Even decades after Goa’s liberation, a colonial-era land law remains in force. The Portuguese-era Code of Comunidade (1961) still governs Goa’s traditional village community lands. This framework was preserved post-liberation by Section 5 of the Goa, Daman and Diu (Administration) Act, 1962, which allowed all pre-1961 laws to continue until altered by a “competent Legislature or authority.” The expected comprehensive overhaul never occurred within the two-year adaptation period, so the Code persisted largely intact into Goa’s statehood (Herald, 2023). A colonial governance system thus continues to operate in independent India, raising concerns about its consonance with the Constitution.
Constitutional conflicts and legislative competence:
The continued application of this colonial code sits uneasily with India’s constitutional provisions. Article 13(1) declares that any law in force before the Constitution that is inconsistent with fundamental rights “shall, to the extent of such inconsistency, be void” (Constitution of India, 1950). To the extent the Code of Comunidade enshrines feudal or discriminatory practices at odds with rights to equality or other fundamental values, it would be rendered invalid by this mandate. Moreover, Articles 245 and 246 of the Constitution demarcate law-making powers between Parliament and State Legislatures. Land and land tenures fall in the State List. Yet the Comunidade Code was never enacted by any Indian legislature; it entered Goa’s legal system via Portuguese decree and was merely “saved” by Parliament in 1962. Legal experts argue this scenario is a constitutional anomaly: a law neither passed by Parliament under the Union List nor by the state under the State List, but imposed externally and sustained by transitional provisions (Fernandes, 2023).
A former Goa legislator has pointed out that Portuguese laws saved by Parliament “are to be treated as law enacted by Parliament and are currently in force,” and thus “a legislative assembly cannot amend it” (Fernandes, 2023). This interpretation highlights a conflict with the federal scheme: if the Code’s status is indeed that of a Union law, Goa’s Assembly lacks competence to reform this colonial regime, undermining the state’s constitutionally granted sovereignty over land legislation. Furthermore, any attempt by the state to legislate in this domain could be judged void if it contradicts a law deemed enacted by Parliament, by virtue of Article 254’s supremacy clause for conflicting laws.
Judicial perspective on property rights:
The judiciary’s stance reinforces the primacy of constitutional principles in Goan land governance. In Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira (2012), the Supreme Court underscored that lawful ownership cannot be usurped by extralegal means, even in long-standing arrangements. The Court admonished that “no one acquires title to the property if he or she was allowed to stay… gratuitously,” warning that courts must firmly curb false claims over land (Indian Express, 2012). Although this case did not directly examine the Code of Comunidade, it signaled that antiquated local practices or power structures cannot override fundamental legal rights. The rule of law as enshrined in the Constitution remains the ultimate yardstick, suggesting that Goa’s communal land system must be brought into alignment with constitutional norms.
Lessons from Angola’s reforms:
A comparative post-colonial perspective illustrates how unusual Goa’s situation is. After gaining independence in 1975, Angola, another former Portuguese territory, moved to revoke or validate colonial laws through its sovereign institutions. The first Angolan constitutional law stipulated that Portuguese-era legislation would remain effective only until amended and only if not inconsistent with the new constitution (Zongwe & Dias, 2022). Angola’s legislature soon replaced most colonial-era codes, ensuring that no outdated foreign law persisted without democratic sanction (Zongwe & Dias, 2022). Today, Angola’s legal system, though initially based on Portuguese law, has been overhauled to conform with its post-independence constitutional framework. In contrast, Goa’s colonial code has endured with minimal change. The Angolan example underscores the importance of a deliberate transition: colonial laws should either be repealed or re-enacted through proper legislative process under the new constitutional order. The lack of such a process in Goa has left a colonial vestige in tension with India’s constitutional supremacy.
Conclusion: Reconciling legacy with legality
The ongoing enforcement of the Code of Comunidade exemplifies a constitutional impropriety, a colonial legal framework operating in a modern constitutional democracy without clear mandate. This vestige of colonial rule conflicts with the letter and spirit of Articles 13, 245, 246, and 254, which collectively uphold fundamental rights, democratic law-making, and the hierarchy of laws in India. Rectifying this anomaly will require political will and legal clarity. Goa’s community land governance must be brought under the ambit of laws passed by duly empowered legislatures and made consistent with constitutional principles. Only by reconciling this legacy code with India’s Constitution either through comprehensive state legislation or appropriate central action can the primacy of the Constitution be affirmed and the rule of law be uniformly upheld in Goa’s land regime.
