Beard, Burqas and Bias: Message from Maldives

Thanks to my colleague's alert on Twitter, I found this debate in Maldives extremely interesting. While the author of the article is certainly against the widespread inclination to grow beard among the people of his country, and challenges the view that growing beard is part of Islam, the fact that the Human Rights Commission of Maldives directed the reinstatement of an employee, dismissed for refusing to shave, is a pointer to the emphasis on religious freedom in that country, as compared to ours.

We, on this blog, had the opportunity to debate the right of a student, Mohammad Salim, in Madhya Pradesh who was forced to leave a minority-run school, for refusing to shave. Salim has now filed a review petition in the Supreme Court, aggrieved by Justice Katju's hurtful remarks while dismissing his petition challenging the school's decision. Whatever the outcome of the petition, both Salim and Justice Katju can rely on this article on Maldives to support their respective positions.

Related Posts:
1. Beard, Burqas and Bias

Minority Rights and Religious Identity

The judgment delivered by Punjab and Haryana High Court in the case of Gurleen Kaur vs. State of Punjab is of profound significance.(Readers can access the judgment on the High Court's site (CWP14859/2008.Date:30/05/2009)Although the Court has taken a strictly legal and Constitutional view on the issues before them, it will certainly leave us all dissatisfied. The Court has upheld the action of the minority institution in denying admission on the ground that the students claiming admission under the minority quota did not follow the tenets of that minority religion. There can be no dispute over the Court's finding, arrived after an elaborate research on Sikhism, that maintaining hair unshorn is an essential tenet of Sikh religion. But does Article 30 give licence to the minority institutions to enforce it on unwilling students, claiming admission under the minority quota? The Court has held that it does. The Court also cites the view that majority of students do not follow this tenet at all, but the court justifies its stand because, it has to consider the views as expressed by the spokespersons of the said religion. The implications of this judgment for secularism are indeed serious. If a section of the community is considered as not belonging to the minority religion under Article 30 because of the failure to follow its basic tenets, will the same section be considered as outside that religion for other purposes? Will it not be a worrying inconsistency? The Court has held that religion is a package of beliefs and doctrines which all those who adopt that particular religion are expected to follow, and that the issue is not of logic, but of faith. Therefore, forward-looking or non-fundamentalist actions cannot be bestowed with legitimacy, if the tenet concerned is of fundamental importance, the Court has held.

Increasing religiosity, materialism and elections

Meera Nanda, in her forthcoming book, God Market: How Globalization is Making India More Hindu, is developing an interesting thesis. It is that the BJP is creating a huge Hindu vote bank. In itself, it is nothing new. But what makes her forthcoming book interesting is how she goes about proving her thesis: she uses data with which we are all familiar, but have not taken due notice.

Meera Nanda is a John Templeton Foundation Research Fellow. Her major works include Wrongs of the Religious Right: Reflections on secularism, science and Hindutva (New Delhi, Three Essays Collective, July 2005), Prophets Facing Backward: Postmodern Critiques of Science and Hindu Nationalism in India (New Brunswick: Rutgers University Press, 2004, Indian edition by Permanent Black, 2005), Breaking the Spell of Dharma and Other Essays,( New Delhi, Three Essays Collective, 2002).

She is in the course of completing two more books: The Vedas as Science: The Strategies and Dangers of Hindu Scientism (to be published by Penguin) and The God Market: How Globalisation Is Making India More Hindu (Random House). Beginning her career as a Science Correspondent with Indian Express in New Delhi in mid-1980s, she later pursued an academic career in the philosophy of science. For her latest book in the pipeline, The God Market, she began to closely observe how increasing religiosity in India is making not-easily recognisable impact on its polity and society. She claims to have data to show that the deeper Hinduisation of the public sphere got a fillip during the NDA regime at the Centre, and later under the UPA Government. Through her book, she challenges the Western thesis that growing materialism makes people become less religious, at least in the case of India. She is also extremely critical of the deemed universities, which began during the NDA rule, and got a fillip under the UPA, for having paved the way for unregulated growth of religious universities. The PEW data shows that religiosity is pretty high in India, and what we are witnessing is a heady mix of State support with such religiosity. In this article in Telegraph, she explores the BJP's first major attempt to create a Hindu vote bank in this election, even while the party pretended that development, not Hindutva, is its plank in this election. Another article which she wrote recently for the New Humanist is here.

Free Speech News

1. Regulation of the Media: Interesting, and dare I say, worrying developments on the broadcasting media regulation front, but first the background: Some time ago, the government proposed a regulatory mechanism in the Broadcasting Services Regulation Bill, which was strongly opposed by all media bodies. This blog debated the issue here, here, here and here. As a response to the proposals, it was decided that a self-regulatory body called the News Broadcasters' Association will be set up to address the genuine grievances against the media, without having the fear of an overbearing state. The body was chaired by former Supreme Court judge and former Chairperson of the National Human Rights Commission Justice JS Verma. The NBA, in its first major order, fined India TV for “deceptively dubbing” an interview in Hindi, a language the interviewee does not know or speak. But before one could even celebrate the success of the self-regulatory mechanism, India TV has alleged bias and pulled out of the Association. I don't know the facts of the case in any detail, but if the NBA is to fail, the government will get a (possibly legitimate) excuse to intervene.

2. Combating Defamation of Religion: The UN Human Rights Committee has recently passed a resolution titled Combating Defamation of Religion, calling for steps to combat defamation of religion as a human rights issue. This is a worrying development on free speech, on which one may have a nuanced position on hate speech against groups, but it was clear that criticising any beliefs (including religious beliefs) was protected (except for non-content based law and order reasons).

India, which normally votes along with the Council's majority of developing nations, abstained in protest. India's Ambassador Gopinathan Achamkulangare said the resolution "inappropriately" linked religious criticism to racism. While one understands India's stand, why did it choose to abstain when it could have voted against the resolution? The reason is apparent when one looks at the voting figures:

The Resolution was adopted by a vote of 23 to 11, with 13 abstentions. The voting was as follows:
In favour: Angola, Azerbaijan, Bahrain, Bangladesh, Bolivia, Cameroon, China, Cuba, Djibouti, Egypt, Gabon, Indonesia, Jordan, Malaysia, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal, South Africa;
Against: Canada, Chile, France, Germany, Italy, Netherlands, Slovakia, Slovenia, Switzerland, Ukraine, United Kingdom of Great Britain and Northern Ireland;
Abstaining: Argentina, Brazil, Bosnia and Herzegovina, Burkina Faso, Ghana, India, Japan, Madagascar, Mauritius, Mexico, Republic of Korea, Uruguay, Zambia.

Almost all the countries which voted against are first world countries, while those who abstained appear to be mostly developing countries who were uncomfortable with the Resolution but did not want to vote against their third-world allies. The resolution would have been defeated if most of the abstaining countries had voted against it. While one can see the arguments for realpolitik in international affairs, if my analysis is correct, it is rather sad that voting block loyalties decide the outcomes of human rights issues.

It is rare for Foreign Ministers in India to be accountable for how the country votes in international fora (except in high profile spaces like the WTO). India's record in joining international human rights enforcement mechanisms (various Protocols, the Rome Statute for the International Criminal Court etc.) is abysmal. Indian media largely fails to even report on international law issues, let alone ask uncomfortable questions about our decisions in these fora.

Beards, Burqas, and Bias: Search for clarity

Shamnad’s and my posts have elicited quite a few comments, which explain (and also fail to explain) some facets of Indian secularism. Here, I wish to confine myself to some of the seemingly intractable issues, which our discussion has led to so far.

1. Shamnad’s major problem arises from the fact that he believes that the school was quite correct in seeking to impose uniformity in facial appearance on the students, by restricting the action of growing beards. Here, I find that he suffers from a major inconsistency. Does he accept that growing beard is a practice and a belief genuinely and conscientiously held by the Muslims? Personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Art. 25 but subject,of course, to the
inhibitions contained therein.

The anguish expressed by Shamnad and many Muslims over Justice Katju’s observations- even when they agree that the school may be legally correct in imposing such a rule on Salim – shows that growing beard is a belief genuinely and conscientiously held by them, and equating it with Talibanisation is nothing but an insult to Islam.

In her column in HT today, Burkha Dutt quotes Rahul Singh to suggest that turban is much more central to the religious identity of Sikhs than the beard is to the identity of Muslims. She admits that she was confused on this issue. She and Rahul Singh only need to read the SC judgment in the Bijoe Emmanuel case.

The test for Article 25(1) protection is whether a belief is genuinely and conscientiously held. It need not be central to the religious identity of a community, in the sense many people actually practice it. Rahul Singh, in Burkha Dutt’s programme The Buck Stops Here was actually challenging a Muslim cleric whether all the Muslim rulers in the world grew beard. If the answer is negative, then he would suggest it is not central to Islam. Legally, Rahul Singh is wrong, because the SC’s test is different. This also partly answers Tarunabh’s query in the comments section of my first post, wherein he asks whether the test has to be what the individual claims, or what the religious texts lay down. Though Tarunabh sympathises with the former, the law, he suggests, might support the latter. In my view, religious texts may be silent on the question, and it should be left to the community as such. In this case, the Muslim Personal Law Board apparently believes that growing beard is essential to Islam, as evident from its protests against Justice Katju’s observations.

2. Let me come to Art.30 protection. Shamnad apparently believes that the school enjoys Art.30 protection, and therefore, can override Art.25. That is, even if he believes that growing beard is essential to Islam, the student has to choose some other school which permits the practice, because the school which restricts it does so under Art.30. Now, let me turn around this argument a bit. Art.30 is also for linguistic minorities. Supposing a school, being run by a linguistic minority, in order to protect its culture, imposes a uniformity that all men students must wear dhotis, or all female students must have kumkum on their forehead. Obviously, these are unrelatable to the educational objectives of the school, and therefore, would come under aspects of maladministration.

I am unable to understand that imposing uniformity of the sorts which the school has done in the case of Salim advances the educational objectives. Why should all the students look alike in terms of physical appearance? After all, the school is a microcosm of society. If in the society outside the school, all depictions of physical diversity are permitted, why should the school seek to see artificial uniformity within it. On the contrary, encouraging such diversity in appearances of students would inculcate the feeling among them that diversity is a fact of life.

I can understand if the school insists on uniform dress, or a particular dress code, to maintain discipline, and to avoid feelings of inequality among the young students. After all, similar restrictions on growing beard may be unheard of in higher educational institutions, and the students ought to be prepared for that. Can anyone cite any reason to relate restriction on growing beard of a school student with the educational objectives of the school? If it cannot be relatable, then it has to be an instance of maladministration. The test for `administration' (in contrast to maladministration) is not whether the school seeks uniformity, but whether the rule which the school seeks to impose on the students uniformly is relatable to some educational objectives.

3. Can Art.30 be used to override other rights guaranteed in Part III? Although Art.25 begins saying that it is subject to other provisions in Part III, the very language of Art.30 would suggest that if it is used to override other rights in Part III without sufficient justification, then it will be construed as an instance of maladministration, and disentitled to Art.30 protection. The words “establish and administer” in Art.30 only emphasise autonomy of such institutions from governmental interference, and cannot be stretched to mean some sort of licence to decimate other rights in Part III, which, including Article 30, exist independently of the State. There is an essential difference between State’s duty to enforce these rights, and state’s interference for the purpose of Art.30. State has a right or a duty to enforce Art.30 also, but this obligation of the State cannot be construed as interference which curtails the autonomy of institutions protected by Art.30.

Beards, Burqas and Bias: Response To Shamnad

Shamnad's post has raised some interesting issues. I would broadly endorse his concern over Justice Katju's unfortunate reported remarks. But we must understand that these remarks are reported, and are not part of the Court's record. Justice Katju could claim that he made those observations, in order to elicit the counsel's response to some of the doubts he had, and therefore, the remarks do not actually reflect his views. As the media has a tendency to sensationalise such observations, we must be cautious not to fall into the trap, and let our response to Justice Katju's observations be disproportionate.

That apart, here is my response to Shamnad's comments on my post:

Shamnad misses the point that Art.30 protection is against state intervention, and not against individual rights. Therefore, the suggestion that Article 30 trumps Art.25 may not be correct. Therefore, the school in question cannot ask the Sikhs, let alone the Muslims, to remove turban or shave their beard, unless they can establish these uniform guidelines are relatable to the school's educational objectives, and unless the rules for state recognition conflict with those objectives. The school is an unaided, minority institution, but recognised by the State.

According to T.M.A.Pai, even an aided institution will have a right to impose its rules; therefore, the distinction between aided and unaided does not really help our understanding of the issue here. The core test here is whether it is a recognised school. If so, it cannot violate Article 25, in the garb of ensuring uniformity among students. I can understand if the school complains that the State has intervened to tell the management not to impose such a rule on the students - in which case, Article 30 will be relevant. But this is not such a case. Therefore, the student's grievance that the school has maladministered, and lost the protection of Article 30 makes sense.

If you read Article 28(3) carefully, it treats recognition and state aid separately and not synonymously. Therefore, the school being a recognised school, there is no question of the school management imposing a rule without the consent of the parent. In any case, sporting a beard has nothing to do with religious instruction or worship, being promoted by the school, the ingredients of Article 28(3). Some letters carried in The Hindu today point out the widespread practice of schools misusing Art.30 protection to impose unreasonable restrictions on students.

I do not understand why Shamnad thinks the principle laid down in Bijoe Emmanuel case (referred to in my last post) cannot apply in the case of Salim. Can an institution use Article 30 protection, and the fact that it is unaided, to deny the students in Bijoe Emmanuel case their right not to sing national anthem? In that case, though, the school was a government school, and the judgment did not make a distinction and say that it was applicable only to government, non-minority and aided schools.

Supreme Court on Mohammad Salim's right to grow beard

Supreme Court's summary dismissal of a Muslim student's petition against his school's decision to remove him from the school raises disturbing questions about the court's attitude to secularism. Apart from Justice Katju's inappropriate observations equating Talibanisation with growing beard, the case raises interesting questions of law which could have given an opportunity to the Court to examine, and clarify.

First, the facts of the case. Mohammad Salim was a student of Nirmala Convent Higher Secondary School, Sironj, Vidisha district, Madhya Pradesh from 1997. He passed 9th class in 2008. As he attained 16, his beard grew naturally. From the academic session 2008-09, the school introduced new rules and regulations, duly published in the school diary, given to every student. Under Rule 18 of these Rules and Regulations, the boys are required to have their hair-cut and shaving at regular intervals. The principal of the school prohibited Salim from attending classes, if he refused to comply with this rule. Salim was forced to take his school leaving certificate. The High Court of M.P. (Gwalior Bench) dismissed Salim's petition on 12.12.2008, on the ground that the school is a minority institution and it has a right to frame its own bye-laws in accordance with the Constitution as held by the Supreme Court in P.A.Inamdar case.

The High Court's very brief judgment cited P.A.Inamdar to suggest that "minority or non-minority institutions are free to admit students of their own choice including students of non-minority community as also members of their own community from other states, both to a limited extent only and not in a manner and to such an extent that their minority educational institution status is lost; if they do so, they lose the protection of Article 30(1)." The High Court referring to this principle of law laid down in Inamdar, concluded that there was no illegality or irregularity with regard to the regulation framed by the school and that Salim's admission was rightly cancelled.

In his SLP in the Supreme Court, Salim argued that his case is not related to the policy of reservation and therefore, the paragraph in Inamdar cited by the High Court is not relevant. He also cited Inamdar to drive home the point that the right to administer of a MEI, does not include the right to maladminister. He also pointed out that shaving beard is declared Haraam (sinful) in Islam, especially Hanafi sect to which he belongs; therefore, compelling him to shave his beard is in violation of Article 25.

The question before the Supreme Court was whether a MEI or an unaided institution has a right to impose its own rules and regulations on students against their religious beliefs. The Inamdar judgment, as is clear from the High Court judgment and the Supreme Court's endorsement of it, has apparently given the impression to the judiciary that a MEI or an unaided institution are under no compulsion to respect the religious beliefs of a student. This is a distortion of the Inamdar judgment. An unaided or a minority institution, as long as it carries the state's recognition, is bound to follow the Constitutional principles, and respect the religious beliefs of the students.

The Supreme Court's judgment in Bijoe Emmanuel vs. State of Kerala upholding the right of some students not to sing national anthem on religious grounds is applicable to both minority or non-minority educational institution or aided or unaided institutions, as long as the institution has Government's recognition. The facts of Salim's case and the students in Bijoe Emmanuel case are similar; therefore, the Supreme Court must review its dismissal of Salim's petition, and render justice to him.

Shame of a Name and The Great House Hunt

This blog has discussed the issue of housing discrimination several times in previous posts (I, II, III and IV), so it may not be very interesting to go through the legal arguments once again (for those who want to catch up, I have summarised possible legal remedies for dealing with housing discrimination here). I just wanted to share two moving stories being furiously debated on Kafila - personal narratives by Zainab Bawa and Sohail Hashmi (on last count, Zainab's story had 44 comments which themselves make a very interesting read). Also interesting is Anjum Hasan's following account:

...what it means to be a Muslim who is not quite a Muslim. Bangalore, where I now live, is perhaps the most hospitable city in the country but trying to rent a house sometimes means dealing with landlords who wish to first get the matter of religion out of the way. Now wait a minute, I have wanted to say to the house-owner who asks me on the phone if I'm Muslim. I know he is drawing on a pre-existing mental picture. I want to answer him in the negative and hope he gets the implication, which is that not everyone with a Muslim name is ‘Muslim' . But if he misses my subtle point, I will only be encouraging him to continue discriminating against those who conform to the image in his prejudiced head. Better, then, to say – ‘Yes, I am' and try to get across the subtext – ‘And so what?' Which possibly means losing the house, which seems eminently unfair.

These narratives should remind us that behind our sanitised legalese are real people facing real consequences because of choices made by our legal system (for choosing not to act is also a choice). Sohail's anecdote suggests that housing discrimination against Muslims in Delhi is (a) not recent, i.e. not a product of recent ostensible linkages between Islam and terrorism, (b) systemic and widespread enough to dictate basic life choices regarding where to live and everything else that goes with it, and (c) solely based on the religion of the applicant (the use of intelligent and innovative pretexts notwithstanding). Sadly, all we have is anecdotal evidence. This is an issue crying out for statistical analysis so that we can realise the true extent of the problem and test the generality of these anecdotes.

Incidentally, readers may be interested to know that the 2009 election manifestoes of the Congress Party and the CPI(M) promise to establish an Equal Opportunity Commission by law, while the CPI manifesto promises to 'end discrimination in the matter of job recruitment and disbursement of various economic schemes.' (For a detailed discussion on the Equal Opportunity Commission and its potential implications for this discussion, see this article).

Bipartisan and non-partisan appointments for democratic institutions

Whatever might be the implications for the individuals involved in the current controversy over the Election Commission, the CEC's second letter to the President raises a very important point. Under the current scheme of things under Article 324 of the Constitution, CECs and ECs are appointed by the President on the advice of the Prime Minister. We have come a long way from that idea. Almost every body of importance established in recent times (like the National Human Rights Commission, Central Vigilance Commission, Central Information Commission etc) has a bipartisan (or even non-partisan) appointment committee. Let the controversy bring out one good, in that the Constitution is amended to ensure appointments to the Election Commission are made by a committee comprising at least of the Prime Minister and the Leader of Opposition in the Lok Sabha.

On a related matter, this report says that the government is planning to establish a permanent regulatory committee (National Textbook Council) to examine school text books, to make sure they do not preach values against the spirit of the constitution. It appears to be a move to preempt another textbook controversy if the BJP comes to power after the next general election. The completely depoliticised composition of the Committee is rather interesting to note:

'The NTC will ... be headed by a retired judge of the Supreme Court nominated by the Chief Justice of India. It will have six member - officials picked from the Central Institute of Indian Languages (CIIL), IITs, reputed social science research institutes, and academics from the fields of languages, science and mathematics, social sciences and humanities. Two of the members will be women.'

The idea of an impartial regulatory watchdog making sure that our schools do not teach hate may be a useful one. However, we need to be wary of it becoming a body which kills imagination by overzealous censorship of all 'offensive' ideas.

House for Mr Ali

Tales of link between terrorism and discrimination against Muslims abound, but few show this link to be so direct, so shameless. In the aftermath of the Bombay attacks, some 300 real estate agents in Surat declared in a meeting that they will not rent or sell houses or shops to any Muslims, apparently because the terrorists who attacked Bombay had 'local supporters'. This is but the latest pretext for discrimination which is based entirely on prejudice. Food-preference has been used to deny housing to 'non-vegetarians' (read Muslims) in the past.

A Bill to combat discrimination in the private (and public) sector has been on the table for a while, along with other related measures. The issue has been discussed on this blog before.

One wonders how pervasive such discrimination is. We have sporadic media reports and anecdotal evidence. Even the Sachar report does not have any data on discrimination on the grounds of religion (or other grounds, including food-preference, marital status, sexual orientation, caste, gender identity and ethnic identity) in the housing sector in India. Can anyone point to any systematic study in this area, even if it is for a small geographical region?

How should liberals respond to terrorism?

Jaipur, Ahmedabad, Bangalore and now Delhi. There seems to be no let up in terrorist violence this year. How should liberals react to the deplorable violence perpetrated by terrorists, in the midst of a clamour for more 'stringent laws'? If the history of anti-terror legislations in India is anything to go by, this stringency will reflect in POTA/TADA-like laws liberals tend to dislike - reverse onus clauses which presume guilt rather than innocence, death penalty, admissible confessions to police officers, privacy violating surveillance. And yet, terrorism itself violates the core liberal value of respect for the individual person.

Pratap Bhanu Mehta, in this interesting article published by the Indian Express yesterday, identifies the following politico-legal solutions:

"So many obvious things to be done, creating cross-party structures to evolve a shared understanding of the problem, better coordination between the Centre and the states, legal reform, more imaginative forms of engagement with different communities to enlist their proactive help in defusing this phenomenon."

Some of these responses may be more effective than the idea that that even more stringent punishments will deter terrorists. Disappointingly, Mehta does not elaborate upon 'legal reform', but it is doubtful that this is a call for a law like POTA (his dislike for POTA was discussed on this blog three years ago in the aftermath of a previous terrorist attack on Delhi! Unfortunately Mehta's older piece linked in that post is not accessible and I couldn't find it on google either.)

In fact, yesterday's article discusses legal responses only marginally. Mehta speaks primarily to the terrorists:

"But what sort of a jihad is this, characterised by rank cowardice and bereft of even the diabolical martyrdom that usually characterises such visions? There is the appeal to a fight for justice. But what sort of conviction is this in the justice of one’s cause that it can be articulated only anonymously, and can speak only the language of bloody revenge? Then there is the narrative of victimisation: portrayals of a community at the receiving end in assorted episodes from Babari Masjid to Gujarat. But this narrative of victimisation seems to become simply a pretext. It has its own self-fulfilling logic, so that everything that happens is simply more grist for the victimhood mill. Every political party, every state organ, every media intervention is portrayed as one vast conspiracy to reduce Muslims to victimhood, as if there are no spaces left to address legitimate grievances. There is something of a subterfuge by which these groups contrive to create an impression that they are nothing but voices of the oppressed. If this is a battle on behalf of Muslims, what sort of a battle is this? For if nothing else, these acts make life more, not less difficult for Indian Muslims."

The important point to note above is the unequivocal rejection of the apologist position sometimes adopted in sections of the Left - one that identifies 'a deeper malaise' as the cause of terrorism. Mehta, of course, accepts 'a deeper malaise' but is clear that it is neither an explanation nor a justification of terrorism. Note, in the following quote, that he identifies the sense of (real or perceived) 'victimisation' in all communities, implying that the solution cannot be community specific. He poses his question to the state thus:

"The disquieting challenge is going to be this. While there may be widespread revulsion against terrorism, what will be the form of politics that will overcome the sense of victimisation that is now creeping in on all communities? How will we break the vicious circle the Indian Mujahedeen have identified: that any action taken by the state, investigation or punishment will be taken as further evidence of victimisation? Can the state overcome the accusations from all sides that it is partisan in the prosecution of its core duties? It may turn out that our biggest vulnerability is not communalism; it is a state structure now floundering for credibility, legitimacy and effectiveness."

He goes on to commend the frustration of the main goal of recent terrorist attacks - to spark a backlash:

"The silver lining is that so far the backlash this dare intends to provoke has not occurred. It is clear that these groups do not appear to have an interest in justice; they have an interest in polarisation. In so far as this polarisation does not become visible, at least something of a resistance to terrorism is being offered."

Finally, Mehta laments that 'No state has more experience of handling terrorism than India, yet there seems to have been no institutional learning, reorganisation or innovation in dealing with it.'

I think it is a very well-written article, but it left the lawyer in me dissatisfied (it seems that his inaccessible older article on terrorism addressed some of the issues I am about to raise). I know I don't want the return of POTA. I believe that majority and minority intolerance feed on each other and every jihadi terrorist attack strengthens the Hindu Right (and vice versa) - so, I desperately want this government to 'do something'. But mere appearances will not be enough. I want the state to do everything it can to prevent terrorist attacks and prosecute the perpetrators, without violating civil liberties. How does one achieve all of these goals? Can intelligence agencies be restructured to be more effective? Can the problem of centre-state co-ordination be solved by institutional reforms? How does one protect a community from harrassment and innocent individuals from becoming scapegoats when a case is 'cracked'? Does a solution really lie in addressing the 'deeper malaise' through fairness-enhancing measures like anti-discrimination laws? Then, what does one do in the short term, if anything? Are POTA-like laws even effective against terrorism, or are they just for keeping up appearances? Has there been any criminological study to examine this?

Perhaps terrorism needs a political and societal response rather than a legal one, and a belief that laws (stringent or otherwise) will solve the problem itself is misplaced. But even then, what shape should a political response take? How can a non-partisan understanding on terrorism come about? What is the role of political leadership in the immediate aftermath of a terrorist attack? I hope the Prime Minister is asking himself similar questions.

A critical analysis of recent anti-conversion legislation: Focus on the SAHRDC

Before getting to the substance of this post, I want to join Vikram and V. Venkatesan in welcoming our new contributors. The success of this blog depends on regular contributors and commentators (and a healthy debate among them), and its great to see the heightened activity on the blog at the start of the new year. Let us hope that this trend continues. Though this continues to be a hectic time at work for me, I am inspired by the recent enthusiasm exhibited on the blog, and this post is the result. I hope other contributors (some of whom have remained silent for what seems like an eternity) will be similarly inspired.

An area that I follow closely in my own research is that of secularism, especially the evolving model of secularism in India in the aftermath of the rise of the BJP as a national party, as exhibited in legal developments. In recent years, several states (especially those where the BJP is in power, but even those ruled by non-BJP parties) have experimented with laws on issues that have either a direct or incidental impact on religion. We have already seen how the anti-cow slaughter laws passed by BJP governments have resulted in a drastic revision of some basic elements of the Indian legal model of secularism (I refer here to the over-ruling of the Mohd. Qureshi case by a seven-judge Constitution Bench headed by Chief Justice Lahoti, which was briefly adverted to in this previous post).

One such trend is the recent enactment of anti-conversion laws by several states. As is somewhat typical in our country, much of what passes for legal discussion and debate remains focused on the output of the Supreme Court (a charge that most contributors to this blog, myself included, are equally guilty of). Fortunately, there are at least some organisations that focus on these legislative changes, which could have momentous consequences.

A recent issue of the EPW carries an excellent article by the South Asia Human Rights Documentation Centre (SAHRDC), which focuses on several such anti-conversion laws. The article lists out the germane provisions in a law that was recently passed by the legislative assembly in Himachal Pradesh, which in turn is similar to laws passed in Orissa, Gujarat, Chattisgarh, Madhya Pradesh, Rajasthan and Arunachal Pradesh. It then analyses these laws against the backdrop of applicable constitutional provisions (including an analysis of debates in the Constituent Assembly), Supreme Court precedents, and the relevant international law. The article concludes as follows:

It is clear that the anti-conversion legislations [sic], as they stand, pose serious challenges to both the intrinsic structure of Indian society and the international perception of the country’s legal system. It is difficult to escape the conclusion that these legislations [sic] are primarily motivated by a religious ideology and will detrimentally impact religious minorities. Should the courts acquiesce in this emasculation of tolerance and secularism amid an increasing number of such laws passed by different state governments, Indian democracy and its founding principles of equality and tolerance will be seriously weakened.

The issue in general, and the specific arguments raised by SAHRDC, deserve closer scrutiny and analysis.

The institutional author of the piece, SAHRDC, is an interesting NGO, with a long track record of publications on issues of human rights in the South Asian region. Though the website of SAHRDC is parsimonious in providing details about the organizational structure and people involved, it does provide links to publications that bear the promise of containing rich information on a wide variety of topics.