The NDA government has been in power since 2014 and multiple issues have made headlines in the last few years, which may reveal the anti-minority and majoritarian stance of the government. The ban on beef in Maharashtra, rise in cow vigilantism and increase in people being charged under Section 377 (homosexuality) has a direct correlation to the rise in right-wing extremism in India.
One cannot make a strong case for right-wing extremism in relation to the government based on these events, but the government may have found another way to push anti-minority agenda by introducing legislation which will have strong implications for the Muslim community.
This can be seen in three examples of legislation which attack the property rights, citizenship rights and cultural rights of Muslim minorities i) The Uniform Civil Code ii) The Citizenship (Amendment) Bill, 2016 and iii) The Enemy Property (Amendment & Validation) Bill, 2016. Adopting a legislative lens, the current essay analyses the anti-minority stance of the government.
The Uniform Civil Code
One of the major features of the Bharatiya Janata Party’s manifesto was the Uniform Civil Code (UCC), on which it stated that: “BJP believes there cannot be gender equality till such time India adopts a Uniform Civil Code, which protects the rights of all women, and the BJP reiterates its stand to draft a Uniform Civil Code, drawing upon the best traditions and harmonising them with the modern times.”
Article 44 of the Constitution lists UCC as one of the Directive Principles of State Policy. They are not enforceable and the principles are meant to be the guidelines for the Centre and state governments for governance and framing laws.
Different communities in India have different set of civil laws for dealing with personal issues such as marriage, divorce, succession, adoption and maintenance. Through the UCC, the government aims to create a single set of civil laws applicable to all citizens, irrespective of their religion.
Against this backdrop, the contentious debate arising out of UCC has been on triple talaq (divorce practice among Muslims) governed by the Muslim Personal Laws. The Centre filed an affidavit with the Supreme Court on October 7, 2016, to abolish the practice of triple talaq.
The main contention was that the law must be abolished to protect the rights of Muslim women as the divorce procedure is being trivialised by Muslim men who have been using social media platforms such as Skype and Facebook to divorce their wives.
Political parties are divided on the issue, as one side believes the rights of women should be protected while the other side believes the government cannot interfere in the practice of customary laws by religious communities, as the Constitution protects the right to religious freedom of its citizens.
The reason this move is anti-minority and communally-biased is because, according to data from the Census of India (2011), the number of divorced Christian (0.27 per cent) and Buddhist (0.33 per cent) women in India is higher than Muslim women (0.25 per cent). Muslim women form only 1 per cent of the divorced women in India, yet the government is choosing to focus only on Muslim women while ignoring the other communities.
Further, other issues such as dowry deaths, child marriage, domestic violence and rape are being faced by women across India but rape victims are still awaiting justice and the government has been unable to improve the safety of women in the country. The use of the words “best traditions” in the manifesto also seems to imply that the Hindu traditions are better and should be universalised.
Various women rights activists have publically stated that the UCC is anti-minority. They have reasoned that the Supreme Court ruling on Shamim Ara already lays down the correct procedure through which a Muslim couple can get divorced and has invalidated triple talaq.
The government should have highlighted the judgment in the media instead of filing an affidavit on an issue already decided by the Supreme Court. Further, the purpose of UCC was national integration but the issue has caused polarisation within the Muslim community.
The Convention on Elimination of all Forms of Discrimination Against Women was signed in 1993 with the reservation that section 16, which deals with uniform personal laws, was not attested. This is because it was felt that a compulsory uniform civil code cannot be enforced. The present government seems to have gone back on this position.
The government’s change in position on the UCC, the polarisation within the Muslim community and political parties, and the lack of effective action towards improving the status of women in India shows that the move was not aimed at national integration, which was the original purpose of the code in the Constituent Assembly debate on Directive Principles, Article 44 of the Constitution.
The government's proposal on UCC is considered by many experts to be an attack on the personal laws of the Muslim minorities in India.
|According to data from Census 2011, the number of divorced Christian (0.27 per cent) and Buddhist (0.33 per cent) women in India is higher than Muslim women (0.25 per cent). Photo: Reuters
The Citizenship (Amendment) Bill, 2016
The Citizenship (Amendment) Bill, 2016, was enacted to provide for the acquisition and determination of Indian citizenship. Under the existing provisions of the Act, persons belonging to the minority communities, such as Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who have either entered India without valid travel documents or the validity of their documents has expired are regarded as illegal migrants and hence ineligible to apply for Indian citizenship.
It is proposed to make them eligible for applying for Indian citizenship. The Bill seems to aim to save religious minorities from violence and blasphemy laws in Pakistan, Bangladesh and Afghanistan. The rationale for selecting just these three countries, which are Muslim-dominated countries, seems to be cause for concern.
The Bill at first glance seems like a humanitarian effort to help persecuted minorities but it only seeks to help Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from the neighbouring Muslim countries. The Muslim minority communities facing oppression in the region have been completely ignored.
If the Bill was really an attempt to provide a safe haven for minorities facing violence in their countries then it would offer the same provisions to the minority Muslim community in China and Myanmar as well. The Rohingya Muslims in Myanmar and the Ahmaddiya Muslims in Pakistan and Bangladesh have been facing persecution for years.
Further, the Burmese Hindus have also been ignored in the Bill. The Bill aims to reduce criteria for citizenship from 11 years to six years for Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan but does not allow Muslims staying in the country for six years to gain citizenship.
This is a discriminatory clause for granting citizenship and seems to follow the trend of anti-minority legislations.
The Enemy Property (Amendment & Validation) Bill, 2016
The latest Bill which fits the trend of anti-Muslim legislation is the Enemy Property (Amendment & Validation) Bill, 2016. The Bill amends the Enemy Property Act, 1968, to vest all rights, titles and interests over enemy property in the Custodian. It declares transfer of enemy property by the enemy, conducted under the Act, to be void. This applies retrospectively to transfers that have occurred before or after 1968.
The provisions of the Bill may be legally flawed as the government has not provided a rationale for how enemy property inherited by an Indian citizen can still be termed as enemy property. The Bill also does not provide a rationale for transfer of ownership of enemy property to the State which would be tantamount to nationalisation and would potentially violate rights of the successors without justification.
Bonafide onus of property is being deprived from non-enemy owners. It is not clear under what legislative power the government would take this action. The provisions of the Bill have been widely criticised and are contrary to the Supreme Court’s judgment on the issue of enemy property.
It is a communally-biased and politically motivated legislation as properties owned by enemies of Chinese origin are very few; the Bill would primarily target properties owned by enemies from Pakistan and Bangladesh, which are both Muslim-dominated countries.
Further, there has been a sudden increase in identification of enemy properties in states with high proportion of Muslims like Uttar Pradesh and West Bengal. This may be construed as discriminatory and anti-minority and espouses the government’s majoritarian stance. Thus, this legislation may curb the voices of the Muslim minorities and infringe on their property rights.
The Enemy Property (Amendment & Validation) Bill, 2016, attacks the succession and property rights of Muslims, the UCC attacks their personal laws and cultural rights and the Citizenship (Amendment) Bill, 2016 attacks the citizenship rights of the Muslims living in India.
By analysing the legislations, it is clear that right-wing extremism in the country follows the trend set by the BJP government and seems to subscribe to the political philosophy of majoritarianism, which asserts that the majority of the population is entitled to enjoy first-class citizenship while the minorities are treated like second-class citizens.
This philosophy has no place in a democracy like India where the Constitution protects the rights of the minorities and espouses the principles of equality and equity.
Politically motivated and communally biased legislation must not be allowed to become law as it would further worsen the state of minorities in India. An in-depth analysis of the discussed legislations highlights that the government is systematically targeting the rights of Muslims.
This is in contradiction with the secular nature of the Indian Constitution and the legislations have been framed to suppress Muslims in the country.