By Frizia Rounak / GICJ
India is one of the most diverse countries in the world, consisting of individuals from numerous cultural and religious backgrounds. According to the World Population Review, Muslims comprise about 15% of India's population, second to Hindus, who comprise about 80%, and other religious minorities such as Christians, Sikhs, and Jains each constitute less than 3% of the population . These communities have often lived in peace and harmony until recent years, as communal violence and discrimination against minorities have taken a sharp turn for the worse. On the 26th of January 1950, a year and six months after India gained its independence, the Constitution of India was adopted, officially declaring India as a "sovereign, democratic republic state". Eventually, in 1976, under the 42nd Amendment Act of the Indian Constitution, India's status changed to a "sovereign, socialist, secular democratic republic", with the addition of the words "socialist" and "secular" in the preamble. However, in recent years, under the leadership of the Hindu nationalist Prime Minister Narendra Modi, India's status as a secular democracy has been severely challenged, with some going as far as to call it an electoral autocracy or even an ethnocracy. This has resulted from a series of discriminatory legislative laws passed or supported by the current Indian government affecting the Muslim population and a pursued crackdown on expressions of dissent by the media, academics, civil society organisations, and protesters .
This article will delve into the current discriminatory policies against religious minorities in India, predominantly Muslims, the Citizenship Amendment Act's applicability to International Human Rights Law, and the efforts to revive Indian democracy.
DISCRIMINATORY POLICIES UNDERMINING HUMAN RIGHTS
In 2014 India underwent a radical regime change as the citizens delivered the most resolute electoral victory in decades to the National Democratic Alliance (NDA). The right-wing Hindu nationalist Bharatiya Janata Party (BJP), the principal coalition partner of the NDA, also gained an absolute majority in the parliament, catapulting a hitherto insignificant cause and party to the forefront of Indian politics and the country's power structure. This change resulted as India's electorate became more disenchanted with the Congress-led administration, which had a history of corruption, incompetence, fluctuating and ineffective electoral alliances, and cemented dynasty leadership. Under the charismatic leadership of Shri Narendra Modi, the BJP seized the opportunity and mounted a clever and lavishly financed campaign, promising to take quick action to bring about fast economic development. It deftly understated the more divisive Hindu nationalist agenda of the BJP. The party, as well as Modi, has a disturbing track record in this aspect. The most infamous of these being the 1992 demolition of the Babri Masjid, a mosque constructed in Uttar Pradesh on the site of the presumed birthplace of the Hindu god Ram .
In fact, Modi is a member of the Rashtriya SwayamSevak Sangh (RSS), a rigid, cadre-based militaristic group committed to advancing the Hindutva doctrine, a violent and exclusive version of Hindu nationalism. The RSS Family, an affiliate member of the RSS, is the parent organisation that first deputed Modi to the BJP; the majority of senior leaders of the BJP are selected from the RSS or its affiliates. He has been a lifetime member of the RSS and a Pracharak (campaigner or speaker) . As a result, according to a report by Human Rights Watch, ever since the Modi government assumed power, BJP officials have often expressed anti-Muslim and Hindu supremacist statements in their interviews. These have sometimes fomented violent assaults by party followers who feel they have institutional security and permission and have even applauded them. For instance, numerous people belonging to religious minorities have been murdered and wounded by BJP-affiliated mobs since 2015 as a result of claims that they sold or slaughtered cows for beef. In another instance, in an apparent attempt to avenge a terrorist attack on the security forces convoy, BJP sympathisers intimidated and physically assaulted numerous Muslim students and merchants from Kashmir in February 2019 .
The institutionalised religious discrimination towards minorities has been growing, supported by a surge in discriminatory policies and a lack of checks and balances in the system, especially for Hindu radicals in power. Post-2019 elections, Muslims maintained only 5% of the seats in the parliament, continuing a two-decade trend of stagnant representation. With the BJP's continued ascent, the party now has no Muslim representatives in the parliament .
On 12th December 2019, the unconstitutional Citizenship (Amendment) Act was passed by the Modi regime (CAA). The CAA allows and expedites the asylum applications of Hindus and other unregistered non-Muslim immigrants from India's neighbouring states to maintain their Indian citizenship even if they have been unable to prove their citizenship status in Assam and hence excluded from the NRC. However, it excludes Muslims from gaining or maintaining that citizenship even if they have lived in the country for generations. As a result, individuals risk losing their citizenship rights due to the amended CAA and the administration's drive for a nationwide citizenship verification system through the National Population Register (NPR) and posited National Register of Citizens (NRC). The act makes religion a critical determining factor for gaining citizenship for the first time in India .
This has sparked widespread protests by all religions, who have held peaceful protests against the act, reciting poems, performing music, and chanting the constitution, which calls India a secular state. However, these protests infuriated the governing BJP; some officials even mocked the demonstrators and, worse, labelled them as "anti-national" and "pro-Pakistan." Several have referred to the demonstrators as "Pakistani hooligans," while others have incited violence by leading a call to "shoot the traitors” . The CAA is not the only discriminatory policy targeting religious minorities. For instance, eight Indian states have laws governing religious conversions known as "anti-conversion" laws or the Freedom of Religions Act. This act seems to attack Christians in particular. According to a report published by USCIRF in 2021, "these anti-conversion laws are too often the basis for false accusations, harassment, and violence against non-Hindus that occur with impunity". The Commission reported in 2020 that mobs assaulted Christians, demolished churches, and interfered with religious ceremonies while being incited by false allegations of forced conversions. Officials often failed to stop these assaults and neglected or disregarded demands to hold the offenders responsible .
Another recent case cited as an example of prejudice against India's religious minority is that of Stan Swamy, an 83-year-old Jesuit Priest and human rights advocate arrested in 2020, who died in detention in 2021 while awaiting trial on counter-terrorism accusations. The National Investigation Agency (NIA), India's counter-terrorism agency, spearheaded the arrest and investigation. They said he was detained in conjunction with caste-based violence in 2018 and Maoist insurgent affiliations under the Unlawful Activities (Prevention) Act. Stan Swamy was denied bail, and the treatment he was met with in prison raised concerns. The opposition party and human rights groups criticised his execution as Rahul Gandhi said that Swamy "deserved justice and humaneness". UN Special Rapporteur Mary Lawlor, too, was heartbroken and stated that "imprisoning HRDs is inexcusable". However, the Indian government, in a statement, said that Swamy's detention followed "due procedure" and that his bail was refused due to the "specific nature of charges against him". There have been similar cases against Christians . For instance, a recent report by the United Christian Forum (UCF), an organisation advocating for the rights of Christians in India, reported that a shocking 302 cases of brutality have been recorded against Christians by the end of July 2022, a dramatic rise from the 186 cases documented during the time frame in 2021 . Christians are most impacted by state laws against 'forced' conversion, which has ambiguous interpretations and provides states with broad prosecution authorities. Suspected offenders of these regulations, including missionaries, may face fines and jail terms of up to 4 years. Those suspected of forcefully converting or trying to convert may experience local or state hostility, including police antagonism and abuse, as well as imprisonment. Similar treatment is meted out to the Sikh community, other religious minorities, and scheduled castes and tribes in India. While India's constitution provides these castes and tribes, such as Hindu, Sikh, and Buddhist Dalits, with certain reservations in education, employment, and politics, non-Hindu Dalits, mainly Christians and Muslims, are still institutionally unqualified for reserved employment or school placements, placing them at a major financial and social disadvantage .
As such, this institutionalised religious discrimination has resulted in the abuse of several fundamental human rights in India, especially for the most vulnerable groups, resulting in wrongful arrests, detainment, and persecution of individuals.
THE CAA & ITS APPLICABILITY TO INTERNATIONAL HUMAN RIGHTS LAW
The CAA and all other discriminatory policies passed in India violate international law and the core tenets of the rule of law, which includes the right to equality before the law and the right against discrimination. These are rights guaranteed by human rights conventions such as the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, both of which India has ratified. Fernand de Varennes, the UN special rapporteur on minorities, in an interview with Al Jazeera, stated that "many have opined that the exclusion of Muslims as a group from the ambit of the law constitutes an extreme example of discriminatory treatment and that the right of equality without discrimination – particularly if it has a 'racial' element – is one of the fundamental principles of international human rights" . India also endorsed the Global Compact for Safe, Regular, and Orderly Migration, which pledges governments to establish migration policies on international human rights laws which state that "all migrants, regardless of their status, are entitled to human rights" . Safeguarding oppressed communities must transpire via a robust asylum policy framework centred on equality and non-discrimination that applies to all persons irrespective of race, religion, national origin, or other status.
The CAA, paired with the NRC, contravened international law, notably the ban on declaring persons stateless. In the past, the Indian government deported several Rohingya Muslim refugees on the pretext of being "illegal immigrants," which itself is a severe infringement upon India's international human rights obligations . In 2019, upon the introduction of the NRC, over 1.9 million Muslim persons were stripped of their citizenship status . This resulted in the creation of a sizable population of stateless individuals, which, too, conflicts with the responsibility under international law to avoid statelessness. Consequently, Michelle Bachelet, the former UN High Commissioner for Human Rights, moved the Supreme Court of India in 2020 as an amicus curiae (third-party) against the CAA, as it presents major complications surrounding international human rights legislation and its applicability to migrants, particularly refugees. India reverted by stating that the enactment of CAA is an internal matter and this application would hence infringe its sovereignty . However, the fact still remains that this act infringes the rights of refugees as it violates the principle of non-refoulement, which prohibits returning asylum seekers to countries where their rights and freedoms are infringed upon, and they risk facing political, racial, or other persecution. Bachelet's petition also recognised that even though the CAA reduces refoulement risks for certain groups, it unequally puts others at risk. As such, the CAA's restricted scope, which grants citizenship primarily on religious grounds, is not sufficiently fair and rational in considering international human rights law's comprehensive refoulement ban .
Along with the weakening of India's legal system, these factors have increased impunity and given violators more power. With these policies, India not only violates international human right law but also undermines the effectiveness of its own constitution, discriminating against and drifting from its secular nature and burdening its citizens to prove their citizenship or suffering the risk of being deported to foreign lands. Now more than ever, the international community must put pressure on and closely monitor India's human rights progress in accordance with international law.
THE ROLE OF THE INTERNATIONAL COMMUNITY
India today is one of the world’s fastest-growing influential powers, and with power comes more responsibilities and accountability. As such, the rise of ethnocracy in India threatens democracy elsewhere beyond its borders. Western states have often engaged in wars to promote democracy and human rights while denying those rights to colonies or minorities. As such, they must not repeat the same mistakes or turn the other way – while India commits human rights abuses – for the sake of containing other growing powers such as China or Russia. This calls for the increased involvement of all stakeholders, such as the UN member states, NGOs, human rights advocates, and the youth, in helping India sustain its secular democratic nature and international human rights obligations.
Additionally, India must be pushed to implement national laws in line with the international laws and treaties it has ratified on non-discrimination and religious freedom, such as CERD. It must also ratify outstanding treaties such as the 1954 and 1961 Conventions on Statelessness which offer states realistic solutions to address the particular necessities of stateless people that ensure their safety and dignity up until their predicament is addressed. The international community must keep in mind the fundamental human rights and freedoms of all, regardless of their race or religion, while engaging in trade negotiations, aid, and diplomatic interactions with India. States must push for the repeal or reform of anti-conversion laws – in accordance with international norms adopted by several Indian states – in events such as the Universal Periodic Review and the UN Human Rights Council. These human rights mechanisms must also progressively assess the situation and deploy human rights investigating or monitoring bodies in India to remain updated on the policies pertaining to the situation of religious minorities and the treatment meted out to them by the government and perpetrators.
Domestically, India must first respect, improve the applicability of, and abide by its constitution, taking into account the several contradictory and discriminatory national and state policies that are not in sync with the laws in the constitution and are hence unlawful. Thorough amendments are also needed to define terms such as ‘minorities’ which have no clear definition. Laws pertaining to religious minorities and scheduled castes and tribes must also be amended to be more precise as they often have a broad scope of interpretation which has affected many in the country. Furthermore, proper methods must be established for identifying, banning, and persecuting perpetrators and propagators of hate violence against minorities and vulnerable groups in India.
Many organisations and human rights defenders worldwide advocate for the rights and freedoms of these religious minorities in India. Some, such as Stan Swamy, have given their lives for the cause. It is time that we hear them and help contain India from progressing towards an electoral autocracy or an ethnocratic form of governance. The consequences of this could be outrageous and uncontrollable, as history has shown that under the leadership of a mobilised majority, institutional animosity and discrimination against minorities may develop into acts of mass atrocity. Human rights and democracy are more than empty promises; states must do everything to deliver these to their citizens.
Geneva International Centre for Justice (GICJ) calls on India to reform their refugee laws and immigration policies with an inclusive agenda, recognising and tackling the discriminatory treatment meted out to asylum seekers and refugees in India belonging to minority religions. They must also ratify the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, and implement all laws in line with international human rights law. It is important to acknowledge the multiethnic and multicultural nature of India, and embrace it by enforcing laws that are representative and inclusive of all in the community. This also requires the help of a supportive international community.
Minority rights, asylum seekers, freedom of religion and belief, Citizenship Amendment Act, discriminatory policies, indian constitution, international human rights law, Modi, international community, secularism, democracy