EQUIVALENT CITATION- Case concerning Right of Passage over Indian Territory (Merits), Judgment of 12 April 1960: I.C.J. Reports 1960, p. 6."
NAMES OF JUDGES INVOLVED IN THE JUDGEMENT- Judge Basdevant, Badawi, Kojevnikov, Spiropoulos, Wellington Koo, Winiarski, Badawi, Armand-Ugon, and Moreno Quintana, Sir Percy Spender, and Judges ad hoc Chagla and Fernandes
PETITIONER: Dr. Jo5.o de Barros Ferreira da Fonseca, Ambassador of Portugal at The Hague, as Agent
RESPONDENT- M. C. Setalvad, Attorney-General of India, as Agent and Counsel
FACTS
The Portuguese possessions in India covered the two enclaves of Dadra and Nagar-haveli, which, in mid-1954, had exceeded the self-reliant neighbourhood administration. Portugal claimed that it had a proper of passage to the volumeimportant for the workout of its sovereignty and challenge to the law and manipulate of India; it additionally claimed that, in July 1954, India had averted it from exercising that proper and that that state of affairs must be redressed.
The Portuguese government filed a petition in court on December 22, 1955, alleging that India had prevented the Portuguese government from exercising the right of way in July 1954, contrary to previous practice. After that the problem arose and had to be addressed as Portugal found itself in a position where it became impossible for Portugal to exercise its own right of sovereignty over the enclaves. Pursuant to Article 36(2) of the Statute of the International Court of Justice, it is established that the previous court had mandatory jurisdiction over the matter in question. Therefore, on December 19, 1955, Portugal made the Declaration and on December 22, 1955, submitted an application to the International Court of Justice.
QUESTION OF LAW?
Does Portugal have a right to free passage over Indian territory to get a right of entry to its enclaves?
Whether there exists a nearby custom originating from the Treaty of Poona and does Portugal have the proper to passage over the Indian territory? Whether the proper to passage of navy employees and palms own a comparable proper of passage over the territory of India as that of personal people and goods?
ANLAYSIS OF ISSUES (PORTUGESE PERSPECTIVE)
Portugal maintained that India had an obligation to allow Portugal to exercise and exercise and act accordingly its sovereignty over Daman and the enclaves, rather than restricting the right of passage. To support this claim, Portugal relied on the 1779 Treaty of Poona and Sanad (decree) issued by the Maratha rulers in 1783 and 1785 to establish that it had sovereignty over the enclaves. India rejected the claim for many reasons. India claimed that the Treaty of Poona (1779) mentioned by Portugal in its application was not validly concluded and that no binding treaty existed for the Marathas.
ANALYSIS OF ISSUES (INDIAN PERSPECTIVE)
Furthermore, India argued that the treaty's validity ended in the last quarter of the 18th century and that the practices and procedures gradually evolved. Portugal, on the other hand, relied on Article 17 to justify the transfer of sovereignty. The Court reviewed various texts of the article submitted to it and concluded that the language used was aimed at transferring sovereignty over the peoples to Portugal. There have been several instances where the transfer of sovereignty has been described in the records, such as the use of phrases such as "in perpetual sovereignty".
DE FACTO JUDGEMENT
The objection raised on behalf of India turned into that there existed no custom which can be set up among the 2 states. The courtroom docket turned into of the view that there existed a long-persisted exercise among the 2 states which turned into regarded through them and that it has to bring about or shape the idea of mutual rights and duties among the 2 states. The Court, therefore, gave the ratio that Portugal by the year 1954, did have the proper of passage over the Indian territory among coastal Daman and the enclaves and among the enclaves, in terms of personal persons, civil officers and standard goods; subjected to govern of India and restrained to the volume that's essential through Portugal to work out its sovereign powers over the enclaves.
The Commerce and Extradition Treaty of 26 December 1878 between Great Britain and Portugal stipulated in paragraph 3 of Article XVIII that the armed forces of the two governments should not infiltrate Indian territory. However, exceptions were allowed when they entered for the purposes listed in the previous treaties or to facilitate mutual administrative assistance under the terms of the treaty or upon a formal request by the party wishing to enter. The courts found that the Portuguese police and armed forces did not circulate between Daman and the enclaves during the British and post-British period until 1878, when prior authorization was required for mutual agreements already agreed upon or in relation to individual cases. This permit had previously been acquired by the British and then India.
In the final judgment, this exampleturned intotaken into consideration as a definitive case with substantial features. The Court taken into consideration to journeyagain in time and appeared into the records of the problem and reviewed the members of the family which existed among neighbouring State, which turned intonow no longerlimitedentirelywith the aid of using the policieshoweveras a substituteturned intoruledwith the aid of usingexercise. Therefore, the courtroom docketturned into of the opinion that there existed a custom or exercise which prevailed amongthe 2 States and which turned intotime-honouredwith the aid of usingeach the parties. Hence, the predominance of custom or exercisecouldbe successful over any currentpopularpolicies. The proper of passage which turned into claimed with the aid of using the Portuguese turned into subjected to finishpopularity and surephrases and situationswith regards to armed forces, armed police, palms and ammunition and moreoverfurnished India to exercising its rights and sovereignty over the intervening territory which turned intostatedwith the aid of using the courtroom docket.
This article is written by Shreya lal of Mumbai university.