A Reckoning For Religious Freedom: India's BJP and the

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A Reckoning For Religious Freedom: India's BJP and the A Reckoning For Religious Freedom: India's BJP and the

International Implications of Anti-Muslim Leadership International Implications of Anti-Muslim Leadership

Heather Holman

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231

A RECKONING FOR RELIGIOUS FREEDOM:

INDIA’S BJP AND THE INTERNATIONAL

IMPLICATIONS OF ANTI-MUSLIM

LEADERSHIP

HEATHER HOLMAN

Currently, the Bharatiya Janata Party (BJP) holds the majority in

the Indian Parliament, where it exercises its authority by passing

legislation that comports with Hindutva. Hindutva is a political

ideology that champions policies intended to make India a Hindu

state. Toward this end, BJP leaders use harmful rhetoric and pass

legislation that harms Muslim citizens of India. However, India is a

party to the International Covenant on Civil and Political Rights

(ICCPR), which protects the freedom to manifest one’s religion and

prevents the advocacy of religious hatred that constitutes incitement

to hostility, discrimination, or violence.

This Comment argues that India and the BJP are currently violating

their commitments under Article 18 and Article 20(2) of the ICCPR by

passing legislation that discriminates against Muslims and engaging

in rhetoric that incites hostility, discrimination, and violence. This

Comment recommends that India face international repercussions

through Article 41 of the ICCPR and implement domestic measures to

remedy the issue including bringing more cases of discrimination to

court, allowing Muslims to determine how they want their community

to be regulated, and implementing affirmative action programs to

change the composition of court.

* Heather Holman is a J.D. Candidate, 2023, American University Washington

College of Law; B.A., 2019 Foreign Affairs, University of Virginia. The author

would like to thank her mother, Susie, and her sister, Hannah, for their love and

support; her boyfriend Noah Salzberg for his encouragement and kindness; and the

entire AUILR staff for their hard work.

232 AM. U. INT’L L. REV. [38:1

I. INTRODUCTION.............................................................233

II. BACKGROUND...............................................................235

A. THE BHARATIYA JANATA PARTY .................................235

1. Introduction ...........................................................235

2. Muslim Discrimination Through Policy................236

3. BJP Culpability in Anti-Muslim Violence ............238

B. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL

RIGHTS .........................................................................241

1. Introduction ...........................................................241

2. Article 18 Jurisprudence: Necessary & Proportionate

Standard.................................................................242

3. Article 20 Jurisprudence: Intent, Content, Extent

Standard.................................................................244

III. ANALYSIS .......................................................................248

A. INTRODUCTION .............................................................248

B. THE BJP’S POLICIES AND RHETORIC VIOLATE ARTICLE

18(2) BECAUSE THEY CONSTITUTE COERCION.............248

C. INDIA’S CITIZENSHIP AMENDMENT ACT VIOLATES

ARTICLE 18 OF THE ICCPR BECAUSE IT IS NOT

NECESSARY AND PROPORTIONATE TO ACHIEVING A PUBLIC

SAFETY GOAL................................................................250

1. The CAA Is Not Necessary Nor Proportional To

Achieve a Public Safety Goal Because It Favors

Hindus Residing in Other Countries Over Muslims

Residing in India....................................................250

2. The CAA Is Not Necessary To Handle the Influx of

Refugees into India Because that Goal Can Be

Served Without Infringing on Religious Freedom 251

3. The Harm that the CAA Causes Muslims Is

Disproportionate to the Benefit that It May Serve in

Immigration Proceedings.......................................254

D. THE BJP VIOLATES ARTICLE 20(2) BECAUSE ITS

ADVOCACY OF HINDUTVA IS INTENTIONAL, CONSISTS OF

HATEFUL CONTENT, AND REACHES A WIDE EXTENT OF

THE POPULATION..........................................................256

1. India’s Reservation to Article 19 Does Not Conflict

with the Object and Purpose of the Treaty as a Whole

...............................................................................256

2023] A RECKONING FOR RELIGIOUS FREEDOM 233

2. India’s Internal Laws Do Not Sufficiently Protect the

Interests Identified in Article 20(2) .......................257

3. BJP Leaders Intend for Their Statements To Be

Hateful Because They Advocate for Discrimination

and Incitement of Violence....................................258

4. The BJP’s Rhetoric Has Hateful Content Because It

Identifies Muslims as the Source of India’s Problems

and Calls for Violence Against Them ...................259

5. The BJP’s Statements Have a Wide Extent Because

They Are Uttered by Politicians to Large Audiences

...............................................................................260

IV. RECOMMENDATIONS ..................................................262

A. INTRODUCTION .............................................................262

B. SOLUTIONS AVAILABLE UNDER THE ICCPR ................262

1. Adopting the ICCPR’s Optional Protocol .............262

2. Using Article 41 of the ICCPR and International

Political Pressure ...................................................263

C. SOLUTIONS OUTSIDE THE ICCPR.................................265

1. Hailing Individuals to Court..................................266

2. Self-Determination for Religious Communities....267

3. Diversify the Composition of the Bench...............268

V. CONCLUSION .................................................................269

I. INTRODUCTION

Home to almost 1.5 billion people and eighteen percent of the global

population, India plays a significant role on the world stage.

As such,

it has ratified numerous multilateral human rights treaties.

On April

10, 1979, India ratified the International Covenant on Civil and

Political Rights (ICCPR).

The ICCPR was promulgated by the United

Nations (U.N.) General Assembly, and generally protects the

1. See India Population, WORLDOMETER, https://www.worldometers.info/

world-population/india-population (last visited July 12, 2022).

2. Abdulrahim P. Vijapur, India’s International Human Rights Obligations:

Critical Perspectives, 2 AIS-JMI

J. INT’L & AREA STUD. 76, 77 (2020).

3. Ratification Status for India, U.N. HUMAN RIGHTS TREATY BODIES,

https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx (select

“India” from the “Please select a country” drop down box).

234 AM. U. INT’L L. REV. [38:1

enjoyment of civil and political freedoms.

Article 18 broadly covers

the freedom to practice any religion, while Article 20, Paragraph 2,

prohibits advocacy of religious hatred that constitutes incitement to

“discrimination, hostility, or violence.”

Domestically, India’s democracy manages the heterogeneity of its

massive population, with both successes and failures in doing so

throughout its seventy-five-year history.

India’s constitution

establishes a federal parliamentary democracy whereby the executive

branch is legitimized by the parliament, and the judiciary is wholly

independent from the executive and the legislature.

In 2014, the

Bharatiya Janata Party (BJP) won a single-party majority in the Lok

Sabha, one of the houses of the Indian legislature.

This was a

significant achievement for the BJP, which had previously been

considered an extremist fringe party.

The BJP advocates for

Hindutva, roughly translated to “Hindu-ness,” which seeks to define

Indian culture in terms of Hindu values.

The BJP’s leadership and

4. International Covenant on Civil and Political Rights arts. 18, 20, Dec. 16,

1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR].

5. Id.

6. See Ian Talbot, The 1947 Partition of India, in THE HISTORIOGRAPHY OF

GENOCIDE 420, 420 (Dan Stone ed., 2008) (detailing the religious violence and

accompanying political strife that led to the partition of India and the creation of

Pakistan).

7. Niraj Kumar, Democratic Developmental State in India, 62 INDIAN J. PUB.

ADMIN. 226, 230 (2017).

8. Id. at 235.

9. See C

HRISTOPHE JAFFRELOT, Hindu Nationalism: A Different Idea of India,

in MODI’S INDIA: HINDU NATIONALISM AND THE RISE OF ETHNIC DEMOCRACY, 11,

20–21 (2021) (outlining the rise to power of the BJP through radical means); see

also Shantanu Guhu Ray, Global Report Calls BJP a Fringe Party, Triggers

Controversy, N

EWSROOM POST (July 30, 2021), https://newsroompost.com/

india/global-report-calls-bjp-a-fringe-party-triggers-controversy/3453144.html

(detailing a recent characterization of the BJP’s extremist views as “fringe” by the

Global Internet Forum to Counter Terrorism, an NGO designed to prevent violent

extremists from using digital platforms).

10. See Sudha Ramachandran, Hindutva Violence in India, 12 C

OUNTER

TERRORIST TRENDS & ANALYSES 15, 16 (2020) (describing Hindutva’s origins from

the 1923 treatise by Vinayak Sarvarkar which described Hindus as the only true

Indians because both their “fatherland” and “holy land” are in India, while Muslims

and Christians could not be considered Indians since they lack such criteria.

Hindutva later developed to include the belief that the “foreign races,” namely

Muslims and Christians in India, must adopt the Hindu religion and lose ties to their

own religions in order to stay within the country).

2023] A RECKONING FOR RELIGIOUS FREEDOM 235

political influence has led to the passage of laws that political

opponents and global observers have criticized as being

discriminatory against Muslims, such as the Citizenship Amendment

Act of 2019, which provides a framework for the execution of the

National Register of Citizens and Foreigners’ Tribunals.

Furthermore, BJP leaders advocating for Hindutva habitually use

inflammatory rhetoric and commend anti-Muslim acts of violence.

As a signatory of the ICCPR, India is committed to its protection of

freedom of religion. However, the BJP’s advocacy of Hindutva

violates the ICCPR’s Article 18, protecting freedom of speech, and

Article 20(2), protecting against discriminatory incitement of

violence.

Part II of this Comment provides background on the BJP, the

specifics of the anti-Muslim legislation passed, and the BJP’s

culpability in violence against Muslims.

Part II also describes the

relevant jurisprudence on Articles 18 and 20 of the ICCPR and the

legal standards that courts apply to prove violation.

Part III argues

that India has violated Articles 18 and 20 of the ICCPR and applies

the relevant legal standards to the BJP’s actions.

Part IV

recommends that India accept the jurisdiction of the ICCPR’s

Optional Protocol and take national-level steps, including haling

individuals to court, self-determination for religious communities, and

diversification of bench composition, to bring India into compliance

with the ICCPR.

II. BACKGROUND

A. THE BHARATIYA JANATA PARTY

1. Introduction

In the early twentieth century, Hindu nationalism and the ideology

11. The Citizenship (Amendment) Bill, 2019, Bill No. 370 of 2019 (Dec. 4,

2019) (India).

12. See infra Part I.

13. See infra Section II.A.

14. See infra Section II.B.

15. See infra Part III.

16. See infra Part IV.

236 AM. U. INT’L L. REV. [38:1

of Hindutva emerged, which views Hindus as the only “true” Indians

and seeks to equate Hindu and Indian culture.

An early follower of

Hindutva founded the Rashtriya Swayamsevak Sangh (RSS), a quasi-

military organization whose goal is to promote the physical strength

of Hindus and create a nationalist conscience and solidarity among

Hindus to overcome the “threat” Muslims pose.

In 1980, RSS

members founded the Bharatiya Janata Party for electoral support of

their Hindu Nationalist beliefs.

2. Muslim Discrimination Through Policy

India’s BJP-led government passed the Citizenship Amendment

Act (CAA) in December 2019, which provides a fast-track to

citizenship for Hindus, Sikhs, Jains, Buddhists, Parsis and Christians

from Pakistan, Bangladesh, and Afghanistan—notably excluding

Muslims.

The CAA made religion a criteria for citizenship in India

and privileged Hindus in defining that citizenship.

In support of the

CAA, the BJP argues that it is necessary to combat high numbers of

refugees from India’s neighbors.

They contend that Muslims were

excluded from the CAA because they have not faced religious

17. Ramachandran, supra note 10, at 16.

18. JAFFRELOT, supra note 9, at 15; see also Ramachandran supra note 10, at

16–17 (explaining how the RSS became the arbiter of Hindutva, training “uniformed

cadres at daily early morning drills” and justifying the use of violence in order to

obtain Hindutva’s goals. Furthermore, Hindutva demonized religious minorities in

order to mobilize angry mobs that perpetrated violence against the minorities,

primarily Muslims and Christians).

19.

, Ja

and

nat

par

Assessment of Their Philosophy and Strategy and Their Proximity with the Other

Members of the Sangh Parivar, 66 I

NDIAN J. POL. SCI. 831, 834 (2005) (explaining

how the BJP and the RSS were originally unaffiliated, but due to the large overlap

between their members, are now strongly aligned to the extent that the RSS

campaigns on behalf of BJP candidates without any formal coordination between

the two groups).

20. See Narender Nagarwal, The Citizenship Amendment Act 2019: An Insight

Through Constitutional and Secularism Perspective, 37 J.

ASIAN & AFRICAN STUD.

1, 8 (2021) (explaining that the CAA is an amendment of the Citizenship Act of

1955, which provided a framework for citizenship for all migrants to India,

regardless of religion).

21. A

NGANA CHATTERJI ET AL., BREAKING WORLDS: RELIGION, LAW AND

CITIZENSHIP IN MAJORITARIAN INDIA, 62–63 (2021).

22. Keshab Chandra Ratha, Interpreting Citizenship Amendment Act: Its Content

and Context, 67 I

NDIAN J. PUB. ADMIN. 559, 562 (2021).

2023] A RECKONING FOR RELIGIOUS FREEDOM 237

persecution in the Muslim-majority countries targeted by the Act.

Additionally, in November 2019, Parliament announced its plan to

implement a National Register of Citizens (NRC), whose goal is to

identify illegal immigrants and deport them.

The northeastern state

of Assam has already implemented the NRC, with inequitable results;

seventy to eighty percent of the people that the tribunals decided were

“foreigners” were Muslims, despite Muslims making up only forty

percent of Assam’s population.

Furthermore, securing proof of

citizenship is a complex and expensive process, requiring obtaining

decades-old documents, traveling long distances, and hiring a lawyer,

which is a nearly insurmountable task for poor and illiterate Indians.

Additionally, thirty-eight percent of Indian children under the age of

five do not have birth certificates, and the number is even higher for

older Indians.

When a resident is excluded from the NRC, they may appeal

through specially-established Foreigners’ Tribunals.

However, these

too are riddled with controversy.

An examination of five of these

tribunals found that nine out of ten cases involved Muslims.

23. Id.

24. See Amit Shah: NRC to Apply Nationwide, No Person of Any Religion Should

Worry, I

NDIA TODAY, (Nov. 20, 2019), https://www.indiatoday.in/india/story/amit-

shah-nrc-rajya-sabha-1620810-2019-11-20 (reporting that the NRC’s

implementation will require all citizens to provide documentation to prove that they

are lawful Indian citizens—raising alarm because its rollout in the state of Assam

left out millions of residents).

25. C

HATTERJI ET AL., supra note 21, at 4; Kaushik Deka, Can BJP Survive the

Demographic Disadvantage in Assam?, INDIA TODAY (Mar. 29, 2021),

https://www.indiatoday.in/india-today-insight/story/can-bjp-survive-the-

demographic-disadvantage-in-assam-1784851-2021-03-29 (stating the size of the

Muslim population in Assam).

26. C

HATTERJI ET AL., supra note 21, at 5.

27. Puja Changolwala, India’s Muslims Are Terrified of Being Deported,

OREIGN POL’Y (Feb. 21, 2020), https://foreignpolicy.com/2020/02/21/india-

muslims-deported-terrified-citizenship-amendment-act-caa (outlining that Indian

Muslims do not have the same security from deportation as those of other faiths).

28. Assam NRC: What Next for 1.9 Million ‘Stateless’ Indians?, BBC

NEWS

(Aug. 31, 2019), https://www.bbc.com/news/world-asia-india-49520593

(explaining the appeals process).

29. Id. (“[A] potentially long and exhaustive appeals process will mean that

India’s already overburdened courts will be further clogged, and poor people left off

[the NRC] will struggle to raise money to fight their cases.”).

30. Id.; see Rohini Mohan, Inside India’s Sham Trials that Could Strip Millions

238 AM. U. INT’L L. REV. [38:1

Furthermore, the tribunal declared ninety percent of the Muslims

heard as “illegal immigrants” and declared only forty percent of

Hindus heard as such.

Since 2014, when the BJP took power, the

number of these tribunals has nearly tripled.

3. BJP Culpability in Anti-Muslim Violence

There has been political tension between Hindus and Muslims since

before India’s independence, which has often resulted in violence

between the two groups.

The growth of the BJP’s electoral power

and acceptance of their Hindu supremacist ideals have only made

matters worse for Indian Muslims.

A key pillar to the BJP’s Hindu Nationalist platform is its advocacy

for violence against Muslims.

A high profile example is in the early

1990s, when the national-level BJP launched a campaign to construct

of Citizenship, VICE NEWS (July 29, 2019), https://news.vice.com/en_us/article/

3k33qy/worse-than-a-death-sentence-inside-indias-sham-trials-that-could-strip-

millions-of-citizenship (explaining that although information all 100 of Assam’s

Foreigners’ Tribunals was requested, only five provided judgments).

31. See Assam NRC: What Next for 1.9 Million ‘Stateless’ Indians?, supra note

28 (stating there are now over 200 Foreigners’ Tribunals, and the number is expected

one

lly

32. Id.; see also Mohan, supra note 30 (providing a case study on one district in

Assam, where eighty-two percent of all people on trial had been declared foreigners,

and 78 percent of the orders declaring foreigners’ status were delivered without the

accused having been heard).

33. See Raheel Dhattiwala & Michael Biggs, The Political Logic of Ethnic

Violence: The Anti-Muslim Pogrom in Gujarat, 2002, 40 P

OL’Y & SOC’Y 483, 484

(2012) (citing that during the Partition of India in 1947, 200,000 lives were lost to

violence between Hindus and Muslims, and between 1950-2000, 10,000 people died

at the hands of religious violence between the two groups).

34. See Apoorvanad, Majoritarian Violence is Slowly Tearing India Apart,

LJAZEERA (Jan. 13, 2022), https://www.aljazeera.com/opinions/2022/1/13/no-

respite-in-sight-for-indias-persecuted-religious-minorities (detailing violence

against both Muslim and Christian minorities).

35. See Amulya Ganguly, BJP Preparing for Babri 2.0 by Targeting Varanasi

Mosque and Keep the Communal Cauldron Boiling, N

AT’L HERALD INDIA (Apr. 12,

2021), https://www.nationalheraldindia.com/opinion/bjp-preparing-for-babri-20-

by-targeting-varanasi-mosque-and-keep-the-communal-cauldron-boiling

(explaining how the BJP gained their initial electoral success by advocating for the

destruction of the Babri Mosque, and they aim to maintain their success by

advocating for the destruction of other high-profile mosques, such as the Varanasi

and Mathura mosques).

2023] A RECKONING FOR RELIGIOUS FREEDOM 239

a temple in Uttar Pradesh in honor of the deity Ram, who some Hindus

believe was born on the location of the sixteenth-century Babri

Mosque.

The campaign gave rise to 300 clashes between Hindus and

Muslims across India, eventually culminating in rioters destroying the

Babri Mosque.

Riots in these urban areas resulted in 500 deaths

between September 1990 and January 1993.

Another example comes from the BJP’s treatment of the beef

industry.

Given the holiness of the cow in Hinduism, BJP-ruled

states have passed laws that tighten anti-beef laws and restrict sales of

cattle and beef possession, despite the fact that India exported four

billion dollars’ worth of buffalo meat in the 2015-16 fiscal year.

BJP

electoral victories also emboldened “cow protection” vigilantes—

mobs who will kill Muslims suspected of slaughtering cows or hiding

beef.

After one Muslim man had been bludgeoned to death by one of

these mobs, the BJP Vice President of the state where it occurred

called for the victim’s family to be arrested for cow slaughter.

Throughout this “beef terror,” BJP Prime Minister Narendra Modi and

the national BJP were mostly silent, and in the rare event such attacks

were condemned, it was weeks or months after the fact and motivated

36. See Dhattiwala & Biggs, supra note 33, at 486 (detailing how participation

in the violence spread to upper-caste and middle-caste men and women).

37. Id.

38. Id.; see also P

AUL R. BRASS, THE PRODUCTION OF HINDU-MUSLIM

VIOLENCE IN CONTEMPORARY INDIA, 130–45 (2003) (explaining the BJP’s

utilization of the RSS’ “institutionalized riot system” where members of both groups

produce and/or spread rumors intended for the Hindu public to believe and be

mobilized to want revenge against Muslims for their fabricated transgressions).

39. See Supriya Nair, The Meaning of India’s ‘Beef Lynchings’, T

HE ATLANTIC

(July 24, 2017), https://www.theatlantic.com/international/archive/2017/07/india-

modi-beef-lynching-muslim-partition/533739 (detailing the BJP’s indifference to

violence against Muslim’s who trade or consume beef).

40. Id.; see India Crackdown on Slaughterhouses Stirs Muslim Unease,

LJAZEERA (Mar. 29, 2017), https://www.aljazeera.com/news/2017/3/29/india-

crackdown-on-slaughterhouses-stirs-muslim-unease (explaining that India is one of

the world’s largest exporters of buffalo meat).

41. See Nair, supra note 39 (stating that the cow vigilantes have been

emboldened by stricter anti-beef policies by the BJP).

42. See Shoaib Daniyal, How Narendra Modi Helped Spread Anti-Beef Hysteria

in India, Q

UARTZ INDIA (Oct. 7, 2015), https://qz.com/india/518975/how-narendra-

modi-helped-spread-anti-beef-hysteria-in-india (describing how in the wake of this

incident, other BJP legislators threatened violence if “innocents” were framed for

the murder and absolved the killer mob claiming their behavior to be an “accident”).

240 AM. U. INT’L L. REV. [38:1

by political pressure.

Between January and July 2017 alone, there

were twenty such “beef lynchings” across India.

In a campaign

speech, Modi stoked the flames of division over beef eating, claiming

that his opposition “will not give out subsidies to farmers . . . keeping

cows but will give out subsidies to people who slaughter cows.”

These statements only encouraged cow vigilantes to continue their

violence.

BJP Members’ opinions on Muslims are hardly opaque, and they

often include anti-Muslim speech in their campaign events.

Although India’s Penal Code Sections 153A, 295A, and 5050

effectively criminalize the incitement of violence, and BJP leaders

have on occasion been arrested under these statutes, they are very

rarely used to implicate them.

BJP rallies frequently include the

43. Nair, supra note 39; see Tommy Wilkes & Malini Menon, After Lynchings,

India’s Modi Condemns Violence in Name of Cow Worship, REUTERS (June 29,

2017), https://www.reuters.com/article/us-india-politics-religion/after-lynchings-

indias-modi-condemns-violence-in-name-of-cow-worship-idUSKBN19K13S

(stating that Prime Minister Modi advocated for cows to be protected peacefully);

India ‘Beef’ Lynching: PM Modi Breaks Silence, BBC

NEWS (Oct. 8, 2015),

https://www.bbc.com/news/world-asia-34477875 (highlighting the Prime

Minister’s longtime silence during beef lynchings).

44. Nair, supra note 39 (stating that almost all beef lynchings in India have

occurred since the BJP came into power).

45. Id.

46. Daniyal, supra note 42 (reporting that Prime Minister Modi referred to the

slaughter of cows as a “pink revolution” in multiple speeches).

47. See, e.g., Pragya Tiwari, The BJP Has Incited Hatred It Can No Longer Stop,

LJAZEERA (Mar. 11, 2020), https://www.aljazeera.com/opinions/2020/3/11/the-

bjp-has-incited-hatred-it-can-no-longer-stop (reporting on how the BJP used radical

anti-Muslim propaganda on pro-government television channels and social media in

the local Delhi elections).

48. See Here is What Constitutes to Inciting Violence in Indian Penal Code,

NDIA TODAY (Dec. 22, 2019), https://www.indiatoday.in/india/story/nrc-protests-

caa-protests-india-protests-protesters-arrested-section-153-section-505-1630436-

2019-12-22 [hereinafter Inciting Violence in India] (detailing the types of acts that

are criminalized under India’s Penal Code); Senior BJP Leader Anil Bonde Among

72 Arrested for Inciting Violence in Amravati, T

HE WIRE (Nov. 15, 2021),

https://thewire.in/government/senior-bjp-leader-anil-bonde-among-72-arrested-for-

inciting-violence-in-amravati [hereinafter Senior BJP Leader Arrested] (reporting

that multiple BJP leaders were arrested); see generally G

AUTAM BHATIA, OFFEND,

SHOCK OR DISTURB: FREE SPEECH UNDER THE INDIAN CONSTITUTION 154 (2016)

(providing an exploration of freedom of speech jurisprudence within India, in

particular, hate speech as regulated under § 295A of the Indian Penal Code).

2023] A RECKONING FOR RELIGIOUS FREEDOM 241

chant “goli maaro saalon ko” which instructs crowds to “shoot traitors

to the nation.”

The BJP deems these “traitors” to be those that oppose

the anti-Muslim CAA, reflecting the BJP’s Hindu Nationalist platform

and reinforcing the idea that India is a Hindu nation where Muslims

are not welcome.

B. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

1. Introduction

The ICCPR’s Article 18 states, in relevant part, that “everyone shall

have the freedom of thought, conscience and religion” and that “no

one shall be subject to coercion which would impair his freedom to

have or adopt a religion . . . of his choice.”

General Comment 22

notes that such “coercion” may include the threat of physical force or

penal sanctions, or policies or practices having the same intention or

effect.

Importantly, Paragraph 3 of Article 18 provides that the law

may prescribe limitations to the freedom to manifest one’s religion,

but only so long as they are “necessary to protect public safety, order,

health or morals or the fundamental rights and freedoms of others.”

Meanwhile, Article 20, Paragraph 2 states that, “any advocacy of

49. See Liz Mathew & Abhinav Rajput, Minister Anurag Thakur Chants desh ke

gaddaron ko, Poll Rally Crowd Completes goli maaro . . ., INDIAN EXPRESS (Jan.

28, 2020), https://indianexpress.com/article/india/anurag-thakur-slogan-rithala-

rally-6238566 (reporting an instance of this chant occurring at an election rally).

50. See id. (explaining that the term “traitors” refers to those that oppose the

CAA, primarily those who took part in the large demonstrations against it that

occurred throughout India in the wake of its passage. Although not directly equating

“traitors” with Muslims, these BJP leaders do equate such “traitors” with Indians

who support Muslims by opposing the CAA); Sunil Prabhu, “Goli Maaro

Minister?” BJP’s Anurag Thakur Trolled in Parliament, N

EW DELHI TELEVISION

(Mar. 3, 2020), https://www.ndtv.com/india-news/goli-maaro-minister-bjps-

anurag-thakur-trolled-in-parliament-2189251; Watch: Union Minister Anurag

Thakur Leads ‘goli maaro saalon ko’ Slogans at Rally, S

CROLL (Jan. 27, 2020),

https://scroll.in/video/951289/watch-anurag-thakur-minister-of-state-for-finance-

lead-goli-maaro-saalon-ko-slogans-at-rally [hereinafter Watch: Union Minister

Leads Slogans] (showcasing the hateful slogan chant about “traitors” at a rally for

the Delhi Assembly elections).

51. ICCPR, supra note 4, art. 18.

52. U.N. Human Rights Committee, 48th Sess., General Comment 22 ¶ 5, U.N.

Doc. CCPR/C/21/Rev.1/Add.4 (1993) [hereinafter “General Comment 22”].

53. ICCPR, supra note 4, art. 18(3).

242 AM. U. INT’L L. REV. [38:1

national, racial or religious hatred that constitutes incitement to

discrimination, hostility or violence shall be prohibited by law.”

Although there is no clear standard articulated by the jurisprudence,

the Human Rights Committee (HRC or Committee) takes into account

the intent, content, and extent of the speech in determining an Article

20(2) violation.

All parties to the ICCPR are required to submit regular reports to

the Committee on the extent of that state’s compliance.

However, of

the five reports that the HRC has requested from India, the country has

only submitted three, and all three have been years overdue.

India’s

failure to submit the reports led the HRC to issue a List of Issues Prior

to Reporting in August 2019, urging India to report and address issues

such as vigilante cow protection and mob lynching of Muslims, as well

as corruption in the judiciary.

2. Article 18 Jurisprudence: Necessary & Proportionate Standard

Secularism has been touted as a primary feature of Indian society

since the days of Mahatma Gandhi and the Indian independence

movement.

In 1973, the Indian Supreme Court ruling Kesavananda

Bharati v. State of Kerala deemed secularism as a central feature of

the Indian Constitution, which entrenched the freedom of religion as

an “unamendable value.”

As such, India has a domestic commitment

54. Id. art. 20(2).

55. Id. art. 40(1).

56. See Vijapur, supra note 2, at 81 (chronicling India’s periodic reports: the first

was due July 1980 and was submitted July 1983; the second was due July 1985 and

was submitted July 1985; the third was due March 1992 and was submitted

November 1995; and the fourth and fifth ones, due March 2001 and 2006,

respectively, have still not been submitted).

57. Id. at 81–82.

58. See C

HRISTOPHE JAFFRELOT, Part 1: The Hindu Nationalist Power Quest, in

MODI’S INDIA: HINDU NATIONALISM AND THE RISE OF ETHNIC DEMOCRACY, 7, 7–9

(2021) (explaining that secularism in India has been practiced since ancient times:

under Ashoka, the first Buddhist Emperor, and under the Mughal Emperor Akbar

the Great. Mahatma Gandhi similarly championed the idea of an India that excluded

any identification with one particular religion. Gandhi’s perception of the Indian

nation based on coexisting religious communities is known as the “universalist”

school of thought. This school opposites that of the “communalists” which spawned

separatist movement among Muslims, which led to the formation of Pakistan, and

among Hindus, which gave rise to Hindu nationalism.).

59. Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, ¶ 303 (India).

2023] A RECKONING FOR RELIGIOUS FREEDOM 243

to promote the freedom to exercise any religion within its borders.

The United Nations Human Rights Committee has considered

multiple accusations that a State Party to the ICCPR is violating

Article 18.

In one such case, Ranjit Singh v. France, the French

government denied a French citizen named Singh an identification

card when he refused to take his turban off for his ID photo.

Singh

explained that taking off his turban would violate his faith in Sikhism,

but the French government still refused to grant him an identification

card.

In doing so, they denied Singh the benefits afforded to citizens

with ID cards, such as access to the free public health care system.

In deciding this dispute, the HRC established that limitations to the

free exercise of religion—in this case, requiring Singh to act against

his faith and take off his turban—must be necessary and proportionate

to the end that is sought.

To decide if a measure is necessary and

proportionate, the HRC applies a balancing test weighing the burden

to the individual against the goal that the measure seeks to achieve.

Here, the burden to Singh was requiring him to take off his turban, and

the government’s stated goal was for public safety and order.

Ultimately, the court held that prohibiting a turban in an ID photo was

not necessary to identify the author (and, in fact, would make it more

difficult since he wears the turban at all times

) and was not

proportionate to achieve the stated goal of public safety and order.

In Malakhovsky v. Belarus, the Belarus government denied the

application of the Community of Krishna Consciousness (The

Community) for registration as a religious association on the ground

60. Singh v. France, Communication 1876/2000, U.N. Human Rights

Committee [U.N. H.R.C.], ¶ 3.2 (July 29, 2011); Malakhovsky v. Belarus,

Communication 1207/2003, U.N. Human Rights Committee [U.N. H.R.C.], ¶ 3.1

(July 26, 2005).

61. Singh v. France, Communication 1876/2000, U.N. Human Rights

Committee [U.N H.R.C.], ¶¶ 2.1, 2.2 (July 22, 2011).

62. Id. ¶ 3.2.

63. Id.

64. Id. ¶ 8.2

65. Id. ¶ 8.4.

66. Id.

67. Singh v. France, Communication 1876/2000, U.N. Human Rights

Committee [U.N H.R.C.], ¶ 3.5 (July 22, 2011).

68. Id. ¶ 8.4.

244 AM. U. INT’L L. REV. [38:1

that they had not provided a proper legal address in the application.

The government cited safety concerns with the provided address, but,

prior to the application, the local authorities had conducted a fire

safety inspection and approved its use as a legal address subject to

seven remedial measures—all of which the Community of Krishna

Consciousness fulfilled.

Here, as in Singh, the HRC used the

necessary and proportional test to determine the validity of Belarus’

denial of the Community’s application.

They note that if a less

intrusive alternative to France’s rule is available, then the action will

be deemed not necessary.

The HRC found that the precondition

alone, which requires a valid address to ensure that the religion has

use of premises that satisfy relevant public health and safety standards,

is a limitation that is necessary for public safety and proportionate to

this need.

However, the HRC noted that Belarus did not advance an

argument on why it was necessary for the religious association to have

an approved legal address before they are registered, and that the

public safety goals could still be achieved if the Community obtained

their premises after being registered.

Additionally, the HRC found

that the Belarus government’s denial of the Community’s application

rendered them unable to manifest their religious beliefs and that this

harm was disproportionate to the public safety benefits that the refusal

served.

3. Article 20 Jurisprudence: Intent, Content, Extent Standard

Article 20, Paragraph 2 states that “any advocacy of national, racial

or religious hatred that constitutes incitement to discrimination,

hostility or violence shall be prohibited by law.” Additionally, the

HRC released General Comment 11 on Article 20, which states that

69. Malakhovsky v. Belarus, Communication 1207/2003, U.N. Human Rights

Committee [U.N. H.R.C.], ¶ 2.5 (July 26, 2005).

70. Id. ¶ 5.1.

71. Id. ¶ 7.2.

72. Id. ¶ 7.6.

73. Id. ¶ 7.5.

74. Id. ¶ 7.6.

75. Malakhovsky v. Belarus, Communication 1207/2003, U.N. Human Rights

Committee [U.N. H.R.C.], ¶ 2.5 (July 26, 2005) (explaining that they are unable to

manifest their religious beliefs in the form of establishing a school to teach a religion

and inviting foreign dignitaries of the religion to their premises).

2023] A RECKONING FOR RELIGIOUS FREEDOM 245

for Article 20 to be fully effective, Members should pass domestic

laws against the conduct that Article 20 forbids.

Typically, any prohibition of “advocacy” of hatred as required by

Article 20 implies an Article 19 inquiry, which protects the right of

free expression.

However, when India ratified the ICCPR it took a

reservation to Article 19, such that its provisions must conform with

Article 19 of the Indian Constitution.

Unfortunately, jurisprudence on Article 20 from the Human Rights

Committee is not very robust, but a study from the U.N. Office of the

High Commissioner for Human Rights can fill some of the gaps.

This

document, along with cases from the HRC, give rise to the “intent,

content, extent” test to determine if there has been a violation of

Article 20(2).

For a statement to be considered an advocacy of religious hatred,

the person making the statement must have intended for the statement

to incite discrimination, hostility, or violence.

The threshold of intent

is relatively low, as the term “advocacy” implies a form of intention.

The HRC considered a dispute, Faurisson v. France, which

76. U.N. Human Rights Committee, 19th Sess., General Comment No. 11, ¶ 2,

U.N. Doc CCPR/C/GC/34 (1983) [hereinafter General Comment 11]; see BARBORA

BUKOVSKA ET AL., TOWARDS AN INTERPRETATION OF ARTICLE 20 OF THE ICCPR:

THRESHOLDS FOR THE PROHIBITION OF INCITEMENT TO HATRED, 3 (2010) (noting

that while it is recommended in General Comment 11, the wording of Article 20 of

the ICCPR is rarely, if ever, found in domestic legislation).

77. See B

UKOVSKA ET AL., supra note 76, at 12–14.

78. International Covenant on Economic, Social and Cultural Rights, 993

U.N.T.S. 3, (Apr. 10, 1979) [hereinafter ICESCR]; see also Glossary, U

NITED

NATIONS TREATY COLLECTION, https://treaties.un.org/pages/overview.aspx?path

=overview/glossary/page1_en.xml#reservation (defining “reservation” as “a

declaration made by a state by which it purports to exclude or alter the legal effect

of certain provisions of the treaty in their application to that state”).

79. See generally B

UKOVSKA ET AL., supra note 76.

80. Id.; Faurisson v. France, Communication 550/1993, U.N. Human Rights

Committee [U.N. H.R.C.] (Nov. 8, 1996); J.R.T. v. Canada, Communication

104/1981, U.N. Human Rights Committee [U.N. H.R.C.] (Apr. 6, 1983); Ross v.

Canada, Communication 736/1997, U.N. Human Rights Committee [U.N. H.R.C.]

(Oct. 18, 2000).

81. B

UKOVSKA ET AL., supra note 76, at 13.

82. TOBY MENDEL, STUDY ON INTERNATIONAL STANDARDS RELATING TO

INCITEMENT TO GENOCIDE OR RACIAL HATRED, 47 (Apr. 2006) (a study for the U.N.

Special Advisor on the prevention of Genocide).

246 AM. U. INT’L L. REV. [38:1

demonstrated the low threshold needed for intent.

In this case, a

magazine reporter interviewed Professor Robert Faurisson, during

which the professor expressed his belief, based on his academic

research, that the Nazis did not use gas chambers during the

Holocaust.

These statements led to his conviction under France’s

“Gayssot Act,” which effectively criminalizes the challenging of

conclusions reached during the International Military Tribunal at

Nuremberg—one of which was the Nazis’ use of gas chambers during

the Holocaust.

Faurisson brought this complaint, arguing that the

Gayssot Act curtailed his freedom of expression.

Ultimately, the

Committee found that the restrictions on Professor Faurisson’s

freedom of speech were justified because his speech was “of a nature

as to raise or strengthen antisemitic feelings,” and restricting that

speech through the Gayssot Act served “the respect of the Jewish

community to live free from fear of an atmosphere of antisemitism.”

The concurring opinion further noted that in the interview, Faurisson

demanded that “particularly Jewish historians” who agree with the

findings of the Nuremberg Tribunal be prosecuted, and he referenced

the “magic gas chamber” and that “the myth of the gas chambers” was

a “dirty trick” endorsed by the victors at Nuremberg.

Because these

statements singled out Jewish historians and implied that the Jews

concocted the story of the gas chambers for their own purposes, it

demonstrated the requisite intent by Faurisson to advocate for hatred

under Article 20(2).

Like intent, the content inquiry is relatively straightforward in that

the “advocacy” in question must be promoting “hate.”

In J.R.T. and

the W.G. Party v. Canada, J.R.T. founded the W.G. Party and attracted

83. Faurisson v. France, Communication 550/1993, U.N. Human Rights

Commission [U.N. H.R.C.] (Nov. 8, 1996).

84. Id. ¶ 2.5 (providing that Faurisson was a professor of literature at the

Sorbonne University in Paris until 1973 and at the University of Lyon until 1991,

when he was removed from his chair).

85. Id. ¶ 2.3.

86. Id. ¶ 3.1.

87. Id. ¶ 9.6.

88. Id. ¶ 10 (Elizabeth Evatt & David Kretzmer, concurring) (Eckart Klein, co-

signing).

89. Id.

90. ICCPR, supra note 4, art. 20.

2023] A RECKONING FOR RELIGIOUS FREEDOM 247

membership by a phone number the public could call to hear tape-

recorded messages.

The messages were ostensibly to promote the

party platform, but they all contained antisemitic statements whose

purpose were to warn callers of “the dangers of . . . international Jewry

leading [to] the collapse of world values and principles.”

After the

Canadian Human Rights Commission subjected him to discipline and

ordered him to change the messages, J.R.T. changed one to “some

corrupt Jewish international conspiracy is depriving the callers of their

birthright and that the white race should stand up and fight back.”

These statements are discriminatory because they name a specific

group, Jewish people, and identify them as the source of impending

doom while othering them by drawing contrast to “the white race.”

The HRC decided that the opinions that the message system was

disseminating “clearly constitute the advocacy of racial or religious

hatred, which Canada has an obligation under Article 20(2) of the

Covenant to prohibit.”

In this way, the HRC clarified that the kinds

of content that constitute advocacy of religious hatred include those

that single out a particular group as being responsible for the end of

the cultural status quo.

The extent of the speech is also relevant to the Article 20(2) inquiry.

The study prepared for the OHCHR emphasizes that, “to qualify as

incitement under Article 20, the communication has to be directed at

a non-specific audience (general public) or to a number of individuals

in a public space.”

In Ross v. Canada, a Jewish parent alleged that

the School Board condoned the antisemitic views of its teacher by

failing to take action against him.

Canada’s Supreme Court found

that the author’s statements were discriminatory by “call[ing] upon

true Christians to not merely question the validity of Jewish beliefs

and teachings but to hold those of Jewish faith and ancestry in

91. J.R.T. v. Canada, Communication 104/1981, U.N. Human Rights Committee

[U.N. H.R.C.] (Apr. 6, 1983).

92. Id. ¶ 2.1.

93. Id. ¶ 2.8.

94. Id.

95. Id. ¶ 8.

96. Id.

97. B

UKOVSKA ET AL., supra note 76, at 14.

98. Ross v. Canada, Communication 736/1997, U.N. Human Rights Committee

[U.N. H.R.C.] (Oct. 18, 2000).

248 AM. U. INT’L L. REV. [38:1

contempt as undermining freedom, democracy, and Christian

values”;

the teacher was subsequently laid off.

100

The Committee

found that the influence of the teachers justifies a restraint of the

speech, therefore his firing was not a violation of Article 19 and was

a valid sanction under Article 20(2).

101

III. ANALYSIS

A. INTRODUCTION

The ICCPR protects an individual’s freedom to practice their

chosen religion and freedom from religious hatred in Article 18 and

Article 20, respectively.

102

The BJP’s policies and rhetoric violate both

Article 18 and Article 20(2) of the ICCPR. The Citizenship

Amendment Act, the National Register of Citizens, and Foreigners’

Tribunals are not necessary and proportional to the stated goals, and

therefore violate Article 18. Furthermore, the intent, content, and

extent of BJP leaders’ rhetoric violates Article 20(2) and cannot be

saved by an argument that free speech is protected under Article 19.

Additionally, under Article 18(2) and the Office of the High

Commissioner for Human Rights’ General Comment 22 on Article 18,

the BJP’s policies and rhetoric constitute coercion.

103

B. THE BJP’S POLICIES AND RHETORIC VIOLATE ARTICLE 18(2)

BECAUSE THEY CONSTITUTE COERCION

Article 18 of the ICCPR states that “no one shall be subject to

coercion which would impair his freedom to have or adopt a religion

. . . of his choice.”

104

Analyzing against the language of the CAA

alone, using religion as the determining factor for citizenship denies

99. Id. ¶ 11.5.

100. Id. ¶ 8.3.

101. Id. ¶ 11.6.

102. ICCPR, supra note 4, arts. 18, 20.

103. Id. art. 18; General Comment 22, supra note 52 (“Article 18.2 bars coercion

that would impair the right to have or adopt a religion or belief, including the use of

threat of physical force or penal sanctions to compel believers or non-believers to

adhere to their religious beliefs and congregations, to recant their religion or belief,

or to convert. Policies or practices having the same intention or effect . . . are

similarly inconsistent with 18.2”).

104. ICCPR, supra note 4, art. 18.

2023] A RECKONING FOR RELIGIOUS FREEDOM 249

Muslims the freedom to practice Islam in India because it predicates

their citizenship on their practicing of one of the named religions,

rather than Islam.

105

Additionally, General Comment 22 stipulates that the threat of

penal sanctions constitutes coercion.

106

As such, requiring citizens to

prove their status through the NRC and a Foreigners’ Tribunal ruling

on deportation may constitute “coercion” under Article 18 in an

environment where there are few records kept and high barriers for

poor and uneducated residents to obtain such documents.

107

Finally, General Comment 22 maintains that the threat of physical

force to compel believers to recant their beliefs constitutes coercion.

108

The BJP’s culpability in violence against Muslims through their

advocacy of mosque destruction, violence against beef eaters, and the

use of the chant “goli maaro saalon ko” constitutes a threat of physical

force because these actions often lead to violence against Muslims.

109

Because this violence specifically targets Muslims on the ground that

they do not belong in India, it may rise to the level of coercion.

110

105. Id.

106. Id.; General Comment 22, supra note 52.

107. See C

HATTERJI ET AL., supra note 21 at 5, 62–63 (explaining that even in

Muslim communities where it is common to keep records (which is rare), proof of

belonging is discredited, dismissed, or deemed inadmissible by institutions.

Furthermore, women, particularly low caste Muslims, are at greater risk for losing

citizenship rights).

108. General Comment 22, supra note 52.

109. Dhattiwala & Biggs, supra note 33, at 486; see Ganguly, supra note 35

(arguing that the BJP benefits from a political agenda that involves religion); see

Nair, supra note 39 (quoting speeches by Prime Minister Modi inciting anti-beef

rhetoric); Tiwari, supra note 47; see Mathew & Rajput, supra note 49 (reporting on

the chant being used at a BJP election rally).

110. See generally B

RASS, supra note 38, at 12 (explaining that the production of

riots in India is, to an extent, “anticipated” in that Indians expect them to occur

because such Hindu-Muslim violence has been endemic in India since its founding.

The expectation of such violence allows Hindu leaders to use rhetoric that

encourages members to retaliate against “Muslims’ aggression,” despite such

“aggression” being the result of a centuries-long tradition of violence between the

groups. Furthermore, the forms of aggressive action taken are chosen because of its

likelihood of provoking the other community into aggressive action, such as

processions through the neighborhood of the other community).

250 AM. U. INT’L L. REV. [38:1

C. INDIA’S CITIZENSHIP AMENDMENT ACT VIOLATES ARTICLE 18

OF THE ICCPR BECAUSE IT IS NOT NECESSARY AND

PROPORTIONATE TO ACHIEVING A PUBLIC SAFETY GOAL

Article 18 of the ICCPR broadly protects the freedom of religion.

111

However, the ICCPR allows certain limitations to the freedom to

manifest one’s religion so long as the limitations are necessary “to

protect public safety, order, health or morals or the fundamental rights

and freedoms of others,” and are proportionate to achieve these

goals.

112

1. The CAA Is Not Necessary Nor Proportional To Achieve a Public

Safety Goal Because It Favors Hindus Residing in Other Countries

Over Muslims Residing in India

The CAA provides a simplified route to Indian citizenship for

refugees from India’s neighbors, as long as those refugees do not

practice Islam.

113

The BJP argues that the CAA is necessary to combat

high numbers of refugees from India’s neighbors, which would fall

under a permissible limitation under Article 18, paragraph 3.

114

They

further contend that Muslims are excluded from the CAA because they

do not face the same religious persecution as do other religious groups

in the stipulated nations.

115

However, this justification is insufficient

because the CAA causes harm to Indian Muslims that is

disproportionate to the benefits served to potential non-Muslim

immigrants in other countries.

116

The harm to Indian Muslims by the

CAA is the threat of their deportation and separation from their

111. ICCPR, supra note 4, art. 18.

112. Id.

113. The Citizenship (Amendment) Bill, 2019, Bill No. 370 of 2019 (Dec. 4,

2019) (India) (providing a method for citizenship only for those of Hindu, Sikh,

Buddhist, Jain, Parsi and Christian faiths from Pakistan, Bangladesh and

Afghanistan).

114. Ratha, supra note 22, at 562 (explaining that in justifying the CAA, the BJP

Government drew a distinction between Muslims (who it says have immigrated

illegally) and refugees (of the named religions) trying to escape persecution in their

country by stating, “there is a basic difference between a refugee and an infiltrator,

[t]his bill is for refugees”).

115. Id. at 561(“[The CAA] seeks to provide a right of return for Hindus to their

natural home as these people look at India as ‘Mother India.’”).

116. C

HATTERJI ET AL., supra note 21, at 5.

2023] A RECKONING FOR RELIGIOUS FREEDOM 251

families and homes, while the benefits of the CAA are to non-Indian

Hindus (among other religions) seeking a path to citizenship.

117

In this

way, the CAA favors Hindus residing in other countries over Muslims

residing in India.

118

Additionally, the BJP’s characterization of the CAA as “a noble

effort to welcome Hindus who are oppressed in neighboring Muslim-

majority countries” reflects Hindutva by favoring the wellbeing of

Hindus in other countries over Muslims in India.

119

Also, the CAA’s

goal to protect religious minorities in neighboring countries ignores

the distinction between dominant and less dominant sects of Islam in

the CAA’s targeted countries, where members of less dominant sects

are not free from discrimination solely because they practice Islam, as

the CAA posits.

120

2. The CAA Is Not Necessary To Handle the Influx of Refugees into

India Because that Goal Can Be Served Without Infringing on

Religious Freedom

The basis of necessity justifying the CAA is mischaracterized and

disregards India’s commitment to secularism. The CAA rests entirely

on a distinction between religious groups to determine who is

permitted in India, which contrasts the country’s protection of

117. Changolwala, supra note 27; see also CHATTERJI ET AL., supra note 21, at 7

(giving an example from Assam, where the NRC and Foreigners’ Tribunals have

already been implemented, in which non-Muslims without documentary evidence of

their birth may claim to have come from Pakistan or Bangladesh and had their

documents seized, and this seizure can be used as evidence that they are entitled to

citizenship in India. Muslims, meanwhile, do not succeed on such a defense).

118. C

HATTERJI ET AL., supra note 21, at 7; see generally Arunav Kaul, Afghan

Refugees in India Highlight the Need for Indian Domestic Refugee Law, JUST

SECURITY (Oct. 18, 2021), https://www.justsecurity.org/78586/afghan-refugees-in-

india-highlight-the-need-for-indian-domestic-refugee-law (arguing that because

India has not adopted international agreements on refugees such as the United

Nations Refugee Convention, the rights associated with refugee status are subject to

the political will of the Indian government).

119. See Ratha, supra note 22, at 561.

120. See Alok Prasanna Kumar, Citizenship (Amendment) Act: An

Unconstitutional Act, D

ECCAN HERALD (Dec. 15, 2019), https://www.deccanherald

.com/specials/sunday-spotlight/citizenship-amendment-act-an-unconstitutional-act-

785638.html (proving that Ahmadiyya and Shia Muslims face the most majoritarian

violence in Pakistan, thus, the CAA’s stated goal to protect against religious

persecution of minorities conspicuously fails by leaving them out).

252 AM. U. INT’L L. REV. [38:1

secularism as stated in Kesavananda Bharati v. State of Kerala.

121

Although proponents of the law try to argue that it is a rational

response to protect incoming migrants who are victims of religious

persecution, critics of the law point out that the “religious persecution”

criteria is not mentioned within the text of the law itself.

122

As such,

using religion as the discriminating factor to determine citizenship is

arbitrary and therefore unconstitutional.

123

The CAA and its resulting Foreigners’ Tribunals and National

into India.

124

As in Ranjit Singh v. France, where Singh was denied an

ID card when he refused to take off his turban for an ID photo,

Muslims are being denied the benefits of citizenship when they are

forced to register under the NRC.

125

When the French government

121. Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 (India); see also

CAA Distinguishes Between People Based on Religion, Is Unconstitutional: Former

SC Judge, THE

WIRE (Mar. 22, 2021), https://thewire.in/rights/caa-religion-

unconstitutional-former-sc-judge (“[Justice Gowda] expressed his apprehensions

about the [NRC] exercise in Assam, saying that many people who are citizens are

unable to prove their citizenship because they lack the certificates to do so.”). But

see Harish Salve, CAA is Necessary: Why the Many Arguments About Its Being

Constitutional Don’t Hold Water, T

IMES OF INDIA (Mar. 5, 2020),

https://timesofindia.indiatimes.com/blogs/toi-edit-page/caa-is-necessary-why-the-

many-arguments-about-its-being-unconstitutional-dont-hold-water (arguing that

classification on the basis of religion is not per se unconstitutional given that the

Indian constitution distinguishes between religious groups by conferring special

rights to minority religious communities. Additionally, the procedures in place under

the CAA do not pose different requirements for Muslims in India than it does to

other communities, so it therefore does not unconstitutionally target them).

122. Salve, supra note 121; see Jai Dehadrai, Why Harish Salve’s Defence of the

CAA is Wrong in Law, T

HE WIRE (Mar. 17, 2020), https://thewire.in/law/harish-

salve-citizenship-amendment-act. (emphasizing that support of the CAA comes

from the belief that India has “the sovereign right” to protect migrants that are

victims of persecution in neighboring Islamic-majority countries, yet the law itself

does not specify such a rationale or even what kind of persecution it would be

protecting neighboring minorities from).

123. See Dehadrai, supra note 122.

124. See generally Om Prakash Mishra, Who is the Hollow CAA Really Meant to

Protect? T

HE INDIAN EXPRESS (Sept. 21, 2021), https://indianexpress.com/article/

opinion/columns/caa-act-minorities-refugees-bjp-govt-7520070 (arguing that the

CAA has not benefitted the influx of Afghan refugees into India following formal

Taliban takeover of Afghanistan in 2021, and rather serves as a legal mechanism to

deny asylum and protection to its claimed beneficiaries).

125. Singh v. France, Communication 1876/2000, U.N. Human Rights

2023] A RECKONING FOR RELIGIOUS FREEDOM 253

denied Singh his ID card, they also denied him benefits that are only

granted to holders of a valid ID, just as the Foreigners’ Tribunals in

India deem Muslims not to have the appropriate credentials for

citizenship and deny them the benefit of living in India, since they are

subject to deportation.

126

In Singh, the Committee decided that

prohibiting a turban in an ID photo was not necessary to serve the

public safety and order objective of identification of citizens, because

that goal could be adequately served if he were to leave his turban on

during the ID photo.

127

Similarly, the public safety and order goal that

can be achieved by limiting refugees can still be adequately served

without discriminating according to the religious identities of the

refugees.

128

Denying Muslims the same immigration rights as those practicing

other religions denies them protection under Article 18, just as denial

of registration of the Krishna Community in Malakhovsky v. Belarus

denied the members of the Community the protections of Article 18.

129

In Malakhovsky, the Committee noted that there was a legitimate

purpose identified by Belarus in denying the registration of a religious

group without an address, because making sure there was no safety

hazard at the location where the religion would be registered serves a

necessary public safety goal.

130

Similarly, a mechanism to limit a high

volume of refugees into India would serve a valid public safety

purpose—to ensure less strain on infrastructure and prevent

overcrowding.

131

However, the Committee in Malakhovsky ultimately

Committee [U.N. H.R.C.], ¶ 3.2 (July 29, 2011).

126. See Changolwala, supra note 27 (showing that the CAA’s imposition of an

NRC singles out Indian-born Muslims for deportation).

127. Singh v. France, Communication 1876/2000, U.N. Human Rights

Committee [U.N. H.R.C.], ¶ 8.2 (July 29, 2011).

128. See Kaul, supra note 118 (explaining that India has the option to sign onto

international refugee agreements that can provide international guidance to refugees

seeking asylum in India, and assure that the admittance of refugees is done in a way

that does not violate human rights. Also, that India can solve the refugee problem

through better domestic legislation to bring uniformity and certainty for refugees

and asylum seekers).

129. Malakhovsky v. Belarus, Communication 1207/2003, U.N. Human Rights

Committee [U.N. H.R.C.], ¶ 7.5 (July 26, 2005).

130. Id. ¶ 7.6.

131. M

ARYBETH MORAND ET AL., THE IMPLEMENTATION OF UNHCR’S POLICY

ON REFUGEE PROTECTION AND SOLUTIONS IN URBAN AREAS, United Nations High

254 AM. U. INT’L L. REV. [38:1

determined that the restriction was not necessary because the

requirement that a valid location be chosen prior to registration was

arbitrary, since acquiring a valid location was inconsequential to the

determination of whether the Community could gain full status as a

religious organization.

132

Similarly, although limiting refugees in

general may serve a valid purpose, discriminating by religious identity

to determine which refugees are permitted is arbitrary because it is

unnecessary to address an influx of refugees.

133

Therefore, the CAA in

its present form is not necessary to achieve its valid goal of promoting

public safety and order.

134

3. The Harm that the CAA Causes Muslims Is Disproportionate to

the Benefit that It May Serve in Immigration Proceedings

The CAA’s religious classifications harm Indian Muslims more

than they benefit the Indian immigration system. The Committee in

Singh determined that the personal harm suffered by Singh in having

to take off his turban was not proportionate to the public order and

safety benefits that would be served by requiring head coverings to be

Commissioner for Refugees 7 (explaining that ninety percent of the world’s asylum

seekers are estimated to be in urban or peri-urban centers where they compete with

the indigenous urban poor for limited livelihood possibilities, further stressing

already inadequate urban infrastructure and services).

132. Malakhovsky v. Belarus, Communication 1207/2003, U.N. Human Rights

Committee [U.N. H.R.C.], ¶ 7.6 (July 26, 2005) (“The Committee notes, however,

ced

gum

eces

purposes of article 18, paragraph 3, for a religious association, in order to be

registered, to have an approved legal address which not only meets the standards

required for the administrative seat of the association but also those necessary for

premises used for purposes of religious ceremonies, rituals, and other group

undertakings. Appropriate premises for such use could be obtained subsequent to

registration.”).

133. See Dehadrai, supra note 122 (“[T]he CAA creates a distinction between

individuals of the same group—’illegal immigrants’—on the basis of a criterion as

arbitrary and illogical as religion.”).

134. Contra Afghanistan Crisis Shows Why CAA Is Needed: Hardeep Singh Puri,

IMES OF INDIA (Aug. 23, 2021), https://timesofindia.indiatimes.com/india/

afghanistan-crisis-shows-why-caa-is-needed-hardeep-singh-puri/articleshow/

85549052.cms (quoting the BJP Minister of State who tweeted, “recent

developments in our volatile neighbourhood and the way Sikhs and Hindus are going

through a harrowing time are precisely why it was necessary to enact the Citizenship

Amendment Act”).

2023] A RECKONING FOR RELIGIOUS FREEDOM 255

removed for identification purposes.

135

The harm in that case was that

doing so would violate Singh’s faith in Sikhism.

136

The harm suffered

by Indian Muslims, meanwhile, is the possibility of deportation from

their ancestral homes.

137

Therefore, as in Singh, the harm suffered by

Indian Muslims is disproportionate to the benefit that may be served

by classifying citizens by religion to address high numbers of

refugees.

138

As such, the CAA violates Article 18 of the ICCPR

because the measure is not necessary and proportional to serve a stated

public safety and order goal.

The CAA harms Indian Muslims by subjecting them to uncertainty

in their citizenship status and to deportation. In Malakhovsky, the HRC

found that denying the registration to the Krishna Community resulted

in a harm that was disproportionate to the stated purpose.

139

denying registration, Belarus harmed the Community because it

rendered them unable to establish religious educational institutions

and receive foreign dignitaries of the religion.

140

Similarly, the CAA-

NRC harms Indian Muslims by subjecting them to uncertainty in their

citizenship status and to deportation.

141

The HRC in Malakhovsky

determined that the harm inflicted on the Krishna Community in not

being able to exercise their religion was not proportional to the goal of

public safety that their registration may serve.

142

Therefore, the harms

to Indian Muslims subjected to the provisions of the CAA are not

proportionate means to achieve the public safety goals associated with

135. Singh v. France, Communication 1876/2000, U.N. Human Rights

Committee [U.N. H.R.C.], ¶ 8.4 (July 29, 2011).

136. Id.

137. Changolwala, supra note 27 (explaining that while many Muslims do have

documents that can prove a semblance of citizenship, such as passports, the NRC

requires decades-old documents which are much more difficult to find, and Muslims

may not waive this requirement as can migrants that do not practice Islam).

138. Id.

139. Malakhovsky v. Belarus, Communication 1207/2003, U.N. Human Rights

Committee [U.N. H.R.C.], ¶ 7.6 (July 26, 2005).

140. Id.

141. C

HATTERJI ET AL., supra note 21, at 5; see also Changolwala, supra note 27

(showing that the passage of the CAA has led to heightened anxiety among Muslims

across the country worried about deportation. A member of a legislative assembly

said that at least 500 people visit his office every day expressing concern with the

legitimacy of their citizenship documents, some of whom are in their seventies).

142. Malakhovsky v. Belarus, Communication 1207/2003, U.N. Human Rights

Committee [U.N. H.R.C.], ¶ 8 (July 26, 2005).

256 AM. U. INT’L L. REV. [38:1

a large volume of refugees.

Applying the HRC’s necessary and proportional standard to justify

state action infringing on the freedom of religion, the Citizenship

Amendment Act and its resulting National Register of Citizens and

Foreigners’ Tribunals violate Article 18 of the ICCPR because they

are not necessary to achieve the stated goal, and the means to achieve

the goal cause disproportionate harm to Indian Muslims.

143

D. THE BJP VIOLATES ARTICLE 20(2) BECAUSE ITS ADVOCACY

OF HINDUTVA IS INTENTIONAL, CONSISTS OF HATEFUL CONTENT,

AND REACHES A WIDE EXTENT OF THE POPULATION

Article 20(2) is violated when advocacy of religious hatred is

intended to convey animosity to a certain group, the content of the

statements is hateful, and the statements are extensively

disseminated.

144

BJP leaders’ advocacy of Hindutva violates Article

20(2) because it is intended to garner support, it consists of derogatory,

prejudicial statements against Muslims, and those statements are

consumed by large audiences all over India.

1. India’s Reservation to Article 19 Does Not Conflict with the

Object and Purpose of the Treaty as a Whole

Some may argue that India’s reservation to Article 19 conflicts with

the object and purpose of the treaty as a whole, because it forbids

enforcement of Article 19 of the ICCPR if it conflicts with Article 19

of the Indian Constitution.

145

However, because Article 19 of the

Indian Constitution is substantially similar to Article 19 of the ICCPR,

it does not conflict with the ICCPR’s object and purpose.

146

Article

143. Id.; Singh v. France, Communication 1876/2000, U.N. Human Rights

Committee [U.N. H.R.C.], ¶ 8.4 (July 29, 2011).

144. See supra Section II.A.3.

145. See Tom Ginsburg, Objections to Treaty Reservations: A Comparative

Approach to Decentralized Interpretation, in C

OMPAR. INT’L L. 231, 234 (Anthea

Roberts et al. eds., 2018) (noting that the interpreters of whether a reservation

comports with the object and purpose of the treaty are other states, who object to

reservations for a variety of reasons. If a state determines that another state’s

reservation conflicts with the object and purpose of the treaty, the reservation is

deemed invalid as it applies between the reserving state and the objecting state).

146. India Const. art. 19, cl. 2. (“Nothing in [Article 19] shall . . . prevent the State

from making any law, in so far as such law imposes reasonable restrictions on the

2023] A RECKONING FOR RELIGIOUS FREEDOM 257

19(2) of the Indian Constitution provides that restrictions to freedom

of speech may be imposed so long as they reasonably serve a public

order goal.

147

Meanwhile, Article 19(3)(b) of the ICCPR holds that

restrictions of freedom of speech may be imposed if they are necessary

to protect the public order.

148

While there may be some discrepancy

between being “reasonable” and being “necessary” to achieve a public

order goal, this small distinction does not contradict the object and

purpose of the treaty as a whole.

149

Furthermore, India’s reservation to

Article 19 does not substantially impact the Article 20 analysis.

150

2. India’s Internal Laws Do Not Sufficiently Protect the Interests

Identified in Article 20(2)

The U.N.’s General Comment 11 on Article 20 states that for the

article to be fully effective members should pass laws against the sort

of conduct that it forbids.

151

Sections 153A and 505 of the Indian Penal

code effectively criminalize the conduct stipulated by Article 20 to the

extent that the General Comment recommends.

152

In fact, BJP leaders

have been arrested under these statutes for incitement of violence on

religious grounds.

153

However, these arrests are few and far

exercise of the right [of freedom of expression] conferred by [Article 19] in the

interests of . . . public order.”).

147. Id.

148. ICCPR, supra note 4, art. 19(3)(b).

149. See generally David Jonas & Thomas Saunders, The Object and Purpose of

a Treaty: Three Interpretive Methods, 43 V

AND. J. TRANSNAT’L L. 565 (May 2010)

(emphasizing that object and purpose analysis should focus on the reservation’s

effect on the application of the treaty as a whole).

150. Rep. of Human Rights Committee, Concluding Observations of the Human

Rights Committee: India, U.N. Doc. A/46/40 No. 40, ¶¶ 309–10. (Oct. 10, 1991);

Rep. of Human Rights Committee, Concluding Observations of the Human Rights

Committee: India, U.N. Doc CCPR/C/79/Add.81 (Aug. 4, 1997) (expressing dismay

at India’s implementation of the ICCPR in general, but not finding India’s

reservations to be against the object and purpose of the treaty in either report).

151. General Comment 11, supra note 76 (“In view of the nature of article 20,

States parties are obliged to adopt the necessary legislative measures prohibiting the

actions referred to therein.”).

152. See Inciting Violence in Indian, supra note 48 (explaining that Section 153A

criminalizes and punishes making statements, speeches or acts that disturb public

tranquility or law and order by promoting enmity between classes of people on the

basis of difference in religion. Section 505 criminalizes making statements that

encourages and/or incites persons to disturb public tranquility).

153. See Senior BJP Leader Arrested, supra note 48 (citing to arrests that took

258 AM. U. INT’L L. REV. [38:1

between.

154

Although the existence of these laws in India satisfies the

recommendation from General Comment 11, it is nonetheless in

violation of Article 20(2) because they are not sufficiently utilized to

punish BJP actions.

155

3. BJP Leaders Intend for Their Statements To Be Hateful Because

They Advocate for Discrimination and Incitement of Violence

The BJP advocates hatred against Muslims in their rhetoric, and

because advocacy implies a form of intention, they therefore intend to

promote hatred.

156

In Faurisson v. France, the HRC found that

Professor Faurisson intended to promote hatred against the Jewish

Community because his statements singled out Jewish historians and

implied that they had something to gain from perpetuating (what

Faurisson believed to be) a lie about the Holocaust.

157

Similarly, BJP

leadership intends to promote hatred against Muslims because they

single out Muslims by provoking resentment towards the beef industry

and lauding the perpetrators of “beef lynchings.”

158

Furthermore, the

BJP directly calls for violence against opponents to the anti-Muslim

CAA through their “goli maaro saalon ko” chants.

159

As such, the BJP

place on November 5, 2019 in connection with violence outbreak out in Amravati).

154. See generally Tiwari, supra note 47 (arguing that the BJP’s propaganda

campaign against Muslims has been successful in granting them electoral victories

by Hindu voters, “turn[ing] India’s unemployed and undereducated youth into its

foot soldiers and the country’s middle-class into armchair supporters of its politics

of hatred” such that the BJP is destined to continue such an electoral strategy lest

ugh

-M

lim

ng)

155. Id. (arguing that the BJP’s propaganda campaign against Muslims has been

successful in granting them electoral victories by Hindu voters, “turn[ing] India’s

unemployed and undereducated youth into its foot soldiers and the country’s middle-

class into armchair supporters of its politics of hatred” such that the BJP is destined

to continue such an electoral strategy lest lose the electorate gained through anti-

Muslim messaging).

156. M

ENDEL, supra note 82, at 47 (positing that advocacy implies a form of

intention).

157. Faurisson v. France, Communication 550/1993, U.N. Human Rights

Committee [U.N. H.R.C.], ¶ 9.6 (Nov. 8, 1996).

158. See Nair, supra note 39 (analyzing the meaning of India’s ‘Beef Lynchings’

in connection to the rise in anti-Muslim violence under Modi); see Daniyal, supra

note 42 (explaining that because the cow is holy in Hinduism, the Indian beef

industry is predominately occupied by Muslims and BJP campaigns frequently

invoke prejudice against beef eaters and producers).

159. See Prabhu, supra note 50 (discussing the BJP Union Minister Anurag

2023] A RECKONING FOR RELIGIOUS FREEDOM 259

intends for their speech to incite discrimination, hostility, and violence

against Muslims in India and should be subject to discipline under

Article 20(2), as was Professor Faurisson.

4. The BJP’s Rhetoric Has Hateful Content Because It Identifies

Muslims as the Source of India’s Problems and Calls for Violence

Against Them

Additionally, the content of the BJP’s rhetoric promotes hatred

against Muslims. The situation in J.R.T. & W.G. Party v. Canada

parallels that in India because both situations concern a potential

limitation on the speech of a member of a political party as a

representation of that party.

160

Furthermore, both the W.G. Party and

the BJP use their rhetoric to pin the ills of their country onto a minority

religious group.

161

In J.R.T. & W.G., the group was made up of those

with Jewish faith and ancestry, and the radio audience was instructed

to “stand up and fight back,” just as BJP political leaders frequently

invoke their Hindu audiences to “shoot the traitors to the nation,”

referring to those who support Muslims by opposing the CAA.

162

Thakur, who made headlines with his “goli maaro” slogan); see Mathew & Rajput,

supra note 49 (reporting that when Minister Anurag Thakur chanted “desh ke

gaddaron ko,” poll rally crowd responded with “goli maaro”); see Watch: Union

Minister Leads Slogans, supra note 50 (showing that these chants, translated to

“shoot the traitors to the nation” consider Muslims and their supporters (those who

oppose the CAA) to be “traitors” to India).

60.

.T.

mmu

cat

104/

uma

ght

mmi

tte

[U.N. H.R.C.], ¶ 2.1 (Apr. 6, 1983); see Daniyal, supra note 42 (showing that anti-

Muslim sentiment is repeated at political rallies intended to gain support for the BJP,

such as at a campaign event for now Prime Minister Narendra Modi).

161. J.R.T. v. Canada, Communication 104/1981, U.N. Human Rights Committee

[U.N. H.R.C.], ¶¶ 2.1, 2.5 (Apr. 6, 1983) (showing that the W.G. Party’s messages

against those of Jewish faith are that they are involved in the current “corruption of

our Christian way of life”); see Prabhu, supra note 50 (stating that the slogans used

have set the tone for a particularly aggressive campaign, given a vicious edge by

frequent hate speeches from a section of BJP leaders); see Mathew & Rajput, supra

note 49 (showing that the “goli maaro saalon ko” chant is intended to blame such

“traitors to the nation” (opponents to the CAA) for the widespread violence between

Hindus and Muslims in the wake of the CAA’s passage).

162. J.R.T. v. Canada, Communication 104/1981, U.N. Human Rights Committee

[U.N. H.R.C.], ¶ 2.1 (Apr. 6, 1983); see Watch: Union Minister Leads Slogans,

supra note 50 (reporting that the Minister of State for Finance, the BJP’s Anurag

Thakur, was seen leading a crowd with the inciting listeners to shoot “traitors to the

country”).

260 AM. U. INT’L L. REV. [38:1

both instances, the speech contains an “us vs. them” sentiment

between those of the majority and minority religious groups in the

country (Christians and Jews in Canada and Hindus and Muslims in

India), and calls upon the majority to take action against a minority

that is portrayed as a threat.

163

In J.R.T. & W.G., the Committee

decided that the speech contained on the audio recordings was a

“clear” advocacy of racial or religious hatred and that Canada had an

obligation under Article 20(2) to prohibit such hatred.

164

Therefore,

because the content of the BJP’s statements similarly single out a

religious minority to whom the country’s problems are attributable,

and call for violence against that group, India has violated its

obligation under Article 20(2) to prohibit the BJP’s hateful

statements.

165

5. The BJP’s Statements Have a Wide Extent Because They Are

Uttered by Politicians to Large Audiences

The wide extent of the BJP’s hateful statements renders them

actionable under Article 20(2).

166

Just as the HRC in Ross v. Canada

held that a teacher espousing antisemitic views warrants restriction of

that speech, so too does the BJP’s promotion of Islamophobic views

warrant restrictions.

167

In Ross, the purpose of the speech was to

demonstrate that those of Jewish faith and ancestry were undermining

freedom and democracy just as BJP leaders advocating for Hindutva

163. J.R.T. v. Canada, Communication 104/1981, U.N. Human Rights Committee

[U.N. H.R.C.], ¶ 2.1 (Apr. 6, 1983); see also Watch: Union Minister Leads Slogans,

supra note 50 (reporting that slogan about traitors has been heard at numerous pro-

Citizenship Act and Bharatiya Jarata Party rallies in the country, with even young

children being made to say it).

164. J.R.T. v. Canada, Communication 104/1981, U.N. Human Rights Committee

[U.N. H.R.C.], ¶ 8b (Apr. 6, 1983).

165. Mathew & Rajput, supra note 49 (reporting on Thakur’s speeches during

rallies); see Prabhu, supra note 50 (reporting on opposition leaders’ reactions to

Thakur’s slogans); see Tiwari, supra note 47 (opining that the BJP has incited hatred

it can no longer stop); see Daniyal, supra note 42 (analyzing how Narendra Modi

helped spread anti-beef hysteria in India).

166. Ross v. Canada, Communication 736/1997, U.N. Human Rights Committee

[U.N. H.R.C.], ¶ 6.12 (Oct. 18, 2000) (establishing that because a teacher can

transmit their beliefs across large audiences of their students, the statements are

entitled to more stringent review).

167. Id.

2023] A RECKONING FOR RELIGIOUS FREEDOM 261

habitually target Muslims as undermining Indian tradition.

168

In Ross,

the HRC emphasized the influence teachers hold by virtue of their

position, and found that this influence justifies restraints on their

speech.

169

Leaders in politics exert a similarly strong influence, if not

a stronger one, on the beliefs of their audiences.

170

Teachers and

politicians are both influential in changing the beliefs of others,

because they frame which issues are discussed and project authority

on the matters they discuss.

171

The BJP specifically exerts a strong

influence on the beliefs of Indians because it is the country’s majority

party and gains further support all the time.

172

In Ross, the teacher’s

statements deemed hateful occurred outside of his occupation as a

teacher, yet were still deemed to warrant restriction because of the

influence of his position.

173

As such, because the BJP’s anti-Muslim

168. Id. ¶ 11.5; see also Ganguly, supra note 35 (“The BJP has made so much

headway by its pursuit of a Hindu agenda that it apparently sees the programme of

advancing the cause of the majority community as a goose that lays the golden

electoral eggs. It will be unrealistic, therefore, to expect the party to step back from

a path which pays so much political dividends.”).

169. Ross v. Canada, Communication 1876/2000, U.N. Human Rights Committee

¶ 1

29,

011

)

fre

xpr

carries with it certain duties and responsibilities that are particularly relevant in the

school system. The influence exerted by school teachers on the young students they

teach may justify restraints so that the school system does not legitimize the

expression of discriminatory views).

170. See generally Jere E. Brophy, How Teachers Influence what is Taught and

Learned in Classrooms, 83 E

LEMENTARY SCH. J. 1, 1 (1982) (emphasizing the

agenda-setting role of teachers influencing the topics their students learn as well as

the ways that they learn them).

171. See generally Shanto Iyengar, Framing Research: The Next Steps, in

INNING WITH WORDS: THE ORIGINS AND IMPACT OF POLITICAL FRAMING, 185,

185 (Brian F. Schaffner & Patrick J. Sellers eds., 2009) (arguing that politicians’

authority on the matter being discussed gives the audience little reason to challenge

the narratives they are being provided).

172. Saurabh Sharma, Modi’s BJP Set to Retain India’s Most Populous State After

Vote – Opinion Polls, R

EUTERS (Mar. 7, 2022), https://www.reuters.com/world/

india/modis-bjp-set-retain-indias-most-populous-state-after-vote-opinion-polls-

2022-03-07 (explaining that the BJP continues to win seats, despite facing criticism

for their handling of the COVID-19 pandemic, high unemployment, and waves of

protests against controversial laws—such as the CAA).

173. Ross v. Canada, Communication 1876/2000, U.N. Human Rights Committee

[U.N. H.R.C.], ¶ 2.1 (July 29, 2011) (showing that the objectionable speech was in

books, pamphlets, and television interviews in contexts outside of the teacher’s

position as an educator).

262 AM. U. INT’L L. REV. [38:1

speech occurs within their official capacity as a political party, it

reaches far wider audiences and is more damaging given the

legitimacy of its position.

174

Therefore, the wide extent to which the

BJP’s statements influence Indians across the country is sufficient to

warrant action under Article 20(2).

IV. RECOMMENDATIONS

A. INTRODUCTION

India has violated the right to freedom of religion and freedom from

incitement of discrimination, hostility, and violence under Articles 18

and 20(2) of the ICCPR, respectively.

175

However, there are ways that

India can come into compliance with the ICCPR and provide a remedy

to its violations. One set of recommendations includes ratifying the

articles of the ICCPR necessary for more just and efficient redress of

the violations. Another set of recommendations stipulates performing

actions through the mechanisms in place within the Indian legal and

political system to cure the BJP’s wrongs.

B. SOLUTIONS AVAILABLE UNDER THE ICCPR

1. Adopting the ICCPR’s Optional Protocol

The most efficient way to resolve India’s violation of the articles of

the ICCPR is for India to accept and enforce the First Optional

Protocol to the ICCPR.

176

This agreement allows individuals whose

home countries are party to the ICCPR to claim that their rights under

the ICCPR have been violated and allows them to submit written

communications to the HRC to request a remedy.

177

Under the

174. CITIZENS AGAINST HATE, SUBMISSION TO THE SPECIAL RAPPORTEUR ON

FREEDOM OF RELIGION OR BELIEF (2020) (“Since 2014, Muslims have suffered a

heightened campaign of hate, vilification and physical attacks, with senior BJP

leaders at the forefront, and social media generously used as amplifier. In areas of

Muslim concentrations . . . the targeting has been more widespread and systematic.

Perpetrators have suffered no accountability for their action.s”).

175. See supra Part III.

176. Status of Ratification,

U.N. OFFICE OF THE HIGH COMMISSIONER OF HUMAN

RIGHTS, https://indicators.ohchr.org (select “India” from the left-side menu)

(proving India’s lack of adoption of the Optional Protocol).

177. Why an Optional Protocol?, U.N.

WOMEN, https://www.un.org

2023] A RECKONING FOR RELIGIOUS FREEDOM 263

Optional Protocol, Muslims in India who have experienced

discrimination under the CAA and the NRC can appeal directly to the

HRC if they have already exhausted domestic remedies.

178

The

Foreigners’ Tribunals are how Indians can appeal their treatment

under the CAA and NRC, and, as discussed above, the Tribunals

frequently produce unjust results.

179

Therefore, Muslims in India

aggrieved by its laws will likely be able to exhaust domestic remedies

and be heard by the HRC.

2. Using Article 41 of the ICCPR and International Political

Pressure

The ICCPR itself also provides remedies for the violation of its

articles through Article 41.

180

However, the ICCPR requires an

affirmative declaration recognizing the competence of the HRC under

Article 41 in order for it to exercise such competence.

181

India has not

made such a declaration accepting the competence of the HRC under

Article 41; therefore, the HRC has no jurisdiction to resolve an inter-

state complaint under that Article.

182

Thus, India should make the

declaration accepting competence of the HRC under Article 41 so that

/womenwatch/daw/cedaw/protocol/why.htm (explaining that the Optional Protocol

allows citizens of a state options to rectify a wrong committed at the hands of the

state when the state itself will not recognize nor address the wrong).

178. Id.; Optional Protocol to the International Covenant on Civil and Political

Rights, art. 2, 999 U.N.T.S.

171 (Dec. 19, 1966) (“[I]ndividuals who claim that any

of their rights enumerated in the Covenant have been violated and who have

exhausted all available domestic remedies may submit a written communication to

the Committee for consideration.”).

179. Mohan, supra note 30 (providing statistics from Assam, a state in India that

had already adopted the National Register of Citizens, showing that the Foreigners’

Tribunals used to adjudicate appeals to classifications under the NRC consistently

disfavor Muslim residents).

180. ICCPR, supra note 4, art. 41.

181. The Practical Guide to Humanitarian Law, D

OCTORS WITHOUT BORDERS,

https://guide-humanitarian-law.org/content/article/3/human-rights-committee

(explaining how Article 41 is “optional,” meaning that it only applies to State Parties

that have expressly recognized the HRC’s competence to receive and consider

communications from states under the Article).

182. International Covenant on Civil and Political Rights, Declarations

Recognizing the Competence of the Human Rights Committee Under Article 41,

Dec. 16, 1966, 999 U.N.T.S. 171 (listing the Member States who have accepted the

competence of Article 41; India is absent from this list).

264 AM. U. INT’L L. REV. [38:1

the HRC and its Members may intervene and attempt to resolve the

BJP’s discrimination against Muslims in India.

If India declares their acceptance under Article 41, that would allow

a State Party to notify the Committee when it considers another State

Party to the Covenant to be breaking their commitment.

183

Under

41(1)(a), the State Party must, by written communication, bring the

matter to the attention of the State Party they believe to be in violation,

and the alleged violating State Party must provide an explanation

within three months.

184

If the matter is not adjusted, either state can

refer the matter to the HRC, who will then ascertain if domestic

remedies have been exhausted and hold closed meetings before

submitting a report on the matter.

185

Article 41(2) requires that the

above provisions can only take effect when ten State Parties to the

ICCPR have made declarations that they believe another State Party

to be in violation of the Covenant.

186

Although finding ten State Parties

to denounce the BJP and its policies could be challenging, support

could be garnered by the fact that the United Nations itself has

denounced the CAA as discriminatory.

187

If the matter is not resolved

by Article 41, Article 42 provides that the Committee may appoint an

ad hoc Conciliation Commission designed to “amicably” solve the

issue.

188

Using the method outlined in Article 41 would be a significant

undertaking, as no Inter-State complaint has ever been submitted to

183. ICCPR, supra note 4, art. 41.

184. Id.

185. Id.

186. Id. art. 41(2).

187. Press Release, U.N. Office of the High Commissioner for Human Rights,

Press Briefing on India (Dec. 13, 2019) (stating that the CAA appears to undermine

India’s commitment to equality before the law as enshrined in its Constitution, and

that the CAA will have a discriminatory effect on people’s access to nationality.

UNHCHR further noted that while India’s proposed purpose of the law is valid,

protecting persecuted groups, such protection should happen through a “robust”

asylum system based on equality, and apply regardless of religion).

188. ICCPR, supra note 4, art. 42(1)(a) (“If a matter referred to the Committee in

accordance with article 41 is not resolved to the satisfaction of the States Parties

concerned, the Committee may, with the prior consent of the States Parties

concerned, appoint an ad hoc Conciliation Commission . . . the good offices of the

Commission shall be made available to the States Parties concerned with a view to

an amicable solution of the matter on the basis of respect for the present Covenant.”).

2023] A RECKONING FOR RELIGIOUS FREEDOM 265

the Committee.

189

However, even if the formal process does not reach

fruition, the international pressure resulting from ten State Parties

publicly decrying the actions of the BJP would likely have a strong

influence on India.

190

Furthermore, HRC’s General Comment 31 on

Article 41 urges State Parties “to draw attention to possible breaches

of the Covenant obligations by other State Parties and to call on them

to comply with their Covenant obligations” regardless of their

acceptance of the HRC’s competence under Article 41.

191

Therefore,

the ICCPR itself condones State Parties exercising international

political pressure to resolve ICCPR violations outside of the formal

mechanisms it provides.

192

Further, India’s democratic processes will

account for the international repugnance over the BJP’s action, as it is

more likely that people will support efforts to change government

policies if there is more criticism of that government from outside

actors.

193

C. SOLUTIONS OUTSIDE THE ICCPR

In addition to formal complaints lodged under the ICCPR, solutions

at the level of the judiciary are also available. These include protesting

certain laws on a case-by-case basis, calling on government officials

189. Human Rights Committee by ICCPR, CTR. CIV. & POL. RTS.,

https://ccprcentre.org/ccpr-hr-committee.

190. Jamie Gruffydd-Jones, Citizens and Condemnation: Strategic Uses of

International Human Rights Pressure in Authoritarian States, 52 C

OMPAR. POL.

STUD. 579, 582 (2018) (“Making a target country’s citizens more aware and

concerned that their government is abusing their human rights is one important

means by which international activism helps domestic movements pressurize

governments to change their policies.”). But see Sebastian Hellmeier, How Foreign

Pressure Affects Mass Mobilization in Favor of Authoritarian Regimes, 27 E

UR. J.

INT’L REL.450, 455 (2021) (arguing that foreign interventions facilitate mobilization

of support in favor of the existing authoritarian government, as autocrats can spur

nationalist sentiments and frame foreign interventions as an attack on the nation).

191. U.N. Human Rights Committee, 80th Sess., General Comment 31(80):

Nature of the General Legal Obligation Imposed on State Parties to the Covenant,

¶ 2, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26, 2004).

192. Id.

193. Gruffydd-Jones, supra note 190, at 582 (“As foreign pressure tells people

that their country does not respect human rights, and denounces it for doing so, their

grievances about human rights conditions in their country increase after hearing it.

As grievances grow, this will empower and legitimate the claims of domestic

opposition groups against norm-violating governments.”).

266 AM. U. INT’L L. REV. [38:1

to allow religious communities to determine how they want to be

legislated and diversifying the composition of judicial bodies.

194

1. Hailing Individuals to Court

The Civil Rights Movement in the United States during the 1960s

used the strategy of bringing individual cases to court to highlight

discriminatory laws and discriminatory impacts of laws, and this same

strategy can be used in India.

195

The Indian judicial system is a single

integrated system, where the superior judiciary consists of the

Supreme Court and the High Courts, and the subordinate judiciary

consists of lower courts under the control of the High Courts.

196

The

decisions of the superior judiciary are binding on all of the courts of

the subordinate judiciary.

197

Usually, the defendants hailed into the

Foreigners’ Tribunals are poor and unsophisticated in legal matters,

thus the decisions from those tribunals are rarely appealed up to the

High Court level.

198

Ensuring competent counsel for these defendants

and increasing the quantity of the appeals can raise the likelihood that

an especially egregious decision will be appealed to a court in the

superior judiciary and overturned.

199

Additionally, the CAA can be

194. See infra Parts IV(C)(i), IV(C)(i), and IV(C)(iii).

195. See generally Klar Michael Klarman, From Jim Crow to Civil Rights: The

Supreme Court and the Struggle for Racial Equality, 443–68 (2006) (arguing that

“Court decisions can disrupt the order in which social change might otherwise have

occurred by dictating reform in areas where public opinion is not yet ready to accept

it.” For instance, in the case Brown v. Board of Education, the U.S. Supreme Court

al se

lic

ool

was

itu

tio

ons

the areas of the country opposed to the measure attempted to evade enforcement of

the ruling, forcing federal resources to be expended (like, in extreme circumstances,

dispatching the National Guard) in order to desegregate the schools pursuant to the

ruling in Brown).

196. Ashish Bhan & Mohit Rohatgi, Legal Systems in India: Overview, T

HOMSON

REUTERS (Mar. 1, 2021), https://uk.practicallaw.thomsonreuters.com/w-017-

5278?transitionType=Default&contextData=(sc.Default)&firstPage=true

(discussing the general court structure and hierarchy).

197. Id. (noting that if there is a contrary decision from another High Court, the

decision from the Court with the larger bench usually prevails).

198. C

HATTERJI ET AL., supra note 21, at 22 (holding that the populations

subjected to the Foreigners’ Tribunals are economically marginalized, not formally

educated, and either illiterate or semi-literate, which minimizes their ability to

effectively and meaningfully exercise their right to an appeal).

199. Amruta Byantnal, In India’s Assam, Lawyers Needed to Fight Statelessness,

EVEX (Sept. 6, 2019), devex.com/news/in-india-s-assam-lawyers-needed-to-fight-

2023] A RECKONING FOR RELIGIOUS FREEDOM 267

challenged in a court with judges that are more favorable to preserving

secularism in Indian society.

200

A case-by-case approach targeting higher courts is likely to have

success, as the Supreme Court has recently issued relatively

progressive decisions condemning faith-based customs that resulted in

hardships for non-Hindu religious minorities.

201

For example, the

court struck down a May 2017 federal government ban on the

slaughter of cows, emphasizing the ban’s potential to impact the

livelihood of those in the beef and leather industries, who are

predominantly Muslim.

202

2. Self-Determination for Religious Communities

Another possible solution is for courts to more aggressively call on

government officials to determine if and how religious communities

want their laws modified.

203

For instance, in response to the Supreme

Court’s decision in Mohd. Ahmen Khan v. Shah Bano Begum, which

recognized the right of an elderly woman to alimony from her

divorcing husband, the then-Prime Minister enacted the Muslim

statelessness-95546 (explaining that it will be difficult for Foreigners’ Tribunals in

Assam to ensure justice without adequate legal counsel given that there were 1.9

million people who were left off of the National Register of Citizens who have

grounds to appeal, but the legal system is not ready for such a massive undertaking.

Furthermore, most of the people excluded in the list are poor, which would make it

impossible for them to spend for lawyers’ fees and court costs).

200.

h, Id

HE INDIAN EXPRESS (Jan. 7,

2021), https://indianexpress.com/article/opinion/columns/ideology-judiciary-

constitutional-interpretation-7137357 (arguing that the political leanings of the

judges on India’s “constitutional courts”have a wide influence on federalism,

secularism, and the fundamental rights of citizens, and that where there are

drastically varying legal thoughts among the courts, the impact is most acutely felt

by minorities).

201. Sunny Dharod, Responding to “Stealth Theocracy”: Propositions for India’s

Civil Courts, 32 G

EO. J. LEGAL ETHICS 504, 515 (2019) (citing examples of other

progressive Supreme Court decisions, such as when the court decriminalized

consensual homosexual sex and when they struck down the ban that a Hindu temple

had against women of menstruating age from entering).

202. See generally K.

ALAN KRONSTADT, INDIA: RELIGIOUS FREEDOM ISSUES,

CONG. RSCH. SERV., R45303 (Aug. 30, 2018).

203. Dharod, supra note 201, at 518 (discussing “stealth theocracy” as a

phenomenon that involves the fundamental altercation of a constitutional system’s

religious or secular character through less visible means of constitutional change).

268 AM. U. INT’L L. REV. [38:1

Women’s Protection After Divorce Act, which deprived Muslim

women of the right of maintenance guaranteed to them under the

Criminal Procedure Code.

204

In response, the Women’s Action

Research and Legal Action for Women (WARLAW) brought a

petition to the Supreme Court to order the government to state “how it

intends to determine whether communities want [their] personal laws

changed,” as well as how the government “intends to include the

voices of women from these communities when making its

assessment.”

205

Although in this context the petition did not produce

any concrete results, a similar petition to the Supreme Court can be

submitted regarding the government’s treatment of Muslims.

206

This

would provide a degree of self-determination for the Muslim

community, and could create a bulwark against a BJP-majority that

may pass further discriminatory legislation.

207

3. Diversify the Composition of the Bench

A key feature of the Indian legal system that leads to discrimination

against Muslims is the occupation of judgeships by BJP-supporting

and Islamophobic judges.

208

By diversifying the composition of judges

on the courts, the judges could neutralize each other’s biases and more

accurately assess matters of religious discrimination.

209

204. Madhavi Sunder, Piercing the Veil, 112 YALE L. J. 1399, 1428 (Apr. 2003)

(arguing that because law does not recognize religious communities as contested and

subject to change, legal norms such as the freedom of religion and the right to culture

defer to the claims of patriarchal elites).

205. Dharod, supra note 201, at 519 (arguing that by revisiting WARLAW’s

request, Indian civil courts could challenge the monolithic and static manner with

which the Indian government has characterized and treated religious groups).

206. Id. (exploring alternative possibilities to obtain results).

207. Id. (explaining how elected officials could be held to a higher standard for

taking all constituents into account, regardless of religious community).

208. E.g., India Court Upholds Karnataka State’s Ban on Hijab in Class,

LJAZEERA (Mar. 15, 2022), https://www.aljazeera.com/news/2022/3/15/india-

court-upholds-karnataka-states-ban-on-hijab-in-class (explaining that in the

southern state of Karnataka, which is governed by a BJP majority, the court upheld

a law that banned Muslim women wearing a hijab during school).

209. Dharod, supra note 201, at 520 (“[M]ore diversity would also allow civil

courts to acquire a more reflective understanding of the varying rationales that

litigants are presenting to defend their actions. That way, if judges in the civil courts

feel that it is inevitable for them to interpret religious text when deciding the validity

of a citizen’s religious actions and beliefs, the chances that those texts would be

2023] A RECKONING FOR RELIGIOUS FREEDOM 269

There is support for an affirmative action measure like this in the

Indian Constitution’s Article 15, which holds that “nothing in this

article . . . shall prevent the state from making any special provision

for the advancement of any socially and educationally backward

classes of citizens or Scheduled Castes and the Scheduled Tribes.”

210

Therefore, India’s constitutional tradition favors such quotas and

affirmative action measures for deprived groups to ensure an equal

playing field.

211

Applying such measures to the courtroom could

protect against the arbitrary denial of justice in matters regarding

Muslim discrimination.

V. CONCLUSION

The leadership of the BJP in India is predicated on the ideal of

Hindutva, which is inherently discriminatory against Muslim

Indians.

212

The BJP continues to pass legislation that hurts Muslims

and engage in anti-Muslim rhetoric despite being a party to the

ICCPR, which not only preserves the right of individuals to be free

from religious persecution, but also bans any statements of religious

hatred that incites hostility, discrimination, or violence.

213

The BJP violates its commitments under ICCPR Article 18 and

Article 20(2) because its discriminatory laws, such as the Citizenship

Amendment Act, are not necessary and proportional to a valid goal,

and the harmful rhetoric of the BJP has the requisite intent, content,

and extent so as to constitute religious hatred that incites hostility,

discrimination, and violence.

214

India can sign onto the Optional

reviewed by someone who actually subscribes to them in their day-to-day life would

increase.”).

210. India Const., art. 15.

211. Id.

212. See Ramachandran, supra note 10, at 15 (arguing that underlying the recent

anti-Muslim violence in India is the Hindutva ideology, which aims at making

secular India a Hindu state).

213. ICCPR, supra note 4, arts. 18, 20.

214. Singh v. France, Communication 1876/2000, U.N. Human Rights

Committee [U.N. H.R.C.] (July 29, 2011); Malakhovsky v. Belarus, Communication

1207/2003, U.N. Human Rights Committee [U.N. H.R.C.] (July 26, 2005);

Faurisson v. France, Communication 550/1993, U.N. Human Rights Committee

[U.N. H.R.C.] (Nov. 8 1996); J.R.T. v. Canada, Communication 104/1981, U.N.

Human Rights Committee [U.N. H.R.C.] (Apr. 6, 1983); Ross v. Canada,

Communication 736/1997, U.N. Human Rights Committee [U.N. H.R.C.] (Oct. 18,

270 AM. U. INT’L L. REV. [38:1

Protocol of the ICCPR and accept the authority of Article 41 to allow

international rectification of the issues and can also take steps

domestically to remedy this issue such as bringing more cases of

discrimination to court, allowing Muslims to determine how they want

their community to be regulated, and implementing affirmative action

programs to change the composition of judges. These methods can

help to offset the impact of the BJP and its policies and ensure that

Muslim Indians may have the freedom of religion guaranteed by both

the ICCPR and the Indian Constitution.

215

2000).

215. ICCPR, supra note 4, arts. 18, 20; Kesavananda Bharati v. State of Kerala

(1973) 4 SCC 225 (India).