Before the Citizenship (Amendment) Act, three crucial legal battles between 2014-2019 have been essential to the transition that the government of Narendra Modi is overseeing in India, from secular democracy to Hindu-first nation. As the foundation stone to the Ram temple is laid, our analysis
New Delhi: Lal Krishna Advani, one of the most successful presidents of the Bharatiya Janata Party (BJP), is within a matter of days expected to swirl between the revolving doors of the case hearing the demolition of Ayodhya’s Babri Masjid and attend the inaugural foundation of the temple for Lord Ram at the same place.
As he proceeds to keep both his appointments, this is a good time to take stock of the distance India has travelled between them, through the prism of three crucial legal changes, made with the backing of Parliament and the Supreme Court.
The Economic Times reported last week that the Centre has pushed “18 nodal ministries and 47 line departments” to focus on arresting India’s slides on global hunger, competitiveness and press freedom indices, three of many where India has slipped over the last few years.
What gives India its swag in the neighbourhood and the world, whether it is the UN or other international fora, is its reputation as the world’s largest secular democracy. Let us call it the Index of Plural Powerhouses, an imaginary index that has nevertheless been central to the respect India has so far commanded.
When there were doubts being cast internationally about India’s commitment to pluralism in the wake of anti-Citizenship Amendment Act protests, the largely pro-establishment Hindustan Times wrote, in January 2020: “The onus rests on Delhi to allay apprehensions. It cannot play up foreign points of view when favourable (remember it invited Members of the European Parliament to Kashmir), and dismiss them as irrelevant when unfavourable. India needs to restore its image as a healthy democracy, committed to pluralism. Fix the product, and the messaging.”
Writer Nayantara Sehagal put it thus: “We are unique in the world in that we are enriched by so many cultures, religions. Now they want to squash us into one culture. So it is a dangerous time. We do not want to lose our richness. We do not want to lose anything … all that Islam has brought us, what Sikhism has brought us. Why should we lose all this? We are not all Hindus but we are all Hindustani.”
Nepali writer and journalist Kanak Dixit went so far as to characterise what India is going through now as “civilisational distress”. He said: “Everything is seen from the perspective of an ultra-rightist Hindutva-laced ideology that is actually running the state right now. I would compare what Trump’s USA is going through (as) a parallel crisis (with) Modi’s India.”
So, in a situation where there has been no overt or dramatic amending of India’s 70-year old secular and democratic constitution, how might one measure the substantive difference between India as a secular democracy, between the 1990s and now?
Three crucial legal battles have been essential to the transition that the government of Narendra Modi has overseen from a secular democracy to a Hindu-first nation.
Citizenship, Kashmir, A Temple And The Hindu Homeland
Some think that the Citizenship (Amendment) Act, 2019, by tying up citizenship with faith, and fast-tracking citizenship of non-Muslims from three countries, was the rapid-fire entry to the idea of a Hindu homeland that this government was pursuing.
That was the topping. Much has happened between 2014 and 2019, to fundamentally alter course for India’s secular status, and write this change via legal means into the laws of the land.
In order to be acceptable in a largely hostile political environment after the bloodshed, mayhem and division wrought by the Advani-led ‘Rath Yatra’ and the demolition of the Babri Masjid in 1992, the BJP put what it called its three “core issues” on the back-burner.
So, matters of Article 370, Ayodhya and the Uniform Civil Code (read restricting personal law for religious minorities) were set aside, as being beyond the pale of the agenda of the first National Democratic Alliance, allowing the BJP to lead a central government for the first time.
Look back now with 2020 vision, and you can see how far India has come, as you examine each of these. It makes for the best index of the shift India has undergone and of how much, by way of the law and by the law, it has changed.
When Article 370, which defined India’s relationship with India’s northernmost state, Jammu & Kashmir, was read down to take away the semblance of autonomy, the state was reduced to two union territories and has been kept under a harsh lockdown since 5 August 2019.
There are thousands of political prisoners and former Chief Minister Mehbooba Mufti (in alliance with the BJP till a day before she was hustled into house-arrest) is still under detention. The shutdowns, detention of denial of 4G Internet, is sanctified by law, an amendment ratified by Parliament.
The majority of the BJP in the House was used to good effect, early in its tenure after the re-election of the Modi government, to push an old chestnut, high up on the ideological wish-list of the party, into Parliament by surprising the House, with no pre-legislative consultation, notice or adequate time for debating the change on the floor of the House, as should have been the norm with a constitutional amendment.
The call for ‘taking back’ Kashmir and carping at its special status, all polarising political slogans since the Jan Sangh days, have been rendered into reality, and now are the law of the land. The constitutionality of how the amendment to Article 370 and the use of Section 3 is in the Supreme Court, which has not stayed or objected to any of the Centre’s actions on Kashmir over the past twelve months.
The Ayodhya dispute, which found its way into the Supreme Court after all parties appealed the 2010 Allahabad High Court verdict partitioning the land, has been fully awarded to one side and the temple trust found judicial approval and sanction on 9 November 2019. Then Chief Justice Ranjan Gogoi headed the Ayodhya bench and was nominated to the Rajya Sabha by the Centre under the government quota, four months after retiring. It was all done lawfully.
Uniform Civil Code: An Unfinished Business, Finished
The idea of imposing a Uniform Civil Code (UCC), a single personal code on the entire nation—an idea about 180 years old dating to the second law commission of 1835—was held “neither necessary nor desirable at this stage” in 2018 by a law commission headed by former Supreme Court justice B S Chauhan.
This could be seen as the exception or "unfinished business" to the creation of a Hindu-first nation. But a closer look reveals this too has made it past the post, lawfully.
The BJP’s vision of the UCC, which many have argued (here and here) was more about regulating Muslim personal lives than getting everyone else to adhere to a genuine modern, secular and enlightened civil code, was among the first to get off the block.
In the matter of triple talaq, or taking away the right to marry more than once was taken away from Muslim men by the Supreme Court when it struck it down. But a law was felt necessary, to criminalise a civil offence, making it possible for a Muslim man to be jailed for upto three years under the new law passed on 30 July 2019. Again, lawfully, now only abandoning Muslim women is a criminal offence.
There is a very strong argument that all this is possible and is a natural consequence of the electoral majority that the BJP enjoys. But, the foundational pillars of any democracy, especially a large diverse one that India is, cannot be dependent on a change of government at the Centre. It might be easier in western countries, where secularisation or the separation of church and state preceded democracy, so every vote was not one where basics were voted upon.
India’s choice to be secular in 1950, in crafting a modern idea of citizenship was exceptional in the neighbourhood and stemmed from a practical desire to reap the benefits of all that confluence brings, in economic terms, in cultural terms and even as a civilisational project. But it was also an exercise in enforcing a certain ideal that shaped three generations of Indians. It made India an exception in the region and gave it stature, status and also moral clout.
The rapid morphing of India into a democracy that resembles Turkey and Russia, more than it does itself from some years ago, has consequences and costs which will have to be borne. What is important at this stage is for those inside to recognise the nature of the shift that the electoral verdict has enabled.
Even as Advani quickly jumps from an accused to a guest of honour, the Cost of Change Index for India will be calculated on another day.
(Seema Chishti is a Delhi-based journalist.)