Aakar Patel | From secularism to communalism, and back: Varied paths in India & Pak

New laws amending the Indian Penal Code should alert us to where we have come from and where we are headed. Pakistan wanted to be constitutionally communal, but in some ways has begun to secularise. India wanted to be secular but is communalising itself now. Both nations share a penal code given to them by Macaulay a century and a half ago. But they have amended some aspects to enable the State to target minorities. This is happening in India today and is something that Pakistan went through and is now exiting.

At Independence, Pakistan integrated religion into law because it felt it would lend a positive impulse. Pakistan’s first PM Liaquat Ali Khan said material and scientific development had leapt ahead of the development of the human individual. The result was that man was able to produce inventions that could destroy the world and society. This happened only because man chose to ignore his spiritual side, and if he retained more faith in God, this problem wouldn’t have come up.

It was religion, he said, that tempered the dangers of science and as Muslims, Pakistanis would adhere to Islam’s ideals and contribute to the world. The State’s enabling of Muslims to lead their lives in alignment with Islam didn’t concern non-Muslims, so they shouldn’t have a problem with the reference to that, he said.

What happened instead was that laws concerning Pakistan’s Muslims fell away in time. Early Islam existed when there were no jails. Punishment for criminal offences was usually corporal, instead of detention. Pakistan introduced amputation of limbs as a punishment for theft and trained some terrified doctors to carry these out. But Pakistan’s judges, trained in common law like India’s, were reluctant to pass these sentences and so the laws remained frozen and unused. Pakistan introduced stoning as a punishment for adultery, but nobody was stoned to death. A brief period of enthusiasm for lashing those accused of drinking alcohol ended, and, in 2009, the Federal Shariat Court read down the lashing punishment, with the judges saying drinking was a lesser crime. Under President Pervez Musharraf, Pakistan changed the punishment for rape — which was conflated with fornication if the survivor couldn’t produce witnesses to the act — from the Shariah back to the penal code. The law enforcing zakat by debiting 2.5 per cent from the bank accounts of Pakistan’s Sunnis failed as people withdrew their money just before it was due to happen. The Shia, who have a hierarchical clergy to whom they give the money directly, had earlier objected and were exempted. The law enforcing fasting in Ramzan — quite needless because most subcontinental Muslims observe the fast anyway — ran into opposition after Muslim restaurant owners and multiplex owners complained. A Shariat court order demanding a ban on interest in the banking system has been ignored by successive governments.

The last major attempt to Islamise Pakistan was over two decades ago under Nawaz Sharif: The so-called 15th Amendment, which was defeated in the Senate. Pakistan remains insufficiently Islamic and, with no hierarchical clergy like Iran’s, can never become theocratic. Unlike Saudi Arabia, it has never had a morality police as Pakistanis are culturally South Asians with local practices.

As Pakistan moved towards secularism, India has moved substantially in the other direction. Since 2014, laws have been introduced which have gone after India’s minorities. In 2015, the BJP-ruled states began criminalising the possession of beef, triggering a series of beef lynchings. In 2019, India’s Parliament criminalised the utterance of “triple talaq” in one sitting, punishing Muslim men for a non-event (as the Supreme Court had already invalidated triple talaq earlier). After 2018, BJP states criminalised inter-faith marriage by disallowing conversions and invalidating such marriages, including those which had children. Conversions to Hinduism — defined as “ancestral religion” — are exempt and not counted as conversions in BJP-run states of Uttarakhand and Madhya Pradesh. The Citizenship Amendment Act excluded Muslims in 2019. Under the BJP, Karnataka went after Christians through an anti-conversion bill. Nobody has ever been convicted of forced conversion so this law was not required, but the intent is to harass.

In 2019 and 2020, Gujarat tightened a law that keeps Muslims ghettoised by denying them access to purchase and lease of properties from Hindus. In effect, foreigners can buy and rent properties in Gujarat that Gujarati Muslims cannot. We need not get into the treatment of Kashmiris here because the collective punishment imposed on them no longer arouses interest in us.

The one thing India can claim is that it does not prevent Muslims from holding high office. Pakistan constitutionally restricts minorities from becoming President or Prime Minister. India has had Muslim Presidents but unlike Pakistan, India’s Presidents are figureheads with no real authority. If they had the power to dismiss Parliament, such as Pakistan’s Presidents had, it would be interesting to see how many Muslims India would have elevated.

Today, and we must keep repeating this, there is no Muslim chief minister in India, no Muslim minister in 15 states, in 10 states there is only one Muslim minister (usually in minority affairs) and of the majority 303 Lok Sabha MPs of the ruling party, none is a Muslim. There was no Muslim in the previous 282 Lok Sabha majority either.

Whether the exclusion is through law or through practice, the exclusion is real. In effect there is no real difference between India and Pakistan as they move towards each other from two sides. One began at the communal end but has edged towards secularism. The other began at the secular end and has now slipped into communalism.