When India became a Sovereign Democratic Republic with the adoption of the Constitution of India, by the Constituent Assembly on November 26, 1949 which came into force on January 26, 1950, Goa was a part of the Portuguese territory. A well-known Supreme Court judge Justice H R Khanna wrote that the people are the trustees and custodians of the values in the Constitution. “A Constitution is not a parchment of paper; it is a way of life. Eternal vigilance is the price of liberty and, in the final analysis; its only keepers are the people.”
Goa, became a part of India only in 1961, the continuance of Portuguese laws as in force immediately prior to Goa’s liberation was assured by the Goa, Daman Diu Administration Act, 1962. And The Goa, Daman Diu Removal of Difficulties Order, 1962. In 1982 a permanent bench of High Court of Judicature at Bombay was established at Panaji (Goa) as per the provisions of The High Court at Bombay (Extension of Jurisdiction to Goa, Daman and Diu ) Act, 1981. The High Court of Bombay, became the common High Court for the States of Maharashtra and Goa even after the Parliament conferred Statehood to Goa in 1987.
Even after liberation of Goa in 1961, most of the Portuguese Civil Code of 1867 continued to be effective and enforced by the courts in India (Goa). There have been many occasions when a judge of the Bombay High Court had to interpret and apply to a case the Portuguese Civil Code of 1867, which was written in Portuguese language and most of the cases decided by the then erstwhile Portuguese courts were also in the Portuguese language. Often there were utter confusion in the translation of the provisions of the Portuguese Civil Code of 1867, and their interpretations. After the liberation a number of Goan lawyers ,who had practiced law before the Goan courts prior to Independence continued to do so, though they did not posses any formal legal education as required by the Bar Council of India and the Advocates Act however they were allowed to do so.
But this created a very peculiar situation in Goa that those lawyers who were practicing in the Goan (Portuguese) courts, did not have any formal legal education in India, and the Indian legal system and were unable to comprehend and realise the importance and predominance of the Indian Constitution, but they often convinced the judges to interpret and apply the provisions of the Portuguese Civil Code based on their understanding of the Portuguese Civil Code and often as per the translations provided by they themselves. This created a peculiar and often unjust situations in the interpretation and application of the Portuguese Civil Code in the Indian courts.
Often the counsels themselves and the judges themselves were neither fluent in Portuguese language nor the Portuguese Civil Code, various devices like writings, publications or translations by some of these lawyers themselves came to be applied by the courts, little knowing or realising that within the Indian Constitutional system there are express provisions, as to what is the procedure that needs to be followed when a law or its interpretation is sought to be applied when the law in question is in a language other than English. Article 348 of the Constitution of India, clearly mandates that the language of the Supreme Court and of the High Courts in India has to be in English only. However the same Article 348 at Sub. Clause 3 provides that in the event any such law is not in English, a translation of such law in English, needs to be published under the authority of the Governor of the State, in the official gazette of the state, for the same to be considered by the Courts as an authoritative text. This procedure would ensure equal opportunity to both the sides though the lawyers or the Judge may not know Portuguese.
It is unfortunate that the courts in Goa used to apply or interpret the Portuguese Civil Code based on some published works by some lawyers or jurists though that was not at all the procedure prescribed by the Constitution of India. There seems to be a major judicial lapse in the failure of the judiciary to follow the Constitution of India, in the application of the Portuguese Civil Code of 1867 or in interpreting the provisions of the Portuguese Civil Code of 1867, by the courts in India (Goa). In the absence of its translation in English not being published in the official gazette as per the requirement under Article 348 of the Constitution of India
It is to be noted that though attempts have been made for publication of certain aspects of the Portuguese Civil Code of 1867, like marriage, succession etc, by some learned jurist in Goa.
The State of Goa has not followed the procedure that is mandated by the Constitution. There is a possibility that those litigants who had as their counsels lawyers who were not well versed with the Portuguese law or the system of interpretation of a civil code, where at a great disadvantage.. Therefore, however good or correct the application of Portuguese laws by the Indian/Goan courts, their failure to follow the mandatory procedure prescribed by the Constitution of India, has resulted in an evident judicial lapse and in the interest of justice and fair play, all those litigants who desires that the decision affecting them, needs to be reviewed ought to be given a suitable opportunity after the Goa Government fulfills the requirement under the Constitution of India to publish the English text of the Portuguese Civil Code.
This exercise of notification of the English translation of the Portuguese Civil code of 1867, should be the prerogative of the new Government.
(The writer is a Professor of Law & former Dean, Faculty of Law, Goa University).
