Eminent domain, absolute doubt: Crusade for Goa's comunidades
By Aarthi Sridhar, Infochange India
http://infochangeindia.org/Environment/Coastal-commons/Eminent-domain-absolute-doubt-Crusade-for-Goa-s-comunidades.html
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
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
No comments:
Post a Comment