Marian Pinheiro
Goa became part of Indian Union as a result of “Operation Vijay” by the Indian armed forces, which forced the then Governor General Manuel António Vassalo e Silva to surrender, and to sign the instrument of surrender at 2030 hours on December 19, 1961. From then on Goa came under the military administration, headed by Kunhiraman Palat Candeth as Lieutenant Governor. Goa was under the military governance till June 8, 1962. Though the popular belief is that Goa was liberated, it was indeed a military action of subjugation, resulting in India being the victor and Portugal being the vanquished .The territory of Goa was thus captured and annexed to Union of India and for all purpose the appointed day of this event is December 19, 1961, called the Liberation Day, with due regard and respect for all those who revolted against the Portuguese rule in Goa, becoming the freedom fighters.
Having thus annexed the territory of Goa to the Indian Union, in order to legitImise and incorporate Goa as part of India, a Law was passed by the Indian Parliament on March 26, 1962. By this Act India recognised the existence of a pre liberation, legal system in Goa and with effect from the appointed day i.e December 20, 1961,as per The Goa, Daman and Diu (administration) Act, 1962 Section 5 Continuance of the then existing (Portuguese) laws were allowed in the territory of Goa Daman and Diu. But there was an important and very pertinent rider.
“For the purpose of facilitating the application of any such law and for the purpose of bringing the provisions of any such law into accord with the provisions of the Constitution, the Central Government may, within two years from the appointed day, by order, make such adaptations and modifications, whether by way of repeal or amendment, as may be necessary or expedient and thereupon, every such law shall have effect subject to the adaptations and modifications so made.”
True for the purpose of continuity, all the laws then in force in Goa, as on December 19, 1961, continued.
But this section required the Central government to ensure that all such laws are in accordance with the Constitution of India, within two years from the appointed date i.e December 20, 1961. This meant that the government was obliged to ensure on or before December 20, 1963, that all such laws which existed prior to December 20, 1961 in Goa are made to comply with the requirement of the Indian Constitution, failing which such of the laws which did not comply with the requirement of the Indian Constitution would cease to be laws in Goa.
This would draw one to consider what are the Constitutional requirements. The first of this requirement will be compliance with the fundamental rights. The Supreme Court of India has rightly pointed out in R.P. Limited vs Indian Express Newspaper, and later in People’s Union for Civil Liberties vs Union of India, that it must be remembered that people in general have a right to know, what are the laws that govern them. How could the people know, what are the laws, when the law is in a foreign language?
And Article 13 of the Constitution very emphatically states that laws inconsistent with or in derogation of the fundamental rights, cannot exist in the rule book. There is also another important provision of the Constitution which enjoins the High Court and the Supreme Court to interpret and apply a law only if it is in English and that if the law is not in English, there is an obligation on the concerned government to ensure that an English translation of such a law is published in the official gazette.
It should be noted that Section 5 of the Goa, Daman and Diu (administration) Act, 1962 speaks about validation of all the laws prior to December 20, 1961 , that existed in Goa. This would mean all the laws continued to apply in Goa including the Portuguese Civil code of 1861 for two years that is till December 19, 1963.
Since neither the Central Government nor the State government of Goa did nothing to make these laws Constitutionally complainant, all these laws became nonexistent as on December 20, 1963, Thereafter neither the government nor the judiciary had any power whatsoever to apply or interpret or give judgment based on any of these (Portuguese) laws in Goa. All such actions of the Government and the judiciary are null and void.
Many would argue that the two years’ time period mentioned in Section 5 of the Goa, Daman and Diu (administration) Act , 1962, is merely directory and non compliance as such does not make the laws nonexistent. But one should not fail to consider that the purpose of two years’ time was not just a time limit but to fulfill the Constitutional requirements and that constitutional requirement envisaged fulfillment of requirement under Article 21, which is a fundamental right, to be read with Article 13 of the Constitution, apart from the requirement of Article348 (3). There was a definite purpose and specific affirmative actions were required to be taken by the Government, both at the Centre as well as at the State. Mind you there were legal experts and law officers advising and guiding the State throughout these last 57 years.
Is this not a total failure of Governance and utter disregard for the Rule of Law?
It should be noted that The Goa, Daman and Diu (administration) Act, 1962, authorised and legitimised the continuation of all the (Portuguese) laws then existing in Goa and not just the Civil Code alone. Then if the argument is that, the two-year time was merely directive, it would mean that all those laws which were then existing in the Portugal ruled Goa, Daman and Diu, are valid even today except those cases where laws in India have been either extended or enacted by the Centre or the State.
Goa is now facing a legal and judicial imbroglio. In addition to the Civil Code , there were indeed many other (Portuguese) laws which were applicable in Goa as on December 19, 1961. The Government’s failure for more than 50 years (half a century) to make available to the people, the law which governs them, in the language of the State or in the language spoken by vast majority of people is certainly a violation of the human rights of the Goan people.
Why such a situation in Goa? Is it because of ignorance or is it gross negligence or is it because there are powerful forces and undercurrents, who have greatly benefitted from the judicial process in Goa, by ensuring that the English translation of the Portuguese Civil Code is not made available to the common man and the public, so they could twist, turn and distort, the meaning of certain Portuguese terms, to benefit their case and the Judges being ignorant of Portuguese language would merely accept their version?
Whatever it is, time is not far when the real truth will emerge, it might upset the existing dispensation, but truth is truth and truth is Justice. It is the business and mandate of the judiciary to ensure that truth prevails and justice is done.
The most intriguing riddle is, how could the judges in Goa, so willingly enforce, a law enacted by a foreign Nation, in a foreign language, oblivious of the Constitutional requirements in India? Not just in one case but in many cases that too at different levels and for these many years.
(The writer is a Professor of Law and Former Dean, Faculty of Law, Goa University)
