Harsh Mander: The dark clouds of 1935 Nuremberg have gathered over Indian skies

Some national elections became decisive milestones in the journey of the Indian republic. Free India’s first election in 1951-’52 established to a widely sceptical world both the commitment and the capacity of the Indian people for electoral democracy. In 1977, the people of India voted overwhelmingly to restore the constitutional freedoms suspended during the 18-month emergency that preceded it.

Still, the 2024 national elections arguably are the most momentous since Independence. Its outcomes will decide if India will remain a secular democracy.

India’s constitutional secularism meant many things. The state would have no religion. It would scrupulously be equidistant from all religions. People of every persuasion, both of majority and minority faiths, would have full freedom not just to practice but also to propagate their religious beliefs.

The state would have the right but also the duty to intervene in religious practice when this contravened constitutional morality. And people of all minority faiths would be assured full citizenship rights equal to those of people of the majority religion. It would be the duty of the state both to defend these rights and to ensure that the state does not itself discriminate in any way on the basis of religion.

The practice of Indian secularism during the building of the Indian republic was never perfect. But the decade of the leadership of Prime Minister Narendra Modi has seen a blitz of such grave onslaughts that many fear India has already transformed in practice into a religious state, a Hindu Rashtra, even though the letter of the preamble of the constitution still retains the pledges of secular (and socialist) democracy.

In Nazi Germany, Adolf Hitler in 1935 announced two laws known as the Nuremberg laws. These stripped Jewish Germans of citizenship rights and criminalised inter-religious marital and sexual unions. These two laws reduced Germany’s Jews to non-citizens and criminalised marriages and sex between Jews and Germans.

In Modi’s India, laws have been passed that assailed the principle of equal citizenship of Muslims and criminalised religious conversion for inter-religious marriages. Do these laws in Modi’s India carry echoes of the Nuremberg laws?

The Citizenship Amendment Act, 2019, does not directly strip Indian Muslims of their citizenship. What it does for the first time is to introduce religious identity as salient to a person’s eligibility to be a citizen of India; and to exclude undocumented Muslims from a presumption available to Indians of other faiths that they are persecuted minorities from Muslim-majority countries from India’s neighbourhood.

The rationale offered for the Citizenship Amendment Act is that this is a humanitarian refugee law designed to aid and shelter persecuted minorities from neighbouring countries. But the word persecution finds no mention in the law and its rules. There is also no explanation why this amendment only fast-tracks applications for citizenship to non-Muslim undocumented persons from three Muslim-majority countries – Pakistan, Afghanistan and Bangladesh. Religious persecution is a grim reality in almost every country in India’s neighbourhood – of Hindus, Christians and Ahmediyas in Pakistan; Hindus, Sikhs and Hazaras in Afghanistan; the Uyghur Muslims and Tibetans in China; Rohingya Muslims in Myanmar; Tamils and Muslims in Sri Lanka; and Hindus in Bangladesh.

If it was humanitarian considerations that drove the law, then why should India not have opened its doors to the most savagely persecuted minorities in India’s neighbourhood who are among the most persecuted peoples in the world – the Rohingya from Myanmar, Ahmediyas from Pakistan and Uyghurs from China? Is it because all of these people are of Muslim identity except the Hindu Tamils from Sri Lanka?

It is reasonable to speculate that not humanity but ideology actually spurred the law. Just as Israel is the natural home of every Jewish person, the ideology underpinning the 2019 Citizenship Amendment Act is that India is the natural home of Hindus from anywhere in the world. But this idea is alien to the secular idea of the country embedded in its constitution, the principle that India belongs equally to its non-Hindu citizens.

The dread of possible disenfranchisement raised among Indian Muslims by the statute is inflamed partly by periodic declarations by the prime minister and union home minister stigmatising Muslims as “infiltrators”. This stirs further with Union home minister Amit Shah’s loaded reference to “chronology”; that their government first brought in the Citizenship Amendment Act and then would bring in a National Register of Citizenship.

The National Register of Citizenship implemented Assam caused immense suffering to millions of residents because it reversed the burden of proof and presumption of innocence. All residents had to prove with vintage hard-to-procure documents that you were citizens, and if you failed to do this, the state would presume that you were an illegal immigrant – or “infiltrator”, if you prefer – would declare you a non-citizen and possibly incarcerate you in detention centres.

But if you were an undocumented Hindu, you had nothing to worry, because with the Citizenship Amendment Act now in statute books, you would be presumed to be a persecuted Hindu from Bangladesh, and your citizenship would be fast-tracked. Contrarily, the protection of this presumption would be denied to you if you were Muslim.

Equally fearsome for Indian Muslims has been the spate of what are informally called “love jihad” laws, that have mushroomed in Bharatiya Janata Party-ruled states during the decade of Modi’s leadership of the country. Once again, these do not explicitly bar and criminalise relationships of Muslim men with Hindu women in the way the Nuremberg laws did. But in the manner that these laws are being interpreted and implemented by the police and even on occasion courts, this is what in practice these laws accomplish.

India has long been a dangerous place for couples who choose to marry or live with persons of other faiths or “lower” castes. Families themselves are known to murder women and men who transgress these societal barriers, in what are misnamed “honour killings”.

Their perils have grown manifold with the spread of the toxic Sangh myth of “love jihad”, the canard that Muslim men are trained to romantically and sexually trap Hindu women into marriage aiming to convert them to Islam and produce masses of Muslim children as part of a demographic conspiracy. But the so-called “love jihad” laws have raised the dangers to inter-faith couples incrementally.

What are popularly termed “love jihad” laws are actually amendments to laws related to religious conversions that debar changes in religion due to marriage. These amendments in seven BJP-ruled states during the Modi years require inter-faith couples to apply to state officials and make public announcements of their desire to marry. These effectively expose couples in such marriages to the perils of jail and the marriage being declared void, and to heightened dangers of vigilante intimidation and violence. These multiple hazards are multiplied when couples choose to live together outside marriage.

These laws in BJP states have been widely interpreted and weaponised by police authorities – and sometimes courts – families of couples in inter-faith relations and vigilantes to forcefully prevent and annul such unions. These have drastically curtailed both religious freedoms and the freedom of adults to choose their partners – for companionship, for sex, for romance and for marriage - outside their faith. These eclipse the pledges of secular democracy in India’s constitution.

In Nazi Germany, the official resolve to expel Jews, the Roma and Sinti people and Black Germans from citizenship was explicit and strident. So too was the official determination to make sex and marriage between Jews and Germans a grave crime.

In Modi’s India, the aspirations and sometimes even the public discourse are not dissimilar to Nazi times. But the exclusion and criminalisation of the country’s Muslim citizens through laws and state action are more covert, as we have seen, with Indian statutes of citizenship and inter-faith marriages not as explicit in their exclusions of Indian Muslims as the Nuremberg laws were of Germany’s Jews.

Still, in their formulation and also in the official discourse and practice that accompanied these, the threats to both equal citizenship rights of Muslims and their consensual inter-faith relations are grave and violative of both the letter and spirit of the constitution.

The dark clouds of 1935 Nuremberg have gathered ominously today over the Indian skies.

Sections of this article were published in the Leaflet. I am grateful for research support from Swati Draik and Omair Khan.

Harsh Mander, writer, peace and rights worker, researcher and teacher, leads the campaign Karwan e Mohabbat for justice and solidarity with survivors of hate violence. His latest book Fatal Accidents of Birth is in book stores.