03 Jul 2022  |   07:21am IST

Engineering law for dismantling democracy and setting up arbitrariness

The current issues in the news, by way of proposed amendments to the Code of Comunidades, the land scams and the illegal constructions are only a further reflection of the incomplete project of annexation of Goa. There ought to have been a constitutional contract with Goa, at least upon its annexation, which ought to have reflected in the form of provisions of special status for Goa. As of now, all that reflects as special status for Goa is in Article 371 I, which merely provides that the Legislative Assembly of the State of Goa shall consist of not less than thirty members.

That Constitutional contract would have determined what fits, what needs to be altered and what needs to be completely discarded from what existed then in Goa. After all, Goans did vote and opt via the Opinion Poll for not being merged into Maharashtra and maintaining their territorial integrity. That itself is an indication of the unique position of Goa, and should have sufficed for the Indian State to engage with the difference that Goa had. However, this did not happen.

The Code of Comunidades represents a system of collective management and control of land within their power. Calling it village community may be a misnomer because it does not have within its fold all of the sections of the local populations. But it certainly has been an entity with a form that could maintain the bunds, the sluice gates, the water bodies, in fact the natural green infrastructure that enables effective agriculture, especially in the context of small holdings. This Code has been systematically dismantled with amendments like taking away the power of the Village Communities to appoint an administrator by mandating for the appointment of an administrator by the State. It turned out that this person would be totally alien to the workings of the Comunidade system. 

Now with the proposed amendments to the Code of Comunidades, there is even utter disregard for the Code, under which a meeting of the components is required to be called every five years for reviewing the Code. Because no such meeting has been called, the recommendations that were offered from earlier meetings have not been even considered, or considered obliquely. There is no attempt on the part of the State to review of how the old system of collective maintenance of the fields for small holdings of agriculture, can be retained, when no alternative provision or simultaneous provision has worked. Thus whatever participatory provisions for evolution of laws are there in the Code are being bypassed in a legislative process, that fails to recognise existing plural mechanisms. Even the Committee set up a few years ago, to review the law has been quietly made dysfunctional.

Also, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, is sought to be circumvented through the proposed amendments by providing for lease of land with the consent of the comunidade, which actually is a pathway for accentuating the corruption that has been corroding the comunidades, because it means explorations of manoeuvring with its managements, which would otherwise not be possible.

Similarly, with land records, there was a system to maintain the land records, by way of recording the transmission of land, and also its description, and there were corresponding revenue records. However, again, in the absence of a constitutional contract, these record maintenance systems were not engaged with or appreciated, and the survey records turned out to be a poor cousin. The latter, it must be acknowledged, paved some space for recognising the rights of those who were unlettered and did not hitherto have the power to negotiate their way through the land registration system. However, its ad hoc nature, without a proper commission of inquiry, meant that those with former titles and the social and financial clout that came with them, had the power and foresight to even manipulate the system at the level at which the survey records were being affected. Now ironically, in mainland India, there has been a progress to something called Hakkache patra, which gives an indication of how the land came to be transferred in the name of the present occupant, and Goa has descended from a efficient record system (albeit one that did not effectively recognise certain rights) to utter chaos.  

Again, when it comes to illegal constructions, there has been a host of legislation that permits regularisation, and even a proposed legislation that intends to arbitrarily recognise land rights without any proper guidelines or even standards for establishing either ownership or possession. This avatar of the State is nothing but a function creep by the State. Those who have lived on lands for donkey’s years and do not have recognised housing rights yet, are still struggling, again for donkey’s years, with cases in the quasi-judicial courts, that are burdened with several other functions. Therefore these scams that are in the limelight quietly hide the fact that the State has not addressed the system of land record maintenance, effectively, and also hide major scams where there are generous public private partnerships by the State, where public resources such as port berths are made available to the big magnates for a song, where these magnates can merrily violate pollution laws and put entire populations at the mercy of a health crisis. 

There is no doubt that land rights MUST be recognised for the landless and the marginalised sections of society who couldn’t have en masse not had rights. But what the State is currently doing is not by any means an exercise of addressing the concerns of the marginalised sections of society or any public interest. It is in fact indulging in what is today described as social and gender washing. 

Social washing and gender washing are acts whereby a party indulging in them, gives the reader/viewer/observer/stake holder an impression that the authority or the entity is recognising and addressing social or gender based discrimination or injustice respectively, when the said acts are merely a façade and there are hidden, and sometimes even contrary agendas in what is sought to be achieved. In the case of the State, prevailing chaos, or ‘scams’ are used as a pretext to disregard democratic provisions and foist laws that are dismantling whatever remnants of democracy and collective management there are. 

Today, in Goa, the amendments to existing laws to dismantle institutions that maintained the ecological infrastructure for effective agricultural activity, are the weapons being deployed by a fascist State to achieve its objectives. These objectives are about acquiring individual power for those at the helm, about subjugating the plural institutions, about keeping its populations marginalised, minoritised and political dissenters, who have to dance to their tune, so as not to be targeted by those laws. What use would a right to unmarried daughters (note only unmarried daughters) be if the comunidade system itself is under stress and in the process of being destroyed? 

As a matter of fact, in this process, the State is creating a new unidimensional regimented undemocratic local order that does not address the core issues at hand, even as it pretends to do so. 

(Albertina Almeida is a lawyer and human rights activist)