Uniform Civil Code debate reignites

Discussion in 'Politics & Society' started by Ray, Jul 16, 2014.

  1. Ray

    Ray The Chairman Defence Professionals Moderator

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    Should there be a Uniform Civil Code?

    If so, why?

    If not, why?
     
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  3. Ray

    Ray The Chairman Defence Professionals Moderator

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    Who's afraid of a Uniform Civil Code?
    Such an initiative does not necessarily mean a repeal of personal laws.

    By B G Verghese


    The Hindu

    The Supreme Court’s lament about the country’s failure to adopt a uniform civil code as enjoined by Article 44 has revived a debate that will hopefully not again be swept under the carpet. The entire issue has unfortunately been distorted and misdirected from its very inception. Ideologues have deliberately used it as a stick with which to beat the minorities, and Muslims in particular, through the threat of a majoritarian homogenising principle destructive of the precious identity markers seen in the existing diversity of personal laws.

    The bogey that a uniform civil code (UCC) necessarily entails the repeal of personal laws needs to be laid to rest. This is simply not so. The existence of the Indian Special Marriage Act or Indian Succession Act has not extinguished personal laws in this regard. On the contrary, the Special Marriage Act, a uniform marriage code for all Indians, was regressively amended in 1976 to provide that Hindus marrying under it would continue to be governed by the Hindu Succession Act.

    Per contra, the Supreme Court’s latest obiter on the virtues of a uniform civil code occurs in a ruling that strikes down certain discriminatory provisions in the Indian Succession Act barring Christians from bequeathing property to religious and charitable trusts. Again, Goa’s uniform civil code, a welcome legacy of Portuguese colonial rule, now happily co-exists with a variety of personal codes available to followers of particular faiths. But it makes available an option and underlines the point that a uniform civil code and personal laws do not represent an either/or choice and that the one does not mandate the obliteration of the other.

    If enacted, a UCC will be one code among many and, like the Special Marriage Act, an option. This is guaranteed by the constitutional provisions pertaining to the right to freedom of religion. Both Article 25 (the right freely to profess, practice and propagate religion) and Article 26 (freedom to manage religious affairs) are, however, “subject to public order, morality and health” and to the values enshrined in all other fundamental rights such equality and social justice. Article 29 separately the cultural rights of minorities.

    Article 25, while protecting religious freedom, also empowers the State to regulate or restrict “any economic, financial, political or other secular activity which may be associated with religious practice”. This introduces an important distinction between sacred and secular. Thus practices such as witchcraft, superstition, ordeals, sati, child marriage, prohibitions against widow remarriage, caste discrimination, casual triple talaq and polygamy may be and have been barred or regulated. However, whether and where a boundary is to be drawn could be contentious.

    While religious ideologues have been responsible for derailing rational debate on a uniform code, secularists have done the nation grave disservice by opposing movement towards a uniform code or reform of personal law. A touch-me-not secularism has resulted in stalling the process of modernisation and social reform by pushing large sections of emotionally besieged and ghettoised Muslims and even Christians into the arms of the religious orthodoxy. One needs to be wary of the liberal secular ideal becoming a narrow and hollow “ism”.

    A uniform code has been wrongly posited as an assault on religion and religious identities. What it essentially aims at is secular reform of property relations in respect of which all religious traditions have grossly discriminated against women. UCC is, therefore, foremost a matter of gender justice. But male chauvinism and greed have joined with religious conservatism to forge an unholy alliance to perpetuate a major source of gender discrimination thereby impeding the modernisation of social relations and national integration.

    There is a larger reason for a uniform code. With the slow but steady empowerment, modernisation and even globalisation of Indian society, the country’s real diversity is becoming manifest. Cohort after cohort of the long suppressed and submerged underclass is thrusting up from below to claim its place in the sun as equal citizens who will not be denied their fundamental human rights. In the process, they are breaking traditional barriers of community, caste, race, region, language and gender, challenging the old and increasingly outmoded social order of which conservative personal laws are a part. Iniquitous social prohibitions and restraints that earlier kept everybody, including women, in their “proper place” are now being falsely portrayed as religious verities to thwart secular reform.

    Today, with growing education, migration and economic and social mobility, unknown and earlier socially prohibited relationships (eg, inter-caste, inter-regional, inter-community marriages and divorce and the acquisition and disposal of self-acquired property by women) are becoming increasingly common. In the circumstances, there could be social breakdown, heartburn and strife even among couples of the same community without a uniform civil code. Traditional personal codes do not accommodate emerging multicultural realities and aspirations. On the other hand, suppressing them could engender violence or deviant behaviour, undermining public order. The Special Marriage Act fortunately provides a safety valve. But it is absurd and regressive that Muslim and Christian Indians cannot legally adopt a child for lack of a uniform code on adoption.

    These inhibitions and barriers apply across the board. Despite some reform and codification of Hindu law, there is a long way to go. Try touching the Hindu Undivided Family, once a relevant social concept but now largely a tax haven, and a huge outcry may be expected. There is today extant not one but several Hindu, Muslim, Christian and other personal codes. Therefore, quite apart from legislating an optional uniform civil code, it is necessary to codify and reform the many prevailing personal laws to bring them in line with the values and principles of the Constitution and the realities of contemporary social life. This applies equally to customary tribal laws and religious practice that variously enjoy constitutional protection.

    The country therefore needs a twin strategy. An optional uniform civil law should be promoted by the State. Clerics, among others, should be heard but must not prevail on issues of secular life that are beyond their province. This is essential if we are to invest new meaning in India’s secular ideal and rescue Muslims from malicious accusations of hindering national integration. At the same time, all religious communities must be encouraged to debate and support codification and reform of their personal laws. If, Egypt, Iraq, Pakistan and Indonesia have reformed Muslim personal law, there is no reason why Muslim Indians should not follow suit. But if Muslims are to move in this direction there must be no more “Gujarats” with State connivance and the Best Bakery variety of “justice”.

    A uniform civil code will focus on rights, leaving the rituals embodied in personal law intact within the bounds of constitutional propriety. Being optional, it will provide free choice and facilitate harmonisation of social relationships across the country in keeping with the changing contours of emerging societal realities. The UCC should not be constructed, as sometimes suggested, by putting together “the best elements” from various existing personal codes. This will invite contention. Far better that a UCC be framed de novo by some body like the Law Commission, in consultation with relevant experts and interests, as a citizen’s charter governing family relations.

    A liberal, forward-looking uniform civil code may be expected to win many adherents, especially from those with cross-cultural backgrounds. This could in time induce custodians of faith to look inwards and seek to codify and reform age-old personal laws in conformity with current modernising and integrative tendencies or risk losing their flock.

    If the Centre is unwilling to move forward, there is no reason why some progressive States should not take the lead as they have done in the case of legislating Freedom of Information Acts. A national UCC could follow. Goa has shown the way and there is absolutely no reason for delay. A secular India needs a uniform civil code. To mark time is to march with the communalists.
    BG Verghese Writings and Commentaries - water issues, big dams, hydel power, hydro-electricity in India, water power, rural change, Gujarat, caste problems, religion tensions, social change in India, Naxalite movement, Naxals, solutions, foreign poli
     
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  4. Ray

    Ray The Chairman Defence Professionals Moderator

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    Does India really need a Uniform Civil Code?
    NILANJANA BHADURI JHA


    Does India need a Uniform Civil Code? The answer seems to depend entirely on which side of the political spectrum one is speaking from.

    Always a contentious issue and a pet project of the Sangh Parivar, the Uniform Civil Code is one of the three controversial points on its electoral agenda that the BJP had to drop to forge the National Democratic Alliance. Those for a UCC cite national integration as a reason, those against say it will be used as a tool to annihilate minority identity.
    A UCC will most affect:

    Marriage: In almost all recent cases where the need for a UCC has been emphasised women were at the receiving end of torture in the garb of religious immunity. Apart from the famous Shah Bano (1986) and Sarla Mudgal (1995) cases, there have been several other pleas by Hindu wives whose husbands converted to Islam only in order to get married again without divorcing the first wife. More »

    Divorce: All major religions have their own laws that govern divorces within their own community, and there are separate regulations under the Special Marriage Act, 1956 regarding divorce in interfaith marriages. Under a common civil code, one law would govern all divorces. More »

    Inheritance: Patriarchy is the basis of personal law, regardless of community. Inheritance laws have created less noise and debate than marriage and divorce laws, mainly because in this regard social inequity has cut across communities. And women, for most part repressed and unaware of even the rights that exist, have been unable to secure them. More »

    Adoption: Of all aspects of personal laws, those of guardianship, custody of children and adoption are the most inextricably linked to religion and culture. This is about bloodlines and perpetuation. And with children and young people involved, can have serious implications. A UCC will affect laws on adoption and therein could lie a lot of resistance. More »
    Readers React
    As the UCC debate gathers steam, timesofindia.com readers react. The comments range from outright rejections and emphatic "yesses" to deep introspections. Read | React
    The Story So Far
    - Does India really need a Uniform Civil Code?
    - Personal laws skewed against women
    - Code of Honour
    - Common code need of the hour: BJP
    - UP Oppn leader opposes uniform civil code
    - What lies beneath?
    Social commentators say the only real issue is needed to reform "Anglo-Mohammedan law on marriage and divorce now in force, which is oppressive to women and is contrary to Islam." Others argue that the entire developed world has a uniform civil code.

    The UCC will affect only personal laws based on religion - those relating to marriage, divorce, adoption and inheritance. Criminal and civil laws are already common for all citizens. The advocates of such a code cite Article 44 of the Constitution under Directive Principles of State Policy, which provides: The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

    Those against point out that the endeavour talks of an ideal situation, but leaves the matter to the state's discretion. They have also taken umbrage at the Supreme Court observing on July 21 that Parliament is yet to frame a uniform civil code.

    The matter is far more political than legal. Everytime the issue has come up there have been angry words from both sides of the debate. Politically, the BJP and some allied parties like the Shiv Sena and Jayalalitha's AIADMK. On the other side, parties like the Congress and Left Front that depend a great deal on the minority vote, are against it.

    The real social opposition each time has come from the Muslim community that sees any attempt to bring a UCC as an attack on its religious rights. The tussle has its roots primarily in the Shah Bano case of the 1980s when an old Muslim woman went to court against the way her husband had divorced her.

    In 1978, 65-year-old Shah Bano demanded alimony from her husband, who had abandoned her for another woman. According to Muslim law, Shah Bano was entitled to three months' maintenance after over 40 years of marriage.

    Years later the Supreme Court heard the matter and upheld her right to maintenance. While doing so, the court also referred to the need to enact a uniform civil code. This sparked off a huge protest among Muslim leaders who accused the judiciary of interfering in their personal laws.

    In the face of a communal revolt, the Congress government brought legislation overturning the Supreme Court verdict. The BJP seized on the moment and launched its campaign for a UCC.

    This time it was a case relating to Section 118 of the Indian Succession Act, 1925, which was being heard when the Supreme Court made its observation. This law deals with bequeath of property to religious or charitable institutions and the court was hearing a petition by a Roman Catholic priest.

    It sparked another debate, with the BJP welcoming the court's observation and declaring it would try and bring legislation on the matter. Others have rallied against, with Muslim organisations again up in arms.

    Politics apart, the case for a Uniform Civil Code - which will cover the entire gamut of laws governing rights relating to property, marriage, divorce, maintenance, adoption and inheritance - has been most argued on behalf of women. There is universal agreement that personal laws, regardless of the community, are skewed against women.

    http://timesofindia.indiatimes.com/...d-a-Uniform-Civil-Code/articleshow/103103.cms
     
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  5. Ray

    Ray The Chairman Defence Professionals Moderator

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    What's a uniform civil code?

    The term civil code is used to cover the entire body of laws governing rights relating to property and otherwise in personal matters like marriage, divorce, maintenance, adoption and inheritance.

    As things stand, there are different laws governing these aspects for different communities in India. Thus, the laws governing inheritance or divorce among Hindus would be different from those pertaining to Muslims or Christians and so on.


    The demand for a uniform civil code essentially means unifying all these "personal laws" to have one set of secular laws dealing with these aspects that will apply to all citizens of India irrespective of the community they belong to. Though the exact contours of such a uniform code have not been spelt out, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are retrograde.

    What does the Indian Constitution have to say on the subject?

    Article 44, which is one of the "directive principles" laid down in the Constitution says: "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." As Article 37 of the Constitution itself makes clear, the directive principles "shall not be enforceable by any court". Nevertheless, they are "fundamental in the governance of the country".

    What has the Supreme Court said on the issue?

    Very recently, while hearing a case pertaining to whether a Christian has the right to bequeath property to a charity, the court regretted the fact that the state had not yet implemented a uniform civil code. This is not the first time that the apex court has expressed itself in favour of a uniform civil code or taken a dim view of the government's and legislature's inability to bring it into being. There have been other occasions — like during the Shah Bano case and later in the Sarla Mudgal case — where too the apex court has come out strongly in favour of the enactment of a uniform civil code. However, none of these comments are binding on the executive or the legislature and do not amount to orders. At best, they exert some moral pressure on the Indian state to move towards formulating a uniform civil code.

    Would a uniform code affect the personal laws of only one community?

    Not at all. The perception that a uniform civil code would necessitate changes in only Muslim personal law is quite incorrect. As women's organisations and others have repeatedly pointed out, personal laws governing different communities in India have a common feature — they are all gender-biased.

    For instance, the law pertaining to succession among Hindus is unequal in the way it treats men and women. A truly modern, secular, non-discriminatory and progressive code would, therefore, mean changes in all personal laws. The concept of the "Hindu undivided family", at least insofar as it pertains to succession, would also obviously have to undergo a change under a uniform civil code. Similarly, Muslim, Christian and other personal laws too would have to change. This also explains why historically changes in personal law have been resisted not just by one community, but by the ruling orthodoxy in all of them.

    What had prevented a uniform civil code from coming into being?

    Since it involves a change in laws, an obvious prerequisite is sufficient support for the move within Parliament. The reason this has been difficult to achieve has been because most parties have held the view that the reform of laws pertaining to the personal domain is better done by pressure for such change from within communities rather than as an imposition from above. Further, for historical reasons, the demand for a uniform civil code has acquired communal overtones which have overshadowed the innate merits of the proposal.

    To put the delay in perspective, however, it should be added that Article 44 of the Constitution is by no means the only directive principle to have not been implemented more than half a century after it was laid down. Most directive principles continue to remain pious doctrines rather than the law of the land.

    What's a uniform civil code? - Economic Times
     
  6. Abhijat

    Abhijat Regular Member

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    Sir, UCC is an important tool for ensuring freedom to both individual and group.

    Freedom does not only means absence of constraints , as we associate it with , but also providing opportunity to an individual to exercise their choice by actions as they deemed fit. So absence of constraints will mean that their is no fear of insecurity by an external agent , and by providing opportunity we means that their should be enabling environment that can be utilized by an individual to develop her/his capability . So first condition of absence of constraint is necessary for creating second condition.

    The concept behind UCC is to enable person to exercise their choice as they deemed fit without fear of social constraints put on them because of present social structure. Here the role of State needs to be examined in greater detail . Previously in Colonial rule , state exercised power over citizen with backing of force , which was in form of domination and external control. Here both aspects of freedom , that freedom from external constraint and opportunity of development of individual capability , were absent. But as our Nation gains it's freedom WE as Citizen of a Democratic Nation were able to dictate about the control which State can observe on us. So democracy allows us to take control of our own life and destiny, so be free of threat to freedom of expression . It also helps to create and environment which allows us to develop our capability by providing Education , participation in Decision making process, adequate material resources etc.

    But when we talk about , for the sake of a community to preserve its "diversity" by giving acceptance to what their religious leader dictate to them , we are taking away the freedom to express ourselves, by creating a fear of insecurity in mind of an individual that if she/he exercises her/his choice , she/he will face social boycott and the loss of community resource which she/he could access. So who decides on what we do with our life in a democratic setup ? Is it ourselves through electing our representative ? or a religious leader who is not elected as per our choice and would need not take into consideration our aspirations but dictate what he feels is right? .

    So we have to see States role as not a dictator to what citizens should do in their personal lives , but as , First , as an protector of "minimum area of non interference by an external agent " , which is important for human nature and dignity as this minimum area provides a freedom of thought and expression , which provides an individual the chance of presenting her/his view , aspirations , without freedom of being boycotted by a belonging social group . This concept in political theory is known as "Negative Liberty". Second , as a creator of a positive enabling condition , which can be utilized by an individual to develop her/his capability. (So when someone stops you from accessing these conditions then how can we say that freedom is enjoyed by us?) . This concept is know as "positive liberty".

    Here both negative and positive liberty goes hand in hand , as Negative liberty is a platform by which we can develop our creativity , thought and expression , and Positive liberty is a platform for exercising this creativity to develop our capability. So they support each other . So if one is curtailed by an external agent , then other will automatically be effected. State is an actor which protects and nurture both of these liberty's.
     
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  7. ladder

    ladder Senior Member Senior Member

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    I ask another important question is the timing right?
     
  8. Ray

    Ray The Chairman Defence Professionals Moderator

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    In the various debates, the words 'consensus' and 'unanimity' kept cropping up.

    There can be no consensus or unanimity in such a subject that has been made contentious through decades of systematic divisions in society for votebanks.

    It is truism that all personal laws of all religions are flawed.

    These must be corrected and a Uniform Civil Code evolved and legislated.
     
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  9. Ray

    Ray The Chairman Defence Professionals Moderator

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    This has been the desire for a long time and is in the Directive Principles too.

    It has been kept on the backburner ever since, as it raised the backs of religious leaders of communities, construing it to be an affront to the laws of their religion. This was lapped up by the political class as a handle to garner a further space in enlarging the votebank matrix, in an already successful division of society that they had already engineered for their party.

    Someday some one had to catch the bull by the horn.

    Should it still simmer till the cows come home is the question.
     
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  10. ladder

    ladder Senior Member Senior Member

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    It has been such since 65 years and if it so stays for another 5-7 years, it will be no harm.

    Now, we don't have the appetite to handle the protests funded by gulf and European countries.

    The primary job should be economy and security ( internal and external).

    This type of job requires preemptive and systematic clampdown on illegal money trail like Hawala and a strong economy to withstand foreign and external institutional pressures.

    Till then a more subdued approach is needed.

    If Modi thinks he will be able to rectify 'what all that ails' India in his single tenure, he will be best described as 'delusional'.
     
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  11. Abhijat

    Abhijat Regular Member

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    @ladder , the approach towards UCC will be based on removing gender discrimination . Already many community organisation are working towards it .

    It will start with codification of Muslims personal laws and eventually towards UCC.

    Please read above article posted by Ray sir, it clearly says that UCC does not mean that their personal laws will be affected , but "equality, justice" enshrined in Quran needs to be adopted strictly and thus control of Sharia Courts and Muslim personal law board will be dissolved.

    The repressed have already waited for many years, government need to start a formal consultation and eventually will get support of progressive Muslims.
     
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  12. ladder

    ladder Senior Member Senior Member

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    I never said don't do it, or postpone it completely. But the approach should be sub-duded for obvious reasons. There are certain Supreme court judgement that has said personal law is valid only if it is moral. The Kerala, underage marriage of girls was an example.

    So, individual acts, issues can be addressed, where you can trace your step back if repercussion is high and which shall not cause you loss of face as the appetite to hammer our way in is not possible now.

    And that obviously is possible if we don't declare the onset of UCC overtly.
     
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  13. Ray

    Ray The Chairman Defence Professionals Moderator

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    What has the Supreme Court said on the issue?

    Very recently, while hearing a case pertaining to whether a Christian has the right to bequeath property to a charity, the court regretted the fact that the state had not yet implemented a uniform civil code. This is not the first time that the apex court has expressed itself in favour of a uniform civil code or taken a dim view of the government's and legislature's inability to bring it into being. There have been other occasions — like during the Shah Bano case and later in the Sarla Mudgal case — where too the apex court has come out strongly in favour of the enactment of a uniform civil code. However, none of these comments are binding on the executive or the legislature and do not amount to orders. At best, they exert some moral pressure on the Indian state to move towards formulating a uniform civil code.
     
  14. Ray

    Ray The Chairman Defence Professionals Moderator

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    If we don't have a rationale or the stomach to have a code that is equitable to all, then why let it hang fire.

    Just dump it and be done.

    who cares what Modi thinks?

    What do you and I think and what does the Indian think is the issue.
     
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  15. Ashutosh Lokhande

    Ashutosh Lokhande Senior Member Senior Member

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    bye bye to 4 wives :)
     
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  16. Ray

    Ray The Chairman Defence Professionals Moderator

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    it is not only bye bye to four wives or the draconian divorce mode of 3 talaqs, said even in a drunken stupor (which in itself is unIslamic and blasphemous, which the Mullah convenient forgets, being a misogynist lot), it is also about the vexed application of Hindu Undivided Family.
     
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  17. Ray

    Ray The Chairman Defence Professionals Moderator

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    Note if the British Govt, with assistance of the missionaries and evangelists, remove these anomalies, then why can't Independent India bring social and gender justice to its people.
     
  18. jus

    jus Senior Member Senior Member

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    How on earth one can bear 4 wives :shocked:. ...........even 1 women (wife) make Man life hell (Married men suicide rate high in India)

    Not 3 talaqs, but i hope divorce must be easy.In India women will get divorce easily but for Man it is difficult.
     
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  19. Ray

    Ray The Chairman Defence Professionals Moderator

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    Maybe you do not know.

    It depends on one's libido.

    It is said in hushed tones that Muslims have a great libido because they eat meat and garlic.

    Try it.

    And marry away merrily.

    Tell us the result! :)
     
  20. Ray

    Ray The Chairman Defence Professionals Moderator

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    @jus

    you are a great Indian culture proponent.

    Could you comment on Post# 16?

    That is Indian or 'our culture'.

    Should it not be restored as per your ideas of ensuring 'our culture'?
     
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  21. ladder

    ladder Senior Member Senior Member

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    Well appetite is not the same all throughout the day. It varies, true for a person and truer for a country.

    You have to watch your diet when you have just recovered from a bout of stomach flu. As has our country for the last several years. But will that loss of appetite be called permanent?

    You seem to say it's not important what Modi thinks? Is your line of thought absolute?

    I may be a staunch supporter of UCC, but my approach may be different. But both 'path' and 'end result' matter here.
     
    Last edited: Jul 16, 2014

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