Exploring the BJP’s Legal Agenda for India

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Exploring the BJP’s Legal Agenda for India

It has enacted legislation to implement its vision and goals for a more centralized, tough-on-terrorism, family-oriented, and proudly Hindu state.

Exploring the BJP’s Legal Agenda for India

Indian Prime Minister Narendra Modi performing Bhoomi Pujan (a Hindu ritual for laying the foundation) at the Shree Ram Janmabhoomi Mandir, in Ayodhya, India, Aug. 5, 2020.

Credit: Wikimedia Commons/Prime Minister’s Office

Since 2014, when the Bharatiya Janata Party (BJP) came to power in India, its government under Prime Minister Narendra Modi has done more to profoundly change the country’s legal landscape than any other government has in decades. It underscores the fact that in a parliamentary democracy if you want to implement your vision and goals, you have to pass legislation that enacts your agenda. The BJP’s initiatives include increasing the power of the central government, a tougher, more national security-oriented criminal code, the modernization of personal laws, and either a legislative or judicial strategy to restore ancient Hindu temples on sites currently occupied by mosques.

The pace of legal change has picked up pace in the past few months, possibly because the BJP government wants to notch up some more victories for its platform before the general elections in a few months. Here are some of the laws and court cases that are now shaping India.

In Re: Article 370 of the Constitution

In 2019, the Modi government abrogated Article 370 of the Indian Constitution, thereby revoking the autonomy and special status of the state of Jammu and Kashmir, The erstwhile state of Jammu and Kashmir was converted into two union territories: Jammu and Kashmir, and Ladakh. On December 11, 2023, the Indian Supreme Court upheld the government’s decision to abrogate Section 370 in the case “In Re: Article 370 of the Constitution,” although it directed the government to restore the statehood of Jammu and Kashmir as soon as possible.

The case is important not only because it validated a signature policy of the government the BJP had long pledged to revoke Article 370 but also because the ultimate effect of the judgment has been to strengthen the powers of the central government vis-à-vis the states. While some have derided the court for rubber-stamping the government’s decision, it does not take 476 pages to create a rubber-stamp. What is more likely is that the decision of the five-judge Constitution bench of the Supreme Court reflects a view that has emerged among much of India’s political class, especially on the right: India is a single, sovereign indivisible state that is more than merely the sum of its parts, and that no state or subdivision of India should have more autonomy than the other states or so much autonomy that it is not in tandem with the central government.

In “In Re: Article 370 of the Constitution,” the court argued on the basis of other cases and legislative history that Article 370 was a temporary measure intended to ease the eventual integration of Jammu and Kashmir with the rest of India, and that the erstwhile princely state of Kashmir did not retain sovereignty after joining India in 1948. More importantly, the court both upheld and qualified the concept of federalism as applied in India.

On one hand, the court wrote in Section 482 that “states neither derive their powers from the Union Government nor do they depend upon the Union Government to exercise their powers under the structure of the Constitution.” On the other hand, the court also noted in Section 504 that “the question of whether Parliament can extinguish the character of statehood by converting a State into one or more Union Territories… is left open” and upheld the central government’s power to carve union territories such as Ladakh out of existing states.

Most importantly, the judgment left the balance of power in India’s governance with the central government and Parliament and not the states, by reiterating in Sections 498 and 499 that the power to create, combine, divide, and merge states is the province of Parliament and not the states, so long as a part of whatever new entity is created maintains its “character as a State.”

Bharatiya Nyaya Sanhita (Indian Justice Code)

The Indian Penal Code (IPC) the first such code for criminal law in India was enacted by the British in 1860 and was in effect for 163 years, until December 2023, when parliament replaced it with the Bharatiya Nyaya Sanhita (BNS) or Indian Justice Code.

Lawyers, scholars, activists, and politicians have been clamoring for the “decolonization” of Indian law, but the new code does not change the general tenor of penal justice. For example, one of the most controversial elements of the old penal code was its prohibition of the ambiguously defined crime of sedition. The new code abolishes the crime of sedition but replaces it with the similar crime of treason. Other provisions of the BNS are almost unchanged from the IPC. Defamation is still a crime, going to show that much of what activists complained about the IPC was not a colonial aberration, but a reflection of Indian attitudes toward free speech and national security that are deeply rooted in pre-colonial attitudes and texts.

So, what is the purpose of the BNS? While it is unclear why a new code was needed instead of amending the old one, it is clear that the purpose of the BNS is very much to enhance what is deemed to be necessary for law and order. It adds to the list of crimes and enhances punishments.  The code widens the definition of terrorism, including for the first time economic terrorism, including activities that disrupt monetary stability. It prohibits mob lynching and adds mental cruelty to the definition of cruelty against women. The code like the civil code bill in Uttarakhand discussed below seeks to shore up more traditional mores by incentivizing long-term and stable relationships. For example, the BNS states that a man may get up to ten years in prison for making a false promise to marry a woman in order to have sex with her.

Uniform Civil Code Bill in Uttarakhand

The Indian Constitution directs the government to implement a Uniform Civil Code (UCC). This has always been a major item on the BJP’s agenda. Such a code would abolish “separate personal laws matters related to marriage, divorce, alimony, inheritance, and adoption for members of different religions.” Instead, a uniform civil code would be enacted. Despite the BJP’s pledge to enact the UCC, no BJP government at the center or state level had done so –  until February 7, 2024, when the state of Uttarakhand in northern India became the first in independent India to pass the UCC Bill.

Uttarakhand’s UCC seems to be a test case for the BJP to gauge how the code is received before it attempts to replicate a UCC in the larger states or at the national level. The code itself is a mixed bag of modernization and traditionalism. The modernizing element is demonstrated in the provisions of the code applying across religious groups and gender. For example, both spouses in a marriage would need to show identical reasons for seeking divorce, including adultery. The code would also prohibit Muslim customs such as polygamy, child marriage, and “triple talaq” (allowing a man to divorce his wife instantly by uttering the word talaq three times). While some Muslims have argued that the code is being enacted to target Muslims, the vast majority of Indian Muslim women support the prohibition of polygamy. Yet, inexplicably, the code sets the age of marriage for men at 21 years and women at 18 years, offering no explanation for the discrepancy.

Some of the more traditional elements of the bill relate to how it envisions relationships: Not as bilateral contracts entered into by two individuals, but as pillars of social stability and custom that the government seeks to protect. For example, there is no provision for no-fault divorce, a marriage generally cannot be terminated before a year has elapsed, and conversion to another religion is enough of a reason to end a marriage.

The element of the code that has gained the most notice in international media is its take on cohabitation. Live-in relationships would have to be registered within a month of commencement, with fines for noncompliance. The police and parents of children under 21 would be notified of the relationship. Moreover, certification for the relationship could be denied by an official. Thus, live-in relationships would resemble legally the idea of common law marriage. Many legal experts believe that this element of the code violates India’s constitutional protection of privacy, so it remains to be seen if it will actually be implemented.

Places of Worship (Special Provisions) Act, 1991, and the Gyanvapi Mosque

After the construction of the Ram Mandir in Ayodhya, agitation is now picking up steam for the restoration of two other ancient Hindu temples at sites now occupied by mosques: the Gyanvapi Mosque in Varanasi and the Krishna Janmasthan Temple in Mathura. Activists are focusing in particular on the Gyanvapi Mosque, originally occupied by the Kashi Vishwanath Temple. Contrary to the situation in Ayodhya where the archeological and historical evidence was open to interpretation on the existence of a pre-Islamic Hindu temple before the Babri Mosque was constructed it is undisputed and clear that the Gyanvapi Mosque in Varanasi stands on the site of the original Kashi Vishwanath Temple, arguably the holiest Hindu shrine in the world in its most sacred city. Even historians sympathetic to the Mughal Emperor Aurangzeb state that he “brought…the temple down” in 1669 CE.

The legal question is whether Hindus can construct a temple in place of the mosque in Varanasi. Under the plain language of the Places of Worship (Special Provisions) Act, 1991, this would not be allowed. The act bars the conversion of religious places of worship to those of any other religion and locks their character as they existed on the day of India’s independence. The act intended to keep the peace and avoid endless disputes over historical places of worship. Nonetheless, it is unpopular among many Hindu activists who mostly want to restore ancient Hindu temples on sites now occupied by mosques.

There are four legal possibilities for Hindus moving forward. First, the government can simply amend or abolish the act. This is unlikely to happen until after the 2024 elections, and is only likely if the BJP wins a strong majority in Parliament again. The second possibility is to use loopholes and alternative interpretations of the act. For example, Section 4(3)(a) of the act states that the provisions of the act shall not apply to “any place of worship referred to… which is an ancient and historical monument or an archaeological site…” However, lawyers have argued that the laws governing the nature of archaeological sites also protect the religious character of those places. The third possibility is through litigation aimed at challenging the constitutionality of the act itself. Litigants have filed suit arguing that the act violates the principles of secularism and judicial review.

The fourth and most likely possibility is through litigating specific instances in the courts and creating a body of judicial interpretation and case law that frames the language of the act in a way that is favorable to the Hindu petitioners. This sort of legal strategy is very common in other countries, like the United States, where armies of activists, judges, and prosecutors mobilize to get the courts to accept their versions of legal interpretation.

Reinterpreting the Places of Worship Act would allow politicians and judges to both assuage Muslim fears by preserving the act and giving Hindus what they want in specific instances. For example, the act locks the character of religious places as they existed in 1947, but the Allahabad High Court recently said that the religious character of a place could only be determined at court proceedings. This makes it possible for the court to determine that the entire Gyanvapi compound may actually have a Hindu character, based on the existence of parts of the prior temple, or icons, such as lingas, of the god Shiva.

Given the sentiments surrounding the Gyanvapi site, and the political and social backing that favor Hindu litigants, it is likely that a favorable interpretation of the law will be found to enable the construction of a Hindu temple on the Gyanvapi site soon.