Written by: Jaspreet Chahal
Introduction
Recently, there have been assertions that Indian society has had discord along religious lines which has been worsened by the law. Recent legislation and Supreme Court decisions have created conflict mostly due to the resurgence of Hindu nationalism after relative secularism since Indian Independence in 1947.
Background
India’s religious history is extremely complicated. The subcontinent itself is a cradle for four major world religions, the Dharmic religions of Hinduism, Jainism, Sikhism and Buddhism, all of which have originated from there. Naturally, as with many world orders, India has a rich history of ebbs and flows of religious powers. Although colonialism can be directly linked to the present day-to-day strife, religious tensions pre-date colonial India.
Despite not being the predominant religion, Emperor Asoka’s Buddhist dynasty (273 to 232 BC) was able to control India.[1] And later the Muslim Mughal Empire ‘carved empires out of north India’ and ‘claimed that they ruled in the name of Allah’.[2] However, the British Raj began displacing the Mughal political base slowly from the 1600s until the total displacement by 1857.[3] But unlike the preceding empires, Anglicised Christianity was almost completely rejected by Indian people and firmly remained the religion of the English colonists, becoming a legitimising instrument to demonstrate the savage nature of Indians.[4] Instead of becoming a bigger religion on account of the wide missionary work, under Colonial rule, Indian people turned to Hinduism and Islam which ‘became major repositories for nationalism’ and ‘invocation of religious blessings [for] anticolonial efforts was regularly asked and readily give[n]’, with religious sentiment being a key factor in the Great Mutiny 1857 uprising against British rule.[5] However, in the twentieth century, Gandhi’s Hindu context surrounded his non-violent strategies to bring about Indian independence, which aroused fears and suspicion in the large minority of Muslims and resulted in Islamic nationalism and political separatism along ‘largely religious lines’.[6]
The Partition of India was done to create ‘two religiously homogenous countries’, Pakistan (West and East, the latter of which is, today, Bangladesh) and India, with Pakistan becoming a majority Muslim territory and India having Hindus, Sikhs, Buddhists, Jains and other minorities.[7] The decision was criticised by the Central Committee of the Communist Party of India (CPI) party who argued that ‘every section of Indian people has a contagious territory’, which could be viewed as divergent ‘with the right to exist as an autonomous state’ who could believe they have a ‘right to secede’: for example Muslim Western Punjabis and Sikh Eastern Punjabis.[8] Nevertheless, plans were put in place with land being carved on a map, resulting in a pyrrhic, bloody human toll and brutal communal violence amongst neighbours who peacefully resided for centuries, as people crossed the border, with fifteen million becoming displaced refugees and one to two million dying and/or going missing.[9] The divisions of modern India and West and East Pakistan radically changed the religious demographic of the land, but was hoped by people like Nehru that modernisation and nationalism would transcend the declining power of religion and shift India into a modern, secular state.[10]
The law
The Constitution of India 1949 established a secular government and equal civic rights for Indian citizens. Unlike the historic, religion-led governances, democratic ballots were established. The religious freedoms were wide under Article 25(1) where ‘all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion’, which genuinely attempts to create religious peace within the new state of India, post-colonialism.[11] It followed Nehru’s attempt to create ‘narrow religious nationalisms [as] relics of a past age’, contrasting neighbouring nations where the predominant religion had clear links with the state.[12]
However, the recent rise of Modi’s Hindu nationalist Bharatiya Janata Party (BJP) party is evidence of resurgence of religious strife within India which has catalysed various legislative changes.
The Citizenship Amendment Act (CAA) 2019 is a new legislative act which allows rapid Indian citizenships for members of persecuted minorities in neighbouring Pakistan, Bangladesh, and Afghanistan, but denies Muslims of these nations this same right, and, thus, contrary to the secular Indian Constitution.[13] The Constitution of India 1949, Article 15(1) prohibits the state from ‘discrimina[ting] against any citizen on grounds only of religion, race, caste, sex, place or birth’. But it is arguable that allowing one minority preference is not contrary to the Constitution because the law does not discriminate against Muslim Indian citizens living in India. However, it has been noted that the CAA could result in a slippery slope considering the Modi government’s plans to have a National Register of Citizens (NRC) which could have devastating consequences for constitutional rights of Indian Muslims, like stripping millions of their Indian citizenships.[14] The CAA turned the previous ‘quiet resignation’ among Indian Muslims to deeper unrest and brought protestors onto the streets.[15] It is important for the government to state their support of the significant 200 million plus Muslim population of India to bring about harmony in the diverse country.
Jammu and Kashmir is a disputed territory and have been contested since the creation of Pakistan, and is clearly a religious dispute among Muslim-majority Pakistan and Hindu-majority India. Seo suggests it ‘reflects India’s struggle to prove its secularism by maintaining a Muslim province within a predominantly Hindu state’.[16] The de facto borders in Kashmir have not changed since 1972 after the brief war. As stated in the background section of this article, there are pockets of unique areas of India, so if India seceded the region, other areas which endeavour for independence would have a potentially dangerous precedent.[17] The worries are not ill-founded considering the rise of religious militancy in the eighties among the Hindus, Muslims and Sikhs,[18] with the Sikh separatist movement of the 1980s and early 1990s demanding for a separate Sikh state. Modi’s government amended Article 267 of the Indian constitution which, thus, allowed the government to repeal Article 370 which enshrined in law the state’s special status.[19] Article 35a of the Indian Constitution allowed Jammu and Kashmir limited autonomy and active preservation of the demographic composition of the state, like disallowing non-Kashmiris from buying land in the state. However, with the revocation of this law, Jammu and Kashmir's demographic identity as the only Muslim-majority state is weakened and the state becomes fully integrated into the Indian Union.[20] The security clampdown was shocking with thousands of troops being sent to the religion, shutting internet and phone networks and hundreds of arbitrary arrests without due process of political leaders and civilians, ‘preventing the free movement of people, as well as hampering their ability to exercise their right to peaceful assembly and restricting their rights to health, education and freedom of religion and belief’ (UN High Commissioner) allowed by Modi’s large political mandate in light of his 2019 landslide.[21] Proponents of the policy denounce Pakistan’s sponsorship of militancy in the region obstructing genuine conversation for peace. However, anti-India sentiment is rife and caused political hostility within the region exacerbated via events like the perceived stolen election of the Legislative Assembly in 1987. The oppressive occupation has ‘led many Kashmiris to view India as a repressive regime’ as a result.[22] Nevertheless, the repeal of a key constitutional factor in the Indian constitution is clearly eroding the principles on which India was founded and increasing religious strife. Although viewed as a necessity, perhaps it should be done in a more conciliatory and less militaristic fashion to keep peace amongst the citizens of the area.
The Indian Parliament banned ‘triple talaq’ which prevents Muslim men from ending a marriage by saying ‘talaq’ (divorce) three times consecutively. It was done to provide Muslim women with greater legal protections but conflicted with the constitutional rights of Muslims to have their own personal laws, like the Muslim Personal Law (Shariat) Application Act, 1937.[23] The famous Supreme Court case of Mohammed Ahmad Khan v Shah Bano Begum, involved an elderly Muslim woman divorced by her husband instantly, but was held in the Supreme Court of India ‘that a neglected wife’s state-defined statutory right to maintenance should stand regardless of the personal law’ of Muslims in this case. It was criticised as being part of the homogenising trend weakening the identity of Muslim minority and was later overruled by legislation under Rajiv Gandhi’s administration.[24] The specific attention on the rights of women was apparent in the later legislation like The Muslim Women (Protection of Rights on Marriage) Act, 2019, which went to the Supreme Court, where the practice of instant divorce was confirmed as unconstitutional. While some viewed it as the Indian State encroaching and interfering in the family law of Muslims, the Lok Sabha in the “Statement of Objects and Reasons” reasoned that the Act ‘liberate[d] Indian Muslim women from the age-old practice of capricious and whimsical method of divorce’,[25] but others considered that the ‘talaq’ practice should be examined by the community rather than the government.[26] The top-down decisions and Acts are great for the rights of women but have caused tension between religion and women’s rights, for greater reconciliation and peace, the viewpoint of Muslims should be accounted for and create change at the local level.
The Babri Masjid (Mosque) was demolished by Hindutva (Hindu nationalist political ideologists) activists in December 1992 and resulted in violence and reflected the increasing religious polarisation within Indian society and the rise of the BJP from 2 seats in the 1984 election to becoming parts of mainstream Indian politics.[27] Shakoor argues that the controversy was utilised by the BJP demonstrated in their utilisation as a principle electoral issue with ‘the party [being] committed to build [a] temple’ in its place.[28] Modi in 2014 promised to build a Hindu temple there again and Modi came into power after Hindus decided not to vote along caste lines as they traditionally did (splitting the Hindu vote) and ‘religion superseded caste as the most influential voting factor’, conceding a huge electoral victory.[29] The dispute went to the Indian Supreme Court in 2019 and the Judges unanimously ruled and allowed the construction of a Hindu temple; the demolition in 1992 as violating law; but ruling on archaeological evidence that the temple was originally a Hindu temple before becoming a Muslim Masjid. The ruling has been criticised as legitimising the unlawful destruction of the Babri Masjid and rewarding those that carried out the action.[30] The decision is contentious, but in this article the righteousness is irrelevant, the decision undoubtedly has caused tension, and is clearly a focal point of the entirety of Modi’s administration and will continue to cause unrest within India rather than reconciliation.
Conclusion
Undoubtedly after the accession of the Hindu nationalist BJP government, there is evidence of religious tension within India which has been added to by their legislative changes and immense mandate to do so. India is a country which has a small percentage of minorities, but given their one billion strong population, the persons are immense in each ‘minority’, and it is important that their rights are protected. There has been a somewhat erosion by the BJP and polarisation specifically of the Muslim population in their socio-domestic sphere (the divorce change), religious sphere (Babri Masjid destruction), the CAA which they somewhat feel threatened by and actions taken in Jammu and Kashmir contrary to the Indian constitution. However, these are relatively recent events, of which time will determine the extent at which religious tensions are affected by the law.
[1] Ralph Buultjens, ‘India: Religion, Political Legitimacy, and the Secular State’ [1986] 483 (Religion and the State: The Struggle for Legitimacy and Power) The Annals of the American Academy of Political and Social Science 95 [2] ibid 95 [3] ibid 96 [4] Ibid 97 [5] Ibid 98 [6] Ibid 99 [7] Kingsley Davis, ‘India and Pakistan: The Demography of Partition’ [1949] 22(3) Pacific Affairs, University of British Columbia 257 [8] Harihar Bhattacharyya, ‘Indian Federalism and Indian Communism: Conflict and Collaboration’ [2001] 62(1) The Indian Journal of Political Science 48 [9] William Dalrymple, ‘The Great Divide: The violent legacy of Indian Partition’ (The New Yorker, 22 June 2015) <https://www.newyorker.com/magazine/2015/06/29/the-great-divide-books-dalrymple> accessed 31 October 2020 [10] Ralph Buultjens, ‘India: Religion, Political Legitimacy, and the Secular State’ [1986] 483 (Religion and the State: The Struggle for Legitimacy and Power) The Annals of the American Academy of Political and Social Science 98 [11] ibid 101 [12] Ibid 102 [13] Sudha Ramachandran, ‘Hindutva Violence in India’ [2020] 12(4) International Centre for Political Violence and Terrorism Research 19 [14] ibid [15] Ibid 20 [16] Hyeon-Jae Seo, 'EQUAL BUT NOT SEPARATE: INDIA'S SECULAR DILEMMA’ [2017] 38(4) Harvard International Review 44 [17] ibid [18] Ranbir Singh and Karamvir Singh, 'SECULARISM IN INDIA: CHALLENGES AND ITS FUTURE' [2011] 72(2) The Indian Journal of Political Science 507 [19] Anubhav Gupta, ‘Kashmir and India’s Climb Up the Ladder of Chaos’ [2020] (15) Horizons: Journal of International Relations and Sustainable Development 251 [20] Sudha Ramachandran, ‘Hindutva Violence in India’ [2020] 12(4) International Centre for Political Violence and Terrorism Research 18-19 [21] Anubhav Gupta, ‘Kashmir and India’s Climb Up the Ladder of Chaos’ [2020] (15) Horizons: Journal of International Relations and Sustainable Development 252 [22] ibid 254 [23] Sudha Ramachandran, ‘Hindutva Violence in India’ [2020] 12(4) International Centre for Political Violence and Terrorism Research 18 [24] Ran Hirschl and Ayelet Shachar, ‘Competing Orders? The Challenge of Religion to Modern Constitutionalism’ [2018] 85(2) The University of Chicago Law Review 439 [25] https://www.livelaw.in/pdf_upload/pdf_upload-362529.pdf (accessed 31st October 2020) [26] Ran Hirschl and Ayelet Shachar, ‘Competing Orders? The Challenge of Religion to Modern Constitutionalism’ [2018] 85(2) The University of Chicago Law Review 440 [27] Sudha Ramachandran, ‘Hindutva Violence in India’ [2020] 12(4) International Centre for Political Violence and Terrorism Research 16 [28] Farzana Shakoor, 'Babri Mosque and India's Secularism' [1993] 46(2) Pakistan Horizon 49 [29] Hyeon-Jae Seo, 'EQUAL BUT NOT SEPARATE: INDIA'S SECULAR DILEMMA’ [2017] 38(4) Harvard International Review 45 [30] Sudha Ramachandran, ‘Hindutva Violence in India’ [2020] 12(4) International Centre for Political Violence and Terrorism Research 19
Comments