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 Orient.
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 administration.
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 government.
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 mentioning.
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.