“I have to say that India is no longer the country of this novel,” confesses author Salman Rushdie in an article he wrote reminiscing about the time when he came out with his magnum opus Midnight’s Children 40 years back. Senior advocate and legal activist Indira Jaising echoes his concerns while wishing he would have elaborated more. Jaising identifies herself as one of Midnight’s Children as she was born when India was being partitioned on the way to Independence and concomitantly also because of her identity as a refugee, a displaced person. “Love of country came not from our religious affiliations but from the secular space, a political landscape which allowed us to be the people we were”, she says.
“India is on the cusp of becoming a non-secular state”, she declares gravely. “This creeping loss of secularism” is the reason “the idea of India is under threat”. Secularism, as an idea, has a storied history in India. The leaders of the national movement, educated in the West as they were, thought it to be visceral and cardinal to the idea of India they thought they were building. Nehru himself was an ardent supporter of the idea. For Nehru, having a secular state was a crucial mark of modernity. “We have only done something which every country does, except for a few misguided and backward countries,” he said in the Constituent Assembly debates. Most members of the Constituent Assembly supported this because it seemed the best way to accommodate the country’s plurality of religions. Some detracted and disagreed obviously, questioning the applicability of a western idea in the Indian context.
However, both Ambedkar and Nehru, the fiercest proponents of secularism, agreed that the word should not be put into the Indian constitution. Secularism, as theorized and practised in the West-complete separation of State and religion-couldn’t be implemented in India. India was and continues to this day to be, a deeply religious country and people’s faith spills onto the streets, thus making it impossible to make watertight distinctions between public and private spheres of life. Anyways, the humongous tasks of reforming Hindu personal law, preserving the Muslim one (for controversial reasons), putting the reservation system in place, protecting the cows and umpteen other tasks required direct state intervention in religion. Therefore, notwithstanding broad consensus and even consent of the upper echelons of Indian polity regarding the absolute necessity of secularism, the word was not inserted into the Constitution, although it was embedded in the constitutional spirit. “Our own guarantee of freedom of religion reflects this very adequately in Article 25 of the Indian Constitution.”
“We have mastered the art of defeating the law by law and live in a state of lawlessness”, she says. “It’s easy, all you have to do is to define ‘state government’ to mean ‘central government’ and ‘central government’ to mean ‘President’. All you have to do is to define ‘the government’ to mean the ‘Lieutenant Governor’ and the problem is resolved.” The former may refer to the various acts of usurpation of power that this government has undertaken in states and Union Territories, the latter about the latest medal on its mantle: Delhi. With the passage of the GNCTD Act, the government elected by popular mandate has been made redundant with “government” in any law made by the Legislative Assembly meaning the L-G. Also, the L-G’s opinion shall be obtained before the government takes any executive action based on decisions taken by the Cabinet or any individual minister. The Centre says it was done to give effect to the SC judgement of 2018 and clear ambiguities in the roles of various stakeholders. However, interestingly but not surprisingly, the July 4, 2018 verdict of the Constitution Bench of the Supreme Court had been in favour of the elected government.
“When it comes to secularism, there is no need to amend anything. All you need to do is to selectively prosecute those who stand by secularism under the law of secularism…We don’t have a law of blasphemy, but the law of sedition is almost taking its place in our country” she laments. Selectively prosecuting people from the minority under the garb of disrupting communal harmony is a common weapon used. Anyone criticising the government is allegedly portrayed as an ‘anti-national’ and jailed, (or worse, killed). Journalists, professors, students or government officials, anyone who digresses or disagrees is charged under any one of the congeries of laws such as 124A (sedition), the National Security Act or the Unlawful Activities Prevention Act; all of which were not brought by this government but whose full utilization is now being explored. While the number of cases filed under sedition has risen dramatically, the conviction rate has dropped from 33% in 2014 to 3% in 2019. This precipitous drop suggests that the entire process is sought to be the punishment, rather than the conviction and subsequent punitive measures. As a recent investigation by The Indian Express shows, people of the minority community were being deliberately and falsely being targeted under the draconian NSA in Uttar Pradesh. All this while politicians of the “Hindu variety” like Kapil Mishra and Anurag Singh Thakur roam around scot-free despite “spreading hatred”.
The recent amendments to the Citizenship Act are a move in the direction of India becoming a “de-facto theocracy”. Jaising reminds us and subsequently wonders that “even during the height of communal violence that marked the Partition, our constitution makers did not choose to have citizenship based on religion, so why are we offering fast tracked citizenship to only Hindus now and not the Muslims, India’s largest minority”. People from the other side of the aisle argue that India has a historical obligation towards minorities in these neighbourhood states, which have since the very beginning been persecuted on the basis of their religion and this obligation is enshrined in the Nehru-Liaquat Pact. They say this government has just fulfilled a historic commitment of the Indian state which previous governments didn’t due to political considerations. People who disagree question the arbitrariness of the countries chosen for the law, apart from it’s timing.
Lastly, she lambasts the recent promulgation of ‘love-jihad laws in various states in the country, with one of them ironically being called Freedom of Religion Act. Doing all this despite repeated investigations by various state police forces and even the National Investigation Agency, all of which have thrown up absolutely zilch about either a domestic or an international conspiracy plotting to lure innocent Hindu women to Islam, conveys to us the actual intent behind these legislations whose prima facie objective is to stop mass forcible religious conversion. These laws blatantly violate Article 25.
Recent events such as the Supreme Court accepting a petition to review the Places of Worship Act 1991 or the Allahabad High Court directing the Archaeological Survey of India to find out whether the Gyanvapi Mosque was built over a temple have sparked fierce debates. Although any one of these events might have occurred under any previous governments too, as all of them had vestiges of non-secularism, but what concerns many is the conjunction and design with which all of these events are happening. Many may disagree, but one thing is for certain. The Nehruvian consensus has now broken down.
While answering a question regarding the future course of action that should be undertaken, her voice betrays its characteristic bellicosity as she says, “We have to fight every inch of the way. We have to defend (against) every single effort to erode the values of our Constitution”. She concludes with an observation, “Human rights defenders are the new minorities of India as it is essential for an autocratic state to target human rights defenders to achieve an agenda of complete demolition of secular credentials of the Constitution of India.”
By Devansh Mittal