The question thus is always: “Did the State or its agents purport to act catastrophically or subject to the ordinary course of the law”?
This question was posed in Secretary of State in Council in India v. Kamachee Boye Sahaba, (1859) 14 Moo. P.C. 227 M.I.A. 476 by Lord Kingsdown in the following words:
“What was the real character of the act done in this case? Was it a seizure by arbitrary power on behalf of the Crown of Great Britain, of the dominions and property of a neighbouring State, an act not affecting to justify itself on grounds of Municipal Law, or was it, in whole or in part, a possession taken by the Crown under colour of legal title of the property of the late Rajah of Tanjore, in trust for those who, by law, might be entitled to it on the death of the last possessor?
If it were the latter, the defence set up, of course, has no foundation”.
It was further observed:
“The general principle of law cannot, with any colour of reason, be disputed. The transactions of independent State between each other are governed by other laws than those which municipal courts administer. Such courts have neither the means of deciding what is right nor the power of enforcing any decision which they make.”
This principle has been extended to:
(i) All new territories, whether acquired by:
(c) Cession, or
(d) Otherwise, and
(ii) Rights, contracts, concession, immunities and privileges created by the previous paramount power.
These are held to be not binding on the succeeding power even though, before annexation, it was agreed between the powers that they would be respected.
An act of State in an exercise of sovereign power against an alien and neither intended nor purporting to be legally founded. A defence of this kind does not seek to justify the action with reference to the law but question the very jurisdiction of the courts to pronounce upon the legality or justice of the action.