While for the rest of India a Civil Code has remained a wish on paper, the State of Goa and the Union Territory of Daman & Diu right from 1870 have had a Unique Civil Code covering General principles of Law leading to Civil Capacity, Personal or Family Law i.e. Marriage, Divorce, Children, Succession and Property Law as well as vindication of legal rights. Such a wide sweeping Code (it consists of 2538 Articles), covering the entire heartland of private Law, would be the pride of any nation. Countries of Europe throughout the 18th and 19th centuries as a sign of their advancement and national identity struggled and enacted Civil Codes. This was later done by China, Japan, Islamic, Latin American and African countries. A Civil Code is a systematically organized exposition of the entire area of law regulating private relations between citizens as distinguished from Public Law i.e. political Constitutions, Criminal and Administrative law.
It must be noted that under Article 348 of the Constitution of India, laws which are not in English language have to be translated and published in the official Gazette of the State in order to constitute the authoritative text thereof. In Goa for the last more than 50 years we are acting in violation of Article 348 of the Constitution. For the last 50 years our successive Governments, have failed to appreciate the importance of this treasured element of our Goan culture. Till 1910 the Civil Code had the virtual monopoly of substantive Civil Law. Subsequent legislation passed has interfered with its operation and as of today we have the following laws in the civil area:-
i) The Civil Code of 1867.
ii) The Law of Marriage 1910.
iii) Law of Divorce
iv) Law of Children.
v) The Law of Marriage of 1946.
vi) The older laws of Usages and Customs of Hindus.
vii)Provisions of Inventory in the Portuguese Civil Procedure Code of 1939.
viii) Certain other provisions of Civil Procedure Code.
ix) Code of Civil Registration 1912.
There are also some other laws like the Concordat of 1940 the status of which needs to be looked into. One has to also consider the wonderful system of property registration which made our Property Law so secure.
With the extension of Indian laws to Goa, like the Indian Contract Act 1872, Transfer of Property Act 1882, various parts of the said Civil Code dealing with the corresponding subject matter stand repealed.
Law Commission in the past has confined itself to other peripheral and, if I may say, trivial matters without entering into the Civil Code.
In the year 2002 a Committee of eminent lawyers had been appointed to draft a Family Code and it had reached up to the extent of preparing a Bill on Succession, Inventories and Notaries. This Bill though otherwise meritorious in compiling together and updating a part of the Law had the very serious drawback of destroying the Civil Code as such. The Bill since it does re-organize the Law of Succession, Inventories and Notaries could however be advantageously inserted as a part of Civil Code but, as stated enacting it as a separate Act would be a destructive step.
There are oceans of difference between having a Civil Code and passing Acts relating to specific areas of laws. An Act is an inferior form of legislation on a certain area or topic. It only regulates the law and it is a step backwards or downwards from the high pedestal of a Code. No country in the world and any Lawyer or Jurist would ever think of making pieces out of a Civil Code and passing Acts. For that matter tomorrow we could split the Constitution of India and pass Acts on its various parts and portions like Citizenship, Fundamental rights, the Executive, the Parliament, the States, local bodies and so on.
In British India from 1833 till the end of the 19th century for over half a century, though the first four and indeed truly famous Law Commissions appointed in 1833, 1853, 1862 and 1875 the various Acts were passed in specific areas of law but the ultimate aim was always that these Acts should together constitute a Civil Code for India. This is found in the Reports of all those Law Commissions and can be read for example in the Bill for India Easements Act 1882 which starts with the words “This Bill is intended to form a part of the Indian Civil Code”.
This was the thinking of 19th century Law makers who laid the foundation of the Indian legal system. This too was the view of the founding fathers of our nation who framed the Constitution and inserted therein Article 44. “The State shall endeavour to secure for the citizens a uniform Civil Code throughout the territory of India”.
In the meantime the legal situation in Goa keeps on getting worse. The lawyers who knew the old laws by large are dead or fairly old. Translations have been made and there are at present at least three or four translations, but the lawyers are forever confused precisely because the organized Code form is not available. The middle generations of lawyers who are now middle aged have spent most of their lives throwing up their hands in the air and pleadings ignorance of law however not hesitating to take briefs in the very same area of law which they claim to ignore. In Goa we see the most unique spectacle of a Judge being told from the most basic first principles all about a law and a legal system of which he never heard by two contradicting adversaries and within minutes he decides a grave and serious point of that same law affecting the lives of the entire State.
The biggest sufferers are the younger generation of lawyers who are totally at sea on this issue. To add to this chaos, the Goa University and two Law Colleges do not teach the Civil Code or Civil law as a subject and there are no teachers who know anything about it. We also have certain minds which suggest that Indian Succession Act etc should be extended to Goa! However such steps will result in destroying the existing Civil Code covering all communities with one Code, which is distinct in the entire country in comparison to Hindu and Muslim personal law existing in other states. Besides there are very few Anglo Indians for which such Succession Act were also intended for.
Civil law should be introduced as a subject in LL.B. and LL.M courses in Goa. This would require the Bar Council and UGC to be properly approached. In India Civil Law is as little known as Latin or Greek. Every year a course of lectures is organized at law Colleges in Goa in co-operation with the University of Lisbon but instead of teaching the law which operates in Goa the course/lectures deal with topics which are not relevant for Goa.
Besides dealing with development it would be worthwhile if the present dynamic Parrikar Government entrusts the Goa State Law Commission with the task of reorganizing the Goa Civil Code and give Goa the place of pride in being the first State in the country having a modern reorganized Civil Code.
( The writer is a Panjim based Social Activist and Lawyer)