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Wed16Apr2014

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Eminent domain, absolute doubt: Crusade for Goa's comunidades

By Aarthi Sridhar

Under Portuguese rule there were 223 comunidades, or independent village republics, in Goa. The people of each comunidade were absolute owners of its lands -- from hilltops to coasts. A people’s movement is now challenging the Indian state’s right to walk in and exercise eminent domain powers and jurisdiction over these lands

Read Part 1 of this series
Read Part 3 of this series

Hilltops near Chapora, within the Anjuna comunidade

Anjuna.  Arambol. Calangute. Colva. Morgim. Vainguinim...  To most of Goa's million annual tourists, these names are reminiscent of a merry montage of beaches, flea markets, casinos, resorts, shacks, rave parties – components and products of the tourism machine. In the perception of the average Goan, these are the more idolised of the state's coastal villages, which since Liberation (and Tourism), have acquired an unidentifiably mutated social and cultural identity. But to Andre Pereira, these are Goa's age-old 'comunidades', not constitutionally defined villages, but wholly independent republics within the territory of India!

He patiently explains to the incredulous and ignorant, his moot contestation – 'eminent domain' and 'absolute power' of the Indian state has no place in the indigenous and self-governing comunidades of Goa.  A practising advocate, and the Secretary of the Association of Componentes of Comunidades of Goa (ACCG), Andre is a man with a frantic mission to shatter illusion and re-order perception; he is someone who is assiduously tugging at the rug under the state's feet.

Public recall of history is neither uni-dimensional nor shared. Andre's account is unpopular, especially with government officials and land-seekers in Goa. Our uncomfortable history of rule by multiple masters, the eventual independence from colonial powers and the creation of various states, is (at best) incompletely depicted in school textbooks.  Post-independence India,  and particularly the recent post-liberalisation decades, have witnessed the emergence and amplification of dissent which challenges the Indian state's assumption of eminent domain. Indeed these articulations embrace alternative histories, with the potential to unsettle any facile assumptions underlying the constitutional relationship between communities and the state.  The ACCG and the Goan Gaunkary Movement (GGM) have an arsenal of publications, petitions, archival material and historical documents aimed at making a large dent in the statehood that overlooked their version of history while inking the Constitution.   

The comunidades and common property

There are 223 comunidades covering nearly 70% of the land mass in the territory of Goa. The term 'comunidade' was given by the Portuguese to the village communities they encountered, known locally as 'gaunkari' or 'gaunponn'. It is said that the gaunkars were the first people to inhabit these areas, clearing jungle and scrub to establish their villages and deities and to introduce their private laws of governance. The GGM's publications point out that comunidades do not fall within the term 'state' as expressed in Article 12 of the Constitution of India.  As a sui generis institution, being neither a creation nor an establishment by any state ruler or government at any point in time, they were 'absolute owners' of the land within their boundaries. An important point and the foundation of their challenge to eminent domain.

The gaunkars eventually did have rulers and state to contend with. While holding on to absolute power over their lands, they paid tithes or protection money to local rulers, later to Muslim rulers and finally to the Portuguese who, it is said, the gaunkars invited to overthrow the Muslim kings.  Afonso de Albuquerque, the Portuguese fidalgo, credited with establishing the Portuguese colonial empire in Goa, is said to have entered into a treaty or pact with the gaunkars and natives to protect their lands and also guaranteed protection for the continuation of customary laws of the gaunkars.  All through these periods, the ACCG's records state that the sovereignty of the comunidade was recognised and their absolute ownership over their lands remained unquestioned.  

The first compilation of 'usages and customs' of Goa is found recorded in the Foral or Charter of Alfonso Mexia, the Comptroller General of the Exchequer of the Portuguese state, dated September 19, 1526 which talks about the rules of the newly christened comunidades. The laws were later codified by the Portuguese, known as the Codigo Das Comunidades. The gaunkars were members of the comunidades, and elected members from among them were in charge of making decisions according to the Code. The Code concerns a set of rules, regulations and contractual obligations between and with respect to its members and the state authorities. The state (then Portuguese) was to provide an administrator to perform a watchdog function for the comunidade, which also paid his salary! The comunidade system therefore embodied a relationship quite distinct from the present one between the Indian state and its subjects.

Coastal area management by the comunidades

The Code governed all comunidade land which extended from all foothills up till the coast, including hill tops – areas that were good for agriculture and grazing. This includes many areas under mining operations today. Entire villages on the coast, including the stellar ones mentioned earlier, are under comunidades. The whole comunidade system was an economic, cultural and social governance system which also acted towards the protection of such lands from development.

Chiefly, the comunidade system regulated agricultural practices. Land was prepared, earthen bunds were created along coastal tracts with a system of sluice gates, to prevent salinity ingress and to store fresh water for a rabi crop after a September 5 annual deadline for the kharif harvest.  The comunidade provided a service to the farmers who paid it an advance for suitably prepared agricultural land and infrastructure. Unlike the zamindari system introduced in British India, the comunidade land was collectively owned and was not private property. The land could not be sold, nor could it be converted for non-agricultural purposes.  Any farmer was free to till the fields in return for a fee paid to the comunidade, which was later paid to the gaunkars as ‘zonn’. Shareholders, who were not gaunkars by lineage, were also incorporated into this system. Andre insists that the fee was different from the idea of rent. “It was fee for land that you have husbanded and developed; a service the comunidade provided the community– because there were irrigation systems, there were bunds, water level was checked. The headache was for the comunidade management, not for the farmer, to do that. This was the law. If the comunidade did not provide these facilities prior to cultivation, then the farmer refused to pay the fees. If there was flooding, then no fee.” 

Matanhy Saldanha, the leader of the National Fishworkers' Forum, says that although comunidades were concerned mainly with the agrarian economy, even the ramponkars – the traditional shore seine fisherfolk of Goa -- benefited from the system. They supplied gaunkars and the rest of the community with fish and were in turn supplied with designated areas to market their fish. The comunidades also assigned lands to various categories of people such as washermen, barbers and gravediggers. Lands were zoned for crematoriums, housing and for agriculture. The protection of fields, bunds, sluice gates and other structures were the responsibility of the comunidade management. The comunidade built and maintained churches and temples, securing its indispensable role in the community. Vast areas of coastal hilltops and other lands were declared grazing lands and such lands could also not be diverted, thus protecting the interests of the poor. Before I can ask about the numerous resorts tucked away between hills and bays, “All hotels and resorts built in coastal Goa are illegal,” Andre declares.

CRZ and the comunidade lands

Many of the environmental laws in this country have painted all parts of this vast cultural landmass with single-tone brushstrokes. Reality and even truth is often psychedelic. Nearly everybody in Goa is familiar with the Coastal Regulation Zone (CRZ) notification, 1991 – currently in the process of being revised by the Ministry of Environment and Forests (MoEF).  Through the notification, the MoEF, state governments and relevant authorities either prohibit or permit certain activities over coastal lands (a width of 500 metres from the high tide line). Just as campaign groups across the country are grappling with the complexity of drafting an improved notification that can govern diverse stretches of the entire coastline of the country, Andre introduces another complication -- “The CRZ notification cannot apply to the areas governed by the comunidade”.

There is no maleficence in this statement. Besides his case of community sovereignty over these lands, he simply sees the Code of Comunidades as a far more detailed mechanism than the notification, for zoning and regulation of activities on the coast.  “All these laws are not legal. They should not and cannot govern areas that are virtually village republics.” The calculus of his argument is unwavering; the state cannot exercise eminent domain powers over land rights in comunidade lands in coastal areas through the CRZ notification. Definitely worth a listen, wouldn't you say, Minister? 

A state of disarray

A follower of visual and print media in India knows what eminent domain is. It is that time when the Indian state takes control over its citizens' property or their rights over their property, ostensibly for a 'public purpose'.  Those candid public promises for development delivered by a succession of ministers, even when these projects sit on prime (and private) agricultural land or in forests or coasts where local communities make their daily living, or where it involves bulldozing and rearranging whole urban landscapes and lives for an elevated-rapid-mass-transit-metro-rail project – that's the power of eminent domain.  This telly viewer also recognises other nuances of such absolute power – the contestations that accompany it, thanks to images of police lathi charge, or violence-laced clashes with villagers over land, in ‘peaceful’ public hearings, and over the past few years, the accelerated spread of Naxal-prompted retaliation.

Peaceful Goa. No? Yes, but like every other paradise, it exists only if considered from the outside. Goa's active citizens groups did not emerge as a reaction to homoeostasis, but in an effort to safeguard their home from drug cartels, environmental mayhem, land-grabbing, child sexual abuse, prostitution and uncontrolled tourism which facilitated most of the above. In the matter of comunidade land, eminent domain has been most problematic in Goa.

Ruling Goa by Fraud! is one of a series of Andre's books, a GGM publication which reads like a legal thriller.  It sheds light on the various efforts to undermine the powers of the comunidades and even the efforts to render this system useless. The State of Goa came into existence on December 12, 1961. However, just months prior to this, on April 15, 1961, the Portuguese government issued a legal agreement (Diploma Legislativo No 2070) which recognised the comunidades as private sovereign villages.  Article 371 of the Constitution of India states that all existing laws in force within the territory of India will continue until amended or repealed. The ACCG's main contestation to eminent domain is that lands under the comunidade cannot be appropriated or acquired or granted by the state in the absence of state landlordism. Simply put, just because Goa came under Indian territory all of Goa's lands cannot be governed by the laws or jurisprudence that India inherited from the British.

Unmindful of this contention, laws such as the Tenancy Act 1962 and the Goa, Daman, Diu Land Revenue Code 1968 were introduced in Goa. After this, various district collectors, at the behest of the newly formed gram panchayats (both of whose legitimacy, even raison d'etre,  Andre questions) began giving permission for the conversion of agricultural land for building constructions throughout Goa, even in areas that prohibit development. This has led to pollution, sewage and garbage inflow into adjacent fields, pest infestation and a multitude of problems that are responsible for a decline in agricultural activity in the state.

Referring to the Tenancy Act, politicians and even the comunidade administrator appointed by the state, supposedly the guardian of the comunidade, began discouraging people from paying the comunidades any fees as per the Tenancy Act.  Matanhy Saldanha adds another dimension to the corruption, “Politicians are putting up old, retired people to be administrators and the comunidade is paying them for a lifetime! People are pushed into comunidade service without a test (as specified by the Code), pushed by ministers, saying 'pay them Sixth Pay Commission rates’!”

… and they failed

There are many views about why the comunidade movement has not prevailed. One view is that the system should have opened up and allowed for greater membership into the comunidade, not just the lineage of gaunkars. The comunidade system is also a highly patriarchal system, acknowledging a role only for males. Had there been reform, perhaps there would be more defenders for the system that challenges mainstream notions of governance.

Andre has another argument. “Tribal areas of the Northeast are all Scheduled Areas as per Article 244 of the Constitution. Comunidade areas are also like that --  autonomous areas. If they were put there under those Schedules, then all these atrocities would not have taken place. Constitutional safeguards were not given for the comunidades. That was supposed to be done by the politicians and by Parliament.  And they failed.” 

Matanhy speaks favourably of the comunidade system, but says plainly, “When Goa was liberated, it was then that these legal matters had to be put in order. Nobody bothered.” He says that the comunidade ought to be relevant today, but it has instead become a dying institution. “They would like to, but they can’t get rid of it because of the legal problems involved. So they are trying other means to kill it. The source of income is gone, how can the comunidade function?”

Reclaiming sovereignty

Critics of the eminent domain dogma and the idea of constitutional sovereignty have questioned where such sovereignty lies.  With the people or only with the state? Activist and researcher of the civil movement in India, Jai Sen, concluded his article on the state's exercise of eminent domain over the Narmada with a powerful suggestion already in action in various parts of the country – “We, the people of India, need to reclaim the eminent domain and the sovereignty that the state has usurped from us.”

Andre Pereira's years of work aim to demonstrate that it’s only natural to conclude that sovereignty continues to lie with the comunidades in Goa. In 2003, he filed a writ petition in the Goa High Court with a simple prayer – quash the Tenancy Act and other Revenue Codes and laws that are illegal and which undermine the sovereignty of the comunidades and restore the Code of Comunidades. The case has come up for hearing. In the face of little but visible adversity he reassures, “ You see. The whole system will come back.”

(Aarthi Sridhar is a trained social worker and environmental researcher-activist. She heads the Dakshin Foundation. This is the second in her series on coastal commons, researched as part of the FES-Infochange Media Fellowships 2010)

Infochange News & Features, December 2010