Bastiao of the Fortress of Abyssinian Sidi Bofeta taken by the Portuguese in 1559).15 Daman is about 21 square miles in area.
For over four centuries, both Daman and Diu remained part of the Portuguese dominions in India and were ruled from Goa.
Dadra and Nagar Haveli
Dadra and Nagar Haveli are two enclaves close to Daman but not contiguous to it. They are separated by territories belonging to present day Gujarat. Dadra consists of 3 villages and Nagar Haveli consists of 69 villages, which in the 16th century were part of the Maratha empire. Dadra is about 3 square miles in area and 5-and-half miles away from Daman frontier. Nagar Haveli is about 189 square miles in area and about 9 square miles from Daman frontier.
“Sambhaji” son and successor of Chhatrapati Shivaji, attacked the territories of Portuguese and reached Margao in 1683. The Marathas had annexed territories in Bassein and some parts of Daman from the Portuguese which resulted in several rounds of negotiations between the Marathas and the Portuguese which culminated in several treaties from 1739 to 1741. The Portuguese wanted to establish friendly relations with the Marathas considering their might. However, in 1769, 4 Portuguese vessels were seized by the Maratha fleet in the Indian seas near Bassein (Vasai). It is because of the said incident that in 1774 the Governor General of Goa appointed Narayan Vithal Dhume to negotiate with the Marathas at the Poona Court.
Several rounds of negotiations took place in the Poona Court which ultimately resulted in the Treaty of 1779. The Preamble to the Treaty provided that it was for the purpose of “perpetual amity without interruption”. During the negotiations, it was proposed by the Portuguese to offer revenues of Rs 15,000 per year from villages under the Maratha empire as compensation for the loss of Portuguese vessels. It was also agreed that the Portuguese will refuse aid or asylum to enemies of the Marathas and vice versa. In pursuance of the said negotiations, the Portuguese requested the Marathas to assign the villages adjoining to or close to Daman. On 17-12-1779 the treaty of peace was signed with the seal of the Peshwa of the Maratha empire concluding the negotiations and agreeing to grant villages contiguous to Daman to the Portuguese se empire as saranj. The Marathas were also defending their territories and were waging wars against the East India Company, which was also looking to annex the territories of the Maratha empire. The Marathas were not able to hand over the territories contiguous to Daman to the Portuguese as they had been annexed by the British before the same could be handed over to them. The Viceroy of Goa, de Sousa wrote a letter to the Portuguese Secretary of State on 1-1-1781 stating that the possession of the villages adjoining Daman have not been handed over in pursuance to the Treaty of 1779 in view of the conquest made by the British. It is because of such a situation that the villages adjoining Daman could not be handed over and thereafter on 10-6-1783, the possession of the 69 villages consisting of Nagar Haveli was handed over to the Portuguese by issuing sanads by the Maratha empire and on 22-7-1985 the possession of the villages consisting of Dadra was handed over to the Portuguese. It is by way of the said treaty and the negotiations that ensued after 1769 that the two Enclaves of Dadra and Nagar Haveli became Estado da India.
With regards to the Treaty of 1779, it is interesting to note that it did not speak of transferring sovereignty to the Portuguese, but it only granted the right to collect the revenue and therefore the Portuguese were made the jagirdars of the land and were not the rulers of the enclaves. Jagir, also known as saranjam means the temporary assignment by a sovereign grantor of a share of the public revenue from villages or lands. It was always enjoyed at the pleasure of the sovereign and was terminable at any time. This tenure was well known in India and originated during the Mughal times when it was known as jagir. During Marathas’ reign it was known as saranjam.
The Treaty of 17-12-1779 had 18 articles, all dealing with mutual friendship and reciprocal assistance. Article 17 provided:
“As the Portuguese have acted with the greatest friendship towards the Sarkar, as proved by Narayan Vital Dumo and friendship shall be maintained henceforth from the current year, he (Sarkar) shall give, namely, the Daman villages of 12,000 rupees without having any other dominion, nor any other hatred on the part of the Sarkar and in which Portuguese shall not erect buildings in accordance with the arrangement made and the villages shall be specifically mentioned.”
According to the above article, the Portuguese were not even allowed to erect buildings in the villages which clearly pointed out the intention of the Marathas that they did not confer any functions of a sovereign ruler to the Portuguese and the Marathas were the rulers of the said enclaves.
Further, it also provided that even violating the terms of the treaty would not end the friendship between the parties. Such a contingency was even provided under Clause 10 which provides “In case of non-observance of this agreement of friendship the Governors concerned, and the Marathas shall settle the matter by their orders.” In other words, each of them was free to take whatever measure it thought. Therefore, it was clear that such an arrangement was not intended to transfer sovereignty to the Portuguese.
Despite the clear position the Portuguese usurped the powers and established themselves as sovereign rulers over the said enclaves by misrepresenting the British Empire which had annexed the territories of the Maratha empire in 1818 bringing to end to the Great Maratha empire in India.
Relations between Portugal and British Empire for their possessions in India
After the British established their sovereignty over the territories of the Peshwa adjoining Daman, correspondences began between the Governor of Daman and the Governor of Bombay about levying of customs duties on products of Nagar Haveli exported then to Daman. The Portuguese were claiming exemptions on the basis of the treaty arrangements made by the Peshwa during the Maratha period. In the correspondences the Governor of Daman tried to deceive the British by stating in the letter dated 11-11-181816 that Marathas had ceded Nagar Haveli to the Crown of Portugal under the Treaty of 1780 and since then Nagar Haveli was under the Portuguese Government. The Governor also mentioned that the Marathas had promised that all produce of Nagar Haveli exported to Daman would be exempt from all duties and taxes. For the British this practice was inconvenient, and the British collectors were levying duties and taxes on all articles exported from Nagar Haveli to Daman however they did not attempt to take over the territories of Dadra and Nagar Haveli which it appears is based on the misrepresentation of the Governor of Daman to the Governor of Bombay.16
In 1878 Great Britain and Portugal concluded a treaty of commerce and extradition for their Indian possessions. The negotiations dragged on for several years eventually reaching to an agreement on the following principles:
(i) there should be reciprocal freedom of commerce, navigation, and transit between all British and Portuguese territory in India;
(ii) the two Governments should cooperate in building a railway from the Portuguese port of Marmagao through Goa to the frontier of British India; and
(iii) there should be mutual exemptions from, and reductions of, import duties.
The Treaty with regards to the passage and entry of soldiers and police, either for the purpose of travelling to, or from, the enclaves or for any other reason, provided that the Portuguese authorities had to ask for the permission from the British authorities. This was the general understanding between the two European rulers, and it continued even after the British left India in 1947. The Government of India maintained the same position which was accepted prior to 1947.
Nationalist Movements for Independence in Portuguese possessions
Dissent was growing in the Portuguese occupied territories and there were Liberation Movements building momentum from the early 20th century inspired from the Indian Independence Movement. In 1928 Tristao de Braganza Cunha popularly known as the Father of Goan nationalism, founded the Goa National Congress. In the enclaves the Nationalist Movement was initiated by Carlos Da Cruz a Goan, who was appointed as a Teacher in Portuguese School in Silvassa in 1930. He started the publication of a nationalist newspaper Sandalcalo in the enclaves. He was soon dismissed from service due to his nationalist activities, but he continued the Nationalist Movement with the support of the Goan Nationalist Movement.17
After India’s independence from Britain in 1947, Lisbon was refusing to hand over its territories to India despite several attempts made on diplomatic level to persuade Portugal to transfer its territories peacefully.
Many of the Goans who had migrated from Goa to Bombay and various other places resented the continuance of Portugal on Indian soil and had formed associations and groups to fight the occupation by Portugal of areas which they considered to be an integral part of India. Some of the Goan national leaders who were arrested by the Portuguese authorities were Dr J.M. Furtado, Waman Desai, Keshav Talaulikar, Divakar Kakodkar, Dr Antonio Furtado and other Goan leaders. Some of the leaders were deported to Portugal and Africa. In 1954 the Portuguese arrested Dr P.D. Gaitonde and continued their aggressive approach towards the Nationalist Movement.
Goans in Goa and Mumbai continued to voice their opinion to unite with India. The Counter-Memorial of India submitted before the International Court of Justice at Hague mentions in detail the accounts of the Portuguese Governments hostile and violent approach towards these freedom fighters which resulted in growing dissent amongst Indians. The Portuguese authorities were belligerently trying to silence the growing dissent in Portuguese occupied territories.
It is because of the atrocities committed by the Portuguese the campaign for civil liberties, and demand for union with India gained impetus in Goa. Following the principles and philosophy of non-violence the “Jai Hind” Movement took the form of mass civil disobedience, non-cooperation with governmental activities, boycott, and peaceful agitation. Between June and November 1946, about 1500 Goans were arrested by the Portuguese Government.18 They were held in detention without trial for long periods and subjected to severe beatings. The leaders were charged with treason, sentenced to long terms of imprisonment, and deported to Portugal.
The Portuguese were adamant, however, the French Government agreed for a friendly settlement, under which all the French settlements viz. Chandernagore, Pondicherry, Karaikal, Mahe and Yanam merged in the Indian Union in accordance with the wishes of their peoples. The merger of these settlements in the Indian Union took place by way of an agreement dated 21-10-1954, transferring the powers of the Government of French Republic to the Government of Indian Union. By way of the “Treaty establishing De Jure Cession of French Establishments in India” entered on 28-5-1956, the French ceded to India the full sovereignty over their territories.
The fall of Dadra and Nagar Haveli
In the counter-memorial filed by India before the International Court of Justice it mentioned that in early 1954, the Portuguese authorities in Goa arrested Dr Gaitonde, an eminent surgeon, and deported him to Portugal. On the 18-6-1954, the Portuguese Government arrested over 40 eminent Goans, advocates, doctors, and professors, and subjected many others to interrogation. News of these arrests produced strong emotions in the Goan community of Bombay, and all Goan parties, combined to form an Action Committee under the Presidentship of Dr Tristao Braganza Cunha. They passed a resolution that they would work for the liberation of the Goan homeland.
On 21-7-1954, Mr Francis Mascarenhas and Mr Waman Desai, entered the village of Dadra together with a small party of Goan compatriots. When they reached the police station in Dadra, the Chief of Dadra Police Chowki, opened fire on the party with a machine gun. After a while, the officer’s machine gun got jammed and this interruption was taken advantage of by the people of Dadra, and he was beaten to death. In the fight that ensued another Portuguese police officer was also killed. After that, all other officers surrendered, and the administration of Dadra was taken over and it was declared independent on 22-7-1954. On next day officers of other villages surrendered and the Portuguese dominion was overthrown by the people of Dadra.
The demonstration in Dadra developed into an active liberation movement and on 2-8-1954, the members of the Azad Gomantak Dal and the Goan People’s Party, entered Nagar Haveli. They met with no resistance as the Portuguese administrators and officers of Nagar Haveli, and the entire police force had left the administrative capital, Silvassa, fearing for their life and they reached Indian territories and sought asylum in India. The people of Dadra and Nagar Haveli proclaimed their independence from Portuguese rule and set up an administration of their own. They requested Dr Antonio Furtado to assume charge as administrator.
The Portuguese authorities in order to send arms and police personnel to Dadra and to take stock of the situation requested the Government of India on 24-7-1954, to make necessary transit facilities for the dispatch of reinforcements to Dadra; another request was made on 26-7-1954, wherein they asked if a few delegates of the Governor of Daman be permitted to go to Nagar Haveli, to enter into contact with the population and take the necessary measures on the spot. The Indian Government’s reply dated 28-7-1954 denied the two requests and stated that it could not permit movement of the foreign troops and police in Indian soil and could not be a party to the suppression of a genuine nationalist movement for freedom from foreign rule; it also stated that the prevailing situation would worsen if Portuguese officials were permitted to cross Indian territory.19
If the Government of India had permitted the said request, the two enclaves would have been recaptured by the Portuguese officers. The Government of India would not have taken the responsibility of allowing entry on Indian territory to Portuguese armed forces, officials, to put down by force the inhabitants of Dadra and Nagar Haveli who had freed themselves from Portuguese rule, or in any manner to interfere with the functioning of the institutions set up by these people. The stand of the Indian Government was in tune with its own principles of self-determination as well as in accordance with the international law on self-determination. The loss of Dadra and Nagar Haveli sent alarm bells ringing for the Portuguese, and security was beefed-up in their remaining Indian possessions.
The case concerning right of passage over Indian territory before the world court
On 22-12-1955 the Portuguese Government approached the International Court of Justice (ICJ) under international law and the United Nations charter against the Republic of India on the grounds that the Government of India was acting contrary to the practice previously followed and India prevented the Portuguese from exercising their right on the Portuguese possessions in India.
The Portuguese Government alleged that on 21-7-1954 the Government of India severed all communication between Daman and the enclaves of Dadra and Nagar Haveli totally cutting the enclaves off from the outside world preventing the Governor of Daman himself from having access to them and concentrating troops in considerable strength on Indian soil near the borders of the said territories and thereby violating the obligations it had against the Portugal’s right to exercise its sovereign rights over its enclaves. It stated that the right of passage between Daman and the two enclaves and between each of the enclaves included the passage for armed forces and armed police for the effective exercise of Portuguese sovereignty. It alleged that India had prevented Portugal from exercising the right of passage which was in violation of its international law obligations.
Portuguese Government requested the ICJ to declare that Portugal is the holder and beneficiary of right of passage between its territory of Daman and its enclave territories of Dadra and Nagar Haveli and between each of the latter and that this right comprises the faculty of transit for persons and goods including armed forces or other upholders of law and order without restrictions or difficulties and in the manner and to the extent required by the effective exercise of Portuguese sovereignty in the said territories.
The Portuguese in their application before the ICJ sought the following reliefs:
(a) To recognise and declare that Portugal is the holder or beneficiary of a right of passage between its territory of Damao (littoral Damiio) and its enclaved territories of Dadra and Nagar-Aveli, and between each of the latter, and that this right comprises the faculty of transit for persons and goods, including armed forces or other upholders of law and order, without restrictions or difficulties and in the manner and to the extent required by the effective exercise of Portuguese sovereignty in the said territories.
(b) To recognise and declare that India has prevented and continues to prevent the exercise of the right in question, thus committing an offence to the detriment of Portuguese sovereignty over the enclaves of Dadra and Nagar-Aveli and violating its international obligations deriving from the abovementioned sources and from any others, particularly treaties, which may be applicable.
(c) To adjudge that India should put an immediate end to this de facto situation by allowing Portugal to exercise the abovementioned right of passage in the conditions herein set out.20
Shri M.C. Setalvad represented the Republic of India as its agent and Council.
Justice M.C. Chagla was the ad hoc Judge presiding over the 17-Judge Bench of the International Court of Justice.
Mr M.C. Setalvad in his autobiography My Life: Law and Other Things mentions about this case before the world court. He states that no one in the Ministry of External Affairs had any idea of the Treaty of 1779 and the historical facts as mentioned by the Portuguese. That therefore the Ministry had to set up a research unit to carry out extensive research on the subject. The research unit had to go through the records from the year 1739 to 1954. Mr Setalvad mentions that “the records of the Peshwa Daftar consisted of roles of paper written in the Modi script which when enrolled would extend to a length in some cases of hundred feet or in the form of sheets folded flat and tied in rumals. About 40 lakhs of such papers were examined and their research proved extremely fruitful for India. It was found that Portugal far from having received the right of passage from the Marathas did not even receive a legal title to the territories of Dadra and Nagar Haveli. The documents showed that the Portuguese were granted rights only as Jagirdars. Subsequently the Portuguese established their authority against the will of the Marathas and by act of usurpation.”21
Based on the extensive research carried out by the research unit and the legal team led by Shri M.C. Setalvad, the Republic of India could submit its strong defence before the International Court of Justice.
Based on the in-depth analysis of the historical facts and studying the treaties and the communications during the Maratha period, the British period and post-Independence period the Government of India submitted before the International Court of Justice that the treaties relied by the Portuguese Government to claim their right did not actually confer any sovereignty to the Portuguese. It further submitted that the translated versions of the Treaty of 1779 were not accurate as there was manipulation in translating them into Portuguese and the Maratha language and therefore both the parties were not ad idem on the terms of the agreement, further the agreement signed by the Peshwa of Maratha did not confer any sovereign rights over the territories of Dadra and Nagar Haveli as it granted them rights to collect revenue over the villages which made them Jagirdars over the said enclaves. India submitted that the rights connected with the enclaves granted by the Marathas to the Portuguese were merely rights to receive revenue and the same were revocable at the will of the Marathas as per the terms and conditions of the agreement. It was further submitted that the right to collect revenue over the said enclaves was withdrawn by the Marathas prior to its reign coming to an end in 1818. The Portuguese usurped the rights of the Marathas and projected themselves as sovereign rulers to the British Government by making false representations. Throughout the period of British rule, the Portuguese frequently acknowledged, by making applications, by seeking concessions and in other ways, that they had no right either of passage or of transit over British territory. The British regarded passage of Portuguese persons and transit of Portuguese goods over British territory as matters lying entirely within their domestic jurisdiction, to be allowed, forbidden, or controlled according to considerations of policy and the Portuguese acquiesced in this view held by the British. So, India attempted to contend that the Portuguese did not have any unqualified right of transit or passage and the same was subject to conditions imposed by the British Government. After the transfer of power in 1947, the Portuguese did not claim any right either of passage or of transit over Indian territory. The Indian Government, like the British Government before them, regarded such passage and transit as lying entirely within their domestic jurisdiction, to be allowed, forbidden, or controlled according to considerations of policy.22
The Republic of India was represented by Shri M.C. Setalvad the Attorney General for India who appeared as the agent and counsel before the International Court of Justice at Hague assisted by Maître Henri Rolin, Professor of International Law in the Free University of Brussels, Advocate, Member of the Belgian Senate, Sir Frank Soskice, QC, MP, former Attorney General for England, M. Paul Guggenheim, Professor of International Law of the Law Faculty in the University of Geneva and in the Graduate Institute of International Studies, Professor C.H.M. Waldock, CMG, OBE, QC, Chichele Professor of Public International Law in the University of Oxford, Mr J.G. Le Quesne, Member of the English Bar.
Judgment of the International Court of Justice
The final hearing of the matter began on 21-9-1959 and ended on 6-11-1959 before ICJ, at Hague. The judgment was delivered on 12-4-1960. The Court by eleven votes to four, held that Portugal had in 1954 a right of passage over intervening Indian territory between the enclaves of Dadra and Nagar-Aveli and the coastal district of Daman and between these enclaves, to the extent necessary for the exercise of Portuguese sovereignty over the enclaves and subject to the regulation and control of India, in respect of private persons, civil officials and goods in general. However, by a razor thin majority and what was most important for India was that by eight votes to seven, the international court found that Portugal did not have in 1954, a right of passage in respect of armed forces, armed police, and arms and ammunition. The Court further by nine votes to six, held that India had not acted contrary to its obligations resulting from Portugal’s right of passage in respect of private persons, civil officials, and goods in general.23
The ICJ accepted that Marathas had never granted any sovereignty to the Portuguese by way of Treaty of 1779 as it held that “From an examination of the various texts of that article placed before it, the Court is unable to conclude that the language employed therein was intended to transfer sovereignty over the villages to the Portuguese.”24 The Court further held that “It therefore appears that the Treaty of 1779 and the sanads of 1783 and 1785 were intended by the Marathas to effect in favour of the Portuguese only a grant of a jagir or saranjam, and not to transfer sovereignty over the villages to them.” It is therefore clear and accepted by the ICJ that the Portuguese were not granted any sovereignty over the said enclaves by the Marathas and therefore the Portuguese usurped the right and through misrepresentation claimed themselves as sovereign rulers over the said enclaves and treated the inhabitants cruelly for around 175 years. The International Court rejected Portugal’s claims that it was or ever was entitled to take armed forces, armed police or arms and ammunition over Indian territory between Daman and Dadra and Nagar Haveli. As regards passage of private persons, civil officials, goods in general, the Court held that Portugal had enjoyed the limited right of passage subject to regulation and control by India and that India had always respected the limited right and acted within her international obligations with regards to that right. The Court held that India had always acted within her rights and had not broken any of her international obligation.
The Argentinean Judge, Moreno Quintana, J. in his separate dissenting opinion made some startling observation regarding the continuation of colonial system, he said “to support the Portuguese claim in this case which implies survival of the colonial system without categorical and conclusive proof is to fly in the face of the United Nations charter. As Judge of its own law — United Nations Charter — Judge of its own age the age of national independence — international court cannot turn its back on the world as it is.” The Judge went on to hold that there had never existed any Portuguese right of passage between its coastal possession of Daman and the enclaves of Dadra and Nagar Haveli nor between those two enclaves. In his opinion the case of the Portuguese Government should have been dismissed.
Merger of Dadra and Nagar Haveli into India
Till the matter was pending before the ICJ, the Government of India had adopted an attitude of reserve towards the request of Portuguese Government of allowing the passage of armed forces from Daman to the enclaves and the requests of the inhabitants of these territories for merger with India. With the judgment of the International Court of Justice tilting in favour of India there was no legal impediment in uniting the liberated Portuguese territories into India.
From the date of its liberation till its merger with India in 1961 these territories were independent State within India governed by the Varishta Panchayat. On 1-6-1961 the people of the enclaves requested for accession with India. To accede the territories of the independent State with the Union of India the State had to sign a treaty of accession and that had to be signed by the ruler of the State. Since Dadra and Nagar Haveli wanted to accede it had to appoint a Prime Minister to sign the treaty of accession with India. On 11-8-1961, the Varishta Panchayat of Dadra and Nagar Haveli appointed Shri K.G. Badlani, Gujarat Cadre IAS officer as its Prime Minister. As the Head of the State, the Prime Minister, K.G. Badlani, signed the treaty of accession and that is how the territories of Dadra and Nagar Haveli got integrated into India. Further to become part of India the Constitution had to be amended since Article 1 of the Constitution provides that India, that is, Bharat, shall be Union of States and the State and the territories of India are prescribed in the First Schedule. Therefore, if any territory must be added in India, the First Schedule to the Constitution is required to be amended and the newly added territories have to be added in the First Schedule. This is the only instance in India, where an IAS officer has been appointed as the Prime Minister of the State for one day to sign the treaty of accession.
Integration of Goa, Daman and Diu
Despite the embarrassing defeat in the International Court of Justice the Portuguese still were not leaving from Goa, Daman, and Diu. The Government of India was forced to consider military action and declare a war with the Portuguese army. Through “Operation Vijay” the Indian armed forces ended more than 400 years of Portuguese rule in Goa, Daman and Diu.
On 19-12-1961 the Portuguese complained before the Security Council of the United Nations alleging India to be guilty of aggression in occupying the Portuguese territories of Goa, Daman and Diu. European countries along with United States, Turkey and China supported the resolution calling for cease fire and withdrawal of Indian forces from the territories. The said resolution would have been passed and India would have to withdraw its forces, had the Union of Soviet Socialist Republics (USSR) not vetoed against the resolution. Because the said resolution failed thanks to USSR, there was nothing that could stop India from integrating the three districts into India.
The world leaders condemned India’s military action while USSR President Brezhnev said that the USSR had “complete sympathy for the Indian people’s desire to liberate Goa, Daman and Diu from Portuguese colonialism”. Nikita Sergeyevich Khrushchev, the First Secretary of the Communist Party of the Soviet Union sent a telegram to Jawaharlal Nehru saying that “the resolute actions of the Government of India to do away with outposts of colonialism in its territory were absolutely lawful and justified” and declaring that the Soviet people “unanimously approve of these actions.” Similar expressions of unreserved support for India were made by governmental leaders in Poland, Czechoslovakia, Hungary, Rumania, Bulgaria, and Eastern Germany.25
The Statement and Object of the Constitution (12th Amendment) Act, 1962 provided that “On the acquisition of the territories of Goa, Daman and Diu with effect from the 20-12-1961, these territories have, by virtue of sub-clause (c) of clause (3) of Article 1 of the Constitution, been comprised within the territory of India from that date and they are being administered as a Union Territory by the President through an administrator in accordance with Article 239 of the Constitution. It is, however, considered desirable that Goa, Daman and Diu should be specifically included as a Union Territory in the First Schedule to the Constitution. It is also considered that clause (1) of Article 240 should be suitably amended to confer power on the President to make regulations for the peace, progress and good Government of Goa, Daman and Diu, as has been done in the case of Dadra and Nagar Haveli.”26 It is by way of the 12th Amendment, that Goa, Daman and Diu became the 8th Union Territory of India.
In 1967, a referendum called the “Goa Opinion Poll” was conducted on 16-1-1967, where the referendum provided two options to merge Goa with Maharashtra and Daman and Diu with Gujarat, and two to remain Union Territory. The mandate was against a merger, and therefore Goa, Daman and Diu remained Union Territory till Goa attained statehood in 1987 through the Goa, Daman and Diu Reorganisation Act, 1987.27
Integration of different parts of India into India, that is, Bharat are fascinating historical events and the role played by the prominent leaders of that time should not be forgotten. Shri M.C. Setalvad and his legal team played a prominent role in putting up an excellent defence before the International Court of Justice which led to a great victory before the topmost international court resulting into the merger of the two enclaves and the three districts after years of struggle for integration with its motherland India.
† BA LLB (Hons.), LLM (University of London)and practicing Advocate at Gujarat High Court. Author can be reached at firstname.lastname@example.org.
1. 1960 ICJ Rep 6.
8. Motilal C. Setalvad, My Life: Law and Other Things, p. 326.
10. Census of India, 1971, Series I India: Miscellaneous Studies, Socio-Economic Profile of Dadra and Nagar Haveli.
12. Britannica, R.G. Grant, “Battle of Goa”, <https://www.britannica.com/topic/Portuguese-Conquest-of-Goa>.
13. A. Furtado, Administrator, Before and After Liberation Dadra and Nagar Haveli, Silvassa, 25-11-1958.
15. Purnima Mehta Bhatt, The African Diaspora in India: Assimilation, Change and Cultural Survival.
16. Case Concerning Right to Passage over Indian Territory (Portugal v. India), ICJ Pleadings, Vol. II, Annex C No. 33, p. 295.
17. Census of India, 1971, Series I-India: Miscellaneous Studies, Socio-Economic Profile of Dadra and Nagar Haveli, p. 5.
18. Case Concerning Right of Passage over Indian Territory (Portugal v. India), ICJ Pleadings, Vol. II, p. 91.
19. Keesing’s Contemporary Archives, Vol. X, 1955-1956, p. 14274.
21. Motilal C. Setalvad, My Life: Law and Other Things, p. 300.
23. Case Concerning Right of Passage over Indian Territory (Portugal v. India), 1960 ICJ Rep 6.
24. Case Concerning Right of Passage over Indian Territory (Portugal v. India), 1960 ICJ Rep 6, 38.
25. Keesing’s Record of World Events (formerly Keesing’s Contemporary Archives), Vol. 8 (March 1962) India, Portugal, Indian, p. 18659 <https://web.stanford.edu/group/tomzgroup/pmwiki/uploads/1074-1962-03-KS-b-RCW.pdf>.