*The Case of Goa, Daman and Diu*

       *1.* The Portuguese were a political and administrative presence
       in India from the sixteenth century until 19 December 1961 at
       which point the Indian Union proceeded, /manu militari/, with
       annexing the territories of Goa, Daman and Diu which had
       traditionally been called the /Estado da India/.

       Chosen for strategic motives as the capital, Goa was, for over
       four centuries, the centre of Portuguese legal influence in the

       The fact that a supreme court (/Relação/) had been established in
       1544 contributed to this. The court was the first institution of
       its kind to be set up by Europeans in Asia and it was also the
       first Portuguese court to be established outside the European
       continent. Although Goa?s Supreme Court underwent various
       vicissitudes over the centuries (not only did it change its name
       but it was also closed on more than one occasion), it was always
       the highest Portuguese court to operate in the Orient: it not only
       covered the other Portuguese-governed territories in Asia, it also
       took in Mozambique.

       In contrast to what happened in Macau and Timor, the /Estado da
       India/ was the setting for an extremely diversified and complex
       judiciary apparatus and activity. In addition to a court of second
       instance and an administrative court, there were several municipal
       and county courts which justified, in the early seventies, the
       presence of over twenty magistrates.

       In India, however, the Portuguese were confronted with a
       civilisation which was highly sophisticated on several levels and
       this led them to promote policies which resulted in what would now
       be described a high degree of localisation in both the
       administrative and judicial spheres. The attempt to impose the
       Portuguese language was not welcomed by the local population and
       it remained the case that when the /Estado/ was integrated into
       the Indian Union a large proportion of judicial positions ?from
       the court of first instance to the Supreme Court? were held by
       natives. The same could be said with regard to advocacy although
       it should be mentioned that a university degree was not essential
       in gaining access to the profession: people could be accepted
       after passing tests set by the President of the Supreme Court. The
       significant degree of local participation in administering justice
       must have contributed to the fact that Portuguese law was able to
       put down the kind of roots which elsewhere it was not possible to do.

       *2.* The history of Portuguese law in India has yet to be written,
       and, more particularly, the history of Portuguese law /in partibus
       orientalium/. There are no published works offering a systematic
       examination of the legal system which existed just prior to Indian
       annexation. While the system which the French introduced in
       Pondicherry has been studied in detail in a work produced by
       Indian jurists entitled /Justice in Pondicherry (1710-1968)/, the
       years have gone by without anything being produced with regard to
       Goa, Daman and Diu.

       For the narrow purposes of this study, we could still claim
       without being too far off the mark that at the time, there were
       not too many differences between the law applicable in Portugal
       and that in force in Goa, Daman and Diu.

       To mention just those laws of greatest significance, the 1867
       Civil Code, the 1886 Penal Code, the 1888 Commercial Code, the
       1929 Penal Procedure Code and the 1939 Civil Procedure Code with
       their amendments were all in force in the /Estado da India/ on 19
       December 1961.

       If we take this into account, we can understand the value of the
       progress which occurred following the end of the Portuguese

       *3.* The Indian Union?s annexation of Goa, Daman and Diu was the
       result of open conflict as it had not been accompanied by any
       agreement which could protect the continuation of any aspects
       recognised as beneficial by both of States concerned.

       Nevertheless, along with mechanisms for change and adaptation,
       elements of continuity were introduced in a law issued by the
       Indian Parliament, Act 1 of 1962 entitled "The Goa, Daman and Diu
       (Administration) Act" which was implemented on 27 March 1962. In
       brief, the law enshrined the following points:

       a) the continued implementation of laws which, prior to 20
       December 1961 had been in force in Goa, Daman and Diu so long as
       they were not amended or revoked;

       b) the possibility for the central government to extend
       legislation in force in any of the states of the Union to Goa,
       Daman and Diu by means of notification published in the official
       gazette with any restrictions or modifications it chose to include;

       c) the retention of the services of judges, magistrates and other
       court employees without prejudicing the exercise of the
       government?s own power;

       d) the extension of the High Court of Bombay?s jurisdictional
       sphere to include Goa, Daman and Diu from a date to be set by the

       The process of extending legislation to the former Portuguese
       territories from the Union?s central government or in force in any
       of its States began as early as 1962. As the extension proceeded,
       those norms which had previously been in force were revoked as
       they were replaced. The decision as to which were in fact the
       corresponsing norms was the responsibility of the persons
       responsible for interpreting the legislation.

       Various techniques and sources were brought into use in replacing
       the Portuguese laws which had become part of the Indian Union?s
       domestic law through "The Goa, Daman and Diu (Administration)
       Act". Laws such as "The Goa, Daman and Diu (Laws) Regulation Act
       provided for the application of many laws on the adjoining list to
       Goa, Daman and Diu. The time at which they came into force
       depended on a date to be set by the Administrator of the
       territories. In other cases, specific legislation or provisions
       were used to extend or alter norms in force by both the central
       government and the Goa Legislative Assembly. Rules from the
       Judicial Commissioner?s Court of Goa and the fact that they were
       falling into disuse anyway contributed to Portuguese norms
       gradually falling into neglect.

       One of the alterations with major repercussions which was adopted
       early on was the extension of the Indian Penal Code and the Code
       of Criminal Procedure to the former Portuguese territories in
       1963. This resulted in the introduction of the death penalty and a
       restructuring of the judicial organistion.

       Consequently, what had been the "Judicial Magistrates of the First
       Class" became, as a general rule, the courts of first instance
       whose rulings could be appealed in the Sessions Court. For more
       serious crimes, the Sessions Court could also function as a court
       of first instance in whic case its rulings would be appealed in
       the High Court.

       The process of replacing the legislations left by the Portuguese
       became broader with the extension of the Limitation Act,
       Agriculture Tenancy Act, Transfer of Property Act, Registration
       Act, Contract Act and Sales of Goods Act, to give but a few
       examples of those diplomaes which brought about the revocation of
       important provisions of the Civil Code, Commercial Code and Civil
       Procedure Code.

       In 1966, the Code of Civil Procedure, the Arbitration Act and the
       Civil Courts Act were extended to the former Portuguese
       territories. This was accompanied by a new judicial structure
       which was analogous to that in force in the Indian Union.
       Nevertheless, it seems as though the former procedural norms were
       not abandoned immediately but rather only in 1978 on a ruling made
       by the Supreme Court.

       One conclusion which can be drawn without going to any greater
       lengths is that the legal system left by the Portuguese was
       replaced on a gradual basis as new rules which were already in
       force in the other states of the Union were introduced or extended
       to Goa, Daman and Diu or through new legislation.

       *4.* These were areas, however, in which Portuguese laws have
       managed to retain their position and still subsist over three
       decades after the end of the Portuguese administration, despite
       there having been several attempts to review or revoke them.

       This was the case in the fields of family law and the law of
       inheritance in which the Civil Code of 1867 is still applied with
       the 1910 amendments concerning marriage and divorce and those
       introduced in 1913 by Decree nº 35,461. Some of the provisions of
       the 1939 Code of Civil Procedure are still applied today, namely
       those dealing with inventories and other special procedures.

       Although in other cases legislation was maintained because there
       were no provisions in the laws of the Indian Union which could be
       regarded as equivalent (in other words as a result of the
       technique which was used and the differences between the legal
       systems), as far as concerns family law and probate the reasons
       were very different.

       The fact is that, contrary to what occurred in the rest of the
       Indian Union, where these matters are regulated by various
       "personal laws" which apply different solutions in the cases of
       Hindus, Muslims, Christians and so on, in the Portuguese
       territories there was a trend towards homogeneous treatment with
       no difference of treatment of the basis of religion, caste or
       ethnic group. The introduction of Indian laws was thus accompanied
       by a multiplicity of regimes which, although they were welcomed by
       some groups still had a disturbing effect on a society which had
       emerged from the centuries of Portuguese administration with a
       seemingly greater degree of homogeneity.

       In addition to this, there was Article 44 of the Constitution of
       the Indian Union which has as its aim the creation of a uniform
       civil code for all citizens. This has still not been achieved but
       the goal would be contradicted if a variety of personal laws were
       to be introduced to the only territories where a homogeneous legal
       system exists.

       In the light of this constitutional provision, attention has been
       directed over recent years to this basically uniform subject which
       seems to be attracting renewed interest from scholars and magistrates.

       *5.* The judicial organisation and the extension of the
       jurisdiction of the High Court of Bombay did not progress in the
       way which had initially been planned.

       The Goa Court remained active until 1963 when it was closed by a
       law called the "Judicial Commissioner?s Regulation" which replaced
       it with a court called the Judicial Commissioner?s Court. Through
       "The Goa, Daman and Diu Judicial Commissioner?s Court
       (Declarationas High Court Act, 1964) this court was given powers
       which to a certain extent were similar to those of a High Court
       and oeprated until 30 October 1982 when a section of the Bombay
       High Court was established in Goa.

       Although Goa was separated from Daman and Diu and made a State
       through the "Goa, Daman and Diu Reorganisation Act, 1986",
       followed by the Constitution ("56th Amendment Act, 1986"), and
       though the Indian Constitution makes provision for a High Court in
       each State of the Union (Article 214), the States of Goa and
       Maharastra still share a high court today.

       The development of the Administrative Court of Goa is also worth

       While the Pondicherry Courts Act 1966 abolished the /Conseil de
       Contencieux Administratif/, in Goa?s case the experience of the
       Adminsitrative Court was seen in a positive light. The court was
       maintained by the "Administrative Tribunal Act 1965" even though
       its composition and powers were considerably altered. Furthermore,
       contrary to the British tradition, the Indian Union has tended to
       establish specialised courts with a corresponding reduction in the
       powers of the High Court as is indicated by "The Administrative
       Tribunals Act 1985").

       *6.* English is now the language used in the courts and for
       legislation. This situation was achieved without making it a legal
       obligation although provision was still made.

       In the early years following integration, Portuguese was still
       used in the courts either along or alongside English. Cases were
       being filed in both languages until at least the late seventies
       and there were many allegations addressed to the "/Venerando/
       Judicial Commissioner?s Court". This unique situation situation
       can be explained by the fact that most magistrates and lawyers
       were familiar with both languages and continued to apply laws
       written in Portuguese. Moreover, it seems that there were never
       severe communication problems in the courts as most parties
       involved spoke Konkani, the local language.

       The fact that local jurists knew Portuguese meant that the
       question of translating Portuguese laws into English did not arise
       for many years. Apparently it was only when Portuguese became less
       frequently used by jurists that the task of translation became
       more pressing. Consequently, it was eighteen years after
       annexation that the first English language version of the
       legislation on family law appeared produced by the lawyer
       Usgãocar. Later on, translations of legislation dealing with
       probate and the relevant provisions on inventories appeared.

       The translations carry no official weight but are used as a
       working tool in the courts and generally given credit. They seem
       to be treated as a private document which could be contested by
       the other party which would then have to offer an alternative. It
       would then rest with the court to reach a decision although this
       situation has not yet occurred.

       The translations and the causes behind their production seem to
       indicate that laws can outlast the use of the language in which
       they were written: they allow laws to be applied by persons who
       are no longer familiar with the language in which they were
       drafted and originally published.

       *7.* The conclusions we can reach as to the development of the
       legal system in Goa, Daman and Diu indicates progressive
       identification with the Indian system, which is in itself largely
       influenced by English law and because of this carries many of the
       features of common law.

       In terms of procedure and the organisation of the judiciary, and
       the importance given to case law, these are now characteristic of
       the legal system in use in Goa today.

       The development was facilitated by several factors. While in the
       past legal training was provided in Portugal and in contact with a
       Portuguese system, in recent decades, lawyers have been educated
       in schools in which only English is used and only Indian and
       Anglo-Saxon laws are studied. Newly trained jurists have thus lost
       all contact with the features of the Roman-Germanic systems.

       On the other hand, due to the conditions surrounding annexation
       and the absence of appropriate initiatives, contact was lost with
       Portuguese doctrine and jurisprudence and there was for a long
       time a lack of communication between local magistrates and lawyers
       and Portuguese or Portuguese-speaking lawyers. Another
       contributing factor has been the absence of literature on the
       system which has been operating in Goa with the consequent lack of
       available information concerning its special characteristics.

       Isolated, omitted from law courses, applied by jurists trained
       under another system with different techniques and concepts, the
       legislation left by the Portuguese in Goa has not been able to
       impose some of its particular features.

       Nevertheless, it is surprising that thirty three years after the
       Portuguese administration came to an end, and despite all the
       unfavourable conditions explained above, Portuguese laws are still
       in force and magistrates and lawyers trained under the Portuguese
       system still play an important role in the current system.

       The interest surrounding some of these laws today demonstrates
       that a Portuguese contribution can still be made to local legal
       development. The presence of Portuguese-trained jurists can only
       serve to promote an exchange of legal cultures and experiences
       which, in spite of the time lost, can still be beneficial.

  _/ ____\____    Frederick Noronha (FN) * Freelance Journalist
  \   __\/    \   Goa India T +91.832.2409490 M +919822 122436
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