Reflections on Republic Day

By ALBERTINA ALMEIDA

 

Come Republic Day and an apparent prevailing disregard for the Constitution becomes an occasion to stock take and introspect.

 

Earlier this year, the Supreme Court came down heavily on tendency of re-promulgation of ordinances. The apex court reasoned that this can amount to a fraud on the constitution, when an edifice of rights is built by subverting due legislative processes. It termed it as legislative overreach.

 

Leave alone re-promulgation of an ordinance, even an ordinance is required to be promulgated under exceptional circumstances, as it signifies a departure from the basic constitutional order. In this also, Goa did not lag behind. The Goa Regularization of Unauthorised Construction Ordinance, was promulgated on 24th June, 2016, without any coherent reason for not waiting for the matter to be discussed in the Assembly.

 

A disturbing development is the accentuation of how ‘difference’ is being treated or deployed. The Constitution of India considers that to treat individuals located differently on the social and economic spectrum, the same way, would be to treat them unequally. But the ruling dispensation does exactly this: it treats differently located people the same way resulting in inequality.

 

People in an unequal situation cannot be treated the same way. Writing in 1894, French novelist Anatole France had sarcastically remarked, “The law, in its majestic equality, forbids the rich as well as the poor, to sleep under bridges, to beg in the streets, and to steal bread”. Fast forward to November 2016 and there is still a basis for articulating such sarcasm, despite a Constitution that upholds the principle of substantive equality. Prime Minister Modi announced, in the aftermath of demonetisation, that “this (meaning demonetisation) move has brought the rich and the poor on the same tangent”. He completely missed the point that the rich can negotiate tangents with their financial clout, while the poor cannot. For instance, the rich could swipe their cards at malls, while the poor were cashless, cardless and even shirtless. The small vendor has been struggling with her business, which is not something the rich businessman (such as a mall-owner) would have to endure.

 

Another disturbing aspect is how ‘difference’ is deployed to imply that Goa may not need the special provisions focussed on addressing the discrimination based on difference. Even recently, at a youth convention in Goa, former Chief Minister (and currently India’s Defence Minister) Manohar Parrikar blew hot and cold stating that “though the situation in Goa is different, the social condition of SC and ST people across the country is not good”. Again completely missing the point that the reservation policy mandated by the Constitution, is grossly violated by the State in Goa. And as if this was not bad enough, even the wings of Commissions statutorily set up to monitor the enforcement of rights of marginalised sections, are clipped by a mere executive order when they choose to act on their respective mandate. As has most recently been the case with the Goa State Commission for Scheduled Castes and Scheduled Tribes, which has been told in no uncertain terms that it has no jurisdiction to look into denial of constitutional protection in service matters, after some persons began to tap the potential of the Commission for redressing denial of reservations.

 

It seems that Goa’s difference has over the years been projected to its disadvantage. It was the basis, for the Parliament not extending the Dowry Prohibition Act, 1961, suggesting that Goa’s women are not afflicted by the problem of dowry because Goa has a uniform civil code, where sons and daughters have equal rights to parental property. As if the uniform civil code has a correlation with the incidence or lack of incidence of dowry demand and dowry related harassment. Thus they made having the uniform civil code a reasonable classification for denying Goa some of the laws enacted in the rest of India to address women’s issues. It took a lot of persuasion by the women’s movement in Goa to get the law finally extended over three decades later.

 

Same with the acknowledgement of the existence of child sexual abuse and other crimes. The State has always tried to shirk responsibility by denial or by making odious comparisons. Ditto with the existence of AIDS in Goa. In these cases, the myth of difference – of being peaceful and safe, was sought to be deployed to cover up the existence and consequently to deprive the local population of appropriate measures of redressal.

 

Why, after reneging on last time’s poll promise of special status, as reflected in its 2012 election manifesto, the BJP’s Chief Minister Laxmikant Parsekar now says that Goa cannot get special status as it tops on all fronts. The arguments of a different history and connected consequences for citizenship, including holding of agricultural property and voting rights, as the rationale for a special status, are quietly swept under the carpet, not even considered.

 

Thus we see that difference is either not recognised, or the discriminatory attitude to being differently located in or vis-à-vis power, works negatively, but positive discrimination has rarely been the privilege of those in Goa who deserve it most.

 

Or where the difference is recognised, Goa and its people are commodified, used and abused. Everyone in Goa, it seems, has to remain content with Goa being referred to as a mole that lends beauty to the nation. Amit Shah in his recent visit reflected the spirit in which dominant India, including the ruling establishment, looks at Goa. Different and commodified, for selfish motives of a select few.

 

(First published in O Heraldo, dt: 26 January, 2017)

Five Striking Moments of 2016

By ALBERTINA ALMEIDA

 

2016 has seen many striking moments – moments that demand reflection and change.

 

Coming as a breath of fresh air is the UN resolution that all measures aimed at changing the demographic composition and status of Palestinian territories occupied by Israel, including construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians are in violation of international humanitarian law, and Israel’s obligation as the occupying power according to the Fourth Geneva Convention, and previous resolutions. No doubt as someone has well expressed, it is “too little, too late”. But on the other hand, something is better than nothing and can be the plank on which the ideal can be mounted. It is a reminder that despite the despair that looms over the future of Goa, with the nature of its demographics as well as the state of the people living on its margins, there is scope for hope and that persistence and politics pays, provided it is played with a measure of justice.

 

Lurking gloom and a possible blow beneath the belt has characterised the Brexit referendum.  Goa is surviving substantially on remittances. Brexit and India’s Citizenship rules put together threaten this source of survival and security as well. The Brexit referendum in a context where some 20,000 plus Goans are eking their livelihoods by entry into UK with a Portuguese passport, looms large over especially those who had migrated in the last five years. Without voting rights in Goa, which they will always consider home, the situation of these Portuguese Passport holders in UK is like that on the edge of a precipice The emergence of Trump with his anti-immigrant policies is another threat to global politics of which Goa is bound to face the consequences.

 

Even the wake up calls for handling crimes against women come when someone from the ranks of India’s occupying elite or tourists, faces sexual violence or is murdered. Check it out. Whether it was Scarlett before or Monica this year, one sees the worst of both worlds. A local patriarchal approach almost saying “these women” deserve it for the kind of lives they lead, and a page 3 crowd that bemoans these crimes as if everyone has to set everything else aside and pay attention to these specific crimes against the page 3 crowd. But it would be a looking ahead situation if we called for accountability of the State in the manner in which crimes against women (whoever they are) are addressed at police stations, including the Women Police Station, and also the State’s accountability for lack of due diligence in ensuring a crime free environment. That would mean leveraging the page 3 power for all women.

 

Representations of Goa and of its history have made for challenging moments that are opening up space for dialogue on what constitutes history and the factual aspects of history. The recent controversy at the Serendipity Arts Festival is the most recent of the cases in point. Every articulation of history at the end of the day is an articulation from a particular location and also has a political function. It is impossible to be comprehensive. In the attempt to be comprehensive, one only loses unique strands of fact and thought to the dustbin of history as the popular expression goes. For instance, one may deliberately place emphasis on particular aspects of how certain sections of people experienced political rule in the past, in order to ensure that it does not get obliterated. However, there has to be some rigour in putting together the details, and mere articulations by a Mr. X or Ms. Y or because his Majesty says so, cannot be history. That is fascism, to say the least. The ruling dispensation, in Goa and in India, is but a macrocosm of such approaches – no rigour, Hindutva in outlook, erasing other plausible versions of history, what-I-say-is-right-there can-be-no-other-version type of history.

 

The spectre of ‘Uniform Civil Code’, if one may call it that, in the current context, also raised its ugly head again this year. A Supreme Court Judgement, proved to be an opportunity to resurrect a monolithic agenda where there is no contextualisation and sculpting of rights, but an assertion that a particular religion is supreme and everyone else is to be fashioned in that religion’s likeness. There has been not any significant statement from Goa’s political heavyweight on this point. What happens if a new Uniform Civil Code is enacted for the whole of India? What does that mean for Goa’s family laws? One fails to understand what is so mesmerising about a uniform that is so uncomfortable to wear as against a dress or pair of shoes that fits and is comfortable, provided it stands up to certain yardsticks that specially hold up the interests of the people on the margins.

 

(A version of this article was first published in O Heraldo, dt: 29 December, 2016)

 

Goa’s Civil Code Shows That Uniformity Does Not Always Mean Equality

By ALBERTINA ALMEIDA

For probably the umpteenth time, there are whispers in the air that a uniform civil code (UCC) is in the offing. Occasionally, Goa’s UCC is brought up during these discussions.

 

But even as the UCC is being touted as the panacea for the violations of women’s rights, nobody asks what really is the UCC in Goa. What is meant when the civil code is said to be ‘uniform’? Why was it retained in Goa? And how is it working for different sections of women?

 

An examination of Goa’s tryst with the UCC reveals much. It shows, for example that ‘uniformity’ can take different shapes. It provides a stark reminder that uniformity is not per se a rights-loaded word. It can also mean uniformity in discrimination in that you can have discriminatory provisions applicable across all religions – uniformly. It calls attention to the fact that imposition of uniformity amongst unequals can create inequality, and that the existence of plural systems, both formal and non-formal, is actually ideal for the diverse constituents who need to strategise with the limited knowledge and within the limited power they have. Above all, it reveals nationalist agendas can shape the trajectory of UCC to the detriment of human rights.

 

Alert: Different shades of uniformity

Thus, it would be useful to see here how the so-called UCC pans out differently for different communities in Goa. We must not forget the procedures for registration of marriage are different for Catholics as compared to the procedures applicable to non-Catholics. Even if civil registration of marriage has been compulsory for Goans, what is actually considered marriage, customarily and socially across all religious communities, is the religious ceremony and reception. The paper registration before government authorities is seen as a formality to be complied with, for legal purposes.

 

For this to effectively happen, people, and particularly women, are not even familiar that two signatures with a minimum gap of fifteen days are generally entailed, one for declaration of intent which is applicable for everybody and the other for confirmation, which is signable before the Church for Catholics and the civil registrar for non-Catholics. The second signature can end up being not appended because of lack of knowledge about it. However, with the Catholics, the law allows the tie up of the state with the Church. This means that after the first signature is appended before the Registrar of Marriages, the very solemnisation of marriage in the Church and signing of the Church Marriage Registration Book there and sending of the extract of the Church register to the civil registrar, has come to be considered the second signature required for the confirmation of marriage. So the socially acceptable religious practice is accounted for in the law, when it comes to Catholics. That is the up side of the law recognising the popular relevance and significance of religious marriage.

 

In a situation where universality of marriage is seen as a norm and women are not cultured into acquainting themselves with the procedures of registration of marriage, and may be led into the same, they can be deceived into believing they are married, when they actually are not because they have not appended the second signature, and a marriage is not ordinarily recognised if there is no civil registration of marriage.

 

But on the other hand, the legal acknowledgement of socially accepted religious forms of marriage, if not qualified, has consequences by way of differing procedures and grounds for annulment of marriage, or for divorce. A marriage solemnised in the church has had the option of being annulled in the Church, for specific reasons, such as non-consummation of marriage. Once a marriage is annulled by the Tribunal of the Church, the said annulment is then confirmed by the high court mechanically, only at best ensuring that there was no bias in the decision making in respect of any of the parties to the case. On the other hand, if the matrimonial petition were to be filed in the civil court, non-consummation of marriage is not a ground for either annulment or separation or divorce, for any community.

 

The way the word ‘uniform civil code’ is bandied around, it presents a chimera of uniformity being equated with equality. Laws can be uniformly applicable to all in respecting women’s rights, and they can also be uniformly applicable to all communities in disregarding women’s rights. In other words, they can also be uniform in discrimination. That is also a lesson to draw from Goa’s Family Laws.

 

There are many uniformly applicable provisions, as, for instance, that the right to will for a married man or woman is limited to half of his/her share in the properties, and the will has to have the consent of both the spouses. Which means that at least on paper a couple cannot will away all their properties to their male offspring because of a preference for sons. This is a positive provision that is present in the uniformly applicable provisions (though it is quite another thing that there are ways of circumventing this provision).

 

Then there is the unique concept of matrimonial property rights, which is not found in the personal laws of the rest of India. In the rest of India, there is no formal concept of matrimonial property and hence the property ends up being in the names of males and therefore the property of the male only, which he can mortgage, or sell, as he pleases. In Goa, if nothing is spelt out at the time of marriage, the default system is the regime of communion of assets, which means that upon marriage, couples will hold whatever assets they have each or jointly acquired or inherited before or after marriage as co-owners of property. Couples do have an option of contracting themselves out of this default system of communion of assets at the time of marriage, by entering into a pre-nuptial contract where they decide whether the properties before marriage will be held separately and those after marriage will form the communion or if properties, whether acquired before or after the marriage, will all be held separately.

 

However, irrespective of which system of holding the matrimonial properties the couple opts for, the right to administration of the properties of the couple, without exclusion of the exclusive properties of the wife, is the prerogative of the husband. Thus the law makes the ‘control’ button available to the husband. This provision is uniformly applicable to all communities. Is this the uniformity to aspire for where one gender is privileged to control across all communities?

 

Also, uniformly applicable is the visualisation of the concept of property. The women that can avail of the matrimonial property provisions are those whose marital families have owned property. This means that for a woman whose husband does not have ownership rights in property, dividing matrimonial property at the time of divorce can mean she gets half of nothing. So, for instance, if a woman divorces and her husband is an agricultural tenant or is tenant in the marital house, she has no right to 50 per cent of the tenurial interests.

 

 It presents a chimera of nationalism guaranteeing equality. But the very nature of the nationalism is such that it seeks to retain privilege for the dominant sections – be it Indian nationalism or Goan nationalism. Hence a UCC driven by such nationalism, cannot guarantee equality. Therefore introduction of any provisions in the law which will challenge that badge of existing male and privileged identity will not be acceptable to these dominant sections either in India or in Goa.

 

Goan and Indian nationalism – two sides of the same coin

The manner in which voices have spoken post 1961, highlights the attempt to retain privilege for the dominant Goan communities, which includes dominant caste Goan males. Therefore maintaining the portions of the family law from the Portuguese Civil Code and resisting any efforts to change that law, arises from that perspective. There is consequently a hesitation to change any of its provisions, even if any of the existing uniform provisions be denying of equality to women, or to any section of society.

 

Goan nationalism as it has emerged and the Indian nationalism as it has been and continues to be, both seem to be the two sides of the same coin of Brahminism, characterised by the desire of the dominant sections of society to protect their privileges and not disturb the status quo.

 

 The UCC is thus seen as a badge of Goan identity as against the identity of ‘Indian’. The ‘Goans’ (meaning the dominant class/caste Goans) on the one hand have been wanting to distinguish themselves from the Portuguese, and from the mestiços (mixed race of Portuguese and Goan parents), and on the other hand also want to distinguish themselves from the rest of India, while maintaining all the distinctions that they have already made between themselves. It suited the Goan to distinguish himself from the non-Goan (the rich ‘Indian’) and the migrant by whom he felt overwhelmed either because of larger power potential or numbers. Be it in the field of law, music, song and dance, cuisine, games, language, art, architecture…..the story is the same. In and through all these fields of life, there is a desire to consolidate the existing power equations. This has been further strengthened by the economic driver of tourism, which has taken the form of neo-colonialism, and where it was essential to stereotype the image of an exotic Goan with a different image of a hybrid between Indian and Iberian culture.

 

Therefore, even if people would secretly admit that there are provisions which are crying for change and for an introduction of a rights perspective, they are wary of the law being touched, lest it dissipates in the bargain. An USP of Goa, that makes Goans a cut above the rest of India, such as the Family Laws of Goa cannot be lost. So nobody wants to let go of this badge of ‘honour’. Thus the predominant mood is that one should not try to change the law, even to the extent of changing the unjust equality-violating provisions. This can be a foreboder of how nationalist sentiments for ‘uniformity’, that is, retaining privilege, can trump rights of substantive equality, guaranteed by the Constitution of India.

 

(First published in TheWire.in, dt: 8 August, 2015)