The Post-Colonial State The post-colonial state in its localized form portrays certain vivid tensions located in the State of Goa, a former Lusotopic province, liberated at varied point of time from other encrustations of India which were under varied colonial sovereignties.
First, the fractured administrative-legal system powerfully works towards the fracturing of the administrative-legal machinery itself. Within the juridical administration, the majority of judges in the lower courts, while were trained in the Portuguese System of Law and higher echelons of the judiciary comprises judges with Indian Law degrees and background. They intended to apply Portuguese laws within the English-Indian system even as some aspects differed from the canons of interpretation of statutes of the continental (specifically Lusotopic) system.
The administration was fractured between officials who served under Portuguese administration and were conversant with Portuguese system and language, and those engaged after liberation, who as the former faded out through retirement simply ignored the Portuguese law for want of expertise in understanding and interpretation.
Second, the rule of implied repeal which was engaged in Goa for adoption of Indian laws by extension or enactment as opposed to express repeal, created divergent interpretations in law courts and administration compromising a fundamental axiom of democratic regimes, viz. equality before the law. Does one explain it in terms of the shifting contours of imperialism, in Marxian formulation ? Or are all transitional formulations caught in the problematique of systemic contradictions which leads us to the translocal disembodied notion of state.
Third, as subject peoples transgress from subjugation regimes to self determination, cultures generally see a resurgence or consolidation of identity space – endogamous language, dress codes and lifestyles. Of these, the most challenging transitions are those of language. In Lusotopic societies as Portuguese moves from the language of state to that of colonial identity, and English takes its place in higher echelons of bureaucracy and Konkani at lower and mid ranges of administration (as cultural assertion), what one confronts is the problems of translations of the text (in this case Portuguese law) and message from the language of origin to that of ultimation, without change of the meaning and always respecting the cultural and linguistic features of the language of ultimation.
In case of juridical translation, the syntax has to measure up for communication between not two languages alone but two juridical cultures. This is a pervading constraint in all Lusotopic and non Lusotopic territories. Referring to the transition of Hong Kong from British sovereignty to Chinese, Sergio de Almeida Correia and Pedro Horta e Costa (1989) wrote “ Juridical translation involves a communication between juridical cultures, it demands that the translator not only command two languages before him, but also requires a special sense of knowledge of law ”24. The Civil Code of 1857 translated in its entirety nearly thirty years after liberation “ whose original is in Portuguese and its translation made available to us in English may not be free from some mistakes ”25. The translation of Portuguese laws and documents was a severe burden on litigants, besides delaying the course of justice26. Till date twenty three laws of Portuguese origin are still in force in Goa, even it they may have outlived their utility they have not been formally repealed27.
* * *
The transitional state caught in the web of historic prolematique of diverse systemic opposites has attempted to define the state in two tautological propositions. One, it is suggested that “ the scrapping of the Portuguese system and full replacement of the Portuguese laws by Indian legislation, appears to be easier and brought with less danger than otherwise ”, as opined by the Law Commission (of 1968) appointed to advise the post-colonial government. This augurs from the Law Commission observation that the Portuguese legal system which survives in the former colony has been destroyed by extension of two hundred Indian laws at liberation. This strategy would serve the collective interests of the whole population and the “ pace of national integration of the communities of Goa, Daman and Diu into the Indian mainstream ” (Colaco 1997 77)
The second argument made by some prominent lawyers is that certain instrumentalities of Portuguese legal system like the “ Portuguese Civil Code of 1967 is a heritage of Goa and a legacy of the Portuguese and we must be proud of it ” (Usgaonkar forthcoming). This is especially in view of the fact that Article 44 of the Indian Constitution which refers to Directive principles of state policy recommends the augmentation of a uniform Civil Code. The argument is posited on a specific identity difference of Goans vis-à-vis the other communities of India, while identifying for themselves a space within the large Indian political spectrum28.
The first perspective seems to be hemmed in by a kind of negativism on the issue of self representation and construction of entities, like the state, or its components. To speak of one’s space is the most problematic. Can the Indian state (in this case the federal component – Goa), be defined irreducibly by shutting out the Lusotopic element of its history. The space a state occupies is necessarily explained by its history. It is a position into which it is written29.
On the other hand synthesis have more problems than answers to offer. The problems associated with transition of colonial territories are diverse and dependent on their historical trajectories and cultures. Conditions under which state appears as cohesive and unitary whole, will differ. Though there may be a temptation to underline this as a further instantiation of the failure of democracy and state constitution in developing countries, in the post-modern tradition one could argue about the theoretical limitations of concepts of democracy and state, and their inability to encompass the transitional or post-colonial processes in developing countries, as western scholarship is largely inclined towards the “ eclipse of empires ” processes.
The state has to be conceptualized in a more desegregated and subaltern form. But to lay claim to construct exclusively indigenous theories encompassing these processes based on an ontological imperative (by the mere fact of being there), one must ignore the last few centuries of historical involvement. This would further contaminate the construction of state theories in transitional and post-colonial societies. In its conception, the state is not merely to be perceived as a space that has to be defined. The state is a provider of space. Its capacity to provide space is enhanced only when it is able to assimilate the exchanges with citizens. The state does not predetermine the outcome of these exchanges but merely ensures its continuance. Only such an accommodative and communitarian state can subsist with apparent “ breakdown ”, that is actually an instrumentality through which it is constituted and up to now defies theoretical encapsulation.
AIR (All India Reporter) 1974, Goa, Daman and Diu, Bombay, D.V. Chaitaley (publisher), LXI (46) 347-353.
––– 1985, Goa, Daman and Diu, Bombay, D.V. Chaitaley (publisher), I 233-255.
Brass, P. 1991, Ethnicity and Nationalism. Theory and Comparison, New Delhi, Sage Publications, 358 p.
Chatterjee, P. 1994, The Nation and its Fragments. Colonial and Post-Colonial Histories, Bombay, Oxford University Press, 282 p.
Chopra, H.S. 1999, “ A South Asian Overview ”, in H.S. Chopra, R Frank & J. Schroder (eds), National Identity and Regional Cooperation Experiences of European and South Asian Perceptions, New Delhi, Manohar Publishers, 435 p.
Colaco, F.J. 1997, The Goa Law Reference, Mapusa, The Goa Foundation, 226 p. [original manuscript, 1962]
Cunha, T.B. 1961, Goa’s Freedom Struggle, Bombay, T.B. Cunha Memorial Committee, 135 p.
Fisher, M. 1962, “ Goa in Wider Perspective ”, Asian Survey (California, University of California), II 3-10.
Government of Goa 1971,Goa Gazetteer, Panaji (Goa), Goa Gazetteer Dept.
Gune, V.T. 1979, Guide to Sources in Goa Archives, Panaji (Goa), Goa Archives, 10 p.
Gupta, A. 1995, “ Blurred Boundaries the discourse of corruption, the culture of politics and the imagined state ”, American Ethnologist, American Ethnological Association, XXII (2) 375-402.
Harshe, R. 1997, Twentieth Century Imperialism - Shifting Contours and Changing Conceptions, New Delhi, Sage Publications, 276 p.
IYIA – Indian Yearbook of International Affairs 1956, 5 : 175-188.
Kashyap, C. Subhash 1991, History of Parliamentary Democracy, New Delhi, Shipra Publications, 369 p.
Low, D.A.1991, Eclipse of Empire,New York, Cambridge University Press, 375 p.
Nandy, A. 1990, “ The Politics of Secularism and the Recovery of Religious Tolerance ”, in Veena Das, ed., Mirrors of Violence Communities, Riots and Survivors in South Asia, New Delhi, Oxford University Press, 354 p.
Portugal. MinistÉrio da Justiça 1949, Boletim do Ministério da Justiça,13 291.
Rubinoff, A. 1971, India’s Use of Force in Goan, Bombay, Popular Prakashan.
––– 1998, The Construction of a Political Community, New Delhi, Sage Publications, 173 p.
Sá, M. Cabral e, ed. 1986, 25 Years of Freedom – a diary of events, Panaji (Goa), Government of Goa, Daman and Diu, Dept of Information, 110 p.
Salazar, O. 1956, “ Goa and the Indian Union The Portuguese view ”, Foreign Affairs, April 418-431.
Saksena, R.N. 1974, Goa into the Mainstream, New Delhi, Abhinav Publications, 147 p.
Seton-Watson, H. 1977, Nations and States, London, Methuen, 564 p.
Spivak, G. 1990, The Post-Colonial Critic, Sarah Harasym, ed., New York, Routledge, 168 p.
Usgaonkar, M.S., ed. 1989, Goa Law Times (Goa, Centro de Estudos Indo-Portuguese Voicuntrao Dhempo), 1, 363 p.
––– ed. 1990, Goa Law Times, 2, 437 p.
––– ed. 1991, Goa Law Times, 1, 420 p.
––– ed. 1992, Goa Law Times, 1, 423 p.
––– (Forthc.), “ The Portuguese Civil Code of 1967 ”, in P.R. deSouza & A. Fernandes (eds), The Goan Polity Institutions, Processes and Issues.
Weiner, M. 1989, The Indian Paradox, New Delhi, Sage Publications, 155 p.
1* Acknowledgments : Dr Peter Ronald deSouza (Goa University), Mr B.S. Subbanna (Secretary-Law, Government of Goa), Advocate M.S. Usgaonkar (Advocate General, Goa, and former Solicitor General of India) Ranjit Satardekar (Advocate High Court, Goa) and Dr Carmo D’Souza (Salgaonkar College of Law, Goa).
. H.S. Chopra (1999) argues that it is debatable to claim difficulties in discussing South Asian and European attempts at regional integration and cooperation even if there may not be similarities in civilizational variables.
2. Dispatch of the American Consulate General, Bombay, to United States Secretary of State, 5, March 1947 : 1-4, State Department Central Files 853.00/3-547, as cited in Rubinoff 1998.
3. Benedict Anderson as cited in Chatterjee 1994.
4. This is the basic point of departure between Benedict Anderson and Partha Chatterjee in defining nations as imagined into existence.
th. The British were quick to assuage peasant uprisings in Champaran (1917) and Bardoli (1928), in India.
5. Here the British reacted to the murder of Chief Minister and riots against rural rent restriction act by democratising local councils and reforms in Uganda’s cotton and coffee industries which averted the crisis reaching a flashpoint.
th. Article 73 of the Charter of the United Nations as quoted in Goa and the Charter of the United Nations, Ministry of External Affairs, Government of India, undated.
6. The Ministry of External Affairs, Government of India, termed this change of terminology by the Portuguese (through Law n° 2048, dated 11th June 1951) from “ Colonies ” to “ Province ” as unique, among colonial countries, in jugglery of words and quibbling over designation.
7. Sir Norman Brook, British Cabinet Secretary, disclosing the contrasting view held by the British as opposed to the Portuguese, as cited inLow 1991 : 10.
8. United States Department of State Bulletin (Washington), XLVI, January 2, 1962 : 145, 149 as cited inRubinoff 1998 : 76.
9. New York Times, 28 December 1961, inRubinoff : ibid.
10. Including fundamental rights and guarantees, and their restriction in the national interest, public and private domain, defence, political organisation of state, legislative, executive and juridical functioning of the state. Directive principles of state policy, family, religious, economic, financial, tax and administrative matters.
11. Decree was a law made by one or more ministers on matters pertaining to his own portfolio and would be signed by the prime minister and promulgated by the President. Regulations were rules for the good execution of laws or decrees-laws and decrees. The legislative ministerial diplomas were laws made by overseas minister with previous approval of the Cabinet or under urgent circumstances
12. Besides the Political Constitution of 1933, the Organic Law of Overseas of 1953, Estatuto do Estado de India of 1955, the Overseas Administrative Reforma of 1933 and Statute of Overseas Employees of 1956 regarding matters of administration, public services and government employees, and Organização Judiciária do Ultramar were also applicable to Goa.
13. Such as Regulamento da contribuição de Registo or Regulation of tax or transfer by onerous title. Regulation and general table of stamp duty, Regulation of industrial tax, Regulation of land tax or property, Regulation of profit tax, Regulation of tax on unearned income, Regulation of complementary tax on incomes, Regulation of income of public offices charging tax on salaries of government servants.
14. Other civil and commercial laws included : (i) Law of divorce introduced under the Decree of 1910. (ii) Codes of usages and customs regulating certain relations between non Christians of Goa Daman and Diu ; (iii) Notarial and registration laws ; (iv) Civil Procedure Code of 1939 determines the procedural machinery for enforcement through courts of the violated private civil rights ; (v) The commercial laws viz. the Portuguese Commercial Code 1888, the Law of perquota societies (Sociedade por quotas) : (vi) Miscellaneous or typical legislation (pertaining to mining, forests, land and land acquisition, urban lease, labour, health, etc.)
15. It underwent a general revision in 1930 in Portugal itself and was replaced by the New Portuguese Civil Code of 1966.
16. Interview with Mr. B.S. Subbanna, Secretary (Law), Government of Goa. 19th February 1999.
17. For a detailed list see Colaco 1997 : Appendix I to IV, 92.
18. Published in Goa Government Gazzette I Series, n° 41, of 6 December 1962.
19. Published in Goa Government Gazzette I Series n° 22, of 29 May 1964.
. The Goa, Daman and Diu Evacuees Property Act 1964, the Goa, Daman and Diu Agricultural Tenancy Act 1964, the Goa, Daman and Diu Land Revenue Code 1968, the Goa, Daman and Diu Protection of Rights of Tenants (Cashewnut and Arecanut Gardens) Act 1971 and such other crucial legislation was passed by the Goa, Daman and Diu Legislative Assembly after its constitution in 1963.
20. Portuguese (continental) and Indian (Anglo-Saxon tradition) system of laws have substantive differences. The Portuguese civil code is modeled on the Napoleanic Code and even the usage “ code ” has a vast interpretative difference form the one in Indian statutes.
21. The Portuguese Laws – Reforma Administrativa do Ultramar (Overseas Administrative Reforms 1933), the Statutes of overseas employees of 1956 and Estatuto do Estado da India of 1955 were all extended to Goa even after December 1961 by the Goa, Daman and Diu (Administration) Ordinance 1962 counterposing it with Central and State Acts, regarding administration.
22. Concordata is the international treaty signed between Vatican and Portugal on 7th May 1940, which provides for various matters in the religious and social sphere between the two states, one of the most important being the canonical marriage and its civil effects.
23. In the area of personal laws, the Hindu Marriage Act 1955, the Hindu Customary Law, the Shariat (Personal Laws of Muslims), the Indian Divorce Act 1869 and Special Marriage Act 1954 too, have not been extended to India.
th. The Judgment of the Supreme Court of Portugal dated 24 June 1949 reported in Portugal 1949 : 291.
th. Kamlakant Chibde and other versus Sushila Chibde and others. Usgaonkar 1990 : 185D-191D.
24. In the book Towards Legal translation and production of bilingual legislation in the present context of transitional period, 1989.
25. Paragraph 5 of the Judgment of the Bombay High Court, Panaji Bench, in Michael Charles Souza versus Ganesh V.V. Gaunkar and Sons reported in 1991 cited in Usgaonkar forthc.
26. The process of translating all Portuguese laws in force in Goa is claimed to be completed as late as in1999, almost thirty-eight years after transition to Indian sovereignty. These translations are however with the Department of Law, Government of Goa and not easily accessible to the public.
27. The twenty-three laws in force pertain to law of persons, easements, law of torts, civil marriage, divorce, code of usages and customs of non Christians, notarial laws, commercial laws, etc. For a complete list, see Colaco 1997. Laws which are irrelevant are the code of usages and customs of Non Christian Inhabitants of Daman and Diu of 1854, Code of Land Registration approved by Decree Law of 1959 and Regulations Regard Land Tax.
28. In contravention to this was the Bahujan (agglomeration of all non-brahmin castes) mobilisation that argued that since Goa had no distinct language, culture or political history, it had to merge with Maharashtra (a contiguous federal unit).
29. Gayatri Spivak argues that the space an individual occupies may be explained by his/her history. I hold the same argument can be extended to nation states or components.