Right of Passage over Indian Territory (Portugal v. India) (Merits, 1960)

It is the authority for local custom between two States, and it is an Indian case. It also shows a court reading eighteenth-century grants on their own terms rather than by modern conveyancing standards, and it shows that a customary right can be real and still be subject to the territorial sovereign's power of regulation and control.

Portugal held Daman on the coast and two inland enclaves, Dadra and Nagar-Aveli, surrounded by Indian territory. Portugal claimed a right of passage between Daman and the enclaves, and between the enclaves, to the extent necessary for the exercise of its sovereignty over them, subject to India's right of regulation and control and without any immunity.

In July 1954 Portuguese authority in Dadra was overthrown. Tension followed in the surrounding Indian territory and India suspended all passage, refusing visas to Portuguese nationals of European origin and to a delegation the Governor of Daman proposed to send.

India objected that the right claimed was vague and self-contradictory, since it was said to be subject to India's regulation and control yet carried no immunity; and that no local custom could be established between only two States.

1. Is a right so qualified capable of judicial determination under Article 38(1)?
2. Did the Treaty of 1779 and the sanads transfer sovereignty over the villages to Portugal?
3. Can a local custom bind only two States?
4. In respect of which categories of passage was a right established?
5. Did India's suspension in 1954 breach the obligation?

1. Yes.
2. No. The grant was a jagir or saranjam, a revenue tenure, not a cession in sovereignty; Portuguese sovereignty arose later, by British recognition in fact and by implication and subsequent tacit recognition by India.
3. Yes. A local custom may be established between two States.
4. A right of passage existed for private persons, civil officials and goods in general, and not for armed forces, armed police, and arms and ammunition.
5. No. The refusals in 1954 fell within India's power of regulation and control.

The claim is justiciable. The day-to-day exercise of a right so formulated may give rise to delicate questions of application, but that is not sufficient ground for holding that the right is not susceptible of judicial determination with reference to Article 38(1). A right does not cease to be a legal right because its administration is difficult.

The Maratha grant. Portugal relied on Article 17 of the Treaty of 1779 as a transfer of sovereignty. The Court refused to judge an eighteenth-century instrument by later standards: "the validity of a treaty concluded as long ago as the last quarter of the eighteenth century, in the conditions then prevailing in the Indian Peninsula, should not be judged upon the basis of practices and procedures which have since developed only gradually." The Marathas had treated the Treaty as binding and had acted on it.

But the language of Article 17 did not transfer sovereignty. Where Maratha treaties intended transfer they used expressions such as cession in perpetuity or in perpetual sovereignty. What the sanads granted was a revenue tenure worth 12,000 rupees a year, a very common form of grant in India, never construed as a cession of territory. The authority to put down revolt did not help Portugal: if sovereignty had been intended, it would have been unnecessary to recite that the future sovereign could quell a revolt in his own territory.

How the enclaves arose. The situation changed with the British. They found the Portuguese in occupation exercising full and exclusive administrative authority, accepted the situation as they found it, and neither claimed sovereignty themselves nor expressly recognised Portugal's. Portuguese sovereignty was thus recognised by the British in fact and by implication and was subsequently tacitly recognised by India, and the villages acquired the character of Portuguese enclaves.

Local custom. India's objection is met in two sentences that carry the case: "It is difficult to see why the number of States between which a local custom may be established on the basis of long practice must necessarily be larger than two. The Court sees no reason why long continued practice between two States accepted by them as regulating their relations should not form the basis of mutual rights and obligations between the two States."

Application to the categories. Passage of private persons and civil officials was common ground to have been free beyond routine control. Goods in general also passed freely, subject only at times to customs regulations and to controls necessitated by security or revenue; the wartime prohibition and the prohibitions on salt and liquor were specific measures of defined scope and purpose. So there existed during the British and post-British periods "a constant and uniform practice allowing free passage between Daman and the enclaves". Having continued over a period extending beyond a century and a quarter, unaffected by the change of regime when India became independent, that practice "was accepted as law by the Parties and has given rise to a right and a correlative obligation."

For armed forces, armed police, and arms and ammunition the practice was the opposite: previous authorisation was required, and the course of dealings therefore excludes the existence of any such right.

Particular practice defeats general rules. The Court framed the whole exercise historically: the case relates to a period and region in which relations between neighbouring States were governed largely by practice rather than by precisely formulated rules. Where the Court finds a practice clearly established between two States and accepted by them as governing their relations, "the Court must attribute decisive effect to that practice for the purpose of determining their specific rights and obligations. Such a particular practice must prevail over any general rules."

The 1954 events. Portugal's right was subject to full recognition of Indian sovereignty over the intervening territory and carried no immunity. Given the tension after the overthrow of Portuguese authority in Dadra, India's refusal of passage to the proposed delegation and its refusal of visas were covered by its power of regulation and control. There was no breach.

• The single proposition to remember: a bilateral practice long continued and accepted as law creates a local custom, and that particular practice prevails over general rules.
• Notice how the two limbs of custom are proved on the facts. The corpus is a century and a quarter of unbroken free passage. The opinio juris is inferred from acceptance as law by both parties, including the continuity across Indian independence.
• The differential result across categories is the examinable subtlety: the same evidence that establishes a right for one class of passage excludes it for another.
• Read alongside the Asylum Case: there the practice was too inconsistent; here it was constant and uniform. The tests are the same; the evidence differed.