Friday, September 12, 2014

A GOAN FIRST By Adv.Radharao F.Gracias

A GOAN FIRST By Adv.Radharao F.Gracias
I recently came across a facebook post saying “we are Indians first and Goans next”. It sounds terribly wrong to me, politically, legally, historically. And, geographically, too.  Goans, were the subjects of the Bahamani sultan, until the Portuguese defeated Adil Shah and replaced the Bahamanis on 25.11.1510, at the “invitation” of the local people, under the leadership of Thimaya Naik. After that the status of Goa varied, between a colony and an overseas province of Portugal. Then came Operation Vijay, the Portuguese were driven out and Goa came to be part of the Republic of India. And thus Goans became Indians. If by some mischance at anytime in the future Bangladesh happens to liberate Goa, then Goans will be Bangladeshis. And so on. And throughout these happenings, the only thing constant is we have been Goans. And Goans we shall always be.
The question is: how did we become Indians? The answer is simple, as provided by the Supreme Court of India in Mons. Sebastiao Francisco Monteiro v/s. State of Goa, (AIR 1970 page 329). The operative part of the said judgment reads:
“.....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 thought that the state of affairs had come to stay. Thus, although the United Nations Charter includes the obligation that force would not be used against the territorial integrity of other States (Art. 2 para 4), events after, the Second World War have shown that transfer of title to territory by conquest is still recognised. Prof. R. Y. Jennings poses the question : What is the legal position where a conqueror having no title by conquest is nevertheless in full possession of the territorial power, and not apparently to be ousted?" He recommends the recognition of this fact between the two States. If cession after defeat can create title, occupation combined with absence of opposition must lead to the same kind of title. In the present case the facts are that the military engagement was only a few hours' duration and then there was no resistance -at all. It is hardly necessary to try to establish title by history traced to the early days as was done in the Minquiers and Ecrencs(1) case. Nor is there any room for the thesis of Dr. Schwarzenberger (A Manual of International Law, 5th Edn. p. 12 that title is relative and grows with recognition. True annexation followed here so close upon military occupation as to leave no real hiatus. We can only take the critical date of true and final annexation as December 20, 1961 when the entire government and administration were taken over and there was no army in occupation -and no army in opposition. The occupation on December 20, 1961 was neither belligerent occupation nor anticipated occupation, but true annexation by conquest and subjugation.…..”
As we all know the Supreme Court is the final word in matters of interpretation of facts and law. The said interpretation therefore is binding on all patriots and pseudo patriots, nationalists and faux nationalists.
Now the next question is: when did we become Indians? That answer is provided by the Goa, Daman & Diu Citizenship order dated 28.3.1962 issued by the Union Govt. The relevant part reads:
“Every person who or either of whose parents or any of whose grandparents was born before the 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 December, 1961……..”
There is no scope, to dispute that Goans became Indians with retroactive effect from 20.12.1961, by the aforesaid order. It conclusively follows that prior to 28.3.1962, we were not Indians, and hence allowed to “retain the citizenship or nationality which he had immediately before 20.12.1961”.
And the final question: Are we geographically Indians? The answer is a huge ‘Yes’. We are part of the landmass that constitutes the Indian Sub Continent and all parts obviously come together. And in case any part comes ahead of the others then it must be Pakistan which is the cradle of ancient Indian Civilisation (Harappa and Mohenjodaro). And the river Indus, which gave the country its name, runs through that country. And above all Taxila generally acknowledged to be the forerunner of all universities in the world, is also in that country. It is the university that gave us, Chanakya the political analyst, Charaka the father of Ayurveda, and Panini the grammarian, all of whom are considered to be our icons. Does the Republic of Pakistan therefore not have a claim to the concept of ‘India’ a claim no lesser than that of the Republic of India?
To conclude, there ought to be no doubt that we are Goans first and always and are Indians as a consequence of what the Supreme Court says: “True annexation by conquest and subjugation”. And the legislation that followed.

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