Author: Albertina Almeida

It is an established principle that for people to comply with a law, it must be clear and certain. However certainty remains elusive in Goa, where there are increasing disputes on which provisions of the Portuguese Civil Code, the Portuguese Civil Procedure Code and the Portuguese Commercial Code continue to be applicable either to Goa or to Goans.

Are Portuguese laws still applicable to Goa? Yes, some Portuguese laws, or, rather, some provisions of them, are still applicable to Goa. Some may debate whether these laws can be called Portuguese laws or not. However, setting aside nomenclature, the fundamental issue lies in the absence of a comprehensive list detailing which provisions from Portuguese laws remain applicable to Goa or its residents. Hence, uncertainty regarding the applicability of specific provisions or sets of provisions.

This came to the fore recently when the advocate for Pooja Sharma in the Assagao case célèbre, in the application for anticipatory bail, contended that his client has the right to use force, to evict a trespasser. It was canvassed by the Advocate for the said Pooja Sharma that as per Article 486 of the Portuguese Civil Code, the owner of a property is entitled to evict the trespasser by himself or by taking recourse to the Court. This argument was sought to be countered by the Additional Public Prosecutor for the State who submitted that the Applicant being a Non-Goan cannot claim the benefit of Article 486 of the Portuguese Civil Code. The High Court of Bombay at Goa, in its wisdom, remained silent on this point, apparently seeing it as irrelevant to decide on the application for anticipatory bail.

Now, this poses three questions – whether Article 486 of the Portuguese Civil Code is still applicable to Goa, post its integration into India. Two, in so far as those provisions of Portuguese Civil Code which are still applicable, whether the same are only applicable to Goans. Three, who are Goans?

Section 486 details what measures can be taken by the possessor of a property when confronted with trespass. But others may argue that the possessor of a property can file a civil suit, let’s say, seeking reliefs under certain Indian Laws like the Specific Relief Act. So now when Central laws like the Specific Relief Act, or, for that matter, the Transfer of Property Act, have been extended to Goa, after Goa’s integration into India, the question remains whether Articles like Article 486 of the Portuguese Civil Code would still be applicable to Goa. When laws float in such grey zones, opportunism or illegality have the potential to flourish.

If such a provision like section 486 is considered to be applicable, it would be applicable to Goans as well as non-Goans, because it is a law of the land, and it pertains to measures to deal with land. It is another matter altogether when it comes to family and those provisions relating to Portuguese Civil Code which are in the chapters relating to marriage, or guardianship, because those laws are personal and applicable to Goans alone.

Again, the definition of who is a Goan is elusive, in that the definition of Goans is defined in the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012, but only for the purposes of that law.

There are other provisions that put many Goans in a quandary. For instance, there is a provision in the Portuguese Civil Code, but not in the sections that pertain to family laws, that parents cannot sell property to one child, without the consent of the other children, and also a judgement of the Bombay High Court that this provision, is indeed applicable to Goa.

Now when a person purchases property that is so sold to one of the children, the Registrar himself is not educated on this provision, and neither are the present day lawyers because the Portuguese Civil Code is not taught in college, and since there is no clarity about which provisions of the Portuguese Civil Code continue to be applicable, who will be that teacher and how will such a teacher put these provisions together, even if it were to be taught? Since the Indian law – the Transfer of Property Act, which governs matters relating to transfer of property is extended to Goa, most are unlikely to refer to the Portuguese Civil Code for anything on the subject.

When it is stated that there is no certainty in the law, some argue that we have the Goa Daman and Diu (Administration) Act, 1962, which clearly sets out that on subjects where the pre-1961 Indian laws have not been extended to Goa, or where Indian laws have no provisions on the subject, any Portuguese laws or provisions on those subjects can apply. Now the question would be which provisions are these. It is problematic to have to skim through an entire Portuguese Civil Code, or Portuguese Civil Procedure Code, or any other Portuguese laws, for that matter, which, incidentally, are not entirely translated by the Government, and still more problematic, when the law allows for interpretation on even whether that law is applicable to Goa or Goans or not. It is about looking with a microscope at the Indian law and also the Portuguese laws, and then trying to make sense. This leaves lot of room for uncertainty and is a minefield for powerful wheeler dealers to thrive.

It, therefore, makes sense, once and for all, to set the matter at rest and clarify to Goa, Goans and the world, as to what law is applicable to Goa, and/or to Goans. This would need the setting up of a law commission or a committee, which should have practicing lawyers, and people extensively engaging with the law, and must also factor diversity. Once the list of provisions is compiled, it could be codified. The draft of the codified law, could then be placed before the Goa Legislative Assembly, where it could be enacted as law, so that at least from henceforth, there is no confusion as to which law applies.

(First published in O Heraldo, dt: 3 August 2024)

The revocation of Indian passports of those whose births are transcribed in the Birth Registry at Portugal, on the basis of a purported circular of Ministry of External Affairs, Government of India, is nothing but a continuum of the motives underlying the passage of  the Citizenship Amendment Act, 2019, of disenfranchising and disentitling certain sections of the Indian population that the ruling Bharatiya Janata Party loves to hate.  This includes the Muslim communities., the Dalits, the Scheduled Tribes, the many Goans whose births are transcribed in Portugal, and the many Goans who have affirmed their Portuguese citizenship, and run the risk of not securing an OCI card or having an OCI Card cancelled. (more…)

By ALBERTINA ALMEIDA

The discourse of the ruling dispensation on Uniform Civil Code (UCC) centres around ensuring that Muslims can no longer marry four wives, with the claim being that a nationwide UCC will maintain communal harmony. The idea, presumably, is that one law for all makes all the religious communities get along better with each other. Even as recently as May 2023, Union Minister of State for Social Justice and Empowerment, Ramdas Athawale, said that “the Uniform Civil Code is needed to ensure communal harmony in the country”. (more…)

By ALBERTINA ALMEIDA

I was drawn to read the Louisiana Civil Code, when at the meetings of the Family Law Review Committee constituted by the Government of Goa to update and review the family laws in Goa, late Adv. Manohar Usgaonkar would often allude to it. What significance did it have for Goa? (more…)

Key objectives of an Agriculture Policy

Agriculture has its own standing, but it is also part of an ecosystem that has to ensure right to food, life and livelihood, right to climate resilience and protection from climate change. Therefore, Goa’s Agriculture Policy must aim to ensure that agriculture is retained and sustained and that there is sustainable growth in agricultural production with equity. Consequently, the words ‘sustainable’, ‘growth’ and ‘equity’ are key to development of agriculture.

Identification of socio-cultural and economic determinants of land use

The socio-cultural and economic determinants of land use need to be identified in the policy, if equity, and consequently sustainability is to be achieved. Further, Goa has a rich history of agricultural production achieved through toil and hard work. If Goa is green and a land worth fighting for, it is because of the toil that has got it thus far. However, this toil is neither recognised nor valued. Added to this is the fact that family labour of women and children in the field is invisibilised, or engaged in subsistence agriculture, which is not counted as work. All this results in people abandoning agriculture.

Recognition and Dignity of Farm Labour and Decent Income

Therefore, agriculture can only be sustained through ensuring both recognition and dignity of farm labour, and a decent (as in comparable) income from agriculture. Addressing casteism and gender is intrinsic to lack of recognition and dignity to farming, is critical .

Bio-diverse Agriculture

Time and again, it has been emphasised that the key to sustainability is also through discouraging mono-cultures, and actively supporting bio-diverse agriculture and replacing chemical inputs with organic inputs. Hence, the farmers, specially those with small holdings (less than two acres of land) need to be hand-held and subsidised through the process, while livelihoods through agriculture are secured for the long run.

Equitable Access to Agriculture

How can access to agriculture be facilitated to attain sustainability, growth and equity? Access to agriculture can only be effective if there is equitable access to land, equitable access to schemes, equitable access to credit and equitable access to water. Do the persons actually physically cultivating have the access?

NO TO FURTHER CONVERSION OF FIELD AND ORCHARD LANDS

The Land to the Tiller Act, is a positive piece of legislation, in terms of access to land, on which access to schemes and credit are hinged. But currently, it is also weaponised by land sharks, to plant persons making false claims of agricultural tenancy, which, together with the bouncers, is sufficient enough to drive even a small land holder or actual cultivator to concede to a distress sale, which in turn leads to real estate occupying not just farmlands but even fields, and of course, the downslide of agriculture. Therefore, once it is clear that fields and orchard lands cannot be converted, these kinds of false claims could be substantially averted.

RETHINK NORMATIVE PRESCRIPTIONS FOR SCHEMES

Those left with the lands as they cannot be sold to real estate, should be able to work those lands. For this, they have to, among other things, have access the schemes. The normative prescriptions for the schemes must take into account Goa’s realities of many small landholdings. There has to be a needs assessment to envision schemes, and not targets by way of restrictions not to provide the benefits of the schemes to the eligible beyond the number set. This together with timely disbursement (NOT reimbursement) of the financial assistance for the scheme while monitoring the compliance, will go a long way. Schemes must consciously include schemes supporting organic farming and organic inputs.

ACCESS TO FIELDS, YES! ACCESS THROUGH FIELDS, NO!

Physical access to fields is important to enable a tractor or harvester to access the field, and must be ensured. But access through fields for roads which become thoroughfares when there are big broad roads parallelly must be banned. In a village like Taleigao, it has actively reduced the area under cultivation, besides encouraging real estate projects to creep in on agricultural land. Penalties for such projects, and requirement of restoration, besides penalties for planning and development authorities and panchayat elected representatives and authorities who sanction this destruction of agriculture, could help. Such disablers of agriculture have to be addressed in the agriculture policy, apart from pro-actively ensuring enablers of agriculture. Free, prior and informed consent (FPIC) before undertaking any measures that would adversely affect the traditional lands and resources of indigenous and local people, must be mandated in the agriculture policy

ACCESS TO WATER, TO UNPOLLUTED WATER!

Without access to water, and unpolluted water at that. agriculture is not possible. So apart from schemes for subsidising construction of wells, the existing water bodies must be preserved and sustained. Here it is important that the policy addresses also the disablers of agriculture. Farmers in Taleigao have requested that there has to be a regulation of the amount of water extracted by tankers, and a cap on further tanker licencing. This year, in February itself, the ondos in Taleigao had run dry. Also, the agriculture department should have powers to address issues of discharge of sewage and garbage in the fields, and to ensure that there is no blockage or disruption of drainage system which adversely affects agriculture.

AGRICULTURE DEPARTMENT NODAL:

PREPARING DATABASE OF LAND HOLDINGS, INVENTORISATION OF KINDS OF AGRICULTURAL LANDS, DRAINAGE ROUTE MAPS, SECURNG PEOPLE’S PARTICIPATION

For this purpose, the agriculture department has to be designated as the nodal department in matters agriculture. It has to have a database of the landholdings, sizes, and inventorisation of the various kinds of agricultural lands including khazans and the various kinds of agricultural uses that the agricultural land is put to, besides drainage route maps. Presently, the Agriculture Census is handled by the Department of Planning and Statistics, and it appears that that information is not found with the Department of Agriculture. Good governance should ensure that the census data is provided to, used and applied by the concerned Department.

It is the Agriculture Department that should feed information for the preparation of land use maps, apart from securing people’s participation in database building, in the way the bio-diversity act provides for the same. The Agriculture Department should also conduct inspections and periodic studies that identify the needs of farmers and also the disablers of agriculture so that appropriate steps can be taken suo motu, without waiting for complaints.

V.V. IMPORTANT: ADDRESS DISABLERS OF AGRICULTURE

All this information must be harnessed to ensure that mining, and mega projects that will require roads through fields and will decimate the fields, or that will require water consumption that the area cannot cater to, or which does not have space for sewage and garbage disposal should not be sanctioned, and here again penalties must be specifically prescribed for those who sanction in clear violation of the provisions. Not allowing OCI Card holders to hold agricultural land is detrimental to Goa, given the context of forced (by circumstances) migration in current times, only for purposes of employment to return to Goa in retirement.

INCLUSIVENESS: GENDER

Also, there have to be mechanisms set up at local levels that will ensure participation of all farmers. Here it is also necessary to specially prescribe proactive measures to enlist female farmers and encourage women to be part of the farmers’ clubs, as against the male only farmers’ clubs today.

REVENUE GENERATION FOR CLIMATE RESILIENT INFRASTRUCTURE

The fields and agricultural lands are the lungs of the locality and also prevent flooding in the areas. They are its climate resilient infrastructure, whose benefits are reaped by all the residents of the locality, and especially the high rise real estate projects in the locality. Considering the amount of resources that these projects draw from the locality, there must be a cess levied on the builders/unit-holders of these projects, and even more so on those who have second homes in Goa, so that the not so viable low lying fields can be maintained and there is value for work done in the fields.

INCORPORATE REQUIREMENTS FOR REVITALISATION OF AGRICULTURE UNDER FOOD SECURITY ACT

The requirements mandated by the Food Security Act, 2013, for revitalisation of agriculture, such as ensuring livelihood security to farmers by way of remunerative prices, access to inputs, credit, irrigation, power, crop insurance, etc., and prohibiting unwarranted diversion of land and water from food production, must be incorporated..

ACCESSIBLE ADMINISTRATIVE REDRESSAL MECHANISMS, ACCOUNTABILITY AND MONITORING

There must be accessible administrative mechanisms for justice, within the Department for addressing violations. There must simultaneously also be judicial remedies for holding violators in governance accountable. Similarly, there must be a monitoring mechanism.

INSTITUTIONALISED BASIC AGRICULTURE EDUCATION FOR ALL

Basic education in agriculture must be taught in a graded way in schools and colleges. This education must be institutionalised and must not be at the mercy of a school management that will allow a proactive teacher to incorporate it in her teaching.

In summary, in the policy, there must be a vision statement, a statement of the socio economic and cultural determinants of agriculture, a thrust of proactively enabling equitable sustainable growth in agriculture and proactively addressing the disablers of agriculture.

By ALBERTINA ALMEIDA

I was drawn to read the Louisiana Civil Code, when at the meetings of the Family Law Review Committee constituted by the Government of Goa to update and review the family laws in Goa, late Adv. Manohar Usgaonkar would often allude to it. What might this Code be? What significance did it have for Goa? (more…)

By ALBERTINA ALMEIDA

At a time when divisive politics is taking root across the globe, simple ordinary women from the temple town of Manguexi in Ponda, Goa, India, have been leading the way in preventing these roots from taking hold. These women are refusing to be distracted by the trail being laid by divisive politics and are steadfastly focused on their goal against destructive development that will consume and destroy them. (more…)

By ALBERTINA ALMEIDA

As per the Goa Town and Country Planning Act, 1974, as amended to date, Planning and Development Authorities have to prepare an existing land use map for the planning areas under their jurisdiction. However, this provision is not implemented in letter and spirit. Further, there is no such corresponding requirement for those areas which are not declared as planning areas. In that for those areas which are not declared as planning areas, there is no provision to prepare an existing land use map and an outline development plan. It would be useful to have a land use map drawn up even for non-planning areas, because it can provide an useful baseline for planning. It can ensure that the uses that the land has been traditionally put to are duly documented and people’s uses of land are recognised. (more…)