As Goa has observed its 37th Statehood Day on the 30th of May, 2024, the observance of this anniversary marks the integration of Goa as the official state into the Indian Union after four and a half centuries of Portuguese colonial rule.
From the Constitutional Law Perspective
The Constitution (Twelfth Amendment) Act, 1962, incorporated Goa, Daman and Diu as the eighth Union Territory (UT) of India, by amending the First Schedule of the Indian Constitution.
The 12th Amendment retroactively came into effect on 20 December 1961, the day following the formal ceremony of official Portuguese surrender, when Governor General Manuel António Vassalo e Silva signed the instrument of surrender bringing to an end 451 years of Portuguese rule in Goa and India acquired control of Goa, Daman and Diu from Portugal in December 1961.
On 30th May, 1987, the union territory of Goa, Daman and Diu was split, and Goa was made India’s twenty-fifth state, with Daman and Diu remaining a union territory at the time.
From the International Law perspective
According to James Crawford (2007) published in his book titled: The Creation of States in International Law (2nd edn):
“The criteria for statehood are of a special character, in that their application conditions the application of most other international laws. As a result, existing States have tended to retain for themselves as much freedom of action with regard to new States as possible.”
Under the principles of International Law, Recognition is a process whereby certain facts are accepted and endowed with a certain legal status, such as statehood, sovereignty over newly acquired territory, or the international effects of the grant of nationality. The process of recognizing as a state a new entity that conforms with the criteria of statehood is a political one, each country deciding for itself whether to extend such acknowledgment (Encyclopaedia Britannica, 2024).
Discussion
According to Tom Grant (2015), in his book chapter titled: How to recognise a State (and not) published by the Cambridge University Press in the Book entitled:
Sovereignty, Statehood and State Responsibility Essays in Honour of James Crawford (2015):
“A wide variety of situations arise in international relations upon which States may judge it necessary to express a view. Claims by States to territory or maritime jurisdiction, attempts to transfer the assets of an international organisation, challenges to the status and immunities of government officers, alterations in the public law of an occupied territory and constitutional crises which cast doubt on the representative capacity of a government as agent of a State are among the recurring examples. Perhaps the most notable is that where a new State is claimed to have emerged. Where an existing State resists relinquishing responsibility over the territory of the putative new State, the situation is particularly delicate.” (Grant, 2015).
A notable excerpt from S. Talmon titled: The Constitutive versus the Declaratory Theory of Recognition published in the British Yearbook of International Law, (Vol. 75) 2004, observes:
“But to the traditional criteria for the recognition of a regime as a new State must now be added the requirement that it shall not be based upon a systematic denial in its territory of certain civil and political rights, including in particular the right of every citizen to participate in the government of his country, directly or through representatives elected by regular, equal and secret suffrage.” (Talmon, 2004).
Now getting back to Indian Statehood
Union Territories can be granted statehood through a constitutional amendment. The process typically involves a recommendation from the President, followed by Parliament passing a law to confer statehood on the Union Territory. This transition often occurs when there is a consensus that the UT has achieved the necessary conditions for full-fledged statehood, including a stable administration and a substantial population. However, not all Union Territories may seek or be granted statehood, as it depends on various factors and considerations. (Edukemy Team, 2024).
Vestiture of Statehood upon UTs in Indian Constitution
As per Article 240 set out in Part VIII of the Indian Constitution, the ‘Power of President to make regulations for certain Union territories’ has been envisaged:
Clause 1 specifies that the President may make regulations for the peace, progress and good government of the Union territories set out in the Constitutional Article.
The Constitution (Twelfth Amendment) Act, 1962, one of the prominent ones for the country as in December 1961, India acquired Goa, Daman, and Diu from Portugal. To bring this integration into effect, the First Schedule of the Indian Constitution was amended in 1962. This amendment integrated Goa, Daman, and Diu as India’s eighth Union territory. It also included these areas under clause (1) of Article 240 of the Constitution. It allowed the President of India to “establish rules for the peace, progress, and good governance of the territory.” (iKanoon, accessed on 31.05.2024).
Consequently, as per the necessary implications which have been formally expressed in Clause (2) of Article 240: “Any regulation so made may repeal or amend any Act made by Parliament or any other law, which is for the time being applicable to the Union territory and, when promulgated by the President, shall have the same force and effect as an Act of Parliament which applies to that territory.”
Summarising
Therefore, the conferment of Statehood upon a territory under the principles of International Law happens to be exclusive of the Indian Constitutional Principles of conferring Statehood upon its Union Territories. Essentially an engulfing legislative and administrative blanket is sought to be shrouded upon the Union Territories of India whilst conferring statehood upon the UT.
While in contrast: the recognition of Statehood in the International realm is based on the Declarative theory which explains statehood as reliant on four components.
- A permanent population
- A defined territory
- Government
- Capacity to enter into relations with other states.
The Montevideo Convention on the Rights and Duties of States of 1933 formalises these four standards for statehood (Montevideo Convention, 1934).
Statehood is autonomous of recognition by other states, according to Art. 3 of the Montevideo Convention. According to the declaratory hypothesis, acknowledging the preexisting criteria of statehood is all that is required for existing States to indicate their desire to establish relations with a new state. (Bhavana Dhahiya, 2023).
