Listen to this article:
Excerpted with permission from Price of the Modi Years by Aakar Patel, published by Westland.
The Modi years have been marked by regressive legislation across a range of subjects. This has legally moved India away from the secular and pluralist moorings of its constitution. The laws have conflated vengeance with justice and the obsession with Muslims has continued to take legal form in laws attacking freedom of religion and freedom of occupation. India’s deviously named ‘freedom of religion’ laws had thus far targeted Christians, whose fundamental right to freely propagate had been guaranteed by the Constituent Assembly after much debate, but was taken away soon after Independence. The Muslims were brought into the picture after Modi through the so-called ‘love jihad’ laws, which criminalised inter-faith marriage.
The desire for absolute control has watered down one of India’s best legislations, the RTI Act, and has also introduced the Kashmirisation of India through a law authorising the State to take away mobile telephony arbitrarily. The State appropriated for itself more authority and claimed more rights at the expense of those of citizens and to the detriment of individual liberty and access to justice. These are some of the laws that the Modi years have spawned. Of particular note is their desire to go after minorities and in many instances their reversal of the burden of proof. The first set of laws came in BJP states after Modi’s attack on the ‘Pink Revolution’ and they began to criminalise the possession of beef. First Maharashtra (then under BJP rule) and then Haryana in 2015 passed laws criminalising the possession of beef and later other BJP states responded. This began the sequence of beef lynching, a category of violence Indians were unfamiliar with (100 per cent of all known killings known as beef lynchings came after 2015) and is one of Modi’s gifts to India. Two years later, Gujarat increased the punishment for cattle slaughter to life. This is ostensibly an economic crime: the purported reason for banning cattle slaughter is the promotion of animal husbandry. No other economic crime in India attracts life in prison. And we are left to believe the absurd proposition that Muslims are getting lynched not because of religious hatred but because Hindu mobs are passionate about animal husbandry.
These are those laws the Modi years have given us:
1. The Maharashtra Animal Preservation (Amendment) Act, 2015
Under this law anyone found in possession of beef would be jailed for up to five years. It also banned the slaughter of bulls, bullocks and calves in addition to the existing ban on cow slaughter.
2. The Haryana Gauvansh Sanrakshan and Gausamvardhan Act, 2015
Possession of beef punishable by up to five years in jail. Sale of cows for slaughter to another state punishable by seven years in jail. Cow slaughter would attract jail of up to 10 years. The burden of proof would be on the accused.
3. The Gujarat Animal Preservation (Amendment) Bill, 2017
This law extended the punishment for cow slaughter from seven years to life. It allows permanent forfeiture of vehicles transporting animals except under prescribed conditions. It also increased the fine from Rs 1 lakh to Rs 5 lakh. Minister of state for home Pradipsinh Jadeja said the logic was to equal cow slaughter with murder.
4. The Karnataka Prevention of Slaughter and Preservation of Cattle Ordinance, 2020 repealed the 1964 law which allowed the slaughter of bullocks.
It made cow slaughter punishable by up to seven years. Purchase, sale, disposal or transport of cattle outside the state except in prescribed manner would be punishable by five years in jail. Fines of up to Rs 10 lakh are also imposed.
The Maharashtra law has this clause: “9B. Burden of proof on accused. In any trial … the burden of proving that the slaughter, transport, export outside the State, sale, purchase or possession of flesh of cow, bull or bullock was not in contravention of the provisions of this Act shall be on the accused.”
Meaning that you are guilty unless you can prove yourself innocent. If you are found with a bloody knife next to a corpse, you are presumed innocent. It is the State that has to demonstrate that you committed murder. But if you are found with or found near meat and accused of possessing beef you are presumed guilty of possessing beef till you disprove this to the satisfaction of the State. This is an invitation to violence. Two weeks after Maharashtra, on 17 March 2015, Haryana under the BJP passed its law criminalising possession of beef. The law has this section: ‘No person shall directly or indirectly sell, keep, store, transport or offer for sale or cause to be sold beef or beef products.’ Burden of proof was reversed here also. Punishment is up to five years.
What does this mean in real terms? We know because we have examples. In 2019, a Gujarati Muslim was accused of stealing a calf and serving its meat at his daughter’s wedding. He was tried and convicted not for theft but for cow slaughter. The prosecution had no evidence and couldn’t prove that the food served at the wedding was beef. The government’s Forensics Sciences Laboratory in Rajkot could not establish that the meat was beef. However ‘in such a scenario’, sessions court judge Hemantkumar Dave noted, ‘It is incumbent upon the accused to prove that the meat found in the biryani was not obtained by slaughtering the said calf.’ This is reversal of burden of proof. The man was jailed for 10 years. The sentence was suspended by an embarrassed Gujarat High Court with the judge using ‘judicial discretion’ and the man was ordered to be freed. The government said it would appeal. (See ‘Gujarat man gets 10 year jail term for cow slaughter’, 7 July 2019, The Indian Express)
Burden of proof has also been reversed in the BJP’s criminalisation of interfaith marriage. Muslim-Hindu marriages, even of couples who have children, are forcibly undone by the Indian State through laws passed in the Modi years. These laws, which began to be inflicted on Indians after 2018, are:
1. Uttarakhand Freedom of Religion Act, 2018
This is the first of several laws introduced and legislated by BJP states after the conspiracy theory of ‘love jihad’ began to be circulated. It has a clause which reads that ‘any marriage which was done for the sole purpose of conversion by the man of one religion with the woman of another religion either by converting himself before or after marriage or by converting the woman before or after marriage may be declared null and void’. The law says that ‘if any person comes back to his ancestral religion’ then this shall not be deemed conversion, without defining what ‘ancestral religion’ means. Its meaning is that conversions to Hinduism will not be counted as conversion.
The district magistrate will then conduct an inquiry through the police ‘with regard to real intention, purpose and cause of that proposed religion conversion’. If the State feels there was facilitation in the conversion then the burden of proof is also reversed on that individual, meaning the husband and his family, or the priest. An adult woman’s testimony that she converted of free will in insufficient evidence. Those who change their faith without applying to the government ‘in the prescribed proforma’ and without the consent of the government after the police inquiry face a year in jail.
2. Himachal Pradesh Freedom of Religion Act, 2019
This law came after the BJP chief minister Jairam Thakur said that no cases were being filed under previous laws preventing religious conversion. The law requires 30 days’ notice to be given by individuals wishing to change their faith, along with 30 days’ notice also to be given by the priest officiating at the ceremony (if any). After this application has been made, the District Magistrate will hold an inquiry to see if the change of faith can be allowed. If the State determines that these conditions have not been met the conversion is “illegal and void”. Individuals who change their faith without permission face a year in jail. Punishment for propagation (a Fundamental Right under Article 25) is up to seven years in jail.
3. Uttar Pradesh Vidhi Viruddh Dharma Samparivartan Pratishedh Adhyadesh, 2020 (Prohibition of Unlawful Conversion of Religion Ordinance)
Copied from other BJP states, this prohibits conversion except with government permission and 60 days’ notice. Conversions for marriage are illegal. The burden of proof is on the family the woman is marrying into. Punishment is up to five years in jail.
4. Madhya Pradesh Dharma Swatantreya Adhyadesh, 2020 (Freedom of Religion Ordinance)
It replaces the Religious Freedom Act of 1968. It punishes conversion through marriage by 10 years in jail. It also nullifies such marriages. Children born in these nullified marriages could claim the right to their father’s property. Conversions can only happen with government permission and 60 days’ notice. FIRs can be filed by parents and siblings of either person in the marriage. Any other person who is related by blood, marriage, adoption, guardianship or custodianship can file a written complaint with court permission.
The BJP governments in Haryana and Karnataka also said they would bring in similar legislation though there was no evidence there was a problem. In bringing the UP law, governor Anandi Patel said there were neither many complaints nor data to show that these laws were required. This was understood by those who have observed the polity under Modi. It was of course to create a problem that the laws were being written.
Other laws which are targeted at minorities have been tightened since 2014. One such is the Gujarat Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Eviction from Premises in Disturbed Areas Act, 2019 amendment.
It is a law that kept Muslims permanently segregated and ghettoised. Known as Ashant Dharo (Disturbed Areas Act) — it requireS people to reveal their religion on affidavit while selling and purchasing property. In areas that were declared ‘disturbed’ by the State, Hindus could not sell to Muslims and vice versa without government permission. Over the years and especially after Modi became chief minister more and more neighbourhoods in all major Gujarat cities have been included under the Act, even those where there has never been rioting. This has effectively ghettoised Muslims.
The amendment that was cleared in 2019 gave the Collector authority to determine if the sale of a property would lead to the likelihood of “polarisation” or “improper clustering” of people from a particular religion. It also gave the government power to review the decision of the Collector, even if the buyer and seller made no appeal.
Property sales could trigger the creation of a special investigation team of the Collector, Municipal Commissioner, and Police Commissioner as members. The amendment enables the state government to form a committee to advise it on the adding of new areas to the Disturbed Areas Act. The amendment enlarged the scope of property transfer and included leasing. In effect, even foreigners can rent and buy property in those parts of Gujarat’s cities where Indian Muslims cannot. A series of stories in the local media (ignored in the national media) shows that using this law Hindus constantly object to Muslims buying property near their homes and do not want them around.
In 2019, the Union government began punishing Muslims for non-crimes through the Muslim Women (Protection) of Rights on Marriage Act, 2019.
This law criminalises the utterance of the word ’talaq’ three times in one sitting. The divorce emanating from this utterance had already been held illegal by an earlier Supreme Court judgment. Meaning that if a Muslim man said talaq to his wife three times in one sitting, this would not be a divorce and the marriage would remain intact. But the government passed a law criminalising the saying of these three words. This brings us to the absurd reality of India today that if a non-Muslim says the word talaq to his wife three times, they are not divorced and it is not a crime. But if a Muslim says the same three words the couple is also not divorced but it is a crime. The law also takes away the magistrate’s discretion for giving bail in case of arrest, requiring the judge to first listen to the view of the wife before freeing the husband. The punishment for saying the word ’talaq’ for Muslim men was three years in jail, the same as IPC 154 (rioting with a deadly weapon). Muslim men are the only section of India for whom divorce, a private wrong for all other communities, is a crime against the State.
While the Citizenship Amendment Act rightly was criticised around the world for specifically targeting Muslims along with the NRC pincer, other laws India has passed since 2014 have not received as much notice. The judiciary has been supine and allowed a de facto Hindu Rashtra to emerge through legislation. These laws have been written and passed and are being applied across India, targeting Indian Muslims, brutalising them constantly, while a demented media and a bored public have looked away.