Introduction

The macro-economics of the Union Budget 2023/24 is simple, but not simple minded. A classical budget, it seeks to pump-prime the economy through autonomous investment and engender dependent consumption demand thereby increasing incomes, both aggregate and disposable.

Be it the underwriting of food consumption of the poor with a Rs 2 lakh crore allocation for free grain for the poorest, or to increasing public capital expenditure for “crowding in” capital formation by the private sector or the increasing disposable incomes of the high consuming segment of middle class through direct tax relief.

Key Takeaways

This budget makes a break from past in two ways; first, from the time-honoured tradition of being populist ahead of elections. Nirmala Sitharaman has been practical, not populist. Second, a move away from current expenditures and transfer payments, a hallmark of the earlier NDA budgets. The focus of this year’s Union Budget is on capital expenditure. The Capex allocation is, unlike in the recent past, likely to “crowd in” capital formation by the private sector because the gross market borrowing program in relation to the nominal growth of the economy is lower. This will ensure that the much-needed private corporate investment is not crowded out from the financing side. Till now, because of the massive pre-emption of financial resources for financing investments, an increase in public investment has resulted in a decrease in private investment, especially private corporate investment.

While the public expenditure policy is decidedly expansionary, the fiscal policy can’t be called that. It is, at best, accommodative in its stance and substance. While the size of the gross fiscal deficit is budgeted at fifty basis points lower than the previous year, the cyclically adjusted fiscal deficit is almost 100 basis points lower at 5.5 per cent. This reduction in the overall fiscal deficit comes along with an increase in capital expenditure. Not only is this the key highlight of the budget but it also underlies the real gains in fiscal management over the years.

Given the overall increase of 7.5 per cent in total expenditure, the substantial increase in the capital expenditure that has been budgeted implies a significant change in the structure of expenditure away from revenue expenditure which is budgeted to grow by 1.3 per cent.  Notwithstanding the sharp reduction of one third in food subsidy and by a quarter of the fertiliser subsidy bill, revenue expenditure is still 11.6 per cent of GDP; more than three times of capital expenditure which is budgeted to rise to 3.3 per cent of GDP. This points towards the emergence of serious macro-economic anomaly of interest payments overtaking capital expenditures. In other words, the amount of money that the Union will spend to defray past borrowings will be more than that earmarked for creating new capacities. Obviously, this anomaly is a consequence of the national debt having gone up nearly four times from Rs 32.3 lakh crore to Rs 115 lakh crore in FY22. The increasing debt burden has resulted in interest payment shooting up from 2.2% of GDP to 3.1%.

But for now, key takeaway from the underlying fiscal policy is that the revenue deficit, which used to account for more than two thirds of the fiscal deficit and pre-empted as well as raised the cost of finance for productive private investment is beginning to show a decline. It is still not quite at the level of being one-third that it was earlier. This change in fiscal consolidation can free up productive resources for the private sector and contribute to lowering the cost of capital, thereby raising the growth rate of the economy in 2023-24.

An interesting and important initiative in the Union Budget has been to try and delink the Capex in the states from their fiscal deficit. Even as the Centre has fixed States’ gross fiscal deficit at 3.5 per cent of the gross state domestic product for 2023-24, it has decided to continue with the 50-year interest-free loan to States for one more year with an enhanced allocation of 1.3 lakh crore. The loan amount will have to be spent in 2023-24. While most of the loan will be at the discretion of the States, a part of it will be contingent on States increasing their actual capital expenditure.

A part of the outlay will also be linked to, or allocated for, scrapping old government vehicles, urban planning reforms and actions, financing reforms in urban local bodies (to make them creditworthy for municipal bonds), housing for police personnel above or as part of police stations, constructing Unity Malls, children and adolescents’ libraries and digital infrastructure, and States’ share of capital expenditure of central schemes. The Union Budget also proposes to incentivise cities to improve their creditworthiness for municipal bonds through property tax governance reforms and ring-fencing user charges on urban infrastructure. Additionally, an Urban Infrastructure Development Fund (UIDF) is proposed to be established. It will be managed by the National Housing Bank and used by public agencies to create urban infrastructure in Tier 2 and Tier 3 cities.

Despite this, the transfer to states is becoming an area of concern. While the gross transfer to the States is budgeted to increase in 2023-24 (BE) because of an increase in allocation for special assistance to States for capital expenditure, the Finance Commission Grants are budgeted to decline in 2023-24, due to a lower amount of the fixed Revenue Deficit Grants. While a lower post-devolution deficit grant, reflecting a reduced need on account of revenue deficit is a good fiscal trend, the overall transfer to states are lower.

The total transfers to the states are projected to decrease in the upcoming fiscal year, with the states’ share of tax revenues reduced to 30.4% from the previous year’s 33.2 per cent. Furthermore, the states’ share of tax revenues is much lower than the promised 42 per cent share by the 14th Finance Commission. These reductions in transfers may negatively affect the states’ ability to fund critical infrastructure and social welfare programs.

At the same time, the transfer to the local bodies shows an increase. While the increased resource flow and the associated financial empowerment of the third tier of governance is desirable, kt is debatable whether this should come at the expense of the state governments. Given that the budget has an accommodative fiscal stance, more so in the structure of expenditure than the level of fiscal deficit, the attention should now shift from Raisina Hill in New Delhi to the Mint Street in Mumbai.  Whether or not the growth targets set out in the budget will be met, will now depend on how the RBI, Indian Inc and banking sector responds to the challenge.

The RBI is already set on a path of hiking interest rates and is far from done yet. With the global uncertainties, especially the impact of the Russia-Ukraine war, RBI will keep a watch on how world energy prices behave and what would be the impact of these on inflation and indeed growth. In such a situation, there is a real risk of the RBI looking to follow a conservative monetary policy. A contractionary monetary policy in the face of an expansionary public expenditure policy will cause the same kind of policy schizophrenia that was the hall mark of the economic policy making in the late 80s which eventually resulted in a macroeconomic imbalance and a balance of payment problem.

The starting point for the RBI must be the gross market borrowing program implicit in the Budget. While the nominal rate of growth is assumed to be 15 per cent, the gross market borrowing program is budgeted to increase at around 8 per cent. Clearly, the pre-emption of resources by the government will be lower. Indeed, the moment the FM announced the borrowing number, it led to a rally in government bond prices with a drop in the yield to 7.28 per cent from the levels of 7.35 per cent that it had reached consequent upon the tightening cycle of the RBI. The prime focus of the credit policy will have to be on ensuring adequate liquidity in the market for the credit cycle to gain momentum and engender growth.

The budget has made significant changes to personal income taxation by reducing tax slabs from seven to five and lowering the top slab tax rate from 42% to 39%. The rebate has been raised from Rs 5 lakh to Rs 7 lakh at the lower end, and the exemption limit has been raised to Rs 3 lakh with an enhancement of standard deduction. These changes could be seen as a pre-election sop to the middle class, but they are likely to incentivise taxpayers to switch to the new tax regime.

The growth strategy underlying the budget, which is one of decisive reliance on the home market, must be seen to insulate the Indian economy from the impending global recession. Yet, the budget is not insular, and in its underlying themes, is global. There are three clear themes in the budget. First, of course is Decarbonisation; be it Rs 35,000 crore for energy transition, or the 5 MMT of hydrogen, or concession for green mobility, this is pretty much a green budget. In the long run, the focus on decarbonisation is perhaps second only to poverty alleviation in terms of ensuring sustainability of growth. For in the short term, fossil fuel-based energy prices are the single biggest risk to this Budget panning out as planned.

Second is Digitalisation, across the board, and not sector or industry specific. Indeed, the budget has been used creatively to push even the artisanal sector and seek to link it to the digital global supply chain network. Third is Decentralisation in infrastructure, agriculture and MSME in terms of creation of new production and transactional platforms. More importantly, along with new concessions and tariffs, these will improve the operational efficiency of transmission and distribution networks, thereby responding adequately to the growing challenges of energy in India.

Challenges

The ten Union Budgets presented by the BJP led NDA government over the last decade have, in a sense, laid the foundation of a structural transformation. But while the scaffolding has been erected, subsequent budgetary policies have not leveraged the initiatives of the preceding budget to erect the complete structure. As an example, major policy initiatives have been made to formalise the Indian economy through initiatives such as the GST, but this has not found adequate resonance in subsequent budgets to the degree required. This is perhaps, still a work in progress.

The current Union Budget also could have focussed more on addressing the “transitional” decline in the unorganised sector, resulting in lower growth than what the official statistics indicate. This can have long term adverse implication of a widening income inequality as the unorganised sector suffered a substantial loss of income in the last three years, primarily due to the pandemic and the war in Ukraine. The short-term transitional troubles could have been addressed in the budget by providing more focussed and structured credit to the unorganised sector en-route to its formalisation. This can prove to be the Achilles heel, not just in terms of meeting the budgetary growth arithmetic but of the larger political economy, at a time when the elections are just around the corner.

Budgetary Naam-Karan: Seeking a Civilisational Connect

There is a distinct shift in the earlier inherited lexicon, which in a sense, perpetuated the colonial legacy. We see now a ‘vernacularisation’ of the Union Budget, through terms such as ‘Amrit Kaal’, the phrase being used for the first time by Prime Minister Modi on Independence Day, 2021. ‘Amrit’ literally translates to “nectar of immortality” in Sanskrit while “Kaal” refers to a specific time period. The Finance Minister has characterised this budget as the “the first budget of Amrit Kaal”—setting the stage for India to be a developed country by 2047.

So, we see terms such as Shree Anna being used by the Finance Minister, while announcing the goal of positioning India as a global hub for millets. Or GOBARdhan being announced as a scheme under which 500 new ‘waste to wealth’ plants would be established. The seven priorities of the Union Government in the Budget—inclusive development, reaching the last mile, infrastructure and investment, unleashing the potential, green growth, youth power, and financial sector, were described as Saptarishi, a reference to the wise sages, who would guide the country through to Amrit Kaal. The youth of India were referred to as Amrit Peedhi; Panchamrit, a Sanskrit word used for the five nectar elements, was used to refer to PM Modi’s push for net-zero carbon emission by 2070 and the budgets focus on green growth.

Other terms which found resonance were MISHTI which means sweetmeats in while referring to a scheme for the ‘Mangrove Initiative for Shoreline Habitats & Tangible Incomes’. Then we had Vishwakarma for the Artisans, the acronym UDAN for a scheme to make air travel affordable, another acronym, SHAKTI for harnessing coal power, SAGAR, reflecting India’s vision for the Indian Ocean Region and USTADD for upgrading skills training. Other acronyms /phrases which found their way into the budget were GIAN for a global academic network and PRASAD—Pilgrimage Rejuvenation and Spiritual, Heritage Augmentation Drive— a scheme to facilitate religious tourism through provision of appropriate infrastructure.

Conclusion

The Budget, as mentioned earlier, is a path-breaking one, which has shunned populism, but has still found great resonance with its focus on a growth strategy. By associating the budget with our civilisational ethos, there is an attempt to connect with the past, so that we can move confidently into the future.

Author Brief Bio: Mr. Haseeb A Drabu is former Finance Minister of J&K.

We are witnessing a moment where humanity has reached a juncture to again question the concept of What is Money and Who can use it. There is a visible clash between three different formats of currencies. The Private Cryptocurrencies backed by blockchain technology, claiming to be a de-centralised version of modernity, current Fiat currencies which began with 1971 unhooking from the Gold Standard, backed by the Central Banks, and a new, multi-polar pegged currency which is in the making process by the BRICS+ nations.

I am forthright ruling out the private cryptocurrencies for the role of legal tender of money usage, as no central bank or polity would allow it. Neither does it makes sense for rational citizens to use it as a store of value or as a stable medium of exchange as there is lack of jurisdiction; what would happen if tomorrow the screen shows zero as its value? A good store of value does not fluctuate so wildly with the words of mouth or news. The Central Bank Digital currencies are being brought in a way to counter private cryptocurrency popularity of modernness.

That leaves my research to confining the analysis between the current fiat currency format, the pegged currency format and the CBDC. It is important to lay some background as to why did we arrive at this stage where a currency needs a reset. Let us begin.

Barter System

Humanity began a peaceful, sustainable living with a simplistic barter system. A barter is a simple exchange of goods and services between two or more person or entities.

Benefits of the Barter System (most of which do not exist today)

1. Only if your product is ready for end-user consumption, you could conduct the barter for another finished product or service in exchange. There was no sense or visibility of unemployment virtually because entire value-addition was done by the individual, family or the community jointly. Entire society was equally empowered. Since the value-chain involved the entire family and community circle, there was never a concentration of huge chunks of wealth in a few hands. In the contemporary world, the final product or service is built after running through several de-centralised processes amongst unknown entities and individuals, totally disconnected from family or community.
2. There was no massive storage of production to the extent of creating the ability of artificial price manipulation. Most commodities or goods were perishable in nature. There was no over or under production. The society auto-adjusted the output based on their requirements for the barter. In this sense, the region or village was inherently self-sufficient and content. Optimum utilisation of resources meant that the nature’s gift of resources was used with the wisdom of minimalism. In the contemporary world, there are widespread manipulations by all actors by weaponisation of over-production and by hoarding. The natural resources stand ruthlessly exploited. The height of extreme capitalism has resulted into speculative trade (derivatives) in the commodities determining the price of the underlying asset (commodity) instead of the physical asset determining the prices of the derivative. The output or production is altered to fix a maximum profitability scenario, irrespective of nature’s capacity or human needs.
3. There was complete price stability & almost zero inflation. The barter trade wasn’t re-negotiated for over years. The understanding of what many hours of hard work should measure the exchange between the buyer and seller was inherently understood and largely remained non-disputed. There was no requirement of the idea of socialist welfare in an inflation-free society. In the contemporary world, the exploitation of extreme capitalism for profits causes income inequality between the rich and poor. As the by-product of the exploits of 18^th century Adam Smith Capitalist-industrialisation, we had Karl Marx communism born, making a fit case for a huge Government format launching communist freebies politics.
4. The national and international trade was smooth. It did not require maintenance of foreign reserves or facing deficits like in the current world. Strong society meant strong governments and hence zero outside interference in the policies of the state. Individual and national sovereignty, both were equally maintained. In the contemporary world, globalisation has entered like a Trojan horse removing the physical security of the borders. It’s an open invitation to enemies for all kinds of internal sabotage without requiring a war at the border.
5. There was a very negligible credit-based sales and hence almost zero chance of bad debts. This massively contributed to the social harmony further. In the contemporary world, the West is enabled to pass on their socialist freebies bills with the reserve currency format on the rest of the World. While the East is totally unaware of that fact that these government offerings in the West are actually from their pockets and hence, they admire the western lifestyle out of ignorance. The East does not have a reserve currency endless printing privilege for their Governments to take care of their aged parents or issue entitlement benefits, social benefits, income security, food stamps, low interest loans and so on.

What was the World promised to jump out of the Barter system? We are going to make your life easy & super convenient, and how!

• Bringing a unit of account as your goods are not divisible into units for conducting transaction any point of time.
• Bringing a stable store of value as your goods are perishable in nature.
• Bringing a common measure of value as a tool for trading and universally accepted medium of exchange you can easily carry with you.
• Bringing a standard for deferred payment in case you don’t have your goods ready to exchange with something you want to consume right away. It will serve as a basis of credit. You can’t grow rich without debts.
• Bringing a fairer payment for your produce as you are not getting good exchange deals beyond a geographical or practical limit.

So, the question now was – how to shift to coins and paper currencies? How to make people trust these?

Gold and Silver as precious metals is the real purchasing power accepted worldwide. So, minting the coins made a lot of sense. Faces of Gods, Kings & Queens as an addition made people trust it for usage as currency.

De-monetisation by Monarch: The Kings or the State de-monetised by calling back all the gold and silver coins, and issued cheaper metal coins in return to accumulate wealth. Then, again, they could re-introduce and de-monetise when needed. Today, benefits of physical gold as currency has been lost.

Civilisational wisdom of Gold as the real Purchasing Power

1. Physical Gold is the best store of value for passing wealth over generations and life-cycles as emergency/insurance fund, seed fund for enterprising, for Streedhan and ornamental usage. It is Sanatan wisdom which is why all Indian Bhagwans are laden with gold.
2. Physical gold is the best absorber of inflationary pressures and de-centralised from day-to-day state policy fluctuations.
3. Physical gold has zero political risk, zero geo-political risk, zero default risk, zero counter-party risk, zero liquidity risk and zero convertibility risk.

Conclusion: A Currency Reset only happens by accumulation of gold or silver (De-monetisation from whoever has it physically with them)

Now, if we want a seamless and fair credit system, a middleman will be required, which would save the people from exploitative, unorganised lenders. That gave birth to the formal banking sector. Welcome to the World of printed notes as currency across the state.

Interest started being offered on deposits to divert family’s enterprising savings and corpus to corporates via banks. This broke the entire entrepreneurship, perpetually rich economy worldwide. The entire chunk of family savings went to companies via banks and the entire society got converted to jobbers. The formation of joint stock company with the support of the state rights to specific trade and business became the norm. Now, these companies wanted to pay lesser to their employees, knowing well that their family savings are all diverted and that they cannot do enterprise. These companies also wanted cheaper loans from the banks. The powerful private banking groups did not listen to the State. Politicians wanted to declare socialist freebies for vote bank as well. This gave birth to the Central Banking system for regulating the banking services nationwide.

There are only two ways to recover the cost of socialist freebies and massive government expenditure: taxes or printing more currency notes to fund that expense. The printing of more notes drives the purchasing power down automatically. This way, without more taxes, the cost of freebies can be recovered without masses knowing about it. More supply by printing of currency notes also means that corporates can continue paying the same amount of salary (with lesser purchasing power which the employees won’t understand is a reduction in pay). The Corporates also enjoyed lower interest rate loans from the banks compared to the loans offered in the unorganised banking.

Now you reach the printed paper currency world driven by the Capitalists where printed notes are several times more than the actual physical gold backing it. An era of debt-based lifestyle began.

What was the World promised to jump out of the Precious and Cheap metal coins? We are going to make your life easy & super convenient, and how!

• Bringing a printed note backed by the central bank as a legal tender of money.
• Bringing an easy to carry currency compared to coins in terms of weight.
• Bringing a common measure of value throughout the nation which won’t require a third party to convert the precious metal or coins into a different local measure of value.
• Bringing a note which is printed, based on a fixed Gold Standard (pegged currency) and easily convertible to gold as and when you want. If at all you lose faith in the government or our financial systems, walk in with your notes and take back the gold in exchange. We guarantee these notes are safe and backed by the State for a promise to pay the denomination worth mentioned. Please understand that physical gold is very limited in stock and in order to grow the economy, we need to print notes in some proportion to Gold, not equal to the actual physical gold that we hold.

Britain as the global power, imposed the British Pound as the Reserve currency worldwide.

DEMONETISATION BY CAPITALISM – US started collecting physical gold in exchange of war supplies from the EU allies during the World War. In the Bretton Woods agreement, with the strength of physical gold accumulated, it imposed the US dollar as the new reserve currency replacing the pound. In this formula, the US dollar maintained the Gold Standard, while the rest of the World’s currencies were pegged to the US dollar for referencing, valuations and invoicing of all bilateral and multilateral trade. The International busybodies like the UN, World Bank, IMF, WTO and so on, sold the idea of Unipolar dollar (police) World of trade by packaging it as “Globalization”.

To counter the anti-religion communist USSR during the Cold War, the words “In God we Trust” were added to the printed dollar. The deep state companies started forming strength in the US by the legacy funding for the few aristocrat families and support from the UK. President JF Kennedy was the first casualty within the US. The military industrial complex was gradually able to take over the polity as the retired army generals took plum postings in deep state companies. These post-retirement temptations lure the currently serving generals to follow the diktats of the deep state companies. While the deep state companies covered several sectors, the top military appointments taking plum postings post retirement in them was the turning point which made it very lethal. For example, you can make out Donald Rumsfeld talking Iraq attack even before being appointed in the government. By the stretching of the Vietnam war, the economy of the US started weakening. Upon losing faith many nations started demanding physical gold in exchange of the US dollar. President Nixon banned the Gold convertibility and the Gold standard on 15^th August, 1971. This move made all the currencies of the world fiat, meaning backed by nothing. The concept of Fiat currency was born.

The 1973 Oil for security program with Saudi Arabia and OPEC gave birth to the petrodollar. Both petrodollar recycling air and reserve currency bubble started accumulating in the Dot com by late 1990s. In order to cover up the wall street manipulations from the masses, REG D and the Gramm Leach Bliley Act was introduced to mix commercial and investment banking, so that public deposits are mixed with the reserve currency bubble. EU launched Euro currency in the first ever fiat de-dollarisation attempt (without accumulating or pegging the EURO with physical Gold). Furious with this move, US brought China in WTO and started passing on all the manufacturing from the West. EU retaliated by refusing to park excess in US treasury and pin-pricked the reserve currency balloon accumulated. This collapsed the IT sector valuations by 78% in what came to be known as the Dot Com crash in 2002. The Euro currency eventually managed to win 20% of reserve currency status in the world.

The Services sector was born out of 1971 fiat currency format & the IT sector was born out of the reserve currency status bubble. Both caused artificial suppression of valuations of farming, precious metals and manufacturing sectors worldwide. For example, paper gold floating around today is several times higher than the real physical Gold in the market. Specific few financial entities are playing the manipulation game in the West to curb the value of gold and silver worldwide for 5 decades now, to ensure central banks don’t get attracted to accumulate it, just to avoid them from de-dollarization temptations. This is how the West artificially suppresses value of all what Asia and Gulf produces. This artificial suppression of valuations of enterprising MSMEs, SMEs, farming and manufacturing sectors causes inequality of revenues in all countries making a use case for issuing massive socialist freebies by the state.

(Note: What do you expect if Fiat currency formula is killed and de-dollarization is done?

1. Services sector and specifically the IT sector to take a big hit worldwide.
2. Farming, manufacturing & precious metals to zoom in valuations.
3. Too much paper will chase too less physical and cause massive chaos in the West.)

Nothing surprising; Karl Marx’s communist theory was born out of 18^th century industrial capitalism exploitations. The destruction of farming, precious metals and manufacturing sectors worldwide presented a tempting use case of exploiting the reserve currency status with endlessly printing huge socialist freebies. Politicians were also happy as they got their vote bank served, Capitalists were happy that these socialist freebies broke families, which meant more selling, cheap labor and lesser competition from family-based entrepreneurship.

Where does this cost of socialist freebies go? It takes the form of increased taxes or inflation by printing more notes, as too many notes chase too less goods. The reserve currency status of dollar and EURO passed on the chunk of these costs to the rest of the world as all other nations have to compulsorily do bilateral and multi-lateral trade in consistently sliding purchasing power of both the currencies.

(Note: Humanity was made to jump from the barter system because you were told goods are perishable and not a good store of value. Turns out, you could buy a good suit for 20$ in 1970 and today you hardly buy a good pair of socks with 20$. Whoever heard of this kind of a store of value. You were told it will be a fairer payment for your work. Turns out, salaries increase in absolute numbers, the purchasing power goes down every day. You were told you may not want to buy what the seller produces for a barter to happen. Turns out, you land up paying premium and even taking loans for buying basic things you want.)

For the EU & the US, the debt-based lifestyle accumulated huge mountain of debts. After the 2008 crisis, the US started pushing private cryptocurrencies like Bitcoin aiming to give a back door entry to the dollar in nations if they de-dollarise. The printing of dollars to solve the 2008 crisis at home caused massive inflation worldwide and the food inflation brought down the middle-east governments in the form of Arab spring. This was the time the Middle-East realised the heavy cost of continuing with the reserve currency status of the dollar.

Asia started serious de-dollarization moves with India taking the lead by launching a gold monetisation scheme to channelise domestic gold to coffers by 2015. Russia and China were totally unaware of how fast India was moving. We started cancelling out multilateral trade pacts which are by default dollar based, so that in future we can flip individual Free Trade Agreements when we want to move to any other currency. The RUPAY and UPI will certainly have a first mover advantage in the new world order based on a de-dollarised economy. The US printed trillions of dollars during Covid era and that bounced back as inflation to Americans instead of the world this time. This occurred partly because most nations including allies have stopped parking their excess funds in the US treasuries. The extreme capitalism of the West is now at a juncture of a global currency reset to solve the mountain of debts they have accumulated. US alone sits on a 31 trillion plus debt and has reached the stage where all erstwhile global powers lost their status—the point when debt servicing (interest expense) crosses defence spending. Extreme capitalism is now looking at extreme communism as a solution. The only way out now is to give in to full-scale communism to conduct a regulated collapse with a completely controlled currency regime.

Welcome to the World of Fully-Controlled Central Bank Digital Currency (CBDCs)!

What is being promised to jump out of the Paper currency? We are going to make your life easy & super convenient, and how!

• Bringing an electronic token-based currency to reduce the cost of transactions.
• Bringing an electronic token-based currency to speed up your transactions worldwide.
• Bringing an electronic token-based currency that will increase liquidity in a click. This will let us shut down needless costs of ATM services, Banks’ front desk operations clogging, credit-debit cards, private crypto manipulations and other payment methods.
• Bringing an electronic token-based currency which aligns the end user directly with the Central bank and reduces maintenance.

My Concerns about what this Communist money can actually turn out to be –

• Least Safe payment system of all: No country is dynamic and sophisticated enough to handle external cyber sabotages like say data theft or transaction theft.
• Least Inclusive of all: Very doubtful in terms of who could be sanctioned, who could be bailed out and what if the criminal history of someone causes problems to the account, transactions, money or reputation of an innocent user who transacted with him?
• Most prone to manipulations and governmental interventions: What is the future of the masses with a fully controlled currency usage that is tracked 24×7? Can some draconian actions be taken by some future government weaponising this format? Do note that Trudeau administration recently froze some bank accounts of protestors.
• How does it address transactions in areas with lack of electricity and internet?
• While zero interest rates are clarified already on these tokens. What if some government in the future does negative interest rates? Say for example, the salary deposited of Rs. 20,000 in the account is tweaked to Rs. 19,000 applying negative interest rates. At least in the paper currency, people weren’t losing the principal amount denominated on the note.
• Least Transparent of all: What if the currency is used to discriminate citizens or community?

Conclusion: The Path Forward for India

Sanatan Economics

An evolved Barter system with full Privacy and Control with the retail end users. This will make Corporate modest and cut the size of the State. It empowers the family and the individual.

• Retail Users: Paper currency pegged with commodities like gold and others. Individual citizens need to be made aware of the dangers of completely shifting to a digital currency and legislation should explicitly prohibit cancellation of paper currency at any time in the future.
• Wholesale and Inter-country Users: (sections of trade which need scrutiny and does not involve individuals or families or specific communities). Digital currency pegged with commodities like gold and silver.

Extreme Capitalism

It attacks family, community corpus and enterprises, while perpetrating toxic individualism and hyper consumerism. The control of the policy lies with the state, but users still have decent privacy in dealings with the physical possession of the currency notes.

Extreme Communism

It thrives on a bigger State concept to enforce forced equality of outcomes as an excuse for freebies. It attacks the wealth creators, family and the individual. The control lies with the state and the user has no privacy of his dealings.

Demonetisation by Communism

If the physical currency notes are completely removed, this currency format itself will become a tool to establish a communist government. Entry, exit, movement, access, supply and payment can be scrutinised and tampered for each individual. This can become the case of losing all individual sovereignty, human rights of the citizens and even national sovereignty in the worst-case scenario. Historically, extreme Capitalism has always managed to create scenarios for extreme Communism to thrive. The danger is real!

Author Brief Bio: Dr. Ankit Shah is a Fellow Chartered Accountant & a Qualified Company Secretary, and a keen observer of foreign policy & security for the Indian subcontinent. His predictions include many major geo-political events like Doklam, 370-35 A removal, LAC standoff, Balakot, Ukraine & Taiwan conflicts, the De-dollarization process, and so on. He introduces US hegemony as a Two Buckets Theory in his book – GEOPOLITICS – DECODING INTENTS, LIES, NARRATIVES AND FUTURE. He laid out a Chakravartin Bharat 2047 & its Sphere of Influence as a concluding chapter in another recently launched marvel. As a Geo-Economics observer, he is currently working on a Sanatan Economics Model to plug the gaps of Adam Smith’s Capitalism and Karl Marx’s Communism theories. He has served in IIM-Ahmedabad as an Academic & Research Associate.

Gaurie Dwivedi:

The Economic Survey survey projects a very positive outlook for the Indian economy, especially when viewed in the context of the headwinds which the global economy is facing. In one of your interviews you had stated that the economic survey is actually an annual economic story, so I begin by asking you: In your assessment, what is the India economic story for the next 12 months, 24 months or even beyond?

Anantha Nageswaran:

The next 12 months story is one of continued economic growth. The momentum  set in 2021-22, will continue this financial year. Soon after the Union Budget 2022-23 was presented last year, within a few weeks the conflict in Ukraine broke out and then over the next 4 to 5 months we witnessed commodity prices and oil prices shooting through the roof. But we navigated the impact of the war through government’s proactive supply measures, central bank hiking interest rates and by ensuring adequate supply of food and fuel inside the country. The estimate today is that we will grow at about 7% in real terms for the current financial year. That’s a very creditable achievement. The only country within G-20 that is going to grow faster than India is Saudi Arabia, which is largely the result of the oil boom. Over the next year, even though the international agencies project a slightly lower growth for India, it will still probably be the fastest growing economy.

India’s growth story, I think is about a steady recovery. We have got through the impact of the pandemic and the economy is steadily marching on. We did have a difficult second decade because the financial system, the banking system, overextended itself in the first decade of the millennium. We therefore had to do an adjustment and what I call digestion of the excess credit which the government and the corporate sector had created. The corporate sector had to reduce their balance sheet, sell assets, pay off debt, etc. All that is now behind us. Therefore, I expect the financial cycle and the capital investment cycle to be in our favour. What were headwinds in the last decade is going to turn into tailwinds in this decade. The second reason for my hope and optimism about the Indian economy is the digital transformation of the economy. This took place not just because of the pandemic, but because fortuitously, the building blocks had been put in place well before the pandemic struck. This is also going to propel growth in the country, drawing segments of the population which we had not hitherto included in the formal economy. So, it is the formalisation, financial inclusion facilitated by digitisation and the resumption of the credit and capital investment cycle, that is what will drive India’s growth not only in the next 12 months but 24 months and beyond as well.

Gaurie Dwivedi:

On growth projections, you have spoken off variations of course that typically happen between the finance ministry projections, the economic survey and projections by international agencies. You have also stated that these numbers give us a false sense of precision. But how far off could we be from these numbers and are there any reasons to worry for us to be off this track?

Anantha Nageswaran:

How far could we be from the numbers that we are projecting for 2023-24? That itself is a question which is difficult to forecast. So, forecasting how far off your forecast will be from reality is also as challenging as making the initial forecast. So, I would not venture into that, but I do give some clues as to where I see the balance of risks lies. When I picked the number of 6.5 % as real GDP growth for 2023-24, deliberately, I gave the range as 6 to 6.8. I  could have given the range as 6 to 7 on my baseline of 6.5, but I picked the range of 6 to 6.8, to indicate that the downside risk is higher than the number being exceeded. So, while 6.5 is my base case scenario, it could go all the way down to 6 on the lower side, but on the upper side it could only go up to 6.8. So, I’m adding only 0.3% to the upper end, but adding 0.5% on the lower end of the range, which kind of tells you that I still see challenges and those challenges stem primarily from the global environment. We have no idea of what will happen to the conflict in Ukraine and how that may impact on the price and supply of crude oil. Just last week we saw Russia deciding to cut the oil supply by 500,000 barrels per day! Also, we do not know the speed with which or the smoothness with which Chinese economy will reopen and what kind of demand it will create for commodities. Should the US and European economies avoid a complete economic recession, then it will also add to the demand for fuel, etcetera. Then we need to see how that will impact oil supply and oil prices. So much of the risk that India faces stems from external factors, and those uncertainties are still quite big. So, there are large number of unknown unknowns and that is why I feel while the baseline number is 6.5, I do see downside risk dominating the upside.

Gaurie Dwivedi:

Global factors do impact on the level of risks to the economy. Now, if China opens up faster, it grows faster. There will be, accordingly, major spike in commodity prices and so on and so forth. On the other hand, we are looking at probably the global economy reaching its lowest level in terms of growth rates,  especially when we view the European market. This will have a direct bearing on our exports and our economy. How do you see that panning out?

Anantha Nageswaran:

It’s a fair question. Obviously, whatever happens in the global economy, whether it is performing better than expected 3-4 months ago or performing worse than expected 3-4 months ago, both will have their own implications for India and those implications will be a mix of good and bad. Ultimately, we have to come to a judgment on balance, whether the good effects dominate the negative effects or vice versa. So, with that framework in mind, I can say that a global economic slowdown will, on balance, be more beneficial to India than a global economy that does better than what we expected a few months ago. And the reasons are yes, you are absolutely right, export growth will be impacted. But remember, India’s services sector growth in the developed world is mostly recession proof. Recently, a major IT company executive told me, based on empirical record over the last couple of decades that when the global advanced economies slow down, the demand for IT services from India comes from their need to tighten back-end operations and control costs. When their economies are doing well the need for India’s IT enabled services come from their front end wanting to expand their markets and so on. So, whichever way their economies are going, one or the other side of the company’s operations seem to be having the need to use Indian IT enabled services. That’s a good thing. So, services are reasonably recession proof. And we can verify that with the data as well. Exports of course will be hurt, but set against this, what are the benefits? Global oil demand will come down, imports will be lower, oil price will come down, the central banks in the developed world will stop raising interest rates and may even drop them. So the pressure on the US dollar to appreciate will be less intense, which will provide relief to many emerging economies and currencies, including India. Therefore, investors from developed countries whose economies are slowing will be looking for investment opportunities in countries like India which have a current account deficit. India’s need for  external financing thus becomes easier to obtain. So, you have these multiple benefits and against that there is a little bit of impact on goods exports. So, I would consider the positives outweighing the negatives of a global slowdown. That is why I will be somewhat relieved to see a world economy doing somewhat less better or somewhat worse than expected.

However, I must say that since the beginning of the year, the feeling is that the European economies have dodged the recession because the winter has been much warmer than expected and gas prices haven’t gone up to that extent. Also, the US economy, even with the most recent employment data, seems to be pretty strong. So, at the moment I would say the indications are that the global economy would be performing better than what we thought, let’s say in October 2022 when the IMF brought out its World Economic Outlook, but in January the World Economic Update that they provided was a tad better in terms of sentiments and China’s reopening and the speed with which the reopening happened was also completely unanticipated. So, we have to wait and see.

Gaurie Dwivedi:

So, China is like the X Factor in the equation right now, you know because how far it will grow, how fast it will grow, and also how much will there be, will impact globalisation sentiment. There may or may not be, alternate supply chains, and all of which,  of course, will have a direct bearing on the India story and the manufacturing side of it. How do you foresee India’s presence in these supply chains that are getting realigned? India’s manufacturing has been stuck at about 15 to 16 percent for decades. As the chief economic adviser how do you see these global scenarios pushing that upwards?

Anantha Nageswaran:

I think this global scenario does provide us an opportunity. I would say India’s industrialisation story is not a story of missed opportunities, but it is a story that is still waiting to unfold because I think we never really had the kind of infrastructure that facilitates this manufacturing growth. Now we have that. There is a certain critical mass, whether it is roads, railways, ports, telecom network, digitisation, I think we do have the building blocks that can facilitate a rapid growth in manufacturing. And also, the geopolitical environment is making many companies, even though they may not spell it out very clearly for various reasons, look for opportunities that India provides, both in scale and capacity. Foreign companies are definitely also going to countries like Vietnam, Bangladesh, Mexico etc. but all those countries, being relatively smaller compared to India, will have at some point, limitations in capacity creation, etc. India provides not just a large domestic market for these companies, but also the ability to set up manufacturing at scale. What India is therefore aiming to do is to create local manufacturing capacity at scale to be able to cater to domestic and overseas markets. And that, I think, is a story that can happen and will happen. The entire Production Linked Incentive (PLI) is geared towards making that happen and it is too premature to talk about its success or failure because many of those sectors under the PLI were opened up only in 2021. Therefore, you receive applications in 2022, take time to evaluate, and then you grant them the license approvals and then they go about setting up the capacity and then they start producing and then they start exporting. So, this is not something that’s going to happen at the speed with which one can write out a tweet. So, I think the PLI scheme, the national logistics policy and the PM Gatishakti program are all elements of India’s manufacturing becoming a force to reckon with in the economy, and I think it’s an important policy goal. I am confident that global conditions are also getting aligned with India’s goal for its own manufacturing.

Gaurie Dwivedi:

And how soon do you see this panning out? Today, some of the building blocks are in place, so infrastructure costs are now going down for companies and power supply too is more stable. What kind of an outlook do you foresee over the next 3 to 5 years.

Anantha Nageswaran:

I think in the next 3 to 5 years we will see the results of all these policy initiatives. Unfortunately, even as these policy initiatives were being rolled out, we faced shocks caused by the pandemic, followed by the commodity price shock and then the synchronised monetary policy tightening. So naturally, what happens is investors tend to become cautious. They want to re-evaluate in the light of higher cost of capital for them and then in the light of higher commodity prices. They have to factor in the risk element. Say, for example, a ship is blocked in the Suez Canal for two weeks! So, there are many risk elements that have to be factored in. So many of these exogenous factors are external developments of the last 12 to 24 or even longer months, which naturally makes investors cautious and a little bit slower in responding. That is why we sometimes feel a little bit frustrated and concerned that the results are not showing, but once these one off shocks slowly go out of the system, we will begin to see the results of the various policy initiatives meant to push India’s manufacturing share higher.

Gaurie Dwivedi:

As a policymaker, do you now think that the policy framework is nimble footed, and responding as fast as it can? It’s not cast in stone; it wants to attract investments and is responding to markets.

Anantha Nageswaran:

I think I would say yes to all of those questions, because the intent is very clear whether it is in public pronouncements or actual policy decisions. We have taken decisions to supplement and complement the PLI with the logistics policy ‘Gatishakti’, which enables government projects to be timely implemented without cost overruns and then a tax policy that allows lower tax rate for new manufacturing established within the country, which has now been extended to cooperatives as well. We had the reduction in the corporate tax rate in September 2019, that allowed the corporates to rebuild their financial health.  These are all part of the policy package and they’re acting in sync. So, there is quite a bit of clarity and sure footedness in terms of doing our best to achieve these aspirational goals and the creation of public infrastructure by the government when the private sector was still repairing its balance sheet and sort of getting back to good health. All of these things are quite clearly focused on the idea and aspiration of bringing India’s manufacturing onto the global stage and plugging India into the global supply chain networks.

Gaurie Dwivedi:

When we talk about aspiration, we talk about a 10 trillion-dollar economy. We understand that this  cannot be achieved overnight, but those are aspirations that most of India has. Do you share them and do you see us realising the same? Is there a path that you see for that?

Anantha Nageswaran:

At a personal level, I do not subscribe to this idea of these number-based GDP targets. They are placeholders, but media and several commentators are very focused on these numbers and they try to pin the government to the same. But we know that to achieve a particular level of GDP, it is not just the government policies or efforts or project implementation. It is a whole lot of factors well beyond our control, happening outside our borders that also matter. So, in fact, it is not just a philosophical statement in line with what the Lord said in Bhagavad Gita- “What is in your control is your efforts.” So, whatever we must do with the government sector, with the private sector, with households, we will do. But whether they result in a particular GDP outcome this year or next year, depends also on other factors which are beyond our control. But we must keep doing what we have to do. So that is my personal philosophy. But having said that, I think right now in March 2023, we are going to have a GDP level of about USD 3.5 trillion. And just to give you a sense of where we came from – In 1993, our GDP was only around 300 billion dollars and we’re talking about 3 .5 trillion dollars now—a tenfold increase in 30 years, in dollar terms. This indicates a growth rate of about 9.1- 9.2% per annum in dollar terms, despite the depreciation of the rupee from Rs 30 or 32 to the dollar in 1993 to about Rs 83 to the dollar as at present. So, we have achieved a 9 % annual growth rate in dollar terms. I, in fact, said in my post economic survey press conference interviews or even before that from a 3.5 trillion dollar economy in March 2023, to get to 7 trillion by 2030 March, a 7-year period, is possible because the rule of 72 tells you we need to grow at 10% per annum in dollar terms to get to that number. We have achieved 9% growth in the last 30 years on average and over the next seven years, we could actually see the dollar depreciating against the rupee, because interest rates in the developed world may not go up so much and their inflation rates are not going to be as low as before. So, in real terms their interest rates could be quite low or even negative. And that doesn’t make the case for a stronger dollar. So, in fact, if the Indian rupee rather than depreciating, if it were to appreciate, it will happen even faster. So, to talk about 7 trillion dollars by the end of the decade isn’t particularly outlandish.

Gaurie Dwivedi

Yes. That’s very positive and very good to hear. We have today, the largest population of young people. They need jobs, they need skills and we have to see that the demographic dividend materialises. This can only happen when we have growth engines. As we sort of wrap this conversation, Dr. Nageswaran, what are your concluding thoughts in terms of some of the important initiatives that the government is taking, whether it is in terms of free trade agreements that it is looking to ink, or coming up with newer ideas to look at fresh growth avenues? What do you see as areas as potential and growth inflection points?

Anantha Nageswaran:

The growth inflection, as I mentioned earlier to your first question I think is going to come from the resumption of the credit and capital investment cycle and the other inflection point for us has been the advancement in digital technology and digitisation of the Indian economy. But the free trade agreements that we are signing are going to help us with our energy security and energy transition and opening up markets for exporters, even though initially some of these free trade agreements may actually result in a widening of the trade deficit because we are going to lower our duties more than they do because we start from a high level of duties. And if you are a country with a trade deficit with the other country with whom you are signing an agreement, the country with the trade deficit will be the one that will give in more and therefore you will initially see imports coming in. But that should not discourage us because eventually you are creating a market, opening a market for India’s exporters. So, one of the important things I want to leave for you and your readers is, that we often think in terms of what the government should be doing when it comes to economic growth. But there is plenty that the private sector and households also have to do. I mean skilling and educating our youth is not just the government’s responsibility, it is also their own responsibility. And similarly, the private sector always looks for ease of living, lower taxes, infrastructure, etc. But they also have to invest in R&D and realise the importance of social stability for their own business stability and viability, and therefore they have to strike the right balance between labour and technology on their part, etc. And they have to pay micro and small and medium enterprises on time for the goods that they purchase. So, I think all three segments—the public sector, the private-corporate business sector and the households have to do their part to realise the economic dreams of every Indian.

Gaurie Dwivedi:

Absolutely. And that’s how we get to that Atmanirbhar and Amrit Kaal phase that everybody’s been the government has been talking about and is pushing. But thank you so much for this conversation, Dr. Nageswaran. It was important to highlight some of those aspects where the Indian economy is growing and we look forward to the next phase, as you said, 7 trillion and more, sooner than probably at the end of the decade.

India and China had been having cultural exchanges since several centuries in a relatively peaceful manner simply because Tibet stood in between these two civilisations as a buffer zone.  Tibet played the role of a catalyst in bringing about a synergy between the two ancient Asian societies. Despite its geographic proximity with China, Tibet had evolved its distinct identity even before its coming in contact with Buddhism. The Tibetan empire built under King Songtsen Gampo (604-650) brought about geostrategic transformations in terms of its equation with China.  The king sent a scholar named Thonmi Sambhota to India in the 7^th century CE in order to create a distinct script for the Tibetan language. The written language of Tibetan was constructed on the basis of Gupta script and the Sharda letterings (which is based on Brahmi script), that originated in India. With the advent of Buddhism in Tibet, its physical and spiritual contacts with India increased across the Himalayas. Historically speaking, since time immemorial, Tibet has been the immediate neighbour of India, maintaining an independent entity for centuries. In ancient times, China never ruled over Tibet.  In fact, in 763 CE, the Tibetan army under King Tri Songdetsen captured Chang’an (present-day Xi’an), the then capital of the Tang dynasty. Under the influence of Buddhism, Tibet transformed into a peaceful country, eventually becoming the purest repository of the Tantric Buddhist traditions. India maintained its contiguous borders with Tibet. China never shared its borders with India till Tibet stood obliterated from the world-map following the Chinese occupation of Tibet. Yet, India maintains its Indo-Tibetan Border Police (ITBP) force along the northern borders.

In the light of the recent developments in the sphere of India-China relations, one might ponder why the bilateral ties have suddenly reached the nadir.  However, as a Sinologist and a pragmatist, I have never been surprised to witness such a deterioration since there has never been an ideal neighbourliness between India and China ever since the Chinese Communist Party (CPC) came to usurp the seat of power in mainland China. Negating history and wilfully seeking to extend its so-called imperial legacy is what the CPC pursued all around its neighbourhood. Its outright dictatorial domestic conduct, no doubt, has been extended to the domain of international relations as well, right from 1949. On the contrary, any move to extend imperial legacy has never been initiated by India unlike China despite India’s deep cultural influence—both tangible and intangible heritage—having extended up to Central Asia including the present-day Xinjiang in China, and significantly throughout South-East Asia. The antithesis in myriads of facets, philosophies, worldview etc. between the two countries of India and China have created an impasse in terms of good neighbourliness.

India under Nehru was overzealous in setting up an “Asian solidarity” with the People’s Republic of China (PRC). Thus, India happened to be the first non-socialist country to establish diplomatic relations with the PRC on 01 April 1950.  By the end of that year, China invaded Tibet. Nehru meekly accepted China’s domination over Tibet.  The grand strategy of the CPC followed the age-old Han-Chinese stratagem of annexing the neighbouring regions of non-Chinese ethnicities. China has expanded its territories through centuries with mainly two objectives: One, to capture more resource-rich lands for their profit-oriented ventures towards generating wealth for China, and two, to build a buffer zone around the predominantly Han-Chinese habitats with non-Chinese territories in order to safeguard the Chinese population against any foreign aggression.

The CPC quite conveniently used its army, the so-called People’s Liberation Army (PLA) to dislodge the Tibetans from their own land and lay claim over all the regions that were considered having Tibetan cultural influence even along the Indo-Tibetan border. As the PLA had done in East Turkestan (renamed as Xinjiang), similarly, they moved this time to capture the world’s highest plateau—the Tibetan plateau— the source of all major rivers and water resources in Asia.  Thus, the PLA swiftly turned into a Perfidious Land-grab Army.

India, on the contrary, in its futile effort, repeatedly made mistakes by relying on China over myriads of agreements. The Indian consulates in Lhasa and Kashgar were closed down in early 1950s under hostile circumstances created by China. Yet, Nehru struck conciliatory posture and signed non-aggression pacts, including the Panchsheel, which China never followed in words or deeds. Indeed, it was India’s failure to secure for Tibet an honourable settlement in terms of sovereignty. Once the Indo-Tibetan border evaporated to become an illegal frontier between India and China, all the peaceful atmosphere across the Himalayas too vanished amidst an unending onslaught from China. Whether physical or cartographic aggression, China brandished brute force in order to extract maximum concessions from a submissive Indian side.

The CPC’s disdain for other countries was amply revealed in the daily propaganda of its mouthpiece, ‘People’s Daily’, since the very first day of its capturing power in China. The media focus was fully geared to portray China as the most ideal nation on earth while deliberately conducting a smearing campaign against all other countries.  It would be relevant to highlight in this context how historically China considered other ethnicities other than the Han-Chinese as barbarians. The non-Han Chinese ethnicities dwelling in the east of China were called Yi (夷).  They were often referred to as Eastern Barbarians, the non-Chinese tribe living around 2200 BCE.  The northern ethnic groups or the Northern Barbarians were called Di [pron. Tee] (狄).  The Southern Barbarians or savage tribes who lived along the southern fringes of China were called Man [pron. Maan] (蛮).  Ethnic groups in the northwestern regions of China, who were mainly from the Turkic culture, or from the Central Asian regions, were called Hu (胡). These were known as nomadic barbarians. Among the barbarians, an ethnic group of northeastern frontier of China, or those inhabiting the southeastern part of southern Mongolia were called Eastern Barbarians, or Donghu [pron. Tung-hu] (东胡).  The non-Chinese ‘man-eating barbarians’, called by the Chinese as aboriginal savage tribes, were named as Shengfan (生番).  One can fathom the degree of self-superiority complex of the Han-Chinese with their ostensible display of civilisational greatness. That complex is being carried on by the Chinese xenophobes and Sino-centric elements to this day even in their academic discourses. The ethnic minorities were time and again sought to be Sinicized and their culture and traditions were eventually assimilated by the Han-Chinese majority. The demographic composition of the non-Chinese regions have been deliberately altered by settling Han-Chinese and thus virtually obliterating the ethnic minorities in their own homeland, all in the name of ushering economic development but actually committing cultural genocide.

Winding the relations fast forward, we arrive at the doorstep of 1980s where we witness the economic reform drive in China under Deng Xiaoping. China embarked on becoming the factory of the world with its labor-intensive growth trajectory in order to capture the centre-stage of the global economy. It was quite evident as my personal observation during my higher studies in China would suggest, that China, through its cheap labor or, in many cases, unpaid labor enforced on prisoners in jail-cum-production units, captured the world market in an unprecedented manner. Then came the era of dumping China-manufactured products in various countries, especially in the Third World. Clearly, such mass dumping by the Chinese practically sought to destroy indigenous products and industry in many parts of the world. The deceitful practices of the Chinese were manifested through their proclaimed adherence to socialism but, on contrary, in their actual pursuance of hardcore capitalism, both internally and externally.  Material aggrandisement was adopted to subvert regimes in other countries, and thereafter install dictators with allegiance to Beijing. Such modus operandi was implemented with a certain degree of subtlety at least till 2012.

Mao Zedong, the founder of the People’s Republic, was excessively obsessive with an ultra-communist ideological brand, combining Marx, Lenin and Stalin. After his death in 1976, his successor Deng Xiaoping brought an end to the Maoist ideological obsession and advocated a theory, namely “Socialism with Chinese Characteristics” under which the CPC remained a Communist Party solely in name. Deng had literally discarded the Marxist theory in public life, and had rapidly expanded the role of the market in the Chinese domestic economy and embraced a foreign policy that maximised China’s participation in a global economic order led by the USA. The CPC, in fact, reinvented itself in the mould of capitalism in order to stay relevant for the sake of remaining in power, and also for abiding with time to extract all the benefits from the liberal world but strike back at an opportune moment. However, practically, CPC could never abandon its genetically feudal mindset embedded in its “civilisational baggage of sanctimonious hypocrisy”. Despite being an ideological opponent, the US-led western world, in its penchant for building an anti-Soviet bloc in the East, kept nurturing and pampering the CPC in its vain hope of turning China into a free society like the West.

Then came the era of Xi Jinping as the president of the PRC. The era of pragmatism, non-ideological governance came to a crashing halt as Xi echoed his diktats that the country might be steering back to its Maoist ideological moorings.  Today, Xi controls the party as its General Secretary, the state as its President, and the armed forces as the Chairman of the Central Military Commission. The military strategic culture of China started showing its ugly face under Xi Jinping’s wild ambition of establishing himself as the new Hegemonic Emperor of the world through his pet projects of “One Belt, One Road”, “Belt and Road Initiative”, or even the illegal “China-Pakistan Economic Corridor”. China continued resorting to its hidden agenda of enticement and creating debt-traps in the greater part of the world. Sinister designs were invented to internally weaken the countries that did not fall into its trap. China’s ever-increasing hunger in terms of exploiting natural resources in every part of the world has enhanced the danger of catastrophes not only on Earth but also in the outer space.

Xi Jinping uses his covert scheme of “Chinese victimhood” and claims avenging Western injustice and prejudices down the line in history. His using the ‘victim card’ arose from his own experiences as a son of a Communist apparatchik, especially during the ‘Cultural Revolution’. In fact, within the CPC, after having ascended the highest echelons of power, Xi is actually playing the victimhood card by developing a negative view of life — both internally and externally. Xi used his “anti-corruption” drive against top leaders, both within the government hierarchy and also outside the public sector, in order to capture the imagination of the common Chinese. He abolished the presidential term limits and incorporated a powerful new agency called the National Supervisory Commission into the Chinese constitution, and used this tool to persecute all those whom he perceived as his political adversaries. He appointed himself as the life-time emperor of China, virtually setting the clock of history upside down. One would recall how Yuan Shikai had become the self-proclaimed emperor of China, though briefly, after the foundation of the Republic in 1912. Sun Yat-sen might have repented having trusted Yuan.

Probably Hu Jintao too might have regretted about why he had chosen Xi Jinping as his successor. At the closing ceremony of the 20^th Party Congress of the CPC held in October 2022, Hu Jintao was unceremoniously dragged out of the hall. Xi was apprehensive that Hu might abstain from voting for Xi’s continuation in power before the media. Premier Li Keqiang, being the protégé of Hu Jintao, was ousted from the Politburo. The announcement about the new Politburo came just after Hu was taken out of the hall. Xi took no probable risk of facing an agitated Hu who could have expressed annoyance at Li’s exclusion. Instead of promoting greater balance and openness within the party, Xi completely undermined the past conventions. He instilled distrust within the party, the state and even within the officers of the armed forces. The whole country is under surveillance through highly sophisticated systems of monitoring each and every person’s movements and whereabouts by intruding into one’s private life.

Following more or less in the footsteps of Mao Zedong, Xi enshrined “Xi Jinping Thoughts” in the Constitution, in the school curriculum, and even in other walks of life with impunity by virtue of his unbridled power. Deng Xiaoping worked to a great extent in order to tune China up with the pace of the world in the post-Mao era. But Xi scrapped those positive factors and brought China once again, and probably more virulently, in a mode of direct confrontation with the rest of the world. One might be interested to know about Xi’s zodiac sign. He was born in 1953, the year of the Snake. It is believed that men of Snake Year combine lofty ideals and inherent strength of action, enabling them to reach the pinnacle of their careers. Their shortcomings lie in their character. They are stubborn, not listening to people’s persuasion, suspicious in character, keeping words in heart and not confiding to others, and are complete hedonists.

By the end of 2019, Xi Jinping unleashed a clandestine biological war across the globe. Of course, the initial connivance came from the USA but later it turned out to be a game changer against the western world. All the theories going around the Wuhan virus laboratory leakage, or the accidental spilling of virus in a wet-market in Wuhan, would eventually be proven deliberate fabrications. The actual blueprint of the global pandemic was drawn several years ago after Xi’s coming to power.  The preliminary ploy was to liquidate the old-age population within China and thereby save financial resources that could have otherwise been expended in pension. Thus, Wuhan became the ‘Experimentation Lab’.  Later, the lethal viruses of the bio-war was deliberately planted far beyond the borders of China, thus bringing death in almost every part of the world.  The secret document referred by me in my earlier article indicates that the export of virus was primarily aimed at annihilating the Whites in the West. Around the same time, when the pandemic raged across the globe, Xi unleashed an entire bunch of Wolf Warriors all over the world to deal with other countries. Wolf Warrior Diplomacy is a style of coercive diplomacy adopted by Chinese diplomats under the Xi Jinping administration. It is an assertive diplomatic tactic that goes as far as insulting or threatening those deemed to violate “China’s interests”. Xi made use of this tactic in asserting China’s unjustified claims over the entire South China Sea or the Indo-Pacific region.  Creating and militarising artificial islands, and capturing of shoals, or even naming the illegally occupied isles in the ocean, have been a part of Xi’s coercive methods of fabricating a Chinese narrative of supremacy and an “ancestral inheritance” of the high seas.

Amidst the Covid pandemic, Xi Jinping preferred to destroy the India-China relations completely with his aggressively expansionist manoeuvres along the border. Starting right from the communist takeover of China, through various developments of events across seven decades, it is quite apparent that Communist China has never been a friend of India at any point of time in history. China’s increasing adherence to the abhorred policy of “Might is Right” has brought disrepute to China and its self-proclaimed ‘civilisational superiority’. China’s stubborn imposition of its decisions on other countries in the name of preserving its national interests has been witnessed in its usurping the liberal policies in other countries but never conceding anything in return to others within its own jurisdiction. Ludicrously, this is what China terms as “win-win” policy.  Nibbling at the borders of India, and initiating the salami-slicing tactics even at the height of pandemic displays the viciously malicious intents of Xi’s China.

The Galwan Valley incident with bloodshed on 15 June 2020 was preplanned by the perfidious land-grab Army of China. It was a blood sacrifice offered by the PLA on the birthday of Xi Jinping. The official rhetoric from China kept blaring against India ever since the PLA had unilaterally changed the status quo of exercising control over the areas of domination along the India-China frontier.  As a China-watcher, I had already foreseen the violent clashes a week prior to the incident. Greater crudity by ordinary citizens of China was manifested after the unfortunate assassination of the former Japanese premier Shinzo Abe in July 2022, when they celebrated his death. The Chinese, in multifarious ways, also ridiculed India when, during the first few waves of the pandemic, several funeral pyres were seen burning on the ghats of Varanasi. But Indians never derided China for the recent cataclysm brought about due to the sudden relaxation of lockdown in China.  This is the civilisational difference between India and China.

Xi Jinping’s weakness was reflected through his excessive lockdown policy imposed upon the ordinary citizens across the country in the name of reaching a Zero-Covid level for entire China. He wanted to root out any challenge to his absolute power and authority. China’s hardline Covid-19 strategy stoked public frustration, with growing pain around snap lockdowns, lengthy quarantines and mass testing campaigns. Exercising Zero-Covid excesses restricted the public movement outside their home, and thus neutralised any possibility of a popular uprising.  Xi made the system completely opaque, and thus inaccessible to both his countrymen and the world beyond. The excessive measures adopted against the commoners in China gave rise to public resentment against China’s authoritarianism, and steered the protests ultimately against Xi.  Right in the heart of the capital city of Beijing, big banners were displayed with slogans — (1) Say no to Covid test, yes to food.  (2) No to lockdown, yes to freedom.  (3) No to lies, yes to dignity.  (4) No to Cultural Revolution, yes to reform.  (5) No to great leader, yes to vote.  (6)  Don’t be a slave, be a citizen.  (7) Remove dictator and national traitor Xi Jinping. Lastly, it was inscribed—“Our generation loves freedom.

Similar situation arose in Shanghai and Beijing in 1986 during my student days in China. That was the precursor of the students’ protest which culminated with the Tiananmen Square Massacre on 4 June 1989. In those days, the common citizens and even a portion of the press were in support of the students’ movement. Their demand for democracy and greater freedom was dubbed as a foreign interference. Then, Deng Xiaoping was the paramount leader. Tanks were brought onto the streets of Beijing. The exact figure of casualty still remains a state secret.  Quite analogous to the rolling of battle tanks against its own citizens, this time around July 2022, during the height of pandemic, large-scale protests erupted in many parts of China. Amid a massive bank scam, bank depositors protested against the official decision that impeded them from withdrawing their own money. They demanded the release of frozen funds. Displaying its utter insensitivity, the government rolled out battle tanks to scare the people.  Millions of people were summarily terminated from their posts during the pandemic, thus giving rise to unemployment in China.

Communist China has been brutal in handling dissidence across the globe. Very recently, countries woke up to the unpleasant fact that China has been blatantly violating international law by secretly sending their police to at least twenty-five cities in twenty-one countries—setting up more than fifty illegal police stations across five continents to monitor, threaten and terrorise Chinese nationals living overseas. China’s illegal deployment of police with covert global network has been operating on foreign soil, primarily in Europe. The clandestine operation by the Chinese police involves physical and mental torture of dissidents outside China, and even forcing them to return to China to face criminal proceedings through a well-coordinated surreptitious network of locating, pressurising, blackmailing, and silencing by making reference of bringing harm to their relatives back in China.  This is China’s underground overseas police force conducting “long-arm policing and transnational repression.” The Chinese government seeks to control its diaspora through illegal methods such as intimidation, harassment, detention or imprisonment of suspects and their families back in China. Their children are even deprived of education as part of a “guilt by association” campaign. The handling of the Uighurs, Kazaks, and other ethnic minorities in East Turkestan (Xinjiang) has been equally ruthless. Massive violations of human rights, including clandestine business in human organs, have been reported. Yet the western world as well as the Islamic world remain mute spectators just because the Chinese state overtly fills their coffers. Hypocrisy of the recipient countries is glaring.

The diabolic features of Xi Jinping’s regime have been manifested in multifarious forms. China’s unrelenting ambition of becoming a global superpower by dislodging the USA and turning the world into a unipolar one has pushed humanity to the brink of an impending Yellow Peril that also underlines rampant exploitation of natural resources globally for the sake of China’s embellishment. Xi Jinping’s malignant and malevolent approach towards relationship with the world, based on sheer muscle and money power is being loathed by most people the world over except some corrupt power-hungry politicians and dictators. Taiwan, which has never been a territory under the CPC, is being threatened with forcible occupation by the communist warmongers of the mainland China.

An unprecedented scale of weaponisation of various countries is taking place, following China’s hegemonic expansionism and the consequential response from countries far and near. The USA that nourished and armed the Chinese dictators since the 1970s, is suddenly finding itself vulnerable in the face of China’s ever-increasing military might and giant leaps in technological innovations. Unprecedented changes in the global climate pattern has resulted from excessive exploitation of natural resources and wanton denudation of forests, thereby bringing ecological destruction and an overall imbalance in the weather-changing patterns. All such occurrences underscore selfish policies, protectionism and rampant corruption. Fast depletion of energy and subterranean water resources, and exhaustion of financial resources, coupled with rapid draining of human patience are dangerous indicators for a catastrophic future of our global village. Untimely occurrence of torrential rain-causing flash floods, melting of glacier at an alarming rate, resulting in the rise in sea level, endanger the entire biosphere. Due to global interdependence, no nation can thrive for long at the cost of the rest of the world.

A series of antithesis characterises a rather unpleasant coexistence of India and China as neighbours. Across the Himalayan heights, lie the diametrically opposite worldviews or antithetical philosophies of India and China. The Indic philosophy believes in inclusivity, and thus professes the values embedded in Vasudhaiva Kutumbakam (the World is one Family). On the contrary, the Chinese philosophy is all about exclusivity, and thus advocates the concept of Middle Kingdom (中国) that is “ordained to receive tributes” from the world far and wide, and is “mandated by Heaven” to establish Chinese supremacy in the global arena.  Hence the coinage of the Chinese phrase “天下第一” which means “Number One in the World” — thereby reflecting the Chinese aspiration for a worldwide domination. Unlike the Indic worldview of a peaceful coexistence of cultures, the Sinocentric view of the world aggressively seeks to project China’s civilizational superiority and Sino-supremacist outlook that is potentially destructive. To my analysis, the Indic faith is sāttvik (सात्त्विक), whereas the Chinese faith is tāmasik (तामसिक).  Correspondingly, India epitomizes Yang (阳), and China symbolizes Yin (阴). With such realities, howsoever unpleasant and with everlasting contradictions, we must learn to live like incompatible neighbours.

Author Brief Bio: Prof. Priyadarśī Mukherji is Professor in Chinese & Sinological Studies, JNU, New Delhi.

At the southernmost corner of the Japanese archipelago in the East China Sea, a cluster of uninhabited small islands is currently a frontline of what might turn into a new hotbed of potential conflict. This group of islands, named “Senkaku” in Japanese and called “Diaoyu” by China consists of five islets and three rock formations with a total cover area of 7 square kilometres located at about equal distance of 170 km from Taiwan and the closest Japanese island in Okinawa Prefecture, and 330 km. from the mainland China. The Islands are currently under Japanese administration, though their sovereignty is contested by both China and Taiwan. This tiny string of islands lies close to significant oil and gas deposits, strategic shipping lanes and rich fishing grounds.

On the issue of sovereignty, Japan holds that the Senkaku Islands are under its valid control and in light of historical facts and based on international law are clearly an integral part of its territory. From 1885, the Government of Japan initiated the surveys of the Senkaku Islands and on 14 January 1895 installed a sovereignty marker and formally incorporated the islands into Japanese territory. In 1932, the Japanese Government revised the status of four islands from state-owned to privately-owned land and sold them to a Japanese family. After World War II and under the 1951 San Francisco Treaty, Japan renounced all its claims to Korea, Formosa (Taiwan), the Pescadores, and the Spratly Islands in the South China Sea. In 1953 the United States was granted formal administrative rights on Okinawa in accordance with Article 3 of the San Francisco Treaty. An important feature of that arrangement was that the United States recognised Japanese “residual sovereignty” over the islands, meaning that at a future date all sovereign powers obtained by the United States were to be returned to Japan. The Senkaku Islands are not explicitly mentioned in the treaty, though there was a tacit understanding that Japan will administer them as a part of Okinawa Prefecture. The Senkaku islands under U.S. trusteeship were returned to Japan in 1971 in compliance with the Okinawa reversion deal. In 1968 Japan began enforcing its Air Defense Identification Zone (ADIZ) on the area covering the Senkuku islands. An ADIZ is a defined area extending beyond national territory in which unidentified aircrafts are liable to be interrogated and, if necessary, intercepted for identification before they cross into sovereign airspace.

In contrast to China’s claims to the South China Sea (the so called ‘nine-dash line’) that was formalised back in 1947, the first official statement of the Chinese Ministry of Foreign Affairs disputing the title over the Senkuku/Diaoyu islands in the East China Sea was issued on 30 December 1971. China claims that the islands have been part of its territory since ancient times, serving as important fishing grounds administered by the province of Taiwan. According to Beijing, ancient Chinese records dating back to the Ming Dynasty era (1368-1644) mention the islands, while more recent documentation indicates that the islands were incorporated into the Ming and Qing dynasties (1644-1911) maritime defence. Beijing further argues that Taiwan was ceded to Japan vide the Treaty of Shimonoseki in 1895 after the Sino-Japanese war and with Taiwan’s return as of implementation of the Treaty of San Francisco, all islands associated with it should have been returned too.

The other claimant, Taiwan (officially Republic of China or R.O.C.) maintains that the islands it refers to as “Diaoyutai” form an inherent territory of Taiwan based on the islands’ geographical location, geological structure, historical evidence, usage, and international law. However, Taiwan’s position is complicated by the fact that the R.O.C. retreated to Taiwan in 1949 and the People’s Republic of China (P.R.C.) was established in the mainland in the same year and has maintained a strict “one China” policy asserting that Taiwan is a part of China, and by the fact that neither the R.O.C. nor the P.R.C. were parties to the 1951 San Francisco Peace Treaty. Although Taiwan and China have made similar claims owing to their shared history, Taiwan has chosen to make its own claims and to pursue a different diplomatic initiative in the face of geopolitical realities as well as the overall interactions with Japan in view of the fact that Tokyo does not officially recognise Taiwan as a sovereign state.

Japan and China normalised their relations in 1972 and concluded their “Peace and Friendship Treaty” in 1978. In the course of the related negotiations, Japan raised the issue of the Senkaku Islands but in the end both parties decided to unofficially shelve the issue so as to avoid negative effect on the otherwise successful outcome of their talks. The Chinese side apparently was keen to avoid raising issues that might have hindered or otherwise put at risk the outcome of bilateral negotiations. China’s policy under Deng Xiaoping (1978-1992), was said to be aimed at deferring the dispute and to seek joint exploitation of the area’s natural resources with Japan.

China and Japan also disagree on application of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which both nations have ratified. Article 57 of the convention defines the limitation of exclusive economic zones (EEZs), which are permissible up to 200 nautical miles from the baseline, or to the median line if claims from opposing coasts overlap. Meanwhile, UNCLOS’s Article 76 defines the extended continental shelf, permissible to the shorter of the end of the continental shelf or 350 nautical miles from the baseline. Japan, based on UNCLOS proposes the Median line division of the EEZ. China instead insists on the application of UNCLOS, considering the natural prolongation of its continental shelf and its extension as far as the “Okinawa Trough” and beyond 200 nautical miles from the baselines from which the breadth of the territorial sea of China is measured. Thus, the conflicting claims overlap in approximately 81,000 square miles of water.

The dispute between China and Japan reignited into open in September 2012 when the Japanese government announced it was finalising the purchase of three of the contested islands from the private Japanese owner. The move sparked widespread protests in China and counter protests in Japan. The Chinese foreign ministry issued a statement criticising the Japanese Government’s decision to nationalise the islands, on the grounds that this has “altered the status quo” and affected China’s “inalienable rights” over the islands. Since then, Beijing has taken legal and operational measures to strengthen its own hand, and Chinese maritime surveillance vessels, trawlers and investigation boats have regularly sailed in and out of what Japan considers to be its territorial waters around the islands while the Japanese coast guard is used to escorting Chinese ships inside the island’s territorial waters. China’s increased naval presence around the Senkaku Islands appears to be a further attempt to demonstrate that Beijing has a degree of ‘administrative control’ over the islets challenging Japan’s de facto administration. Beijing is taking similar steps to bolster additional sovereignty claims in the South China Sea, as it clearly desires to rise as a greater maritime power.

On 23 November 2013, China announced the creation of a new ADIZ in the East China Sea waters facing its coastline overlapping the already enforced Japanese ADIZ. Japan demanded the revocation of the Chinese ADIZ, while the United States declared that it would ignore the zone and refused to comply with any Chinese regulations involving it. Most third countries criticised the Chinese move and expressed their concern about any potential restrictive reading of customary international laws. Noteworthy was that Washington has also refrained from taking a clear position on Chinese legal claims to the Islands, but has stressed on a number of occasions over the years that since the Senkaku Islands are under the administration of Japan, they are ipso facto covered by the 1960 US-Japan Treaty of Mutual Cooperation and Security. The European Union has so far preferred to take a cautious approach and has not expressed its explicit views on the sovereignty of the contested islands. On 25 September 2012 the then E.U. High Representative Catherine Ashton called on all parties to calm the situation in East Asia’s maritime areas, using the UN Convention on the Law of the Sea (UNCLOS) and other international rules to resolve disputes.

The island issue highlights the more assertive conduct China has undertaken to eventuate its territorial claims in both the East China Sea and the South China Sea. The issue raises serious questions about sustainable regional security as the Chinese military is fast modernising amid the Obama administration’s 2012 “Pivot to East Asia” regional strategy and the increasingly unresilient American posture vis-à-vis Beijing further cemented by President Joe Biden’s first phone call to Prime Minister Suga of Japan reiterating Washington’s stance of “unwavering commitment to the defence of Japan” that covers the Senkaku islands too.

While the dispute has turned into the most significant geopolitical boiling point and locus of security competition between China and Japan, forcing both sides to lodge regular diplomatic protests, the two countries have so far preferred to handle the situation with utmost care and to avoid measures that could turn the dispute into a hot conflict. Tokyo, with better standing in legal and logical arguments, does not seem to be eager to stir up differences with its biggest trading partner while China, in the face of the many other territorial disputes at its immediate and extended neighbourhood, and also the current tough diplomatic and trade battle with the U.S., does not wish to pick an extra challenge with another power, at least, for the time being. The stalled Ukraine war and Russia’s unexpected poor performance in military, diplomatic, economic and public opinion fronts that has compromised Moscow’s superpower status, alongside the evident unified resolve of the west to counter major adversaries might have left their impact on the mindset of Chinese leaders with the result of a more cautious Chinese pursuit of risky territorial claims in a transforming global environment.

Author Brief Bio: Hossein Ebrahim Khani is Senior Fellow at the Institute of Political and International Studies (IPIS), Tehran, Iran.

India’s rise to a USD 10 trillion economy within the next 10 to 15 years has been often spoken off with a great deal of optimism by economists in India and abroad. Now, a recent report by a London-based consultancy, Centre for Economics and Business Research (CEBR), has also reiterated the same. In its report published in December 2022, CEBR states that at a time when the world is moving into recession, India’s growth rate over the next decade will average 6.5 percent, propelling India into the USD 10 trillion bracket by 2035 and to third position in global rankings. But there was a cautionary note too. Political factors, the report stated, could hold India back.^[1]

It is however, not just political factors which we need to be concerned about. There are social and economic factors too, which could spoil the India growth story. India’s rise as an economic power is not something which India’s adversaries are taking kindly to. On the contrary, they are doing all in their power to stymie India’s growth story. Some western countries too, with whom India shares good relations, are also averse to the idea of an economically strong India which is also moving towards self-sufficiency in advanced technology. They see in a growing India, a potential threat to their economic interests. These countries too, would like to see an India which is perpetually dependent on them—an India which perforce plays second fiddle to Western interests.

That of course, is not how the story will play out. Leaving aside a black swan event, India’s growth story can, at the worst be delayed, not denied. But both India’s adversaries as also some who are India’s friends, have been exploiting internal fault lines within India, to muddy the waters of India’s rise. Opposition to India’s rise has come in the political, social and economic domain and while India has faced up to these challenges stoically over the last few years, the coming years will, in all likelihood, see a renewed effort on the part of both internal and external agencies to create trouble and fissures within Indian society.

There was consternation in many capitals across the world when the NDA government was sworn in, in 2014, as they felt that the leverage they enjoyed with earlier governments would not be available. On that score they were right. That led to a series of events, orchestrated from within the country, but with huge funds supplied from abroad, to showcase India as an intolerant country. That is why we saw protests erupt in the country, on various issues, but timed for effect, to peak in January, when the eyes of the world would be on India’s Republic Day celebrations. These protests ranged in the social sphere from allegations of human rights abuses to intolerance towards religious minorities. In the economic domain, we witnessed protests against Sterlite Copper, the Kundankulam nuclear power plant, the Narmada Dam and many others. In the political domain, there were protests against the farm laws and the Uniform Civil Code, which were used to disrupt normal life.

It is likely that some of the protesting groups had genuine concerns about certain government policies. In a vibrant democracy such as exists in India, expressing an alternate point of view is a part of the democratic process. But the methods used to express discontent were uncalled for. It became apparent that the protests were designed to create anarchy and fissures in society through disruption and violence. Many areas were blockaded for months on end in an attempt to shut down parts of the country, but it redounds to the wisdom and maturity of the Indian masses that they did not fall prey to such disruptive tactics and the nation emerged stronger and more united, with a focus on growth. Indeed, since 2014, we have had major reforms in the Indian polity, foremost among them being the Goods and Services Tax (GST) and the revocation of the special status given to Jammu and Kashmir through Article 370.

GST unified the country economically, by making provisions for a single tax on the supply of goods and services, right from the manufacturer to the consumer. With its implementation, a variety of earlier indirect taxes, including the value-added tax, service tax, purchase tax, excise duty, and others were done away with, making it easier for business entities. The apprehensions expressed by some who opposed the GST have been blown away by the successful implementation of this transformative economic reform. Throughout the current financial year, GST collections have been in excess of Rs 1.4 lakh crore, despite the fact that the Indian economy as well as the world economy was badly impacted by the Covid pandemic in 2020 and 2021. The revocation of the Special Status given to the state of Jammu and Kashmir under Article 370 and the bifurcation of the state into two union territories, Ladakh and Jammu and Kashmir, was perhaps the most important legislation passed since independence. The move was bitterly opposed by certain political groups, but the events on the ground since then have thrown up for the first time, the possibility of peace in the Union Territory of Jammu and Kashmir after over three decades of violence and bloodshed. These and many other reforms such as the abolition of instant triple talaq were vigorously opposed by certain interest groups, but were the need of the hour.

But many more important legislations are required, to truly reflect a vibrant, secular and democratic India. As we enter 2023, we need to anticipate the opposition that the reforms process will generate in certain quarters and through positive narrative building, prevent disruptive elements within society to hold the country to ransom. Reforms are required on many sensitive issues such as the Waqf Act, which was first passed by Parliament in 1954 and which was subsequently repealed, only to be replaced by a new Waqf Act in 1995 which gave it extraordinary powers, not in consonance with the Indian Constitution. Other issues pertain to the control of many Hindu temples by the government, which is against the very concept of a secular state. Protecting the rights of Muslim women needs reform on issues such as polygamy, wearing of hijab, the practise of nikah halala as also of equal rights in inheritance. This will have to be undertaken through the legislative process as it will not be forthcoming from within Muslim society and will find resonance when the issue of adopting a Uniform Civil Code comes up.

With the general elections due in the first half of 2024, there will be attempts made to oppose political, social and economic reforms in the year ahead. How these issues are handled will define the nature of Indian polity over the coming decade and will determine how soon India achieves its ambition of becoming a USD 10 trillion economy.

Author Brief Bio: Major General Dhruv C Katoch is Director, India Foundation and Editor, India Foundation Journal.

References:

^[1] https://economictimes.indiatimes.com/news/economy/policy/india-to-become-10-trillion-economy-by-2035-cebr/articleshow/96526283.cms

Introduction

Article 44 presents the idea of a Uniform Civil Code applicable within India. However, a lack of effort to produce an all-encompassing code is witnessed on part of the State. The vast diversity of the country’s demographic renders this topic precarious and extremely sensitive.

The main reason such a mammoth exercise has not yet been undertaken is perhaps due to the absence of conducive strategies which can be utilized to accomplish this statutory instrument. With this paper, the authors recommend three strategies for the implementation of the Uniform Civil Code, a necessary mechanism and one standardised in most developed countries around the world.

Supreme Court’s stand on Uniform Civil Code

The Supreme Court has repeatedly highlighted the importance of a Uniform Civil Code.  Beginning from 1985, the then Chief Justice Y.V. Chandrachud in the Shah Bano Begum^[1] case spoke of how a common civil code will promote national integration by “removing disparate loyalties to laws which have conflicting ideologies”. In the 1995 case of Sarla Mudgal vs Union of India^[2], Justice Kuldip Singh held that securing a uniform civil code throughout India is an “unequivocal mandate” under Article 44 of the Constitution.

Advancing to 2017, Justice Kehar and the present Chief Justice of India, Justice Chandrachud rejected a PIL filed by a Catholic advocate who wanted divorce granted by Church Courts to be deemed legally valid. The Court held that despite Christian marriages being solemnised as per the ‘canon law’ or Christian Personal Law, when it came to divorce-related matters, only that which is granted by courts under the Indian Constitution and the Indian Divorce Act of 1869, is legally valid. Such personal laws have no place in the country if they interfere with the basic tenets of the Indian Constitution. Therefore, the application of an array of different personal laws for communities has been condemned by the Supreme Court.

The need for a Uniform Civil Code is realised repeatedly as the Courts spend judicial time adjudicating, essentially what is the same issue with a different face. Whether it be the right of women in joint family property or the triple talaq – all could have been dealt with fastidiously with one uniform statutory mechanism.

The Controversy Surrounding the Uniform Civil Code

The idea of the application of one common statutory mechanism for personal law throughout the country has various controversies attached to it. This is because governance under the ambit of personal laws is closely linked with the fundamental right to freedom of religion. The Constituent Assembly debates exemplify this tension. One group pressed for the ‘fundamental right to personal law’. An opposing group led by Dr B.R. Ambedkar was staunchly against it. They wanted UCC to be enshrined as a fundamental right. A consensus could not be established and for this reason, the Constituent Committee set the duty of formulating a UCC on the State. A similar incoherence exists today – more than 70 years later.

India, within it, contains much diversity, and people. Transforming laws, bearing in mind the diverse religious communities is a delicate topic to brush upon.  The criticisms of the UCC are that it is detrimental to the pluralist ethos of the nation. That it is not possible to reconcile divergent laws and formulate a uniform statutory code that will be accepted by all communities. Precedence exists of various minorities having the right to govern their personal matters, as an extension of freedom to practise their religion guaranteed by Article 25 of the Indian Constitution.

An extension of the above argument is the failure of the UCC to consider the plight of Scheduled Tribes. Scheduled Tribes roughly comprise 8.6% of the total Indian Population. Tribes based in areas such as the Northeast, Jharkhand, Lakshadweep, etc follow their own customary laws.^[3] These customary laws are unique so with the advent of a prospective UCC – the sentiments of communities will be further marginalised.

However, it can be asserted confidently that personal laws are not based on gender equality. Personal laws perpetuate gender discrimination and sex inequality. Yet, every time this perspective is highlighted – extreme disdain is reciprocated along with the accusation of religious discrimination or even discrimination against minorities. Practices like female genital mutilation, polygamy, and exclusion from inheritance– all squarely showcase the deep-rooted gender bias prevalent in all personal laws. Giving protection as envisaged in Narasu^[4] to these laws, unequivocally limits constitutional guarantees.

Three Strategies towards a Uniform Civil Code

1. Codification

Codification is the process of compiling, arranging, and systematising the laws of a given jurisdiction, or of a discrete branch of the law, into an ordered code^[5]. It regulates without contradiction, exclusively and completely the whole of the law or at least a comprehensive part of it. It is meant to be lasting, comprehensive, and concluding, thereby leaving no scope in adjudication for shaping the law^[6].

A dynamic strategy to implement the UCC – is simply to codify a strictly uniform statutory mechanism like any other codified law – like the Indian Penal Code. The intent behind this is to demarcate the boundaries upon which the UCC can govern and lay jurisprudence on.

A comparative study of the personal laws of different religions will show that the sheer diversity of these laws, zealously adhered to, will not allow any uniformity.  It is the author’s argument that this perspective must be changed – it should not be the case that the law caters to all the sentiments of the community but rather that the practices of the community are valid by virtue of the basic code given. The Uniform Civil Code must act as a sieve allowing only those practices and customs to pass which are constitutionally viable. They must pass the scrutiny of Constitutional tenets.

We cannot expect a secular judiciary to adjudicate upon matters through the eyes of religion, given the task of codifying the vast personal laws, and their regional variances. Every citizen of India must be seen as a citizen first, who has certain rights that arise from the Constitution, and not from personal laws.

Often, when advocating for a Uniform Civil Code, the State of Goa is often referenced. After liberation from the Portuguese in 1961, Goa continued with the Portuguese Civil Code, 1867. It survives in accordance with Section 5 of the Goa, Daman and Diu (Administration) Act, 1962.

However, this parallel might not be as appropriate as within the Portuguese Code itself there exist exceptions for Catholics, and Hindus and Muslims are both covered by the Code and Shastric Hindu Laws. Even though, the case of Goa cannot be applied identically, the authors suggest it can be used as a guiding light to initiate the task of formulating a Uniform Civil Code.

2. De-codification

In 1781, regulations prescribed that both the Hindu and Muslim communities will be governed by their ‘personal’ law in matters relating to inheritance, marriage, religious usage and institutions. The colonial government was not equipped to consider the orally transmitted customary law of villages, castes, and religions. Instead, it relied on classic textual law and its commentaries interpreted by local priests. These priests were not aware of each region’s local practices as every community had its customary laws which were followed by all members regardless of creed.

When personal law Acts were formulated, such as The Hindu Marriage Act and the Divorce Act or the Sharia Act, what occurred was the codification of religious laws. Customary laws were neglected. Even within Hinduism, there are different kinds of customary personal laws specific to groups like Mitakshara, Dayabhaga, Marumakkathayam etc. Therefore, what we witness is the imposition of religious laws of one view over the entirety of members of the religion, in complete disregard of their own customs. These imposed laws are completely alien to people and infringe on their right to practise their long-held customs. Therefore, personal laws are not in consonance with the sentiments and age-old practices of communities as this discrepancy still exists.

After the adoption of the Constitution, secular judges continued to resolve questions relating to the family by relying on religious doctrines. The 1951 landmark judgment of the Bombay High Court, The State of Bombay vs Narasu Appa Mali^[7] lays down the extent to which personal laws can be subjected to fundamental rights. The ratio decidendi of this judgment was that personal laws are not subject to fundamental rights as personal laws are not ‘laws in force’ under the meaning of Article 13(1) of the Indian Constitution. Hence, personal laws cannot be struck down as being violative of fundamental rights.

A subtle critique of the rationale in Narasu can be seen in the judgment of Sabrimala Temple case^[8] wherein Justice Chandrachud under the heading of ‘The Ghost of Narasu’ addressed this issue and its limitation. This limitation is the condition to “public order, morality and health”. It is our view that Narasu Appa Mali needs to be re-looked at and the protection afforded by Narasu to personal law from fundamental rights should be discarded.

Even in the Constitutional text, Article 25(2) empowers the State to make laws to regulate or restrict any “economic, financial or secular activity” associated with religion. Considering this, the authors suggest removing the protection extended by Narasu to personal laws and a gradual de-codification of them.

3. Common Charter of Rights/Obligations

The Supreme Court has taken a cautious approach to decide cases of religious contention. There is a ‘case-by-case’ approach instead of a universal stance. On 22^nd August 2017, the Supreme Court passed landmark judgment^[9] holding Talaq-e-Biddat, or triple talaq, as unconstitutional. Triple talaq has been contentious since the Shah Bano case, involving a woman who was divorced using this practice. In this case, the Supreme Court held that the Criminal Procedure Code was a non-religious law and hence applied to all religions. By virtue of this ratio decidendi, the divorced 62-year-old woman was granted maintenance. This case displays the power the Supreme Court has to nullify the laws which are in violation of fundamental rights guarantees under Part III of the Indian Constitution.

It is the authors’ argument that instead of a case-to-case approach, the legislature can simply formulate a ‘Charter of Rights and Obligations’ in Personal Law, not far from the Fundamental Rights, which are set in stone and cannot be changed, as a prequel to then formulating and applying the UCC.

In place of a perfect all-encompassing UCC, a start can be made with the less contentious issue of a charter empowering women and obliterating discrimination against them.  A slow gradual change in policies will not cause upheaval and will be easier for the various communities to accept.

Conclusion

The constitutional imperative of equality applies to all citizens, irrespective of their status or gender. Therefore, the Uniform Civil Code is a key tool in the national integration of the country with which equality can truly be attained in form of gender justice, and security when it comes to marital issues, inheritance and so forth. The authors suggest any of the three aforementioned strategies may be used to attain the goal of a uniform statutory mechanism governing personal laws, however, they acknowledge that Strategies I and II may seem controversial presently. Therefore, they recommend Strategy III i.e. promulgating a ‘Charter of Rights/Obligations’. It is a pragmatic method which avoids the controversy of assailing customs and instead protects them.  Therefore, it can be used efficaciously to bridge the gap between constitutional mandates of equality and equity in the current societal-religious and traditional structure of India.

Author Brief Bio: 𝗠𝗿. 𝗩𝗶𝗸𝗿𝗮𝗺𝗷𝗶𝘁 𝗕𝗮𝗻𝗲𝗿𝗷𝗲𝗲 is a 𝗦𝗲𝗻𝗶𝗼𝗿 𝗔𝗱𝘃𝗼𝗰𝗮𝘁𝗲, 𝗦𝘂𝗽𝗿𝗲𝗺𝗲 𝗖𝗼𝘂𝗿𝘁 𝗼𝗳 𝗜𝗻𝗱𝗶𝗮 and Additional Solicitor General of India and Janhvi Prakash is an Advocate.  

References:

^[1]  [(1985) 2 SCC 556 : 1985 SCC (Cri) 245 : AIR 1985 SC 945]

^[2] [1995] 3 SCC 635

^[3] As clamour for UCC rises, here’s what you need to know about uniform civil code, India Today (2022), https://www.indiatoday.in/india/story/uniform-civil-code-in-india-ucc-bjp-muslim-hindu-personal-law-marriage-act-1942830-2022-04-28 (last visited Dec 2, 2022).

^[4] The State of Bombay vs Narasu Appa Mali-  AIR 1952 Bom 84

^[5] BLACK’S LAW DICTIONARY 252 (7th ed. 1999)

^[6] FRIEDRICH KOBLER UBER DIE PRAKTISCHEN AUFGABEN ZEITGEMABER PRIVATRECHTSTHEORIE31 (1975). 47. KARST

^[7] AIR 1952 Bom 84

^[8] Indian Young Lawyers Assn v. State of Kerala, (2019) 11 SCC 1

^[9] Shayara Bano v. Union of India, (2017) 9 SCC 1

Introduction 

Currently, within the existing legal framework, there exists no uniform family-related law in a single statutory book for all Indians that is acceptable to all religious communities in India. The Uniform Civil Code (UCC) is an aspiration in that direction. It refers to a common civil law bringing a myriad of complex provisions of family laws under a single system. The Constitutional expression “We the People of India” in its dynamic unity integrally includes a national plurality of the people of India cutting across race, religion, caste. All its citizens need to seek a favourable solution that desiderates harmony and accommodative religious pluralism seeking a balance between right to religion and right to justice. The UCC reaffirms a commitment to a cardinal principle of equal rights in the legal sphere for all communities alike. Justice is the cornerstone that counts.

It is not simply one of minority protection but one of treating each human being with the equality and dignity safeguarding the foundational principle justice that is the Constitutional right of every Indian citizen. The UCC is in the best interest of religions. It does not negate religious sentiments but regressive dogmas that are not in consonance with harmony, justice, equity and good conscience.

In view of a fast-changing world, particularly after the post-partition period, drawing together as a global village, with science & technology expanding with lightning speed, new evolving circumstances in the crucial socio-economic sector have demanded a fresh balancing perspective in various fields, including the legal field. Family, as an integral part of society, needs a similar channelling. Though the exact outlines of such a code are yet to be spelled out, progressive modern aspects from all existing personal laws will need consideration while disregarding those that are regressive. Reform and the formulation of secular laws and the autonomy of communities need not be exclusive processes. One need not threaten the other. Consensus is part of the democratic process. Deliberations for the implementation of a UCC is a crucial step forward. 

Uniform Civil Code (UCC) 

Besieging the Indian political scenario for several decades, the history of the UCC has been ridden with polemics and controversy. Time has not blunted the edge of this debate. The very term is severely contested within the realm of identity and electoral politics as well as the range of interest among feminist groups and activists engaged in social change. To grapple with its complexities in its current context, the predominantly distressing factor is the shrinking area of democratic standards and secular space leading to a sharp divide in opinions in an increasingly communalised national context.

The quest towards a UCC serves as a testing point of the true nature of our democracy. Impressively written into Part IV Article 44 of the Indian Constitution as a Directive Principle of State Policy, its aim to achieve a far-reaching equality for all Indians alike in the realm of civil and personal laws as initially conceptualised by the makers of the Constitution, has simply remained a distant dream. Mired with ferocious debates fuelled with the cataclysm of religious angst, this vision of our founding fathers still remains an aspiration.

It was in 1947 that the idea of a Uniform Civil Code was seriously discussed in the Constituent Assembly. A committee formed for the fundamental rights held the proposal for the Uniform Civil Code to be part of the Directive Principles of State. Thus, Article 44 of the Constitution says that: “the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.

Although Article 37 of the Constitution itself makes clear, that the Directive Principles “shall not be enforceable by any court,” they are, nonetheless, “fundamental in the governance of the country”. A compelling task in post-modern India is the conscious navigation for the required positive change a for a better future. Over the years various directions have been issued by the Apex Court for its implementation. Besides bringing a labyrinth of segregated laws that govern and regulate subjects on areas of a private sphere or family law such as marriage, divorce, maintenance, succession, minority, and guardianship, etc under one umbrella, the objective of this law is to ensure that all human relationships and needs are non-differentiated.

In a democracy, welfare as well as the conceptualisation of social justice are inseparable constituents. Hence, in this debate, the lens of political parties, the clergy, feminists, the state and judiciary should crucially focus and strategise on this neglected long standing issue. Political representatives, often taking shelter behind “safer strategies tend to lessen this prodigious reality. Many of India’s citizens support reformist agenda for reforms. Particularly, feminist movements, within all communities challenge discrimination at all levels. Autonomous women’s groups in India have consistently raised demands for a UCC, staunchly contesting patriarchal, misogynistic attitudes.

During the pre-independence colonial era, the Lex Loci report of October 1840 emphasised the need and necessity of uniformity in the codification of Indian law, particularly in the areas of crimes, proof, and contract. Hence, over a period of time, laws like the criminal, civil laws having a direct bearing on human relationships fruitfully evolved gaining due recognition without a storm. However, as the Proclamation of the Queen of 1859 pledging complete non-interference in religious affairs, personal laws maintained status quo.^[1] Although distinguished leaders like Jawaharlal Nehru and Dr. B.R. Ambedkar campaigned for a standard civil code during the Constitution’s development, but due to religious sensitivities, and perhaps a lack of public understanding at the time, the Uniform Civil Code was not codified, but was only included in the Directive Principles of State Policy (DPSP, Article 44).

After the first post-colonial agenda envisaging legal uniformity in criminal laws was established, the elusive question of the methodology to be employed in skilfully using an altered harmonised model of uniformity of family laws as a viable option that could be turned into the official legal reality in India today, has been fiercely argued, especially by clerics. If, in the introduction of criminal laws, no religious leader insisted on retaining particular religious laws whereby all citizens use these laws equally, what interest would be served to differentiate the applicability of a common personal law to all Indian citizens without obscuration?

Unfortunately, misunderstandings accompanied by misinformation regarding the objectives as well as the implementation regarding the Uniform Civil Code abound. Some Muslims see this as part of an onslaught of Hindu domination over minorities. In view of the recent controversies and the silence emanating from the top leadership on these controversies, minorities insecurities intensify. Nevertheless, the points of consideration are several. Signs of a modern progressive nation—a nation moving away from caste and religious politics with a provision of equal status to all citizens, promotion of gender parity and national integration will bring every Indian, regardless of caste, religion, tribe or ethnicity, under one law. This, besides halting vote bank politics indulged in during every election, will take India forward towards its goal of transformation and development.

While viewing personal laws in the Indian context, it must be stated that it is not Muslim personal laws only, that are in need of urgent reform in several areas besides those relating to gender equity. All communities are structured in a manner where male supremacy dominates within the family and outside. There can be variations in degrees of patriarchy or gender discrimination, but there is little doubt that in the overall context, women’s relegation reinforces itself, generally leaving little space for egalitarianism. A survey conducted by the Census authorities in 1961 on polygamy reveal this fact.^[2]

Muslim Personal Law in the Indian Context

Those from the Muslim community contesting the enactment of a UCC, argue that as the source of personal laws are religion based, their fundamental right to religion under the Constitution are violated. Hence, implementing of UCC would be in contravention to Articles 14, 25, 29 and 30 that permit them the practice and propagation of their religion. However, the valid question here would be whether the practice of the triple talaq may be considered within the purview of religious activity despite the fact that it is not sanctioned by the primary religious text of the Quran?

The existence of the reprehensible instantaneous,”sinful” Talak-i-bidat, a remanent of the customary patriarchal and misogynistic practice of pre-Islamic Arabia, an innovative, heretical irrevocable form of divorce as its name suggests, whereby the husband was given the unwarranted right of a pronouncement of the word talaq thrice in one sitting making the divorce irrevocable was duly practised.

Further, in the expression “Muhammadan law” itself with its variations of spelling, popularly used to describe “Shariah Law” in India, was popularly given currency in India by the British regime. The law is therefore sometimes referred to as the Anglo-Muhammadan Law. “The British rulers in India did, in the exercise of its legislative powers, curtail the scope of Islamic laws in this country. Within the scope of those portions of Islamic Law which survived this process of gradual curtailment, their legislative contribution, however, remained negligible”^[3] Moreover, a critical examination the contours of “Muhammadan Law” as practised in India, establishes the need to move away from the stereotypical colonial interpretations of Islam, reaffirms the vast possibilities of rights of Muslim women otherwise denied to them as a consequence of patriarchal interpretations.

Perhaps the most controversial of these challenges was the well-known case of ‘Shah Bano’ and the ensuing chaos that led to the passing of the Bill entitled “The Muslim Women (Protection of Rights on Divorce Act)”^[4] that overruled the judgement. It was the Supreme Court that came to the rescue of Muslim women through its decision in the Danial Latifi case.^[5] More recently, in ‘Shayara Bano’,^[6] the Supreme Court once again restored our faith in the ideals of equality and justice that it seeks to uphold by abolishing the highly contentious provision of talaq-e-bidat, paving the way for the Muslim Women (Protection Of Rights On Divorce) Bill, 2019, that criminalises the practice.^[7]

The other argument forwarded by the Muslim minorities is that the enactment for the UCC must come from within the community. However, as the above instances demonstrate, every opportunity at their disposal was lost to codify the personal law and re-establish the justice given to them by the religion. Such implementation was ultimately left to the secular courts. Most Muslim personal laws yet remain uncodified and traditional in their content and approach. This is so despite the fact that over the years, several countries with a Muslim majority population like Turkey, Cyprus, Tunisia, Algeria, Pakistan (orthodox and conservative), Bangladesh, Malaysia, Indonesia, Jordon, Egypt, Iran, Iraq, Brunei, the UAE, Indonesia, Libya, Sudan, Lebanon, Saudi Arabia, Morocco and others either outlawed it, declared it illegal or used legal instruments and devices to bring about strictures in laws to reform it. In India, it remained a static practised law with no effort on the part of Muslims towards reform.

The contrasting responses to the Shah Bano and the Sharaya Bano case encapsulated the evolution of Indian society and polity seen in the past three decades. The verdict of the Court underlined the changing social and political dynamics in India that enabled a group of Muslim women to successfully overcome the conformist elements within the community. The liberal intelligentsia and even the sceptics and cynics supported the cause of gender justice.

Khula

Again, with reference to Khula, the recent landmark judgment of the division bench of the Kerala High Court of Justice Muhamed Mustaque and Justice C.S Dias, ruled that Islamic law recognises a Muslim woman’s right to demand termination of a marriage (Khula). “A Muslim woman has the absolute right to terminate her marriage at will and does not need her husband’s consent for it, while dismissing a review petition filed by a man challenging the divorce granted to his wife, under the Dissolution of Muslim Marriages Act,1939. “We declared that the right to terminate the marriage at the instance of a Muslim wife is an absolute right, conferred on her by the holy Quran and is not subject to the acceptance or the will of her husband,” said the division bench of Justice A. Muhamed Mustaque and C.D. Dias, of the Kerala High Court.^[8] The court noted that Muslim women have the extra-judicial option of calling off the marriage “unilaterally” and went on to observe that the husband’s petition against the divorce was not “innocuous” and appeared to have been filed at the behest of “Muslim clergies and hegemonic masculinity”.

This judgment of the Kerala High Court is precisely celebrated for resurrecting the authentic position under Muslim Law reiterating the legal position that is holding the ground since more than 1400 years on the Muslim woman’s right to obtain divorce without Court’s intervention. In perfect consonance with Islam where the famous examples of Jamila and Bariah whose marriages were dissolved by the Prophet at their instance, in spite of the fact that the husbands of both were anxious to continue the marital tie bears testimony to this fact. The right of the wife to initiate the proceeding cannot be denied.^[9] Muslims did not again seize the golden opportunity offered to effect transformation.

The greatest progress in law reform has been achieved by governments who stood firm, despite hostility of the clergy. Women achieved something approximating legal equality with men under the forceful leadership of the charismatic nationalist leaders like Kemal Ataturk (in Turkey in the 1920s) and Habib Bourguiba (in Tunisia in the 1950s), under the Shah of Iran in the 1960s, and in the Marxist states of the Peoples’ Democratic Republic of South Yemen and Somalia in the 1970s.^[10]

Polygyny

It is crucial to state that polygamy in Islam is a restrictive rather than a permissive ordinance. Evidence for this is apparent in the only Quranic verse dealing with polygamy which occurs only in connection with the protection and rights of orphans in Sura Nisa (4:3). Its restrictive intention regarding the subject is underpinned in 4:129 “You are never able to be fair and just as between women, even if it your ardent desire.” The legislation introduced in the Quran on this aspect was a great improvement over unlimited polygamy and accepted sexual mores, thus clearing the way for monogamy. Its revelation occurred during the battle of Uhud when destitution and hardship left women in a vulnerable position, subject to manipulation and exploitation.

Turkey was the first to introduce reform of family laws, issuing the Ottoman Law of Family Rights (Qanun al Huquq qarar al-‘Â’ilah al-‘Usmâniyyah—a Civil Law) in 1917. It was the first Muslim-majority country to legally ban polygyny in 1926. This decision was not based on religious reasons, but rather was an entirely secular ban deeming modern day socio-economic conditions for polygamy as “unrealisable”.^[11],^[12]

Tunisia was the next country to ban polygyny through legislation passed in 1956 and restated in 1964. Unlike Turkey, Tunisia banned polygyny on religious grounds, citing two main reasons. First, the Quran limited the practice of polygyny, thus it did not support the practice and clearly intended for the practice to be eliminated over time (4:3). Second, the Quran demands equal treatment of all wives in a polygynous marriage, which was deemed impossible, thus making the practice illegal and punishable by law (4:129).^[13]

Several other countries introduced strict laws to regulate and restrict polygamy. Algeria’s considerably amended Code de la Famille (Family Code) and Morocco’s new Moudawana (Family Law) (Articles 40-46) have both introduced greater regulation, extremely strict in the case of Morocco. Egypt (1920; Sudan (1929); Algeria (2005); Jordan (1951); Syria (1953) Morocco (1958); Pakistan 1961; Iraq (1959); Iran (1967, 1975); Kuwait, Lebanon, Bangladesh, 1971. Noel Coulson; Doreen Hinchcliffe (1978).^[14] New or amended family codes are awaiting formal introduction in some francophone West African countries (Benin, Guinea, Mali, Niger).^[15]

In India, voices for the demand to outlaw polygamy are rising. Inundated with a sense of misery, gloom, a lack dignity, deprivation, self-respect such a demand is increasing. Despite the trauma and suffering Muslim women undergo in India, despite their pleas, Muslim Personal Laws on polygamy yet retain this practice remaining uncodified and traditional in their content and approach. A study released by Bhartiya Muslim Mahila Andolan (BMMA) revealed “nearly 300 women were interviewed, among which 84 per cent of wives said that polygamy should be outlawed.”^{[16] [17]}

Conclusion

Undoubtedly, the task of actually devising a set of rules that will govern all communities in family law, is both formidable as well as cumbersome, both in view of the legal procedure as well as vast range of interests and sentiments involved. Considering the complexities involved, including compiling and envisaging a comprehensive variegated range of interests to be addressed including minority fears of the imposition of majority’s preferences to override their interests, the task is challenging. It should be noted however, that democracies and developed countries like USA, Canada, Australia, UK, Russia, Turkey and others have adopted the Uniform Civil Code to eliminate discrimination amongst the communities. The status of a Uniform Civil Code is a guarantee of equal rights, regardless of caste, creed and colour, and is essential to prohibit discrimination based on creed or religious persuasion.

The Goa model needs special mention, especially in the light of the Supreme Court Judgement where the court praised the State’s unique position of being the only province with Uniform Civil Code, albeit its concession. While mentioning the fact off its being the only state to where verbal divorce and polygamy cannot be practised, it likewise highlighted the Governments failure of fulfilling the expectations of our Founding Fathers.

Notwithstanding the plethora of challenges, it must also be duly recognised that reform or formulation of a Uniform Civil Code can no longer be skimmed over by avaricious dialectics. The denial of discussion, dialogue and debate towards attainment of goals and legal dictums halt advancement and progress, and can be counter-productive. Strategies can be formulated through the democratic process of consultation and consensus. The undertaking needs to be pursued with consistency and vigour.

To become a legal reality, the mandate of the State accompanied by high-minded statesmen and legal experts, to promulgate laws with a creative vision, diminishing disparity, affirming cohesion with social sensitivity, and with a visualisation of fusion and plurality, both in the majority community and the minority communities, can be constructively generated. Since it involves a change in laws, an obvious prerequisite is sufficient support for the move within Parliament.

Postponement or delay getting caught up in dispute and strife is an old tactic. It will stake the vision, the perspective, the aspiration for social change. In our struggle for implementation of equality, cognisance of justice, incapacitating gender discrimination, rectification, and reform are the key. One might wonder, for how long the citizens of this country will have to bear the law’s delay and the apathy of political offices, in failing to secure for them the ideals of our own Constitution. The possible way is for the Courts to urge the Government for its implementation.

Author Brief Bio: Zeenat Shaukat Ali is the Director General, Wisdom Foundation (World Institute of Islamic Studies for Dialogue, Non-violence, Gender Justice and Peace).

References:

^[1] Muslim and Hindu personal laws be left out of such codification; The Proclamation of the Queen of 1859 pledged complete non-interference in religious affairs.

^[2] The incidence of polygamous marriages was highest among Tribal communities 15.25%; Buddhists 7.97%, Jains 6.72%, Hindus 5.8%, Muslims 5.7%. Scroll In ; “It may be allowed by Muslim personal law, but the incidence rate is not that high,” said Ritu Menon, a feminist publisher and independent scholar, who worked on the subject as co-author of the book Unequal Citizens: A Study of Muslim Women in India. “This is true particularly in relation to Hindus, but across all communities, polygamy is not that common. Bigamy, on the other hand, is fairly common and that’s true across religions.” Monday, December 19th 2022.

^[3] Dr. Tahir Mahmood, “The Muslim Law of India” Law Book Company, Allahabad, U.P. 1980; Dr. Tahir Mahmood is a former member of the Law Commission and ex-Chairman, National Commission for Minorities.

^[4] Mohd. Ahmed Khan v. Shah Bano Begum and Ors, AIR 1985 SC 94 Muslim Women (Protection of Rights on Divorce) Act, 1986 hereinafter written as the Act.

^[5] Danial Latifi & Anr v. Union of India (2001) 7 SCC 740

^[6] Shayara Bano v. Union of India, (2017) 9 SCC 1.S.4,

^[7] “Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal;– Any Muslim husband who pronounces talaq upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.”

^[8] The offence is recognized as cognizable i.e., the arrest can be made without a warrant on a report of the same by the wife. Shaukat Ali, Zeenat; ‘The Empowerment of Women in Islam; 1997, Simon and Feffer; pp 336-338

^[9] ‘Khula absolute, not subject to husband’s will’ — Kerala HC on Muslim woman’s right to divorce, Story by Rewati Karan •The Print,  3 Nov 2022

^[10] Ann Elizabeth Mayer; “Law and Women in the Middle East” Women in a Changing World; February 17^th 2010.

^[11] Tahir Mahmood, Family Law Reform in the Muslim World (Bombay: N. M. TRIPATHI PVT. LTD,1972), p. 17

^[12] Muslim Countries introduced reform in family law by means of regulations and legal instruments through the application of a number of legal devices like ijtehad, (creative reinterpretation); maslahah mursalah (public interest); tadwin (codification); tashri (legislation; mudawwanat al-aḥwāl al-ousaria-shakhṣiyyah (personal status code); qanun (statute); marsum (ordinance); manshur (publications); qarar (ruling, regulation)

^[13] DYNAMICS OF TUNISIAN POLYGAMY LAW IN GENDER PERSPECTIVE Ayyus Sahidatul Chusnayaini Fakultas Syari’ah UIN Maulana Malik Ibrahim Malang; Tunisian Family Laws, British Embassy Tunis.

^[14] Noel Coulson; Doreen Hinchcliffe (1978). Louis Beck and Nikki Keddie (ed.). Women in the Muslim World. Cambridge, Massachusetts: Harvard University Press. p. 40.

^[15] Kusha, Hamid R. “Polygyny”. The Oxford Encyclopedia of the Modern Islamic World. Oxford Islamic Studies Online.

^[16] Mirror Now, 84% Muslim women want polygamy outlawed, says study curated by: Aditya Paul Mumbai: Updated Dec 22, 2022 | A nationwide study released by Bhartiya Muslim Mahila Andolan (BMMA) on Tuesday revealed that being in a polygamous marriage causes enormous emotional trauma to the woman. During the research, nearly 300 women were interviewed, among which 84 per cent of wives said that polygamy should be outlawed. The questionnaires were distributed to women in polygamous marriages in West Bengal, Uttar Pradesh, Odisha, Telangana, Tamil Nadu, Karnataka, Maharashtra, Gujarat, Madhya Pradesh, Rajasthan and Delhi.

^[17] Protect Our Dignity, Ban Polygamy, Say Indian Muslim Women to PM; Cited a national research by BMMA which claims that out of 4710 Muslim women from 10 states, 92.1 percent women want a complete ban on oral divorce while 91.7 percent are opposed to polygamy. THE QUINT; Updated: 28 Nov 2015, 6:36 PM IST

Introduction

The term waqf (plural auqaf) originates from the Arabic term Waqafa meaning therefore to detain or hold or tie up. The Waqf Act 1995 defines Waqf as “the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable…”.^[1] It refers to a class of assets—land, building, tenancies, cash etc and not merely Muslim religious structures like mosques and dargahs. In India, a large bureaucratic scaffolding has been erected around the protection, preservation and expansion of waqfs. In Part-I of this work, I argue that the same is not necessary from the point of view of law, as the secular law of trusts is enough to deliver the outcomes that waqf are meant to deliver. In part-II, I take a historic look at the institution and argue that waqf in India have been used as an enabler of proselytisation, and the centralised and theocratically waqf management structure of medieval era has actually set a template that Islamist groups have demanded in independent India and obtained through the Waqf Acts. In part-III, I look into how waqf laws have developed and argue that it is procedurally inadequate, a refuge for Islamist politics and tends to create social conflict. The work ends with my recommendations and conclusions.

PART-I 

THE CONCEPT OF WAQF IS LEGALLY REDUNDANT BUT USEFUL FOR IDENTITY POLITICS

  There are three kinds of waqfs understood^[2] by Indian law namely

• Waqf by user: Where any land or building or any portion thereof has been used permanently for any religious or pious purpose, with the concurrence or knowledge of the owner, then it will be treated as waqf by user.
• Waqf Mashrut-ul Khidmat: It is a public waqf where the wa’kifs (i.e creator of waqf) has devoted the property for the general benefit of the Muslim community and means a grant stipulated for rendering services.
• Waqf al-al-aulad: A waqf created for the wa’kifs family and children.

Waqfs can be created only for a pious purpose consistent with the Shariat.^[3] The essential features of waqf are perpetuity, irrevocability and inalienability.^[4] There is no formality requirement for setting up a waqf (like say creating a document, registration etc).^[5] The dedication of a given property as waqf need not even be express, it can simply be set up through user or reputation.^[6] Once it has been declared as waqf, it is vested with Allah (the Islamic deity) forever. Other communities in India do not have anything quite analogous to the waqf.

Conceptually, waqf can be seen as a form of a trust, with some differences. First, waqf is fundamentally faith based; there is no waqf outside a sharia sanctioned activity unlike a trust. The waqf presuppose an Islamic regime with a Qazi enforcing it; because unlike the trustee under s. 16, 20, 36 and 40 of the Indian Trusts Act 1882, the mutawalli have very limited powers similar to receivers under the CPC.^[7] Second, unlike trusts which are not necessarily irrevocable or perpetual, these are essential characteristics of a waqf. Third, unlike trusts, especially public charitable trusts, there is no requirement of certainty (i.e. disclose a specific charitable intention). The amounts can be distributed using the doctrine of cy-pres.^[8]

The most important difference perhaps is that the law of trusts is enforced by the civil courts^[9] and have extensive substantive and procedural protections for the trustees, beneficiaries and innocent third parties. There are special provisions under s.92 & 93 of CPC for public trusts that can apply to a Muslim religious trust as well. The best way to see this from the point of view of a layman would be that waqf is a form of preto-trust, that essentially resides in a world of Dar al Islam^[10] where the overwhelming theological benefit of the waqf overrides any other proprietary and social concern that may arise. The common law of trusts on the other hand since its canon law / equity law past^[11] has travelled far, to become a truly fair, secular all weather doctrine, that strives to reconcile different kinds of social and political interests.

Notwithstanding the differences, the entire set of objectives of waqf can be served through the law of trusts and other secular laws.^[12] The civil court is sufficient to decide the disputes and the Waqf Tribunal, strictly speaking is not really necessary either. The existence of a separate law of waqf can only be attributed to historical Muslim identity politics and Islamist demands. In the next two parts I identify how this state of affair came to be and where does it stand now.

PART-II

THE DARK COLOURS OF THE WAQF IN INDIAN HISTORY

I can presume that the purpose of the original creators of waqf was benign. But in India and globally, the institution has acted as an enabler to Islamic imperialism, proselytisation and appropriation of other denominational sites.

During the entire Sultanate and Mughal periods, both the sovereign and private individuals created waqfs^[13]. Throughout this time period, waqf management displayed a centralised and theocratic form of management. At the grassroots level, the waqfs were managed by mutawallis supervised by the Qazis, and in the later Mughal period by a religious office called Sadr-as -Sudur.^[14] The system was centralised insofar as the chain of supervision went up from the Qazis all the way to the Sultan (in Sultanate) and the Padshah (during Mughal rule).

The ranks of the Qazis and Sadr were taken usually from the Ullama (i.e Islamic clergy and scholars). The applicable law and the sitting judge were both committed to the Shariah and not to secular sense of fairness. Thus, in effect, these courts would have displayed an enormous prejudgment bias^[15], regardless of the character and personal integrity of the judge. If a non-Muslim would plead proprietary or other interest in a property sought to be declared a waqf, the Qazi would balance the public policy imperative of waqf as a measure to spread of Islamic ideology, against the limited rights available to the dhimmi^[16], and would have to decide in favour of the former. This logic would have operated with special force when the waqf land in question belonged to a former temple or religious establishment.

Another significant aspect of waqf in pre- British India was the close connection of this institution with proselytisation and religious and cultural appropriation. At the heart of this 700-year long proselytisation drive were the Sufis. There is an enormous literature on this theme, starting with Thomas Arnold’s portrayal of Sufis as Islamic “missionaries” among non-Muslims.^[17] Later, revisionist historians have sought to dilute Arnold’s hard truth in favour of soft narratives. So Muzaffar Alam argues^[18] that from 12^th century onwards, Sufi orders (silsilas) began to expand, encouraging and promoting many beliefs held in common by Hindus and Muslims. Alam goes on to say that though some Sufis were puritanical and tyrannical, their general sense of moderation persuaded many Hindus to convert to Islam. Richard Eaton (an Islamophile and revisionist) calls this process “accretion and reform” whereby the Sufi saints would appropriate Hindu/local customs and nominally convert the population to Islam. Thereafter, later reform processes in Islam would convince them of the essential unity of Islam and they would become firmly integrated in the Muslim Ummah^[19].

The Sufis worked as a network of Pirs/Murshids and disciples (Murids or Shagrids) who together formed a silsilah or tradition^[20]. These Sufi networks were sustained through a special kind of waqf called wajh-i-ma’ash, which is a part of allowance for subsistence. Sometimes, certain Sufis were granted entire villages with some plots of uncultivated land (read forested land) with stipulation to bring it under plough.^[21] Richard Eaton explains this process beautifully.^[22] While taking the example of Chittagong and Sylhet, he shows that the spread of Islam in these areas were led by charismatic Muslim Pirs, who cleared the jungles and established Muslim settler societies, that would overwhelm the demographically sparse indigenous population (animist, Hindu or Buddhist), and slowly impose Islam. These settler societies lay the local mosque and the local congregation is supported by generous land grants.^[23] The land grants were mostly in form of waqf.^[24] Thus, waqf provided the multi-generational finance, necessary to the Sufi order to convert the Indians.

There is a tradition of demolition and conversion of other denominational sites in a waqf, globally. The Ka’ba^[25] and Al-Aqsa Mosque in Jerusalem^[26] are the most famous examples of this phenomenon. This process is subsumed in historical silence in this country. What was the prior legal status of the lands granted in waqf, in Sultanate and Mughal period? Richard Eaton sidesteps this question, as if the lands granted were terra nullis^[27], just because they were forested. The most probable situation is that tribal communities, local Hindu peasant farmers and in some cases Hindu or Buddhist religious institutions had rival claims over these lands, which were suppressed by the Ulama dominated Qazis and local officials; only to be forgotten and denied later. Even now, claims to Hindu sites are made under the aegis of the waqfs. Such claims were made inter-alia in Ayodha Case^[28] and in the Gyanvapi dispute^[29]. Such claims were even made against national monuments^[30]. The enactment of the Places of Worship (Special Provisions) Act 1991 has further enabled these aggressive claims. Even when the legal logic is weak, the idea of a property “belonging to Allah, perpetual and inalienable”, provide strong emotional and polemical force to these arguments.

PART-III

THE ORIGIN AND DISCONTENTS OF THE PRESENT WAQF ACT

After the fall of Muslim rule, the British were not generally supportive of the waqfs. Their attitude was reflected in the Privy Council decision of Abdul fateh Mohammad v Russomoy Dhur Chowdhury.^[31] In the instant case, it was held that a waqf made for the aggrandisement of family and the gift to charity is illusory, whether from small amount, uncertainty or remoteness is invalid. This decision was furiously objected to by Muslim jurists who thought of it as contrary to Islamic law on waqf.^[32] Thereafter, the Empire brought the Mussalman Waqf Validating Act 1913 (validating many waqf -al-al auld). Overall, the British empire generally dealt with cases through secular law, like the Official Trustees Act 1913, the Charitable and Religious Trusts Act 1920 etc.

Post Montagu–Chelmsford Reforms 1919, communal polarisation increased in Indian polity. The Congress, the Muslim League and the British started competitive ethnic bidding for the Muslims. This resulted in a spate of Waqf Acts like Bihar & Orissa Mussalman Waqf Act 1926, Bengal Waqf Act 1934, Bombay Mussalman Waqf Act 1935, United Provinces Muslim Waqfs Act 1936 etc. Though many of these Acts were repealed by the Waqf Act 1954 the basic features continue to exist in our law.

Post-independence, India enacted the Waqf Act 1954. The legislation, based on the earlier waqfs legislation, created a Waqf Board. This Board is essentially a political body which has been provided with a large array of executive and quasi-judicial functions. The most important powers of the Board is to supervise and if necessary remove mutawallis, to sanction “in accordance with Muslim law” any alienation of waqf property and defend suit on behalf of the waqf. It created a corpus of funds in hand of the Waqf Board and also created a requirement of compulsory registration of Waqf properties. The Waqf Boards were to be manned by MPs, MLAs, persons from Muslim organisations like the State Jamiat-ul-Ulama-i-Hind or State Shia Conference, or persons trained in Islamic law or law and finance. They all had to be Muslims.^[33] A Central Waqf Council was added later by an amendment Act in 1969.

This Act created the economic and social power of the waqf. It created a mighty bureaucratic colossus in terms of Waqf Board which in principle is similar to the Mughal Sadr. The centralisation and pooling together of waqf resources concentrate enormous wealth in hands of the community that is not available to any other. From a strict economic point of view, the Waqf Act actually enhances the economic value of the assets by allowing the Waqf Boards to lease, mortgage or even sell waqf property. A property that cannot be alienated or transferred essentially has only a book value but no market value.

The Waqf Act 1954 can be seen as the beginning of appeasement politics in post-independence India. It contributed to the creation of Muslim politics centred around community property and community interests, which paved the way for the later rise of Islamist organisations like the AIMIM, AIDUF, AIMPLB etc. It is to be noted that the Waqf structure is a special treatment given to the Muslims. There are no analogous institutions for Hindus, Sikhs or Christians. The Sikh Gurudwara Act, 1925, merely pertains to the management of Gurudwaras and not the management of a whole class of property. While the post-independence Congress government was creating a Muslim power base, it was not half as generous to the Hindus. For Hindu temples, the law is still the Religious Endowments Act 1863, Indian Trusts Act 1882 and some state legislations like the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959, that puts the Hindu temples and religious institutions under direct state control.

The Waqf Act 1954 was amended in 1964, 1969 and 1984; a major amendment in 1995 would have been sufficient. However, the so-called secular parties wished to virtue signal their Muslim vote bank and a new Waqf Act 1995 came into effect. The new Act added a new and dangerous innovation in terms of the Waqf Tribunal^[34]. The tribunal has wide powers to decide matters pertaining to properties disputed to be a waqf property and interests involved in a property admitted to be a waqf property^[35], lease, tenancy etc in a waqf property. The scope of exact jurisdiction of this court is to be decided by the state governments. The tribunal is manned by a judicial service personnel, a state civil service and one person who has specialised knowledge of Muslim law. The jurisdiction of the civil court is barred in matters covered by the Waqf Act 1995^[36]. More ominously there is no appeal available from the decision of this tribunal or from any interim order by the tribunal^[37]. This tribunal is not the Shariat court of the Qazi or the Sadr, but it is the nearest equivalent to the same in a secular country. Unlike the civil court that is directed towards giving justice, the tribunal is directed towards protection and better management of the auqaf; that is to say, this tribunal, by its very nature, is biased towards waqf. It is therefore far more difficult for innocent third parties to agitate their legitimate interests before this tribunal than the civil court.

The same Act also transferred many of the evacuee properties that were purportedly waqfs to Waqf Boards^[38], thereby depriving many Sikh and Hindu refugees who had taken shelter there since partition. The Hindu Devottar properties in Pakistan and Bangladesh never received such special treatment. However, no matter how many amendments are made, more and more concessions continued to be demanded. The Sachar Committee report^[39] added fuel to this fire. It was found that the total area under Waqf properties all over India is estimated at about 6 lakh acres and the book value at about Rs 6,000 crore.^[40] This is the third largest land holding after Defense and Railways.  Sachar was obsessed with using the waqf as a tool for community development, as theme directly lifted out of Islamic economics. It is moot to ask, if the Indian state has ever sought to use “community assets” similarly for upliftment of any other community – say Hindus? Anyway, it was successful in triggering the draconian 2013 amendment to the Act. It created penal consequences for illegal alienation on waqf properties^[41] and extremely draconian provisions for removal of encroachments.^[42] Many of these encroachers might actually be the poorer members of the “community” that it seeks to protect. However, the biggest legacy of the 2013 amendment is to ring-fence the waqf properties from any claim of national development. Waqf lands cannot be acquired except under very onerous and unviable circumstances.^[43] Considering most of the waqf land is in urban areas, this has created a structural impediment for urban development in India.

So finally, how does the waqf machine works? It can be understood with an illustration.

Consider Mr. X^[44] has a land near Mr. Y’s land^[45]. The lands are not well demarcated, and possibly disputed. Mr. Y created a waqf on, Mr X’s land, say by urging that the land is a burial ground, making himself or some connected person the mutawallis. This is possible since waqf can be created by user and no documentation is necessary. He then gets it registered with the Waqf Board^[46]. The board is obligated to make enquiries about the land and Mr. X, if he would know, may even resist the registration. However, once again the Board has full powers to decide on whether the land is indeed a waqf property or not.^[47] The Waqf Board as specified earlier is a political body with a mandate to protect and promote waqfs. Therefore, the proceeding before the Body is no more likely to result in a just outcome than before the mediaeval Qazi. The State administration is legally bound to follow the direction of the Waqf Board.^[48] Mr X would have a small window appeal to the tribunal, an entity that also suffers from heavy prejudgment bias. There is no further statutory appeal from its decision. It will be particularly hard for Mr. X if the land has been demarcated as a waqf, (based on the registration by the Board) by the state survey of waqfs u/s. 4 of the Act. In between all this, Mr. X would be not only confronting Mr. Y but the entire waqf bureaucracy backed by the Waqf Fund and thousands of staff. He would also be intimidated with criminal prosecution that the 2013 amendments have added to the Act. Off course, Mr. X can offer bribes to Waqf officials and get out of the web. The Waqf Board is a wonderful source of corruption!

This land grab is not a figment of imagination. OPIndia cites at least 21 high profile instances where the Waqf Board has sought to register public or private lands as waqfs.^[49] This includes an entire Hindu village in Tamil Nadu, government buildings in Surat, the so called Idgah Maidan in Bengaluru, Jathlana village in Haryana among others. These instances constitute a tip of the iceberg. The three most common forms of land grab seem to be claiming a land as Qabaristan (graveyard)^[50], creating small Dargah’s and offering prayer in public lands (this can be later claimed as waqf through user). These incidents show that the ill-adjusted legislation and the corrupt land grabbing elite it has created, is a perfect recipe for social conflict and communal disharmony.

CONCLUSION & RECOMMENDATIONS

The institution of waqf is legally unnecessary. The existence of the legal institution of waqf as well as the bureaucracy of the Waqf Board only make sense, as an identity issue and as a rotten borough for Islamist politics. But it may be noted that the in a secular country, only a rational legal system law must serve the common good and not act as a mere “identity marker”. The law of waqf as it stands today is dangerous for public peace, communal harmony, violates private property rights and potentially encourages extremist politics.^[51]

The Waqf Act 1995 and waqf jurisprudence as it stands today, is clearly violative of right to equality under Article 14 in as much it creates a special system of procedural and substantive protection for a class of assets and religious establishments of one community, to the exclusion of all others.

An outright repeal may take time. In the meantime, there are a range of options that must be explored immediately. The first is to remove the extraordinary jurisdiction of the tribunal and restore the power of the civil court. Second, strong protection of third-party rights must be incorporated during the period of registration of waqf. An Ombudsman may be appointed to protect third party rights in waqf. Third, the bar on the acquisition of waqf land for public purpose may be removed. Finally, the Waqf Board must be prevented from claiming any waqf that predates the 1995 Act and was not registered at the point of its enactment. This would prevent the Board from making crackpot demands on historical monuments and government buildings. I believe it can also be seen through the lens of Article 44 that mandates the state to enact Uniform Civil Code for all communities. The discourse on UCC should travel outside personal laws and include waqf as well. In an ideal world the Waqf Act 1995 ought to be repealed, to be replaced with a common system of Trustees of Religious Endowments.^[52]

Author Brief Bio: Prof. Suvrajyoti Gupta is Associate Professor at Jindal Global Law School, OP Jindal Global University.

References:

^[1] S. 2(r) of the  Waqf Act 1995

^[2] AHMEDULLAH KHAN, COMMENTARY ON THE LAW OF WAQF (Asian Law House, 2017) (henceforth referred to as Khan 2017 )

^[3] ASAF ALI ASGHAR FYZEE, OUTLINES OF MOHAMMEDAN LAW, 284 (Oxford University Press, 1974); This includes waqfs made for religious wars.MA Quereshi  Law of Waqf , MUSLIM LAW ,514  (Central Law Publications , 2007), ( henceforth Quereshi 2007)

^[4] Khan, 2017 at 4

^[5] Traditionally waqfs were created in the mosque with Muzzeins declaration or waqafnamas.

^[6]   See the Privy Council decision in Mohd. Imadadullah v Mst Bismillah AIR 1922 PC 384. However once a property has become auqaf the Waqf Board is under a duty to register the same as per s.36 of the Waqf Act 1995

^[7] Quereshi, 2007 at 536

^[8] Cy-pres is a legal doctrine that gives courts the power to interpret the terms of a will, gift, estate, or charitable trust.

^[9] Under s. 9 of the Code of Civil Procedure 1908 (CPC ) the civil court can decide all disputes of civil nature. Explanation I clarifies that , any property dispute or dispute over religious office comes within the purview of suits of civil nature.

^[10] Dār al-Islam, in Islamic political ideology, the region in which Islam has ascendance

^[11] Some jurists argue that the law of trusts originate from Waqf, but this claim may be taken with a pinch of salt.

^[12] A Muslim can create trust. Kassimaiah Charities Rajagiri v. Secy, madras State Waqf Baord  AIR 1964 Mad 18; Garib Das v Munshi Abdul Hamid AIR 1070 SC 1035

^[13] See Khan , 2017 at 8

^[14] Md. Thowhidul Islam Historical Development of Waqf Governance  in Bangladesh: Challenges and Prospects Intellectual Discourse, Special Issue, 1129 ,  1140 (2018)

^[15] An attitude, belief, or impression formed in advance of actual experience of something.

^[16] Protected people in an with second class rights, in exchange of jiziya

^[17] See generally TW Arnold, THE PREACHING OF ISLAM: A HISTORY OF THE PROPAGATION OF THE MUSLIM FAITH,193 ( Library of Alexandria (17 March 2022)

^[18] Muzaffir Alam. The Languages of Political Islam: India1200-1800 (London: Hurst & Co., 2004) 82.

^[19] See generally the theories of conversion in Richard Eaton, Approaches to the Study of Conversion to Islam in India ( November 12^th 2022), https://jan.ucc.nau.edu/~sj6/eatonapproachconversion.pdf

^[20] The Sufis were and continue to be divided into major orders like Qadri, Chsiti & Nashbandhi which in turn were broken into dozens of branches. See generally CAMBRIDGE HISTORY OF ISLAM , 621-622 (Peter Holt, Ann K.S. Lambton, and Bernard Lewis. Edt , Cambridge University Press ) 621-622

^[21] Ahmedullah Khan at 10

^[22] Richard Eaton . THE RISE OF ISLAM AND THE BENGAL FRONTIER: 1204-1760 (Oxford India, 1993)

^[23] See generally Chapter 9, The Mosque & Shrine in the Rural Landscape ,  THE RISE OF ISLAM AND THE BENGAL FRONTIER, 234-267

^[24] Though Richard Eaton argues that these grants had the character of both an waqf and a grant. See THE RISE OF ISLAM AND THE BENGAL FRONTIER, 238 .  However, I would argue that anything that has a character of waqf is essentially a waqf. It is immaterial what is the formal structure of the grant. Richard Eaton being a cultural historian probably does not understand legal conceptions that well.

^[25] Khan, 2017 at 7. It was undoubtedly a ancient site of pagan worship.

^[26] Part of the Jerusalem Islamic Waqf it probably stands on the site of the Second Jewish Temple

^[27] Literally meaning no body’s land. This term have a pungent colonial past. Traditionally European settlers treated lands in the Americas and Australia as terra nullis , though clearly indigenous people had proprietary title over them.

^[28] See M Siddiq & Ors v Mahant Suresh Das & Ors  ( November 12th 2022), https://www.sci.gov.in/pdf/JUD_2.pdf

^[29] The classic example of this remains the case of Gyanvapi Mosque. See Gyanvapi A Waqf Property, Only Waqf Board Can Hear Cases: Anjuman Intezamia Masajid, Times of India Oct 12, 2022, 20:53 IST

timesofindia.indiatimes.com/articleshow/94817653.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

^[30] The Taj Mahal has been declared as an waqf by the Sunni Waqf Board. The matter has been challenged before the courts by ASI ( November 11, 2022) https://www.news18.com/news/india/taj-mahal-a-waqf-property-bring-shah-jahans-signature-first-says-supreme-court-1714967.html

^[31]  Cal XVIII 399, 1894 22 , LA 76

^[32]  The court did apply the Islamic law or Mohamedan law as they called it. Its just that its interpretation was a common law one and not based on traditional Shariah jurisprudence.

^[33] See s. 10 of the  Waqf Act 1954

^[34] S. 83 of the  Waqf Act 1995

^[35] Rashid Wali Beg v. Farid Pindari, 2021 SCC OnLine SC 1003

^[36] S.85 of the  Waqf Act 1995

^[37] S. 83(9) of the  Waqf Act 1995 . Compare this to

^[38] S.108 of the  Waqf Act 1995

^[39] Government of India, Social, Economic and Educational status of Muslim Community of India, Report (New Delhi: Cabinet Secretariat, 2006), 219. (henceforth the Sachar Committee)

^[40] Ibid at 219

^[41] S. 52A of  Waqf Act 1995  and s.54 of  Waqf Act 1995

^[42] S.55 and 55A of Waqf Act 1995

^[43] S. 51 of the  Waqf Act 1995

^[44] Mr. X can well be a Muslim himself. Waqf administration is a state sponsored, elite driven machine that protects community interest and not necessarily members of that community. More importantly Mr. X can also be a public body like Municipal Corporation.

^[45] This example presupposes the culpability of Mr. Y but remember that the Waqf Board can move suo motu as well and just imagine a doubtful waqf and try to grab a piece of land for the greater good of the community.

^[46] S.36 of the Waqf Act 1995

^[47] S.36 and 40 of the Waqf Act

^[48] S. 28 & 29 of the Waqf Act 1995

^[49] How Waqf Boards have been insidiously encroaching upon and occupying various properties and claiming their right over them, OP India, Oct 22, 2022 ( November 14^th , 2022) https://www.opindia.com/2022/10/21-instances-when-waqf-boards-india-illegally-encroaching-various-properties/

^[50] In Islam unlike Christianity a graveyard need not be attached to a mosque or consecrated ground. So it would not be improper for a Muslim to bury the body in any land provided the proper funerary rites have been performed.

^[51] There is a theory in social science called the conveyor theory of radicalisation – it means one starts out with a minor functionary and a moderate organisation, to be progressively become more extremist in their views. Waqf administration is merely the entry point in the Islamist politics.

^[52] There is indeed a Public Interest Litigation pending before the Supreme Court challenging the Constitutional validity of the Waqf Act. See Delhi HC seeks Centre’s stand on PIL against validity of Waqf Act , ( November 13^th 2022), Delhi HC seeks Centre’s stand on PIL against validity of Waqf Act , The Hindu , May  12, 2022, ( November 13th 2022), https://www.thehindu.com/news/national/delhi-hc-seeks-centres-stand-on-pil-against-validity-of-waqf-act/article65407028.ece

Introduction

On 12^th January, 2019, the Constitution (One Hundred and Third Amendment) Act, 2019^[1] (hereinafter referred to as the ‘Amendment Act’) enacted by the Union Legislature received the Presidential assent, thereby making amendments to Articles 15 and 16, under PART III of the Constitution of India. The amendments brought in a provision for the reservation of the economically weaker sections (hereinafter referred to as ‘EWS’) in the Indian society. The Amendment Act came into effect on 14.01.2019. It is an opinion of a set of critics that such an amendment to the Constitution was brought by the ruling Bharatiya Janata Party as an economic gift given to the citizens right before the 2019 Lok Sabha general elections. However, this baseless and accusatory criticism has been crushed by a majority ruling of the Hon’ble Supreme Court in the case of Janhit Abhiyan versus Union of India^[2] which has been elaborately dealt with in this article.

Where on one hand, Article 15(1) and 15(2) of the Constitution of India warrant general protection to the citizens and prohibits the State to discriminate the citizens of India on grounds only of religion, race, caste, sex or place of birth, Article 15(3), 15(4) and 15(5) on the other hand make special provisions for reservation of women and children and the socially and economically backward classes (SEBCs) existing in the Indian society. On similar lines, Article 16(1) and 16(2) provide for equal opportunity for all citizens in public employment. Articles 16(4), 16(4A), 16(4B) and 16(5) provide for reservation of the backward classes in public employment.

By means of the Amendment Act, Article 15(6) and 16(6) were incorporated in the Constitution which provided for reservation of the economically backward class of citizens for admission into educational institutions and for public employment, subject to a cap of 10%.

The opponents of this legislation, who found the Amendment Act discriminatory on various grounds, filed various writ petitions under Article 32 of the Constitution before the Supreme Court of India. These writ petitions were clubbed together and a common order in Writ Petition (Civil) No. 55 of 2019^[3] was pronounced on 07.11.2022 by a Five-Judge Constitutional Bench of the Apex Court in a 3:2 split ratio.

The findings of Hon’ble Justice Dinesh Maheshwari, Hon’ble Justice Bela M. Trivedi and Hon’ble Justice J. B. Pardiwala were to the effect that the Amendment Act was not violative of the basic structure of the Constitution of India. However, the minority/ dissenting Judgment passed by Hon’ble Chief Justice of India U. U. Lalit and Hon’ble Justice Ravinder Bhat was to the effect that The Amendment Act was violative of the Fundamental Rights under Part III of the Constitution of India and therefore, is liable to be declared as unconstitutional.

Primary Issues before the Court

The Five-Judge Bench after hearing the petitioners as well as the respondents in the present case have noticed the following issues which warrant determination:

1. As to whether reservation is an instrument for inclusion of socially and educationally backward classes to the mainstream of society and, therefore, reservation structured singularly on economic criteria violates the basic structure of the Constitution of India?^[4]
2. As to whether the exclusion of classes covered under Articles 15(4), 15(5) and 16(4) from getting benefit of reservation as economically weaker sections violates the Equality Code and thereby, the basic structure doctrine?^[5]
3. As to whether reservation for economically weaker sections of citizens up to ten per-cent in addition to the existing reservations results in violation of basic structure on account of breaching the ceiling limit of fifty per cent?^[6]

In addition to the above, the Court has also dealt with other supplementary issues arising from the above-mentioned three issues which do not form a part of this article.

Contentions raised by the Petitioners 

(a)     The Constitution (One Hundred and Third Amendment) Act, 2019 is violative of the 50% reservation cap. 

The counsels for the petitioners have submitted that providing for a 10% reservation ‘in addition to existing reservation’ under articles 15 and 16 would be violative of the precedent laid down in the case of Indra Sawhney, which has been upheld by the Supreme Court and various High Courts over decades in numerous judgments. Further, that the cap of 50% cannot be breached under any circumstance unless if a law is protected under the 9^th Schedule of the Constitution.^[7]

(b)     The reservation policy was introduced into the Constitution for bringing in an egalitarian society.

The counsels for the petitioners contended that the very purpose behind empowering the State with making reservations for the marginalised class of persons was to ultimately do away with a society wherein certain classes of persons are socially as well as educationally backward. It was submitted that the reservation provisions were made to “address these historical inequalities that, as a vehicle of positive discrimination, the socially oppressed sections were provided reservations and special provisions so as to give them a voice in administration, access to resources such as education and public employment.”^[8]

In support of the same it was submitted that the Amendment Act was violative of the basic structure of the Constitution as it sought to include those persons who were never socially and educationally backward, and therefore such amendment plays a fraud on the Constitution itself (reliance placed on M. R. Balaji case^[9]).

(c)      Economic criteria cannot be the sole ground for reservation.

The Counsels for the Petitioners have placed reliance on various landmark judgments to contend that while passing the Amendment Act, the Legislature has erred in considering ‘socially or educationally backward’ as a ground for providing reservation as against ‘socially and economically backward’. In support of the same, reliance was placed on M. R. Balaji case and Indra Sawhney^[10].

It was further submitted that the idea behind reservations as envisaged under Article 15 and 16 was to make an adequate representation of the caste of people who were not adequately represented. However, the present amendment has failed to consider the aspect of ‘representation’ of the EWS which is evident from the fact that the EWS provides reservation for those people who have already been adequately represented in the society.

(d)     The amendment in question aims to reward ‘poor financial behaviors’

The learned counsels for the petitioners also contended that the amendment in question does not really serve a purpose in improving the drastic economic condition of India. Rather, this amendment is individualistic in its approach and nature which only aims to make provisions for those individuals who are economically weak. That such financial weakness/ backwardness which would be a ground for reservation was not based on a class, rather was dependent from person to person, and is therefore violative of Article 14 of the Constitution which allows for reservation for a ‘class’ of people who are at equal footing. Thus, the Amendment Act is violative of the basic structure of the Constitution of India.

Contentions Raised by the Respondents

The respondents in the present case presented their contentions to support the fact that the Amendment Act does not violate the basic structure of the Constitution, rather fosters it.

(a)     10% reservation would not affect the 50% limit set for the SEBC.

In support of the above contention, the Attorney General contended that the rights of the SEBC, SC and ST are not at all affected as they are already enjoying the perks of reservation in all sectors such as education, public services, legislature, and so on. Hence, the rights of a class of group that has already been provided reservation cannot be said to be violated and that such reservation for the economically weaker section cannot be said to be violative of the Equality Code. It was further contended that the 10% reservation is in addition to the already existing reservation for the SEBCs.

(b)     There is no violation of the basic structure by the Amendment Act.

 In support of its contention that the Amendment Act does not violate the basic structure of the Constitution, the counsels for the respondents have made a submission that mere violation of Article 14 of the Constitution does not amount to violation of basic structure. That for the violation of the basic structure, such violation should be ‘shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice’.^[11]

It was further submitted that the present amendment did not violate the basic structure, rather, was in consonance to the preamble to the Constitution by providing economic justice to the citizens of India by means of EWS Reservation.

(c)      50% cap for reservation can be violated in exceptional circumstances.

The learned Solicitor General of India has vehemently opposed the petitioner upon the issue whether the Amendment Act if brought into effect would cross the ceiling limit of the 50% reservation criteria as laid down in Indra Sawhney case or not. In support of the same it was submitted that the 50% reservation has neither been provided under the Constitution of India nor is said to be forming a part of the basic structure of the Constitution of India. Hence, any reservation made cannot be said to be violative of the basic structure merely because it surpasses the 50% reservation criteria as laid down in Indra Sawhney case.

(d)     The right of EWS arises from the right to live a dignified life under Article 21 of the Constitution.

The respondent counsel Ms. Vibha Dutta Makhija has submitted that the right of the EWS envisaged in the Amendment Act arises from the right to live a dignified life as envisaged under Article 21 of the Constitution. She also stated that poverty affects dignity and that it was the duty of the State to eradicate poverty, thereby providing a dignified life to the EWS.

Last but not the least, the respondents have argued that the Constitution does not debar the Legislature from taking a step away from the traditional approach in achieving economic justice. Additionally, Mr. V.K. Biju has apprised the court of the statistical data on record and submitted that the economic criteria for reservation is the need of the hour on the basis of various reports and statistical data. He has further argued that even in Indra Sawhney, the Court took a conscious note that there may be a group or class of people, who can qualify for benefits of reservation irrespective of caste.

JUDGMENT

The judgment popularly known as the ‘EWS Judgment’ was passed on 07.11.2022 with a 3:2 majority upholding the validity of The Constitution (103^rd Amendment) Act, 2019.

1. UPHOLDING THE CONSTITUTION (103^RD AMENDMENT) ACT, 2019

The validity of the Amendment Act was upheld by a majority in the 5-judge bench of the Hon’ble Supreme Court. Hon’ble Justice Bela M Trivedi, Hon’ble Justice J. B. Pardiwala and Hon’ble Justice Dinesh Maheshwari upheld that the petitions filed challenging the Amendment Act were liable to be dismissed as the said Amendment cannot be said to be violative of the basic structure of the Constitution. A provision for reservation of the EWS neither affects the rights of the SEBCs nor does such reservation made solely on the ground of economic inequality violates the basic structure.

In support of the above ratio passed by the Hon’ble Supreme Court, Hon’ble Justice Bela M. Trivedi has emphasised upon the Statements of Objects and Reasons for the Constitution (One Hundred and Third Amendment) Bill to bring into light that a large chunk of the EWS have been excluded from attaining quality education as a result of their economical incapacity. Such persons are neither eligible for reservation nor have the financial capacity to receive the best education. Hence, the Constitution had been rightly amended. Hon’ble justice Bela M. Trivedi has observed as under:

“Therefore, the constitutional amendment could not be struck down as discriminatory if the state of facts are reasonably conceived to justify it. In the instant case, the Legislature, being aware of the exclusion of economically weaker sections of citizens from having the benefits of reservations provided to the SCs/STs and SEBCs citizens in Clauses(4) and (5) of Article 15 and Clause(4) of Article 16, has come out with the impugned amendment empowering the State to make special provision for the advancement of the “economically weaker sections” of citizens other than the classes mentioned in Clauses(4) and (5) of Article 15 and further to make special provision for the reservation of appointments or posts in favour of the economically weaker sections of the citizens other than the classes mentioned in Clause(4) of Article 16. The impugned amendment enabling the State to make special provisions for the “economically weaker sections” of the citizens other than the scheduled castes/schedules tribes and socially and educationally backward classes of citizens, is required to be treated as an affirmative action on the part of the Parliament for the benefit and for the advancement of the economically weaker sections of the citizens. Treating economically weaker sections of the citizens as a separate class would be a reasonable classification, and could not be termed as an unreasonable or unjustifiable classification, much less a betrayal of basic feature or violative of Article 14.”^[12]

In support and in addition to what has been held by Hon’ble Justice Bela M. Trivedi and Hon’ble Justice D. Maheshwari, Hon’ble Justice Pardiwala emphasised on the need to revise the criteria on which the reservations under the Constitution were made. He emphasised the fact that the reservations were not meant to become a vested interested in a class of people, rather, it was meant to represent the marginalised class of people and ultimately reach an egalitarian society.

The verdict written by Justice Pardiwala reminds us of the fact that the reservations under the Constitution are never meant to be for indefinite period. For instance, the reservation under article 15 and 16 were to bring about social harmony aimed to be achieved within 10 years of the Constitution coming into force, which however continues even after more than seven decades of the Constitution coming into force.

(A similar view was also taken by Justice Bhat and CJI U. U. Lalit, who passed a verdict declaring the Amendment Act as unconstitutional.)

1. DISSENTING JUDGMENT

The minority view comprising of the verdict passed by Hon’ble Justice Ravindra Bhat and Hon’ble Chief Justice of India U. U. Lalit held that the Amendment Act was violative of the basic structure and therefore is unconstitutional.

On the amendment made under article 15 by means of inserting 15(6), Hon’ble Justice R. Bhat has held that 15(6) is unconstitutional on the sole ground that it excludes the representation of the poorest sections of the society who are socially as well as educationally backward. Hence, such a provision discriminating against the down-trodden was violative of the Equality Code. Hon’ble Justice R. Bhat further held that Article 16(6) was liable to be declared unconstitutional on two main grounds. Firstly, on the ground of non-inclusion of the already socially and educationally backward class of persons. Secondly, that since Article 16 purports to solve the issue of lack of representation of a particular community/ class, providing reservation to the EWS under article 16 was clearly violative of the basic structure of the Constitution.

CRITICAL ANALYSIS

Since the enforcement of the Constitution of India, reservation has been an arena which affects every Indian individual intensely, irrespective of the caste one belongs to.  In India, policies with respect to reservations have been in place since the formation of the Constitution of India. However, it is important to remember that the reservation policies post Indian independence were incorporated keeping in mind the societal scenario of India at the time of independence, i.e., these reservations were brought to give proportionate representation in jobs and education to SC, ST, SEBC and OBC groups who bore the pain of social exclusion. However, with the changing socio-economic conditions of the Indian societies, the upliftment of the Scheduled Tribes, Scheduled Castes, Socially and Economically Backward Class and other backward class by means of reservation policies have proved to be unjust for the upper caste individuals who are not equally well-off.

Further, reservation policies favouring the Scheduled Tribes, Scheduled Castes, Socially and Economically backward and Other Backward Class have always been maliciously used for the electoral gains and the reality of India has been ignored. Many state governments such as Andhra Pradesh, Telangana, Tamil Nadu, Maharashtra and so on, have been blatantly violating the precedent laid down by the Supreme Court in the case of Indra Sawhney in order to take political advantage of the reservations policies. These actions of the state governments have been declared unconstitutional by the Supreme Court from time to time.

The actual purpose of the reservations has always been defeated and therefore, the Government has rightly taken a grip on reality of the socio-economic conditions existing in the country and passed The Constitution (103^rd Amendment) Act, 2019. The Government has also vide the particular exclusion of the ST, SC, SEBC, OBC from the EWS quota has ensured that the upper caste group who have been unable to represent themselves in the society primarily benefit from the Amendment Act.

The benefit of reservation should be availed by the persons from the lowest strata of the society and somebody who has taken undue advantage of these policies since generations shall not be allowed to take benefit of such reservations.

It is for the first time that the Supreme Court has, vide its EWS Judgment, showed its concern towards the genuinely weaker sections of the society that have been excluded from attaining quality education as a result of their economic incapacity. Such persons are neither eligible for reservation nor have the financial capacity to receive the best education. The Amendment Act has been rightly passed to represent the marginalised class of people and ultimately reach an egalitarian society.

Last but not the least, the Amendment Act and the ruling of the Hon’ble Supreme Court in the EWS judgment is a true tribute to the makers of the constitution of India and the vision of Dr. B. R. Ambedkar, the father of the Indian Constitution and also an economist. Through his speeches, he always laid emphasis on uplifting the economically weaker sections of society, as reflected in the following statement given by him in the Constitution Assembly debates:

“…that every individual who is qualified for a particular post should be free to apply for that post, to sit for examinations and to have his qualifications tested so as to determine whether he is fit for the post or not and that there ought to be no limitations, there ought to be no hindrance in the operation of this principle of equality of opportunity.”

Thus, by incorporating Articles 15(5) and 16(6) into the Constitution, the Government has ensured that it is not just the socially and educationally backward class that is entitled to get justice but also the poor people of India. The Amendment Act and its confirmation by the Hon’ble Supreme Court is a big step towards achieving economic equality in the Indian democracy.

Present Status of the Case

Congress leader Dr. Jaya Thakur moved Review Application before the Supreme Court seeking review of the judgment passed by three of the five-judge bench of the Apex Court which upheld the constitutional validity of the Amendment Act providing 10% reservation for the economically weaker sections (EWS). However, the same is still pending adjudication.

Author Brief Bio: Siddharth Acharya is a practicing advocate in Supreme Court of India. Apart from legal profession he has directed acclaimed documentary films on Kashmir and CPEC. He writes extensively and frequently on Constitutional issues and judgments pronounced by Supreme Court.

References:

^[1] https://www.india.gov.in/sites/upload_files/npi/files/consti.103amend.pdf

^[2] WRIT PETITION (CIVIL) NO. 55 OF 2019

^[3] https://main.sci.gov.in/supremecourt/2019/1827/1827_2019_1_1501_39619_Judgement_07-Nov-2022.pdf

^[4] Para 31(a), Janhit Abhiyan Versus Union Of India [Writ Petition (Civil) No. 55 of 2019]

^[5] Para 31(b), Janhit Abhiyan Versus Union Of India [Writ Petition (Civil) No. 55 of 2019]

^[6] Para 31(c), Janhit Abhiyan Versus Union Of India [Writ Petition (Civil) No. 55 of 2019]

^[7] https://www.mea.gov.in/Images/pdf1/S9.pdf

^[8] Para 7.1, Janhit Abhiyan Versus Union of India [Writ Petition (Civil) No. 55 of 2019]

^[9] 1963 Supp (1) SCR 439

^[10] 1992 Supp (3) SCC 217

^[11] Para 25.1, Janhit Abhiyan Versus Union of India [Writ Petition (Civil) No. 55 of 2019]

^[12] Para 20, Janhit Abhiyan versus Union of India [Writ Petition (Civil) No. 55 of 2019]

Introduction.  

Under the Indian Constitution, legislature, judiciary and the executives are the three pillars of the State. It is based upon certain doctrines which has established rule of law based modern democratic societies. Some of the examples of such principles are a). Separation of power, b). Doctrine of check and balance and c). Transparency in the state affairs.

To keep a check on three pillars of the government it has been provided with an accountability mechanism amongst each other. Executive is accountable to the legislature and judiciary both. Judiciary is also accountable to the legislature. Similarly, the power of the legislature is also checked by the judiciary as it cannot make any law which is ultra-vires. But finally, it is only the legislature which has been made accountable to the people which has elected it to rule over them. Therefore, judiciary and executive both are accountable for the legislature and ultimately, it is only the legislature which is answerable to the people.

The focus of this article is on two aspects: One, is the Parliament fulfilling its role with respect to the judiciary and two, whether the Supreme Court is meeting its mandate with due observance of the above said basic democratic principles of the governance model adopted in our Constitution?

 24^th Amendment

Article 368 as adopted by the Constituent Assembly was debated as Draft Article 304 of the Constitution on 17^th September 1949. After debating this provision, it was adopted without any change.^[1] Article 368 has been through three amendments: the 7^th, 24^th and 42^nd Amendments. These were necessitated to maintain the supremacy of the Parliament in view of some judgments passed by the Supreme Court curtailing power of the Parliament to amend the Constitution. The 24th Amendment stated: (i) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.”^[2]

The power to amend gives the Constitution the capacity to cater to the changing needs of society and to evolve organically. The wide powers given by the 24^th amendment thus gave Parliament the power to overcome the judgment passed by the Supreme Court in Golaknath Case (1967). The Constituent Assembly debates indicate that the original framers of the constitution were well aware of the consequences of having a rigid Constitution. It was never their intent that the Supreme Court should be the final arbiter to decide whether an amendment made under Article 368 is valid or otherwise on Constitutional parameters. At that time, Members were even against allowing State Governments any say in exercise of this power by the Parliament, but in deference to the federal structure of the state, ratification by state clause was accepted by all.

Basic Structure Doctrine

Rigid Constitution comes with its own problems as seen by the example of the Constitution of the Republic of Ireland, which requires the consent of the people through Constitutional Referendum, before any amendment can be made.^[3] Considering the vastness and population of India, a referendum clause would have been counterproductive, which is why this power has been left to be exercised by the elected Parliament, without any limitation. Hence the ratio laid down in Golaknath Case that Parliament cannot amend Part III of the Constitution was overruled in 1972 in the Kesavananda Bharati case^[4] by affirming the Constituent power of the Parliament under Article 368 and that the Act made under Article 368 is not a ‘law’ as mentioned under Article 13. However, the Kesavananda Bharati case also introduced the doctrine of the Basic Structure of the Indian Constitution, and held that this cannot be abrogated, even by a Constitutional Amendment.

What constitutes the Basic Structure now includes an ever-expanding list, which the Supreme Court has taken upon itself to determine, on a case to case to basis. In this series, independence of judiciary was also recognised as a basic feature of the Constitution under the doctrine of Separation of Power in Second Judges Case of 1993, i.e., SCAORA Vs. UOI^[5].

Appointment of Judges

Vide Article 124, every judge of the Supreme Court is to be appointed by the President after consultation with the Chief Justice of the Supreme Court as the President may deem necessary for the purpose. In First Judges case of 1982, i.e., S. P. Gupta Vs. UOI^[6], the Supreme Court, held that under Article 124, the word “consultation” does not mean concurrence. The President was thus not bound to make a decision based on the consultation of the Supreme Court. This meant that the appointment of judges is a function to be exercised by the President (through executive) as per the principle of natural justice that no one should be the judge on his own cause for accountability of the judges under the Doctrine of Checks and Balances.

However, this majority view was overruled in SCAORA Vs. UOI (supra), also known as the ‘Second Judges Case’, wherein a nine-judge bench overruled the decision given in S. P. Gupta case (supra) and gave primacy to the Chief Justice of India (CJI) over the President on appointment of judges and transfer matters by holding that the word ‘consultation’ would not lessen the primary role of the CJI in judicial appointments and started interpreting it as ‘concurrence’ by relying upon the doctrine of separation of power and independence of judiciary. This has later been formalised in the form of Collegium System in 1998 in Third Judges case and since then, the five senior most judges in the Supreme Court are appointing judges of the Supreme Court and High Courts and having the final say in transfer matters also. Therefore, elevation to the bench from the bar since 1993 has become the sole function of the senior most judges of the Supreme Court or Juristocrats of the Supreme Court. It must be noted that this practice of judges appointing judges is unique to India and exists in no other country.

Invention of Basic Structure Doctrine: Permissible Limit of ‘Amendment’

In a constitution which makes no separate provision of total revision but simply prescribes the machinery to amend the Constitution, can such power of amendment include the power to make total revision and substitute the Constitution by another? The Supreme Court, by inventing the concept of ‘un-amendability of the basic structures’ by way of interpretation has held that certain essential parts of our Constitution are so basic that its amendment will change the character of the Constitution itself and hence cannot be amended and that Parliament does not enjoy absolute Constituent Power under Article 368 for this purpose.

But what if the Constitution was required to be amended fundamentally. How would we go about amending the same, without a formal procedure? Some countries have overcome this problem by providing separate provisions for revision in their Constitution. The Constitution of Switzerland provides for referendum before initiating partial amendment or repeal/total revision of the Constitution. The Constitution of West Germany (1949) has a provision that states that if the existing constitution of 1949 is to be replaced in toto or to be replaced by new one, it can be done only by a plebiscite of the ‘German people’ while the partial amendment is left by Article 79 in the hands of Federal Legislature. However, the basic principles contained in Arts. 1-20 are not subject to any amendement. Traces of the Doctrine of Basic Structure adopted by the Supreme Court of India and the necessity behind such adoption can be found here. On the scope of Art. 79(3) it was held by the German Court that “The purpose of Art. 79 para 3 is a check of the legislators amending the Constitution to prevent both abolition of the substance or basis of the existing constitutional order, by the formal legal means of amendment and abuse of the Constitution to legalise a totalitarian regime.”

In the Indian Constitution such power is deliberately absent, and it is not a mistake. The Supreme Court can bar any amendment to the Constitution which it deems to be affecting the basic structure of the Constitution. But what if such an amendment was required? Will it not be the prerogative of the people of India to decide the same by referendum and not the Supreme Court? The judiciary cannot be the final authority to decide on our Polity. This is a matter that can only be exercised by the true representative of people.

The Conflict of two Doctrines

In Keshvananda case, Sikri, C.J. held that ‘the doctrine of basic structure will act as a safety valve against the arbitrary use of amending power by Parliament’. This certainly serves a great purpose in safeguarding the freedom and liberty of the citizen in a case of a totalitarian regime like the emergency imposed by the Indira Gandhi government for 21 months between 1975-1977. But what if the courts start applying the principle of doctrine of basic structure in every case against the popular will of the country and starts interfering with the power of legislature in violation of doctrine of separation of power itself under the garb of independence of judiciary? Should not the Doctrine of Checks and Balances apply to the judiciary too?

Additionally, what constitutes ‘independence of Judiciary’ and when can we say that such independence is being violated or will be violated? Is the judiciary immune to follow the fundamental basics of a rule of law based democratic country, which is the very foundation of its power? Will this not lead to a new form of aristocracy in our country where ‘juristrocrats‘ will have a veto power on deciding the polity & broad policy of the nation?

The Supreme Court itself has already held in Keshavananda Case, State of Bihar V. Bal Mukund Sah,^[7] and then in I R Coelho V. State of Tamil Nadu^[8], that the ‘Principle of Separation of Powers’ between Legislature, Judiciary and Executive is part of ‘basic structure’. It is hence apparent that these two doctrines are in severe conflict with each other.

Legislation should always be a business of political will of the people in a democratic political society. If the judiciary also starts legislating, then it will not only make law more confusing but would also amount to breach of doctrine of Separation of Power as held in a judgment in the year 2020 in the case of Dr. Ashwini Kumar Vs. UOI & Anr^[9]. This can but lead to ‘judicial aristocracy’ where law starts emanating from a selected few intellectual of the Constitutional Courts.

Parliament, working under the Constitution, cannot also change the basic element of the same such as substituting democracy with monarchy or the federalism enshrined in our Constitution as rightly observed by the Sikri C.J. in Keshvananda case. What is needed then is a fine and calibrated balance between judicial powers barring Parliament from making specific new amendments to the Constitution. However, in all other cases, they must have the power to legislate on behalf of the citizen as per their will and their need, which is very essential for organic stable growth of the society and law.

Today what constitutes those certain basic features of Constitution, which are un-amendable and for which Parliament can’t exercise its power, is uncertain and confusing which can only be decided on case-to-case basis as per the satisfaction of the Supreme Court. In Ashok Kumar Thakur V. Union of India (2008) 6 SCC 1; the Court observed that “to determine if a constitutional amendment violates the basic structure, a two-step ‘Effect Test’ as laid down in I. R. Coelho case is to be applied on a case-by-case basis and it has to be examined in each individual case keeping in mind the scheme of the Constitution…”. So, today it’s a complete judicial discretion to hold any amendment in Constitution valid or invalid on the basis of doctrine of basic structure. How then do we deal with judicial reforms, which are a pressing need today?

Brief History

Judicial interpretation of the powers vested in Article 368 first came to the fore in 1951, within a year of the Constitution coming into force, when the Constitution (First Amendment) Act was passed. The amendment sought to curtail the Right to Property guaranteed by Article 31. Its constitutionality was challenged and the matter was decided by a 5 Judge bench of the Supreme Court in Sankari Prasad Singh Deo v. Union of India^[10]. The judgement held that Fundamental Rights are also subject to the amending power of the Parliament under Article 368. The Court distinguished between the Ordinary Legislative Power and Constituent Power and held that this is a constituent power and not ordinary legislative power. The judgement went on to state that…the terms of article 368 are perfectly general and empower Parliament to amend the Constitution, without any exception whatever. Subsequently, in Sajjan Singh V. State of Rajasthan^[11], the Apex Court, in a majority judgement, held that ‘amendment’ includes any change and not necessarily a change by way of improvement. Hence it would include repeal or substitution.

This issue was again considered when the 17^th amendment was challenged and heard before an eleven Judge bench in Golak Nath V. State of Punjab (1967) 2 SCR 762;  though the majority did not give categorical answer regarding the scope of Art. 368, a view was expressed (obiter) by some Judges that it should not go to ‘the extent of abrogating the present Constitution and substituting it by an entirely new one’. In this case it was held that no provision of Part III or Fundamental Rights can be altered by an amendment under Article 368. Thereafter, to provide solution and overcome the difficulty caused due by the Golaknath case for enabling agrarian reforms & to bring right to property outside the ambit of fundamental rights, the ambit of the amending power under Art. 368 was sought to be clarified by enacting the Constitution (24^th Amendment) Act, 1971 which, inter alia, inserted cl. (1) in Art. 368, containing the words ‘amend by way of addition, variation or repeal any provision…’ The validity of this Amendment Act was unanimously upheld by the Special Bench in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

The language used by the several Judges who constituted the majority in the Keshavananda case was not identical. The common ratio however was that the limitation to the power conferred by Art. 368 came from the very meaning of the word ‘amend’. Justice Khanna observed in Para 1427: The words “amendment of this Constitution” and “the Constitution shall stand amended” in Article 368 show that what is amended is the existing Constitution and what emerges as a result of amendment is not a new and different Constitution but the existing Constitution though in an amended form. The language of Article 368 thus lends support to the conclusion that one cannot, while acting under that article, repeal the existing Constitution and replace it by a new Constitution.” 

Similarly, the limitation of the amending power was observed by Justice Mathew in Para 1567 as also by other judges. Justice Mathew summed up his conclusion in Para 1162, stating that… Parliament could under Article 368 amend Article 13 and also the fundamental rights, and though the power of amendment under Article 368 is wide, it is not wide enough to totally abrogate or what would amount to an abrogation or emasculating or destroying in a way as would amount to abrogation of any of the fundamental rights or other essential elements of the basic structure of the Constitution and destroy its identity. Within these limits, Parliament can amend every article. In this view of the scope of the amending power in Article 368, I hold the Twenty-fourth Amendment valid, for it has the same amending power as it existed before the amendment.”

However, contrary to the above majority view, another proposition, advanced by some other Judges (Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud JJ.) though in minority, negates any implied restriction to be imposed on the powers of the Parliament with respect to Article 368 and held it as against the wish of the framers of our Constitution. Ratio of the arguments can be summarised as observed by Justice Dwivedi in Para 1888 as under:

The grants of legislative power are ordinarily accorded the widest amplitude. A fortiori, the constituent power in Article 368 should receive the same hospitable construction. The word “amendment” should be so construed as to fructify the purpose underlying Article 368. The framers of the Constitution have enacted Article 368 for several reasons. 

• First, the working of the Constitution may reveal errors and omissions which could not be foreseen by them. Article 368 was designed to repair those errors and omissions.
• Second, the Court’s construction of the Constitution may not correspond with the Constitution-makers’ intention or may make the process of orderly government difficult.
• Third, the Constituent Assembly which framed the Constitution was not elected on adult franchise and was in fact not fully representative of the entire people. Fourth, at the apex of all human rights is the right of self-preservation. People collectively have a similar right of self-preservation. Self-preservation implies mutation, that is, adaptation, to the changing environment. It is in the nature of man to adjust himself to the changing social, economic and political conditions in the country. Without such adaptation the people decays (sic) and there can be no progress.

Justice Dwivedi, after analysing Constituent Assembly Debates and Constitutional Jurisprudence worldwide against the implied limitation being imposed on Article 368 in the form of basic structure, observed that Article 368 is the master, not the slave of the other provisions. Acting under Article 368, Parliament is the creator, not the creature of the Constitution for the organic and natural growth of the society as per the need of every generation. Para 1890 goes on to state: It is difficult to believe that those who had fought for freedom to change the social and political organisation of their time would deny the identical freedom to their descendants to change the social, economic and political organization of their times. The denial of power to make radical changes in the Constitution to the future generation would invite the danger of extraordinary constitutional changes of the Constitution.

The Doctrine of Basic Structure

With a narrow margin of 7:6, it was held in the Keshvananda’s Case that there are certain basic features of the Constitution which are un-amendable and Parliament can’t exercise its power under Article 368 on similar line as of Constituent Assembly to amend ‘Basic Structures of the Constitution’ and it can only be done by replacing the existing Constitution. Three modes have been suggested to replace the existing Constitution or amend the basic features: (a) Complete Revolution (b) Parliament converting itself into a Constituent Assembly & (c) Referendum/Plebiscite.

After Keshvananda’s Case the scope of Parliamentary Power to amend the Constitution under Art. 368 have been curtailed and came under the purview of judicial scrutiny, whether it is violative of basic structure of the Constitution or not.  According to Sikri, C.J. the ‘basic structure’ was built on the basic foundation i.e. the freedom and dignity of individual; He observed in (As per Shelat & Grover JJ.)

“Para 582. ….. If the historical background, the preamble, the entire scheme of the Constitution, relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structure. (These cannot be catalogued but can only be illustrated):

(1) The supremacy of the Constitution.

(2) Republican and Democratic form of government and sovereignty of the country.

(3) Secular and federal character of the Constitution.

(4) Demarcation of power between the Legislature, the executive and the judiciary.

(5) The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV.

(6) The unity and the integrity of the Nation. 

After Golak Nath Case no fundamental right could be taken away or abridged. But After Keshvananda’s Case it is for the Court to decide whether a fundamental right is a basic structure or not. In Indira Gandhi V. Raj Narain (AIR 1975 SC 2299), the Supreme Court added the following features as ‘basic structure’ to the list of basic features laid down in Keshvananda’s Case:          

1. Rule of Law
2. Judicial Review
3. Democracy, which implies free and fair elections
4. Jurisdiction of Supreme Court under Article 32.

Further in Minerva Mills Ltd. V. UOI (AIR 1980 SC 1789); the Hon’ble Supreme Court by 4:1 majority struck down clauses (4) & (5) of Art. 368 brought by 42^nd Amendment Act, 1976 to overcome the doctrine of basic structure. It has been struck down on the ground that these clauses destroyed the essential feature of basic structure of the Constitution. The Court held that the following are also the basic features of the Constitution:

1. Limited power of Parliament to amend the Constitution
2. Harmony and Balance between fundamental rights and directive principles
3. Fundamental rights in certain cases
4. Power of judicial review in certain cases.

Doctrine of Basic Structure as it Stands Today

After the re-affirmation and extension of the applicability of the doctrine of Basic Structure in the Minerva Mill’s Case, it is now evident that so long as the decision in Keshvananda’s Case is not overturned by another full bench of the Supreme Court, any amendment of the Constitution is liable to be interfered with by the Court on the ground that it affects one or other of the basic features of the Constitution.

Independence of Judiciary and Collegium system for appointment of Judges

In a recent case challenging the Constitutional validity of 99^th amendment to the Constitution which paved the way for NJAC, Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1; the Supreme Court has struck down the amendment brought with overwhelming political consensus to bring transparency in judicial appointments as an alternative to collegium system on the basis of violation of independence of judiciary being one of the basic structure of the Constitution by majority of 4:1. It has held indirectly that collegium system is a basic feature of our Constitution! But it is flying on the face of the doctrine of Separation of Power, the Doctrine of Check and Balance and transparency in all public affairs of the State including judicial appointments.

However, the dissenting view delivered by Justice Chelameshwar also held independence of Judiciary as a part of basic structure but observed that the 99^th Amendment was not violative of any of such basic features of the Constitution and indeed was necessary for increasing the efficiency and accountability of the Judiciary. In his dissenting view Chelameshwar J. precisely tried to balance both conflicting doctrines in Para 1212: Primacy of the opinion of judiciary in the matter of judicial appointments is not the only means for the establishment of an independent and efficient judiciary. There is abundance of opinion (in discerning and responsible quarters of the civil society in the legal fraternity, jurists, political theorists and scholars) that primacy to the opinion of judiciary is not a normative or constitutional fundamental for establishment of an independent and efficient judiciary…” 

Judicial Reform: The Mystery of Elevation and Designation

On careful analysis the minority view taken by Justice Chelmeshwar appears more correct. Independence of judiciary will not be compromised if the executive or parliament have a say in the appointment process. On the contrary, it will increase transparency and confidence of the people in its process. The 99^th Amendment with the National Judicial Accountability Bill was brought to fill the legislative vacuum created after adoption of the Collegium System to codify the process of appointment of judges. The common aspiration of the people was in its support to start with this judicial reform as there were allegations regarding methods being adopted for elevation of few selected classes of the advocates to the Constitutional Courts.

Opacity in the issue of representation among the judges is a matter of great concern, which can easily be assuaged by adopting basic democratic principles adopted to establish the Rule of Law for executive and legislative wing of the State. The issue of designation as senior advocate by the Constitutional Courts is also marred with doubts of favoritism. To become a senior advocate, there is an impression that one has to be very close and known to the judges. Differentiation in the legal profession, as created under the British System between Barristers (UK law Graduates) and Vakils (Indian law Graduates), continues today under Advocates Act, 1961, as Senior Advocates and Advocates.

Today, overall, the Constitutional Courts are rightly under the accusations of opacity and favoritism to give good career prospects to a few selected class, which is continuing to enjoy the independence of judiciary in their own benefit. Therefore, the mystery of elevation to the benches and designation as a senior advocate by the Juristocrats needs to be solved. In judicial appointments and designations both we should start applying the legal principle propounded by Lord Hewart, the then Chief Justice of England in Rex Vs. Sussex (1924) “Justice must not be done but also be seen to be done”, with respect to fairness and transparency in elevation and designations.

Conclusion

In the light of the above discussion, it can be said that the basic structure doctrine lays down a vague and uncertain test. Can anything be called ‘basic’ which is not prone to any definite definition and of which even its creator is not sure about its contour? Further, the basic rational behind an amending provision in any Constitution is to provide an opportunity to the future generations to make suitable adjustments in it and thus bypass the fear of revolt/Constitutional breakdown. If this is the position, then how can it be assumed that certain basic provisions of the Constitution would never require amendment?

History has seen primarily three forms of government, viz monarchy or autocratic dictatorial regimes, aristocratic forms of government, and democratic governance models. Occasionally, in the timeline of history, we find one form of government yielding to another. Inefficient and bad democratic model of governance during the times of Socrates resulted in the rise of autocratic empires in Europe following the teachings of Aristotle. Monarchy of China and Czars of Russia succumbed ultimately to the communist models of governance in China and in the then USSR. Similarly, colonial imperialism gave way to the modern democratic rule-based governance model in USA and Bharat. Which system is better over the other is hugely contested, the entire cold war being based on these fault lines. Even today, it plays a crucial role when we see continuous reflux in the polarity of the world. But history is testament to the fact that conversion from one governance model to the another, is invariably due to bad governance, inability to provide stability and justice and failure to meet the popular will of the people.

We need to avoid the apparent conflict between the Judiciary and Legislature. The reconciliation between ‘Basic Structure Doctrine’ and ‘Doctrine of Separation of Powers’ can only be achieved if the different organs of the State adopt the ‘Doctrine of Self Restraint’. The institutions which enjoy infinite power can only maintain such power if such institutions can preserve its dignity and respect in a democratic society in the long run. Arbitrary and wanton exercise of such extraordinary powers may in future limit the scope of such power itself.

Author Brief Bio: Ayush Anand & Shubhendu Anand are Advocates, Supreme Court of India.

References: 

^[1] https://www.constitutionofindia.net/constitution_of_india/amendment_of_the_constitution/articles/Article%20368

^[2] See Section 3 of the Constitution (Twenty-fourth Amendment) Act, 1971

^[3]https://www.citizensinformation.ie/en/government_in_ireland/irish_constitution_1/constitution_introduction.html

^[4] (1973) 4 SCC 225

^[5] (1993) 4 SCC 441)

^[6] AIR 1982 SC 149

^[7]  (2000) 4 SCC 640

^[8] (2007) 2 SCC 1

^[9] (2020) 13 SCC 585

^[10] AIR 1951 SC 458

^[11] AIR 1965 SC 845

Origins of Hijab in Islam

The practice of veiling predates Islam in the Arabic peninsula. “Khimar” as it is referred to is a head scarf that was practised by both men and women in the pre-Islamic world, which basically is a scarf that is worn to cover the head and extends below on the back of a person. Depending on the length of the “Khimar”, several words in Arabic exist to describe the garment worn by a person. Reference to the Khimar can also be found in verse Surah al-Nur 24:31^[1] of the Quran, which basically prescribes women to use the “Khimar” and use it to cover the chest. Hence, this semantic difference has to be understood in order to understand the debate about Hijab/Burqa being an essential practice in Islam.^[2]  The other Surah in the Quran that discusses cloaking women in Islam is the Surah-al-Ahzab 33:59, which mandates the following,

“O Prophet! Tell your wives and your daughters and the women of the believers to draw their cloaks (veils) all over their bodies (i.e. screen themselves completely except the eyes or one eye to see the way). That will be better, that they should be known so as not to be annoyed. And Allah is Ever Oft-Forgiving, Most Merciful.”

Essential Religious Practice vs Fundamental Rights in India

While arguments including a Karnataka High Court judgement in the Resham v. State of Karnataka and Others (2022) claim “Hijab as a non-essential part of Islam”^[3],[4], it is necessary to understand the fact that the word “Hijab” in its form cannot be found in the Quran. As discussed previously, the word is “Khimar”. It is hence clear from these verses that an objective analysis of veiling or cloaking in Islam can be viewed as “essential practice”. Although this expression “essential practice”, purely from the academic point of view is based on references to the Quran and other religious scriptures of Islam, it has no legal basis. In India, the essentiality test is defined as, “Test to determine whether a part or practice is essential to the religion – to find out whether the nature of religion will be changed without that part or practise”, as per the Commissioner of Police v. Acharya Jagdishwaranand Avadhuta (2004) judgement^[5] of the Honourable Supreme Court. An in-depth discussion on establishing Hijab as an essential practice in Islam and its practice as a fundamental right can be found in Shashwata Sahu’s article.^[6] Although the premise of the argument is centred on individual rights, fundamental rights as well as education of Muslim women, it is clear from Article 25 and Article 19(2) that restrictions on fundamental rights too can be imposed in order to maintain public order, morality and health. Hence, the argument of Hijab as an essential practices from the perspective of restriction on fundamental rights, does not stand on firm ground. Additionally, the Karnataka High Court judgement as referred earlier, also cites examples of how practitioners of Islam, do not always wear the Hijab in public life, therefore, deeming it not as an essential practice.

Hijab in the Global Context

So, what exactly is Hijab and how does one have to reconcile the practice of veiling and contextualise it in contemporary Indian society? The term Hijab itself in Arabic means “barrier” or “partition”, and is applicable to both men and women in Islam. It however, overtime assumed patriarchal connotation and has resulted in its imposition only on veiling women. While, most societies across the world contain one form of patriarchy or the other, Hijab however is viewed as one of the most regressive of patriarchal impositions on women. It is interesting to note that the discussion on “Hijab as an essential practice” in India is contemporaneous with protests against “Hijab” and oppression of women in Islamist regimes like Iran. It is also important to note that even a country like Kingdom of Saudi Arabia is witnessing a slow but steady move towards liberalism and women’s rights under Mohammad bin Salman.  Mohammad bin Salman himself, much to the chagrin of conservative elements of the Saudi society, has made it clear that the practice of Abaya or Hijab is not mandated by Islam and the country is currently undergoing a wave of progressivism.^[7] It is therefore ironical that India is witnessing unending debates on the practice of Hijab, when the country where Islam originated is moving away from regressive patriarchal impositions.

Muslim Women’s Rights are a part of Women’s Rights

While political debates on issues like Hijab in India muddy the waters of women’s progress, it is essential to have a nuanced view on the discussion. Taking political sides in order to shape narratives is detrimental to Muslim women’s rights and reinforces control over them by the religious clergy. The time is ripe in India to initiate serious debates and discussions on the implementation of uniform civil laws in India, which on paper remains secular, yet courts intervene in matters of religious importance such as in the case of the Sabarimala verdict, Ayodhya verdict and even the Triple Talaq abolition. In a sense, Indian courts have assumed the status of religious authority, while the constitution of India declares the country as a secular state. Muslim women in India have been at the receiving end of “protecting secularism” for long, especially if one witnesses the reversal of Supreme court judgements such as in the Shah Bano case of 1986. While freedom of religion is guaranteed by India’s Constitution in Articles 25-28, it is also necessary that religious elements and practices that are deemed unsuitable for the current day be identified and restricted, for the country to progress ahead. It is vital to recognise today, that the onus of upholding freedom of religion should not rest on the shoulders of Muslim women or should not be viewed from the point of view of minority rights. Issues that are faced by Muslim women should only be viewed from the prism of women’s rights. This fundamental change in our judicial processes and public debates has to be emphatically established in order to move beyond religious debates.

Political Agendas as an Impediment to Muslim Women’s Rights

One can argue that there are concerted efforts going on globally and in sections of Indian intellectual class to portray India as undemocratic or being oppressive to minorities. Such efforts are primarily carried out to tarnish the current political dispensation and can effectively be countered by appropriate counter-narratives. Agenda driven and motivated movements should not become an impediment for the progress of Muslim women in India. What such movements essentially do in a country like India are the following:

• Encourage regressive Islamist elements to hijack the debate
• Keep Muslim women oppressed under patriarchal practices
• Prevent Muslim women from achieving their potential

With close to 200 million followers of Islam in India and with half of them being women, the progress of Muslim women in India is integral to the nation’s progress. As the world’s fifth largest economy and soon to become the world’s largest country by population, India is on the cusp of an era of tremendous transformation. It is in this context that Muslim women be equipped with necessary skills, vocational training and education, for them to join the mainstream of the society and contribute in a major way towards India’s economic progress. With women’s progress comes reform within the society, and in India’s Muslims, reform is long overdue. Several issues related to radicalisation, ghettoisation and discrimination against “non-believers”, can be achieved with the emancipation of Muslim women. While, women in India’s other religious denominations have achieved tremendous progress and contribute in a major way to national progress, Muslim women in India are being denied such opportunities and worse, are being subjected to debates on issues like Hijab. This only encourages regressive elements to dictate terms and conditions on the behaviour of Muslim women and hence such elements must be denied that opportunity to do so.

Uniform Civil Laws and Oppressive Elements in Islam

Today, every India is aware of how medieval mindsets have resulted in the complete annihilation of minority rights in Islamist nations like Pakistan. The country is a failed state and has totally marginalised any liberal voice that is critical of elements that have hindered the country’s progress. From abduction and forced conversions of underage girls to intolerance against Hindus, Pakistan is a basket case of religious extremism and its impact on Muslim women’s progress. Similarly, in Afghanistan, women are today accorded second class status with severe restrictions on their rights. In the case of Iraq and Syria, the emergence of ISIS has led to women of Yazidi and Kurdish heritage being viewed merely as sex-slaves and objects for gratification of men’s desires. Europe, thanks to the influx of immigrants from countries like Libya, Syria, Morocco, Tunisia etc, has become unsafe for women, with countries like Sweden figuring among countries with most number of rape cases. Mass molestations and underage girls being groomed for sexual favours are being witnessed from countries ranging from Greece to Germany and from France to the UK. “Sharia no go zones” where even law enforcement agencies cannot effectively enforce law have mushroomed across countries like Belgium, Netherlands, Norway etc.

In such a scenario, the only way to ensure Muslim women are safe is by bringing in civil laws that bring them on equal footing with women from other religious backgrounds in India. Uniform civil laws in India are a major step in the direction of gender equality in India, especially in terms of inheritance and maintenance. Medieval practices like Nikah, Halala and Polygamy are still common in India and Muslim women have for long been victims of such practices. Muslim women often find themselves at crossroads as large sections are kept so oppressed and away from any education that they are even unaware of laws and legality. In such a scenario, discussion around uniform civil laws will make Muslim women of India aware of what their future course of action should be in order to achieve equity with their counterparts from other religious denominations.

Conclusion

There is a need to bring forth discussions related to uniform civil laws in India in an effort to narrow the gap between rights enjoyed by non-Islamic women and Muslim women. Discussions raking up religious sentiments and efforts to divert the discussion away from Muslim women achieving the optimal potential or to keep them oppressed under oppressive patriarchal practices are detrimental to the larger national cause towards progress and development. The onus of secularism by imposing norms like Hijab and Niqab should not lie on the shoulders of Muslim women in India. Muslim women’s rights should purely be viewed from the point of view of women’s progress without political or religious agendas that are the motivation behind the scenes. Finally, the only way for Muslims of India to join the mainstream and contribute in a major way to the nation’s progress is by emancipating the Muslim women, who as professionals equipped with skills to survive in the 21^st century, are likely to usher in the much-needed reform.

Author Brief Bio: Zeba Zoariah is a final year LL.B student at O.P Jindal Global University and is a Bachelors in Global Affairs from the same university. She writes articles on women’s rights, technology and law.

References:

^[1] http://quransmessage.com/articles/a%20deeper%20look%20at%20the%20word%20khimar%20FM3.htm

^[2] LANE. E.W, Edward Lanes Lexicon, Williams and Norgate 1863; Librairie du Liban Beirut-Lebanon 1968, Volume 2, Page 807-808

^[3] https://theprint.in/judiciary/hijab-not-integral-to-islam-says-karnataka-high-court/873548/

^[4] https://www.livelaw.in/pdf_upload/75-resham-v-state-of-karnataka-15-mar-2022-412165.pdf

^[5] https://main.sci.gov.in/jonew/judis/25984.pdf

^[6]https://www.ijllr.com/post/the-hijab-row-a-case-study-of-karnataka

^[7]https://www.youtube.com/watch?v=I1BmwaFIJ0c