The 1992 demolition of the sixteenth-century Babri Masjid mosque followed a lengthy campaign led by Narendra Modi—at that time a mid-level party leader in Gujarat—to replace the mosque with a Hindu temple. The demolition provoked months of inter-communal rioting that divided urban areas across religious lines and marked the beginning of a nationalist state-building project in India: an attempt to construct a homogeneous national identity. It was not until the 2014 landslide victory of Modi’s Bharatiya Janata Party (BJP), however, that the Hindu nationalist movement was given a unique opportunity to reframe India’s identity. Since taking office, the BJP has systematically exploited religious divisions, created legal frameworks that target India’s Muslim religious minority, and implemented policies that have destroyed or reconfigured cultural heritage.
The Present-Past
Whilst a great deal of analysis has focused on India’s current political climate, the othering of the Muslim community has deep historical roots. The British withdrawal from the Indian subcontinent in 1947 created two successor dominions to British India in the form of Pakistan and India. To navigate India’s diverse religious terrain, two key principles were codified in the Indian Constitution: rights based on citizenship for all and personal religious freedom laws intended to allow minority religious communities to live by their own customs and traditions.
While the protection of religious identity through the creation of legal autonomies has historically been key to the country’s secular ethos, it has also been weaponized by the Hindu Right. Indeed, their discursive strategy is to argue that this “special treatment” of Muslims and other religious minorities has perpetuated the oppression of Hindus—driving contemporary socio-political and economic malaise in Hindu society. This pro-Hindu cultural nationalism views Muslims and Christians as products of bloody foreign invasions and argues that a Hindu Rashtra (nation-state) must be established to restore India’s culture and pride. Creating a new legal architecture to marginalize (and, in some cases, exclude) India’s Muslim community (which, according to the 2011 census, comprises approximately 14 percent of the population) is essential to this nation-building project.
An Architecture of Exclusion
Erasing Muslim religious sites was one of the earliest steps taken by Hindu nationalists to deemphasize Islamic contributions to India and promote cultural homogeneity. Since 2014, however, the BJP has broadened the scope of this project by passing a raft of regressive legislation that increasingly promotes socio-political and economic tools of exclusion.
At the state level, several BJP-ruled states now restrict or prohibit activity that is specific to the Muslim community. In these areas, conversion to Islam and inter-faith relationships are criminalized. In 2020, the government of Uttar Pradesh enacted an ordinance to regulate religious “conversions” through marriage, in what has been described as “love jihad.” On paper, such laws solely criminalize religious conversion by use of force, fraud, inducement, or allurement. In practice, however, these laws are being used against couples in inter-faith relationships and to prevent individuals from converting from Hinduism to Islam even in situations.
Other BJP-ruled states have enacted similarly targeted legislation. In the education system, women and girls have faced challenges, as schools and colleges have enacted headscarf bans, preventing students wearing hijabs from entering educational institutions.
Several BJP-ruled states have also passed laws that prohibit the killing of cows (considered sacred to Hindus) with some declaring it a non-bailable offense. As Muslims are the main workers in the livestock industry, this act has intensified the economic targeting of the community. In addition to the economic impact of these laws, the communal rhetoric of the BJP party has incited a violent vigilante campaign against consuming beef and targeting, in particular, those that are linked to its sale and consumption. A 2019 Human Rights Watch report documents that between “May 2015 and December 2018, at least forty-four people—thirty-six of them Muslims—were killed across twelve Indian states. Over that same period, around 280 people were injured in over one hundred different incidents across twenty states.” NGOs report that violent attacks and arrests are ongoing.
The political marginalization of Muslims and their exclusion from all levels of the state is well documented. In July 2022, the resignation of the BJP’s only remaining Muslim member of Parliament (MP), Mukhtar Abbas Naqvi, marked the first time in Indian history that India’s ruling party had no Muslim MPs in either house of Parliament and no BJP members of the Legislative Assembly in any of the thirty-one assemblies of the states and Union Territories.
Additionally, since their 2019 election, the BJP has enacted several pieces of legislation intended to disenfranchise the Muslim community. An “update” to the National Register of Citizens (NRC) in the state of Assam, a registry created in 1951 to determine whether residents of Assam were Indian citizens or migrants from neighboring Bangladesh, effectively excluded nearly two million people. Human Rights Watch and the US Commission on International Religious Freedom report that a majority of those removed from the NRC were Muslims who lacked the necessary documents to register. Some fear that the government intends to implement a nationwide register. If enacted, such a policy will significantly impact India’s Muslim community—of whom, absent documents, could be rendered stateless.
During the same month, the government revoked Article 370 of the Indian Constitution that provided Jammu and Kashmir, India’s only Muslim-majority state, with special autonomous status and introduced the Jammu and Kashmir Reorganization Act (amended in 2023). The Act split the state in two and removed the special privileges (on matters such as property ownership and citizenship) that were afforded to the Muslim community in the Kashmir valley.
In December 2019, the Citizenship Amendment Act (CAA) was also adopted to fast-track citizenship for Hindu, Sikh, Buddhist, Jain, Parsi, and Christian immigrants from Afghanistan, Bangladesh, and Pakistan—with no parallel pathway for Muslim immigrants. While the Act has been condemned for discriminating against Muslims and for applying a religious criterion to the question of citizenship, the Modi government has argued that the law is designed to protect vulnerable religious minorities who faced persecution in these three Muslim-majority countries. Despite numerous petitions to the Indian Supreme Court, the Court has not yet ruled on the constitutionality of the Act. Whilst the Supreme Court is notoriously slow in issuing its decisions, since the BJP assumed power, the Modi regime has employed several techniques that have undermined the independence of the Judiciary. This erosion of the independence of the Court was raised in an unprecedented statement by four senior justices of the Indian Supreme Court—Kurian Joseph, Jasti Chelameswar, Madan Lokur, and Ranjan Gogoi—in 2018.
Modi’s “New” India
The BJP has slowly but effectively undermined the laws and institutions designed to combat religious discrimination in India. While Modi and the leadership of the BJP have not explicitly endorsed a “Hindu first” agenda, their legislative changes have been guided by a desire to transform India into a Hindu majoritarian state and implement Hindutva. Importantly, in deflecting attention from its failed economic policies, the BJP is using hate speech and disinformation to erase or demonize Muslim contributions to India, creating a hostile environment that permeates the everyday life of India’s Muslim community.
Since 2019, international human rights NGOs and UN bodies have reported a rise in serious human rights violations against Muslims, including public flogging and attempted murder. A “significant bias against Muslims” has also affected policing in India, with officers being less likely to intervene to stop attacks against Muslims. Additionally, courts and government bodies have sometimes overturned convictions or withdrawn cases that accused Hindus of involvement in violence against Muslims. When there has been pushback against the implementation of repressive measures, authorities have used the ambiguity within India’s complex web of national security and counter-terrorism laws to silence antigovernment protestors and those who have spoken out for the Muslim community.
Administrative detention has proven to be a useful tool for the BJP regime. After the 2019 re-election of the BJP, the number of arrests under the Unlawful Activities (Prevention) Act (UAPA) rose sharply. In the wake of the Jammu and Kashmir Reorganization Act, the CAA, and the NRC, the Modi regime deployed UAPA to intimidate those protesting the new changes. Whilst the conviction rate for those detained under UAPA is reportedly only two percent, there is a lengthy detention period pending trial, as bail is difficult to secure once in custody. Between 2017 and 2020, on average, 43 percent of UAPA cases pending trial have been awaiting a decision for one to three years with 26 percent waiting three or more years.
Authorities have also turned to extrajudicial means to punish Muslims, through a practice critics call “bulldozer justice.” In 2022 and 2023, authorities in several states demolished several homes, alleging that the buildings lacked proper permits. Human Rights Watch argues that these demolitions primarily targeted Muslims, some of whom had recently participated in protests. In response, India’s Supreme Court that demolitions “cannot be retaliatory” but did not put a blanket stay on demolitions. The Court argued that municipalities must have jurisdiction over what the court referred to as “unauthorized” constructions. As the Court refused to issue a blanket order, the practice has continued. Despite these actions and reports by the UN and NGOs, the international community’s response has been muted.
The implications of the situation are twofold. First, if the BJP continues to exclude and vilify a significant part of its population, it will negatively impact the government’s ability to deliver on its promise of economic growth. Second—and more problematically—it will most certainly increase anti-Muslim violence, contributing to fears that India is headed towards an “Anti-Muslim genocide.”
A Way Forward?
The decision by the Biden administration to invite Modi for a state visit in June 2023, only the third such visit since President Biden took office, reflects the strategic and economic importance of the United States’ relationship with India. Since its landslide victory in 2019, the BJP’s popularity remains high. Absent internal incentives to shift policies, international pressure on the Indian government is crucial. As the US and other states vie for alliances with India, sufficient economic and diplomatic pressure must be applied to encourage the Indian government to implement recommendations made in the UN Human Rights Council’s 2022 Universal Periodic Review. While the Council made numerous recommendations, the government can act upon several of these now to address India’s sectarian and communal divisions and hold perpetrators of human rights abuses accountable.
First, India should reduce the broad application of the Unlawful Activities (Prevention) Act that targets journalists, religious minorities, and human rights activists and has often resulted in prolonged detention even on a pretrial basis. Second, India must repeal the Citizenship (Amendment) Act 2019 and the National Register of Citizens. Third, UN-mandated mechanisms should be established to investigate and document serious human rights violations, ensuring accountability of India’s security forces. Finally, regarding torture and other ill-treatment in India to gather information or coerce confessions, the government should ratify the UN Convention against Torture, a treaty it signed in 1997 but never approved.
These steps are essential to address India’s democratic backsliding and deteriorating human rights landscape. As UN Secretary-General António Guterres has rightly stated, “India’s voice on the global stage can only gain authority and credibility from a strong commitment to inclusivity and respect for human rights also at home.”
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Kathleen Cavanaugh is a socio-legal scholar, Director of the Pozen Center for Human Rights, and Faculty in the College at the University of Chicago (USA). She holds a PhD in Comparative Politics from the London School of Economics & Political Science and an LLM (Distinction) from the Queen’s University of Belfast, Northern Ireland. She has published widely on international human rights and humanitarian law and, more recently, militant democracy and the politics of memory.
Image Credit: Wikimedia Commons
