Recently, the Indian government made it clear that the Citizenship Amendment Act (CAA) also aims to further the concept of United India, or Akhand Bharat (see interview of Amit Shah to ANI on March 14, 2024, also available on the NDTV website). However, critics see the concept of Akhand Bharat as an attempt to build a theocratic state based on Hindutva ideology, which lacks nuance and could be detrimental to South Asia’s regional stability as well as international peace. Any call for Akhand Bharat would give rise to India’s ambitions for expansion, endangering the peace and security of the area. This demand ignores the goals and sovereignty of surrounding countries, which fuels tensions on the geopolitical, ethnic, and religious fronts, particularly in South Asia. It is critical to comprehend the larger implications of this law and the disastrous situation it may create if not rolled back. While the CAA may seem like a well-intentioned legislation aimed at giving expedited citizenship to persecuted minorities from neighbouring countries, a closer examination reveals a sectarian law that ignores international obligations and goes against India’s constitutional ethos.

Why CAA unconstitutional, illegal and unethical

In 2019, the Indian Parliament passed the Citizenship Amendment Act (CAA), a law that has stirred controversy and division within the country. The CAA deviates from the fundamental principles of the Indian Constitution, as it is discriminatory towards Muslims, who form a minority group in India. The law intends to provide citizenship rights based solely on religion to religious minorities from neighbouring nations, which goes against Article 14 of the Indian Constitution and is fundamentally unfeasible. The Citizenship Act of 1955 outlines five methods to obtain Indian citizenship, such as birth, descent, registration, naturalisation and the incorporation of a region into India. However, the CAA contradicts these methods and instead, bases citizenship on one’s religion. The “reasonable classification” defence taken by the government is not tenable under the eyes of the law. Rather it is not “reasonable classification” but “class legislation” hence fundamentally wrong and unconstitutional. Moreover, the CAA also hit the Preamble of the Indian Constitution which declared that India is a secular, democratic republic.

The Citizenship Amendment Act (CAA) flagrantly contravenes the principles of plural and heterogeneous society, equality, and justice enshrined in the Constitution of India. By introducing the concept of citizenship based solely on religious identity, the CAA discriminates against those who do not belong to the specified religious minorities. This not only violates the fundamental tenet of secularism, which is integral to the Constitution, but also undermines a host of other fundamental rights, such as the right to equal treatment under the law (Article 14), neutrality of the State with respect to religion (Articles 15 and 16), freedom of religion (Articles 25, 26, 27, and 28), and enhanced protection to minorities (Articles 29 and 30). The CAA is therefore ultra vires and must be challenged as a gross violation of the Constitution and the basic feature of secularism.

It’s worth noting that the standard period of eleven years for foreign nationals who are lawfully residing in the country cannot be altered to six years for a particular group of people as specified by the CAA. Doing so violates Article 14 of the Constitution, as it is both arbitrary and discriminatory. Additionally, the selection of the cut-off date is arbitrary and runs contrary to the Constitutional principle of equity and natural justice as outlined in the CAA rules. While the Parliament has the authority to designate December 31, 2014, as the expiry date for the classification of certain immigrants as citizens, such a decision must be logical and consistent with the Act’s stated objective. The CAA rules specifically zeroed on the deadline of 31 December 2014, and citizenship benefits will be given only to those who entered India as illegal immigrants before the above deadline. Shockingly, there is no evidence to suggest that the migration that occurred before December 31st, 2014, was solely due to religious persecution. Therefore, this decision must be reconsidered and aligned with the principles of fairness and equality that are enshrined in our Constitution. It is unclear why the deadline for migration was set for December 31st, 2014, and what will happen to those who migrated after that date. Furthermore, it begs the question as to why the CAA is not providing benefits to those who have migrated illegally after the stipulated deadline.

The current form of CAA and the latest rules rolled out present inconsistencies and inherent complexities of this contentious legislation. Given that persecution of minorities is an ongoing issue, why was a deadline of December 31, 2014 put in place? It appears that the CAA is being used to send a clear message that Muslims will not be included in this pathway. It is incorrect to claim that there are no persecuted Muslim groups in the surrounding area. The Act effectively creates a religious-based distinction in how migrants, persecuted minorities, and refugees are treated. Its ultimate goal seems to be the transformation of Indian citizenship and the reinforcement of the notion that Muslims are not a natural part of India.

CAA-basically a sectarian law

The CAA indeed introduces amendments to the Citizenship Act of 1955, ostensibly to provide a pathway to Indian citizenship for undocumented immigrants from neighbouring countries who belong to specific religious communities. Firstly, the Act’s selective inclusion of certain religious groups while excluding others has been a focal point of criticism. By offering a route to citizenship exclusively to Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians, the Act conspicuously omits Muslims. This exclusionary approach has elicited allegations of religious discrimination, fundamentally challenging the secular character of India as enshrined in its Constitution. Critics argue that such preferential treatment based on religion violates the principle of equality before the law and undermines the foundational ethos of India as a secular, pluralistic democracy.

The emphasis on religious identity as a criterion for acquiring citizenship under the Act raises concerns about the state’s role in determining citizenship. Citizenship has traditionally been based on factors such as birth, descent, or naturalisation, rather than religious affiliation. The Act’s introduction of religion as a defining factor sets a precedent that could potentially politicize and communalize the citizenship process, thus altering the secular fabric of the nation. In addition, the Act’s geographical scope, which focuses solely on migrants from Afghanistan, Bangladesh, and Pakistan, adds another layer of complexity. Critics argue that by singling out these countries, the Act implicitly targets Muslims, who are the majority population in Bangladesh and Pakistan. This geopolitical dimension reinforces the perception of religious bias inherent in the Act’s provisions. Moreover, the Act excludes the religious minorities of Bhutan, Sri Lanka, China, and Myanmar, and there is no clarity as to why this is the case.

The CAA’s proponents contend that the primary aim of this legislation was to alleviate the suffering of religious minorities that are persecuted in bordering Islamic nations-Pakistan, Bangladesh and Afghanistan. They argue that specific laws are needed to protect Christians, Parsis, Jains, Buddhists, Hindus, Sikhs, and Buddhists from systematic discrimination and persecution in these countries. Constitutional experts contend that the CAA’s limited focus on religious persecution ignores other types of oppression people experience because of their gender, caste, political convictions, or linguistic identity. This selective approach weakens the humanitarian aim of the Act by perpetuating a hierarchy of suffering and undermining the universality of human rights. Further, the CAA rules explained the type of religious persecution in Pakistan and Bangladesh but nothing mentioned about what kind of persecution is being orchestrated in Afghanistan.

The CAA’s enactment ignited widespread protests across India, with demonstrators decrying it as unconstitutional and divisive. The issue of religious discrimination has galvanized various segments of society, including civil society groups, opposition parties, and religious minorities, who have vociferously opposed the Act on moral, legal, and ethical grounds. The current structure of the Citizenship Amendment Act 2019 represents a contentious departure from India’s secular ethos, introducing religious identity as a criterion for citizenship while excluding Muslims. The Act’s selective inclusion of certain religious groups raises concerns of discrimination and communal polarization, challenging the foundational principles of equality and secularism enshrined in the Indian Constitution. The ensuing debates underscore the imperative of upholding India’s secular fabric while addressing legitimate concerns regarding persecution and the protection of vulnerable communities. 

CAA is a gross violation of international law

The Citizenship Amendment Act (CAA) 2019, through its selective treatment of immigrants based on religion, indeed represents a flagrant violation of various international treaties and conventions to which India is a signatory party. The Act’s provisions directly contravene fundamental principles enshrined in key international instruments, including the International Covenant on Civil and Political Rights (ICCPR) 1966, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1965, the UN Convention against Torture, and the Universal Declaration of Human Rights (UDHR) 1948.The ICCPR, a cornerstone of international human rights law, unequivocally prohibits discrimination on various grounds, including religion. Article 2 of the ICCPR mandates that all individuals are entitled to the rights and freedoms set forth in the Covenant without discrimination of any kind, including on the basis of religion. By granting preferential treatment to immigrants belonging to specific religious groups while excluding others, the CAA blatantly violates this principle of non-discrimination, thereby undermining India’s obligations under the ICCPR.

Similarly, the ICERD seeks to eliminate all forms of racial discrimination and advocates for equal treatment before the law, irrespective of race, colour, or national or ethnic origin. By delineating citizenship eligibility based on religious identity, the CAA perpetuates a form of discrimination that runs counter to the objectives of the ICERD. The Act’s exclusion of Muslims from its purview not only exacerbates religious tensions but also reinforces a hierarchy of belonging, thereby undermining the spirit of equality and non-discrimination espoused by the ICERD.

Furthermore, the UN Convention against Torture prohibits the expulsion, return, or extradition of individuals to countries where they may face torture or cruel, inhuman, or degrading treatment. While the CAA ostensibly aims to provide refuge to persecuted minorities, its exclusive focus on religious identity disregards the broader spectrum of persecution faced by individuals based on political beliefs, caste, gender, or linguistic identity. This selective approach not only undermines the universality of human rights but also raises concerns about the protection of vulnerable populations under the Convention against Torture.

The UDHR, a foundational document in the field of human rights, unequivocally asserts the principle of equality and non-discrimination. Article 2 of the UDHR proclaims that everyone is entitled to all the rights and freedoms outlined in the Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth, or other status. By privileging certain religious groups over others, the CAA violates the spirit of this universal declaration and undermines the fundamental principles of equality and non-discrimination enshrined therein. The current form of the Citizenship Amendment Act 2019 can be seen as a violation of international law, specifically the principles of key human rights treaties and conventions that India has signed. By discriminating against immigrants based on their religion, the Act undermines the basic principles of equality, non-discrimination, and international human rights law. At this point, the international community may have an opportunity to raise India’s case at the Security Council and UNGA to ensure accountability for its obligations under these treaties. They can also condemn any legislative measures that perpetuate discrimination and inequality.

CAA and ideology of expansionist nationalism

The Union Home Minister recently declared that the Citizenship Amendment Act (CAA) aims to create a United India, also known as Akhand Bharat.[1] However, the idea of Akhand Bharat is a controversial and dangerous concept as it promotes expansionist nationalism. This ideology opposes liberal nationalism, secular politics, and democratic values, as well as inclusion, diversity, and social progress. Expansionist nationalism is characterized by chauvinistic mind-sets and jingoistic language that often leads political leaders to identify scapegoats to gain political advantage. If the Union Minister for Home Affairs endorses such statements, it implies that the Indian state has disregarded established principles of international law, along with numerous international treaties and conventions.

Political scientists and jurists have referred to this draconian ideology as a vital stage in Indian politics, one that is moving the country from a modern nation-state to a chauvinistic state. No sane individual can support the idea of establishing a state that is solely for a specific race or religion, or support expansionist ideology hidden under the cover of nationalism or ultra-nationalism. According to recognised international legal principles, any demand for Akhand Bharat amounts to an act of war since it disrupts the other nation’s sovereignty, integrity, and regional territory. There could be dire repercussions for anyone trying to operationalize this expansionist nationalism in any way, whether overt or covert. Such a provocation through an inflammatory statement must be avoided when India has already been facing global isolation on various fronts. Further, such an outburst from the leading political personality may prove costly for India’s international image as a peaceful nation that respects international law and believes in the ethos of the United Nations.

The Citizenship Amendment Act (CAA) has been criticized for being an attempt to establish India as a Hindu theocratic state and to promote the expansionist agenda of the current government in New Delhi. This move could lead to escalated tensions between India and its neighbouring countries, as it reflects an expansionist ideology that poses a threat to the stability and peace of the South Asian region. The concept of Akhand Bharat, which refers to the idea of a united India, has historical roots in ancient empires and territorial expansionism. However, under the current BJP government in New Delhi, it has been revived with nationalistic fervour. The proponents of this ideology, influenced by the Hindu nationalist ideologies of Golwalkar, Hedegewar, and Savarkar, seek to restore perceived lost territories, regardless of the diverse identities and sovereign aspirations of neighbouring nations. Such rhetoric is baseless and unrealistic in the modern global political scenario.

In light of the current state of world affairs, the idea of Akhand Bharat is absurd and incompatible with the established norms of international law. This phrase refers to India’s purported expansionist goals, which are masked by claims of historical unity and cultural or religious affinity. Many nations in the region view the idea of annexing adjacent territory in order to create a single, unified Indian state as a clear breach of the concepts of territorial integrity and their sovereignty. This is nothing more than unjustified meddling in the foreign nation’s domestic affairs. This expansionist agenda is evocative of colonial goals and seriously jeopardises the autonomy and sovereignty of India’s neighbours, inciting unrest and instability in the area. The aim of Akhand Bharat has intensified regional rivalries and sparked new territorial issues. This has increased the likelihood of armed conflict and militarization. India’s expansionist goal is viewed with mistrust and trepidation by its neighbours, who worry that it may result in the loss of their sovereignty. A major threat to global peace and stability in South Asia is posed by the pursuit of Akhand Bharat, which exacerbates already-existing tensions and ignites geopolitical rivalries. The international community needs to act appropriately to prevent the issue from getting worse because it is quite concerning.

Advocating the concept of Akhand Bharat, or United India, may potentially harm India’s diplomatic relations with neighbouring countries and the international community. This approach undermines mutual trust and cooperation, hampering diplomatic efforts to resolve longstanding disputes through dialogue and diplomacy. India’s isolationist stance poses a risk of marginalization in regional forums and global alliances, reducing its soft power and influence on the world stage. This fallout may significantly impact India’s economic and strategic interests in the Middle East and South Asia. Therefore, the demand for United India or Akhand Bharat highlights India’s expansionist ambitions, posing a threat to regional stability and international peace in South Asia. This approach disregards the sovereignty and aspirations of neighbouring nations, perpetuating ethnic, religious, and geopolitical tensions. Rather than pursuing expansionist agendas, India should prioritize dialogue, cooperation, and respect for the principles of sovereignty and self-determination to foster genuine peace and prosperity in the region.

(The author is assistant professor of law, University of Delhi)

Views and opinions expressed in this article is solely that of the author and does not necessarily reflect the views or position of SabrangIndia and this site. 

[1] https://www.ndtv.com/india-news/amit-shah-citizenship-amendment-act-caa-why-parsis-christians-caa-eligible-but-not-muslims-amit-shah-explains-5235705#pfrom=home-ndtv_topscroll

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The Uttarakhand government, led by Pushkar Singh Dhami, has recently introduced the Uniform Civil Code (UCC), which has sparked considerable opposition from various segments of society. Critics argue that the UCC violates the basic principles of governance, legislation, and democracy. Upon analysing some of the provisions of the Uttarakhand model of UCC, it becomes clear that this legislation is a blatant disregard of the fundamental tenets of a modern welfare state as enshrined in the Constitution of India. Furthermore, it is a direct obstacle to the state’s progress and that of its people, raising serious concerns about the government’s commitment to upholding the rule of law. The UCC that governs personal laws can also be characterised as a flagrant example of the state’s brutality and blatant disregard for the legislative process.

It is widely understood that the law plays a crucial role in maintaining social order, upholding justice and protecting human rights. In this context, the state needs to exercise its sovereign function judicially and with due regard for the fundamental basis of a valid law and core tenets of constitutional values. However, the enactment of laws must also adhere to certain fundamental principles of legislation, including fairness, the rule of law, and the supremacy of the Constitution. In this essay, we explore the Uttarakhand model of the Uniform Civil Code (UCC) and what are the primary imperatives of upholding basic standards of legislation. Additionally, we delve into the philosophical perspectives of Hobbesian positivism and natural law theory, emphasizing their relevance in understanding the essentials of valid law and the significance of incorporating the Law of Nature in statecraft and policymaking. 

Destroying the Basic Standards of Legislation

The proposed Uniform Civil Code (UCC) by the Uttarakhand government carries inherent complexities upon analysis of its premises. It aims to cover all aspects of human relationships, which results in disregarding personal liberty, secularism, democracy, constitutional values, the right to live with dignity, and the fundamental right to privacy as provided under Article 21 of the Constitution of India. The UCC endeavours to unify family laws, including issues related to marriage, divorce, registration of the same, conjugal rights, judicial separation, nullity of marriage, maintenance, alimony and custody, intestate and testamentary succession, and live-in relationships, which not only contrary to the basic philosophy of the constitution but also against the principles that must uphold by a civilised state.

The State has the responsibility to legislate based on the collective will and interests of its citizens. However, this sovereign power is limited by considerations of justice, fairness, and the rule of law. The state must adhere to constitutional principles and fundamental rights while exercising its prerogative to legislate. Unfortunately, the Uttarakhand state government has failed to understand the correct interpretation of the right to equality. Equality is not a theoretical concept that requires promotion but rather an ideal that must be implemented in practice. Therefore, all sections of the state population have the right to enjoy their personal laws, but legislations such as the Uniform Civil Code have deprived them of their freedom. It is important to recognize that unequal treatment cannot be justified under the banner of equal treatment.

The principle of the supremacy of the constitution ensures that laws are consistent with the overarching framework of rights and liberties, preventing arbitrary exercises of power. Fundamental to the notion of justice is the concept of fairness. Laws must be impartial, treating all individuals equally before the law. Discriminatory legislation undermines the integrity of the legal system, perpetuating inequality and injustice. Moreover, adherence to the rule of law is indispensable for maintaining societal order and stability. It requires that laws be clear, predictable, and applied consistently, thereby fostering confidence in the legal system and promoting respect for its authority. The way the UCC was introduced just before the general election of 2024, it seems that the whole exercise is to polarise the state aiming to give electoral benefits to the ruling party. Given the above text, it can be safely stated that it is bad law and Hon’ble Supreme Court of India must nullify it through suo moto cognizance.

Examining the UCC through Legal Jurisprudence

The contentious UCC if examined through the lenses of legal jurisprudence, it has failed to convince the primary norms of legal philosophy. Herein, it would be worthwhile to mention Thomas Hobbes’s theory of positivism which emphasized the role of sovereign authority in establishing and enforcing laws. According to Hobbes, the legitimacy of laws derives from the sovereign’s power to impose them, rather than any inherent moral or natural principles. In Leviathan, Hobbes famously wrote, “Covenants without the sword are but words.” This assertion underscores the centrality of sovereign authority in maintaining order and obedience to the law.

Hobbes believed that a social contract between the government and the governed was necessary for the stability and legitimacy of a state. However, Hobbs also recognized that certain basic standards of justice were crucial in upholding this social contract. Hobbes argued that if a law goes against the fabric of society, it must be opposed. Such a law holds no legal sanctity as it disregards the social contract and the tenets of the Constitution. Despite his positivist view of law, Hobbes acknowledged the importance of laws being just and equitable. He asserted that for laws to be valid, they must meet the conditions of the rule of law, equality, and fairness. Only through satisfying these conditions can the laws earn obedience and support from the people. Moreover, Hobbes contended that the Law of Nature, grounded in principles of self-preservation and mutual cooperation, should inform the enactment and execution of laws. The Law of Nature, according to Hobbes, dictates that individuals have the right to defend themselves and their property, but they must also recognize the need for social order and cooperation. Thus, any legitimate exercise of sovereign authority must be guided by the principles of natural law to ensure the welfare and security of the populace.

Implications for Statecraft and Policy

In contemporary Indian politics, the insights of Hobbesian theory have significant implications for statecraft and policymaking and legislations like UCC, Freedom of Religion and Anti-conversions legislations of Uttarakhand, Madhya Pradesh, Uttar Pradesh, and Gujarat etc. lack certain merits being valid and just laws. While states retain sovereign authority to enact laws, they must do so by following the principle of justice and the general norms of natural law. Any legislation, policy or programme that infringes upon individual rights or perpetuates inequality is unethical to the spirit of justice and fairness enshrined in the international human rights law and, hence liable to be rejected. Moreover, Hobbes’s emphasis on the Law of Nature underscores the importance of considering broader ethical and moral principles in crafting policies and governance structures. Policies that prioritize the common good and respect for individual rights are more likely to garner legitimacy and compliance from the populace. Additionally, incorporating the principles of natural law into statecraft can help mitigate social conflict and promote solidarity among citizens. 

Unique Law that Regulates Personal Freedom

The Uttarakhand model of UCC is an exceptional law, as it is the only legislation in India that considers live-in relationships as a criminal offence. It is worth noting that the Hon’ble Supreme Court of India has already legalized live-in relationships and any form of union between male and female, as well as the rights and freedom of the LGBTQ community, through various verdicts. However, some provisions of the UCC are in contradiction with the Supreme Court’s earlier rulings. Certain provisions of the UCC are not only peculiar but also laughable as they mandate the consent of parents and the registration of live-in relationships under state administration.

The state government lacks minimum information that any imposition of laws that restrict live-in relationships or marriage rights constitutes a violation of fundamental human rights enshrined in international human rights instruments and constitutional frameworks. These include the rights to freedom of association, the right to choose a life partner, the right to marry and also the right to remain unmarried, freedom of privacy, and dignity, as well as the right to equality and non-discrimination. Any law that undermines these rights undermines the very foundation of a democratic society based on the rule of law and respect for human dignity. Furthermore, the criminalization or penalization of consensual adult relationships infringes upon the right to privacy, which encompasses the right to make decisions regarding one’s personal and intimate life free from unwarranted interference by the state or society. Laws that seek to regulate or dictate individuals’ choices in matters of personal relationships violate this fundamental right and undermine the autonomy and dignity of individuals. 

Threat to Constitutional Values

Sprawling protests against the contentious UCC can be seen across Uttarakhand, though the hilly state has a tiny minority population largely concentrated around Nainital and Dehradun but all prominent organisations of Muslims and human rights activists have registered their protest in the state against the UCC and its forthcoming ill-effect if implemented throughout the state in a single legislative stroke. Previously, the 22^nd Law Commission of India sought the general public views on the desirability of the Uniform Civil Code throughout the country and the commission received massive opposition from all sections of the society as any demand of the UCC in the country will create more divisions than unity. Any attempt to implement the uniform civil code either in any province of India or national level will be boomeranged and may also endanger the unity and integrity of the nation.

It is extremely concerning to witness how the new legislation was introduced. This is a clear indication that the state leadership lacks faith in the core principles of the Indian constitution, which is quite appalling. The state leadership seems to have forgotten that secularism, social justice, equality, and the rule of law are fundamental principles that are crucial for the functioning of modern democratic societies. Secularism ensures that there is a separation between religion and state, thus ensuring religious freedom and neutrality in governance. Social justice, on the other hand, aims to ensure that resources and opportunities are distributed fairly and equitably, addressing historical injustices and marginalization. Equality mandates that all individuals be treated with dignity and afforded equal rights and protections under the law irrespective of caste, creed, language and religion. The rule of law establishes that laws must be clear, consistent, and applied impartially, irrespective of one’s status or identity. Nevertheless, the state enacts a law that targets a particular community and also intrudes on the personal freedom of the individual, it signifies the state has no belief in the idea of India and some of the sacred principles of the modern welfare state.

Dr. B.R. Ambedkar, the chief architect of the Indian Constitution, emphasized the importance of upholding constitutional values and protecting the rights of marginalized communities especially the minorities of India. He famously stated, that in a parliamentary democracy, minorities must always be won over, and never be dictated to. He also said, “In an autocracy where the laws are made by the wishes of a dictator or by an absolute monarch, the art of speaking is unnecessary”. No autocrat, no absolute monarch need pay any attention to eloquence because his will is law. But in a parliament where laws are made, no doubt by the wishes of the people, the man who succeeds in winning our opposition is the man who possesses the art of persuading his opponent. You cannot win over a majority in this House by giving a black eye to your opponent.” Dr Ambedkar’s advocacy for social justice and equality resonates strongly in the context of opposing legislation that targets specific communities, as it reflects a commitment to addressing systemic injustices and promoting inclusivity.

Additionally, the legislation that targets a particular community undermines the core values of anti-discrimination, equality and social justice. The Uttarakhand Uniform Civil Code violates Article 25, read together with Articles 21 and 14 of the Constitution of India. This is because religious, linguistic and cultural minorities have the right to preserve their customs and practices. It is unconstitutional and unethical for state leadership to culturally marginalize a particular religious minority community that is already vulnerable and underprivileged. By endorsing such legislation, state leadership exacerbates disparities and hinders access to opportunities for marginalized communities. Moreover, they violate the principle of equality by treating individuals differently based on their religion, ethnicity or other characteristics. Such legislation also undermines the rule of law by allowing for arbitrary use of power and circumventing legal safeguards meant to protect individual rights.

Conclusion

In conclusion, it is crucial that the state’s sovereign function of enacting laws must be guided by considerations of justice, fairness, and the rule of law. The Hobbesian theory offers valuable insights into the balance between sovereignty and basic standards of justice, emphasizing the utmost importance of valid laws that adhere to principles of equality and fairness. States must incorporate the principles of natural law into statecraft and policymaking to uphold the integrity of the legal system and promote the welfare of their citizens. The legitimacy of laws ultimately rests on their ability to reflect and uphold the fundamental principles of justice and morality, which must be given priority over any other considerations. 

The Author teaches at Campus Law Centre, Faculty of Law at University of Delhi

Related:

Uttarakhand: Women’s groups reject UCC say provisions are unconstitutional, criminalises constitutional behavior, Muslims

Uttarakhand state assembly tables UCC Bill amidst protests by opposition members

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Undeniably, this is the most critical phase for the Indian republic and this 75^th Republic Day is also a grim reminder to us what would be the future of Indian democracy. What kind of statecraft we have envisioned under the present scenario? India has been a secular and multicultural society for centuries. However, recent developments in the country raise concerns about the future of democracy, secularism, and constitutional values. Some indicators show that less chances of survival of republicanism in India. Notably, India has scored pathetic performance on global indices for successful democracies, almost non-existent press freedom as per the Global Press Freedom Index 2023, controversial judicial decisions that have undermined people’s trust in the judicial system, and attacks on minorities have led to growing sense of insecurity among Muslims. The consecration ceremony of the Ram Mandir in Ayodhya on 22nd January 2024, despite objections from various quarters, has only added to this insecurity. These developments reflect the prevailing atmosphere in society, characterized by cultural aggression and radical Hindutva nationalism. Such tendencies arise from a deep sense of insecurity and may harm India’s future. The propensity to assert nationalism constantly is unnecessary.

Indian democracy, which was once recognized for its remarkable scale and duration, has suffered a setback due to the unprecedented rise of xenophobic violence, Hindutva nationalism, threats to religious minorities, and the transformation of the secular, democratic, welfare state to a chauvinistic state. These trends have intensified with the growth of Hindutva nationalism, culminating in the latest episode in Ayodhya on January 22, 2024. The ruling Bharatiya Janata Party (BJP), which came to power in 2014, has either promoted or tolerated attacks on women, Dalits, Christians, and Muslims by its members in the government, party, and cadre. Furthermore, the BJP government has centralized state power and curtailed human rights and civil liberties. It is crucial to understand that the protection of democracy and religious freedoms are intricately linked, and safeguarding both is of utmost importance.

Communal Polarisation at its Peak

Whatever happened in Ayodhya on January 22, 2024 has reinforced the notion that the Indian constitution, democracy and secularism inching towards a slow death. One of the foremost challenges to secularism in India is the escalating communal polarization that has permeated various facets of society. On January 22, right after the consecration of the idol at the new Ram temple in Ayodhya, Prime Minister Narendra Modi in his televised address that “Ram is not a dispute, Ram is the solution, Ram is for everyone”. However, the reality on the ground was different. Violence broke out in some parts of Maharashtra, Gujarat, Uttar Pradesh and Madhya Pradesh, and any form of dissent was met with police action. Screenings of the documentary film “Ram ke Naam” by Anand Patwardhan were disrupted in Hyderabad and Kerala. Some educational institutions even imposed restrictions on their students. Students were beaten up, and posters were torn down in some areas.

Following the idol consecration ceremony at Ayodhya, there were reports of violence and attacks on minority communities’ places of worship across the nation. Reports from all around the country surfaced about the rampant hooliganism in north Indian cities, where people were seen flying saffron flags from their motorbikes and cars. A ferocious mob of thousands of people has removed the holy flag from the mosque in Shahjanhanpur, Uttar Pradesh. A similar incident involving the vandalism in a historical mosque occurred in Agra as well.  On Monday, January 22, 2024, there were other vandalism incidents at Mira Raod, Mumbai, and adjoining parts of the city. The incidents ranged in scale from violent confrontations in numerous regions of Maharashtra to slippers supposedly hurled into a mosque, a tiny establishment burnt down in Telangana, and a graveyard set on fire in Bihar by saffron-clad criminals.

It is deeply sickening to see the current political scenario where hate has taken predominant and those who spoke about the rule of law, constitutional values and democracy have been treated as foes. The enormous rise in divisive politics and the exploitation of religious sentiments for political gains is unprecedented and also questions our claim as a civilised democratic society. It is the question of where we are heading. The ruling party, in particular, has not hesitated to exacerbate tensions between different religious communities to seek political advantage in the upcoming 2024 election. This ‘us versus them’ approach not only undermines the pluralistic ethos of the nation but also endangers the coexistence of diverse communities. The increasing incidents of hate speech, discriminatory practices, and communal violence are indicative of the growing divide between communities. The government’s role in addressing this issue is crucial, but the lack of decisive action to curb hate speech and communal incidents raises concerns about their commitment to maintaining a secular fabric.

India, a country known for its diversity, democracy, and secularism, has been facing some challenges regarding the rights of its minority communities. Many international forums and communities have started raising their concerns about India’s future, as the basic human rights of its largest minority community have been violated. India has democratic institutions such as an election commission, a human right watch body, and a minority rights institution, but if these institutions are not able to protect constitutional values, secularism, and the trust of minorities, it could become a threat to the Indian state’s existence. India gained independence in 1947, and its constitution describes the country as a democratic, secular state that protects the religious freedom of all communities, irrespective of religion.

India, like many other countries, has recently seen a rise in xenophobic violence and Hindutva nationalism that is hostile towards religious minorities, especially Muslims and Christians. The United States Commission for International Religious Freedom (USCIRF-2023) has identified India, along with several other countries, as a place where the government allows or even promotes violations of religious freedoms. This means that people are not free to practice their religion without interference. The USCIRF (2023) report says that India’s multi-religious and multicultural identity is being threatened by a view of national identity that excludes people based on their religion. According to the report, groups that support this view and are responsible for violence against religious minorities include those connected to the ruling party of India, the Bharatiya Janata Party (BJP). The United Nations, Amnesty International, and Human Rights Watch also share these concerns. 

Minorities welfare missing in government policies

Secularism goes beyond mere coexistence; it involves the active protection and promotion of the rights and welfare of all religious communities, particularly minorities. However, the absence of a comprehensive minority welfare agenda in government policies and programs reflects a systemic failure in addressing the needs of marginalized communities. Despite constitutional provisions ensuring the rights of minorities, there is a discernible gap in the implementation of inclusive policies. Issues such as economic disparities, educational opportunities, and access to healthcare persist among minority communities.

The Muslim community in India faces significant challenges, including but not limited to under-representation and backwardness in education, employment, trade, health, and professional courses. Unfortunately, these challenges are often systemic in nature, leading to disparities in opportunities and outcomes. The government must acknowledge and address these disparities by designing inclusive policies that specifically target the upliftment of minority communities. Without targeted interventions, the gap between majority and minority communities is likely to persist, hindering the overall progress of the nation. Muslims often find themselves under-represented in various sectors, limiting their economic opportunities. The government must actively promote policies that encourage equal representation in the workforce, fostering a more inclusive and diverse economy. This not only benefits minority communities but contributes to the overall economic growth of the nation, creating a more equitable and prosperous future for all.

The government’s neglect of the welfare and social development of religious minorities is a matter of serious concern. The state must adhere to its constitutional mandate of equality and implement progressive policies to address the specific challenges faced by minorities. Recognizing the importance of inclusive development in fostering national progress, it is imperative that governments prioritize the well-being of all citizens, irrespective of their religious affiliations. Failure to do so not only perpetuates social disparities but also undermines the very essence of a just and equitable society.

Now, AMU on the radar of the saffron brigade

Jawaharlal Nehru University (JNU), Jamia Millia Islamia (Jamia), and Aligarh Muslim University (AMU) are widely recognized as strongholds of free speech and intellectual discourse in India. These universities have always been welcoming to all sorts of debates, and discussions, and have been known to foster dissent. However, the Bharatiya Janata Party (BJP) views these institutions as an obstacle to its political agenda because they have consistently opposed the communal and divisive policies of the Rashtriya Swayamsevak Sangh (RSS) and BJP. Regrettably, Jamia and JNU have nearly lost their distinct academic culture due to strict control and administration restrictions in nearly every area of academics. Such interference has had a significant impact on the universities’ unique identity and academic standards. After JNU and Jamia Millia Islamia, the saffron brigade’s next ambition is to make AMU unimportant in academic circles.

The unnecessary controversy surrounding the minority status of Aligarh Muslim University (AMU) is another fresh example of how the state treats the place of dissent, discussion and institute which promotes religious and scientific education. The sudden and unprecedented attack on AMU’s minority status not only threatens the autonomy of educational institutions but also sends a message of insecurity to minority communities. It is evident that minority educational institutions play a pivotal role in fostering a sense of identity, preserving cultural heritage, and promoting educational diversity, if still government adamant about slashing AMU’s autonomy, character and heritage then it will convey a very wrong signal to the entire minority communities. AMU is not just an institution rather serves as the bedrock for the transmission of cultural values, traditions, and language from one generation to the next. By enabling minorities to establish and manage their educational institutions, the Constitution recognizes the importance of protecting their distinctiveness within the broader fabric of Indian society. When a government disregards the constitutional safeguards provided to minority institutions, it sends a distressing message about the commitment to upholding the principles of justice, equality, and secularism. Such policies not only violate the letter and spirit of the Constitution but also undermine the delicate social equilibrium that defines the Indian pluralistic society.

Furthermore, the policies of the State that target minority institutions can lead to a feeling of further alienation among the affected communities. These policies may be seen as an attack on the cultural and religious identity of minorities, which can lead to resentment and mistrust towards the state. The alienation of minority communities has serious implications for social cohesion and national integration, hindering the collective pursuit of shared goals and aspirations. It is crucial to maintain the trust between the government and minority communities for the health of a democratic society. Government policies that aim to reclaim or derecognize minority educational institutions not only undermine constitutional guarantees but also erode the trust that is essential for a harmonious and inclusive nation.

Summing up

On the occasion of India’s 75th Republic Day, it is vital to confront the challenges that confront its democracy, secularism, constitutional values, and social justice. The unity of the nation is at risk due to the polarization of communities, the lack of a comprehensive welfare plan for minority groups, and the targeting of minority institutions such as AMU, which reflects the government’s discriminatory attitude towards minorities. To preserve the Indian republic and its fundamental principles, all stakeholders – government, civil society, and citizens – must work together to encourage interfaith dialogue, implement inclusive policies for minorities, safeguard the autonomy of minority institutions, and ensure that communal harmony and fraternity remain intact. The responsibility of upholding secularism is a collective one, and it requires a multi-pronged approach to ensure that India remains a symbol of diversity, tolerance, and peaceful coexistence. This approach should focus on addressing the root causes of communal tensions, promoting social and economic inclusion for all communities, and fostering a culture of mutual understanding and respect. Only then can we safeguard the future of Indian democracy and ensure that it remains a beacon of hope for generations to come.

(The author is an academic with the Law Faculty at Delhi University)

[1] Author teaches at Campus Law Centre, Faculty of Law, University of Delhi

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