New Delhi: Almost every day, the media cite accounts (here, here, here and here) of criminal cases being filed against Muslims for no evident criminality or calls being made for economic boycotts against them: From ‘Corona Jihad’, ‘Love jihad’, ‘Economic jihad’, to ‘UPSC jihad’ and ‘Land jihad’.
Blame is increasingly cast upon an entire community, rendering them both victims and supposed victimisers. Indian Muslims now find themselves implicated in criminal cases for engaging in events as ordinary as praying, eating, running a business or even falling in love.
The most recent data provided by the National Crime Records Bureau (NCRB) report of 2021 reveal the effects of Muslims being singled out for special attention. More than 30% of detenues in Indian prisons were Muslim, even though they were 14.2% of the population (as per Census 2011).
As on 21 December 2021, all 41 detenues lodged in Haryana’s jails were Muslim, as were 78.5% of detenues in West Bengal (Muslim population: 30.9%) and 56.7% in Uttar Pradesh or UP (Muslim population: 19%). In Assam, where 34% of the population is Muslim, 64% of convicts and 49% of undertrials were Muslim.
Our analysis of recent events that led to criminal cases against Muslims revealed growing bias and prejudice in the State’s approach to India’s largest minority, often making ordinary events of daily life appear like a threat to public order, in some cases, to national security and even terrorism.
As the bias grows, swathes of civil society, the media, law-enforcement agencies and the judiciary appear to normalise prejudice, increasingly disregarding procedures required under Indian law and India’s Constitution.
Some of the laws being disproportionately used against Muslims, our analysis found, are sections 295-A (deliberate act intended to outrage religious feelings of any community), 153-A (promoting enmity between different groups on the basis of religion), 505(2) (statements conducing to public mischief), 143 (unlawful assembly), 124-A (sedition) of the Indian Penal Code (IPC), 1860, and section 151 (arrest to prevent commission of a crime) of the Code of Criminal Procedure, 1973.
Anti-terror laws such as Unlawful Activities Prevention Act, 1967 and National Security Act, 1980, are often (here and here) invoked against members of India’s largest minority, with little to no possibilty for bail.
Of these, the two most commonly used IPC sections were 295-A and 153-A. Indeed, these provisions, which in the 1960s, a fractious time, were widened to secure India’s unity, as Article 14 reported in January 2022, are now used to quell discordant speech to secure order rather than unity.
Fundamental rights guaranteed under the Constitution—such as the right to equality before law or the equal protection of laws under Article 14, right to life (which includes the right to live with dignity, right to privacy, right to food among others) under Article 21, right to freedom of speech and expression under Article 19(1)(a), right to practice any profession or to carry on any occupation, trade or business under Article 19(1)(g), and the right to freely profess, practice and propagate any religion under Article 25(1)—are being ignored.
With the erosion of basic rights accorded to every Indian citizen under the pretext of limited exceptions—such as public good, public order, health, morality, and security of state, which are selectively invoked in cases against Muslims—the constitutional promise of equal citizenship to all Indians is increasingly forgotten.
Namaz At Home Becomes A Crime
The criminalization of namaz first began with Hindus objecting to Muslims offering prayer in public spaces. Over the past few months, several such instances were widely reported.
In June 2022, a professor in a college at Aligarh was forced to go on a month-long leave after right-wing Hindus objected to him offering namaz under a tree in the college lawn. He was sent a notice and an investigation was conducted.
In July 2022, controversy erupted after a video emerged online which showed Muslims purportedly offering prayers at UP’s Prayagraj railway station. In another instance of July 2022, a first information report (FIR) was filed against some Muslims for allegedly offering prayers at a mall in Lucknow.
Until August 2022, the debate largely revolved around the issue of offering namaz in public spaces. On 24 August 2022, Hindu fundamentalists invented a new crime, which finds no mention in India’s criminal law: praying at home.
Based on a first information report (FIR) from a local, Chandra Pal Singh, who referred to the gathering as an “unlawful assembly”, the Moradabad police booked 26 people for the act under section 505(2) of the IPC, a non-bailable offence, which provides punishment of upto three years or fine or both for making “statements conducing to public mischief”.
The police alleged that “scores of people assembled at the house of two local villagers in Dulhepur village in Chhajlet area without any notice and offered prayers”. Superintendent of police (rural), Moradabad, Sandeep Kumar Meena, said that Muslims “had been cautioned in the past not to indulge in such a practice at home, following objections from neighbours belonging to another community”.
Section 505(2), under which the 26 Muslims were booked, requires one to make a statement that creates or promotes, or which is likely to create or promote, on grounds of religion or community, enmity, hatred or ill-will between different religious groups or communities.
To invoke this provision of the IPC, the police ought to have been convinced that offering namaz at home amounted to a statement which created or would likely create enmity, hatred or ill-will between two communities; and those who gathered had a specific criminal intent to cause disharmony.
Several questions arise: does one require prior permission of the authorities before praying in one’s home? Does gathering at someone’s home to offer namaz amount to public mischief? Are mere objections from neighbours of another community sufficient for the law enforcement to proceed with the registration of an FIR?
In absence of any proof which would prima facie indicate criminal intent on the part of those assembled, the answer to each of these questions would be: no.
Days later, after the case had attracted wide media attention, the UP police withdrew the FIR, saying they found the complaint to be “incorrect” and the video provided by the complainants “fuged”.
"The video provided by the villagers was probably filmed earlier and they didn’t have any other evidence to prove that namaz was offered in a mass gathering on August 24,” said Moradabad senior superintendent of police Hemant Kutiyal.
Though the police expunged the FIR, they did so for the wrong reasons.
If anything, closure of the case on account of lack of “evidence” was a farce. Article 25(1) of the Constitution of India guarantees the right to freely “profess, practise and propagate religion”, a fundamental right that can only be regulated on grounds of public order, morality, health besides certain other grounds.
There is also no doubt that praying within the confines of a home is not a criminal offence, and an FIR should not have been registered for such prayers in the first place.
The police have neither acknowledged that no FIR was warranted in the case, nor is there any certainty that the police will not book Muslims in the future if they were to gather and pray at home.
One of the accused named in the FIR, Wahid Saifi, had to clarify that they were legal owners of the land where namaz was being offered “frequently since Independence”.
The matter has now been put to rest without fixing accountability on law enforcement for having rushed to register an FIR on the basis of a frivolous complaint. The result is that others are likely to be emboldened to make similar complaints against Muslims.
Once the case was closed, one of the villagers said: “We are not happy with the police probe. They had offered namaz on multiple occasions. We are sure they will do it again. We’ll take appropriate legal advice and initiate action”.
Another complainant said, “The Muslims should give in writing that they won’t do it again”.
The Unease of Doing Business
The Modi government has boasted of India’s improved position in the World Bank’s global ranking of the ‘Ease of Doing Business’, hoping to lure foreign investors into the country. Yet, recent statistics and incidents reveal that the State has looked the other way when it comes to Muslim businesses, which have, often, experienced anything but an ease in doing business.
A 2022 analysis by Christophe Jaffrelot, a professor of Indian Politics and Sociology at King’s India Institute, London, and Maulik Saini, a data analyst and researcher on Indian politics, reveals a pattern of underrepresentation of Muslims in the public and private sector over 10 years.
The report revealed that while Muslims were 14.2% of the Indian population, their proportion of public sector employment was 6.87% between 2018-2020.
On the other hand, Muslims were over-represented among the self-employed: 15.5% in 2018-20. According to Jaffrelot and Saini, the over-representation of Muslims amongst the self-employed is simply because they have no other choice but to be on their own.
While they fend for themselves, Muslims have been the targets of calls for economic boycott made by BJP leaders. In April 2020, Uttar Pradesh BJP MLA Suresh Tiwari urged people to not buy vegetables from Muslims. In March 2022, BJP national general secretary, C T Ravi described halal meat as ‘economic jihad'.
In December 2017, a video of Telangana BJP MLA, Raja Singh, was widely shared on social media, In it, he announced: "Put this in your head, from today, if you buy anything, buy it from a Hindu person not from these traitors (referring to Muslims). If the 100 crore Hindus living in India follow this ideology, the remaining 25 crore will definitely want to convert to Hinduism.”
Such statements of BJP leaders have emboldened both right-wing mobs and police to intimidate Muslims, encouraging their economic marginalisation and boycott of small businesses owned by them.
New forms of economic abuse against Muslims have emerged, with law- enforcement agencies appearing to act in disregard of the requirements of criminal procedure.
In July 2022, Talib Hussain, a Muslim restaurant owner in Sambhal, UP, was embroiled in one such incident. He was arrested for inadvertently wrapping food (chicken, said the police; bread, he said) in an old newspaper that carried advertisements featuring Hindu deities.
Hussain was booked under sections 295-A and 153-A of the IPC, even as employees of the restaurant insisted that wrapping food items in newspapers was common practice and Hussain did not mean to hurt anyone.
According to Ajay Kumar Tyagi, senior sub-inspector of the Sambhal Kotwali police station, Talib allegedly “swung a knife, about as big as a hand” at him. However, Tyagi himself told The Print that while a crowd had gathered at the spot, no one came forward either as a complainant or witness, and the FIR was lodged on the basis of his own complaint.
A circle officer, Jitendra Kumar, in an interview regarding the incident with the Times of India made no mention of the allegation of assault or attempt to murder.
Hussain’s family denied the assault charges and alleged that the police were in cahoots with local Hindu groups in the region. Indeed, as Article 14 reported on 12 September 2022, the police showed up right after the vice president of the youth wing of the ruling Bharatiya Janata Party (BJP), tweeted about Hussain’s supposed transgression.
Later, the restaurant owner’s son, Tabish, had to clarify that chicken was never packed in a newspaper. “Old, unused newspapers are used by the restaurants in Sambhal city to wrap rotis, which are dry,” he told The Print, as he opened a fresh bundle of newspapers he had bought for the day.
“Chicken, with or without gravy, is packed in plastic boxes which are stacked in the kitchen,” said Talib.
Hussain’s arrest left him, his family and other Muslims fearful. He suffered a loss of business and reputation, and faces a long, difficult legal battle.
On 13 July 2022, nearly two weeks after his arrest, Hussain was granted bail, but it appeared that his ordeal had not ended. Hussain alleged that a group of 15 policemen visited his restaurant on 30 August and asked him to shut shop for three days. He has also claimed that his was the only restaurant to receive such an “order”.
“When the police came to my shop, I told them that I’m only selling vegetarian food,” said Hussain. “This is the first time in 25 years that I have stopped serving non-vegetarian food in [holy Hindu month of] Sawan. But this year, due to my arrest, I decided to not invite more trouble.”
What happened to Hussain is evidence of growing discrimination towards Muslims in daily life.
In August 2021, a Muslim-owned dosa joint in Mathura, Shrinath Dosa, was vandalised as a mob took exception to its name, and accused the owner of exploiting a Hindu name. The owner had to re-name the place "American Dosa Corner."
In another incident, a Swiggy customer in Hyderabad asked the food delivery app to not send a Muslim delivery boy to deliver his food.
Muslim vendors selling fruit have been made targets of Hindu ire and told not to do business outside Hindu temples. Calls for ban on employment of Muslim mehendi artists have been made, calling it ‘mehendi jihad’. Muslim barbers have been asked to shut shop on Tuesdays based on claims that "Hindus don’t cut their hair on Tuesdays."
In June 2022, a 21-year old Bengaluru Muslim popcorn vendor was accused of spitting into an oil pan, though a police “investigation” later revealed that the accused was tearing open the oil packet with his teeth to pour oil into the pan, and did not spit into the pan.
In July 2022, Hindu vigilantes barged into an auditorium belonging to the Veerashaiva community and stopped a play midway in Karnataka’s Shivamogga district because the lead characters were Muslim.
Eat Meat, Land In Jail
On 14 May 2022, the Muslim headmistress of a middle school in Assam was arrested and placed under “immediate suspension” for bringing beef to lunch. Reportedly, she brought beef from her house on the occasion of a local festival, so that she could offer it to guests, including teachers and villagers. Some guests, however, were displeased.
Assam, governed by the BJP, does not ban beef eating, but the Assam Cattle Preservation Act, 2021, makes it illegal to slaughter cattle and sell beef in areas where Hindus, Jains and Sikhs are in a majority or within a 5-km radius of temples or religious monasteries.
The arrest was made, even though Mrinal Deka, the additional superintendent of police in Goalpara district (where the school is situated) told the Hindustan Times that “the provisions of Assam Cattle Preservation Act were not applied in this case, as there is no sale of beef or slaughter of cattle involved”.
Since the Modi government came to power in 2014, several Indian states have passed laws that criminalise the sale of beef and slaughter of cows, as Article 14 reported in December 2020. States such as Maharashtra and Haryana have brought laws which provide a jail term for possession of beef.
The common feature of these laws is that they are mostly weaponised against Muslims by the State and manifest themselves in mob violence against them, sometime ending in lynching over rumours (here, here and here).
That a 14-year-old Muslim boy was beaten in March, 2021 for entering a Hindu temple in UP to drink water is reflective of the extent of discimination faced by Muslims in the country.
Institutionalisation of Minority Oppression
As many have observed, the recent incidents are a product of prejudice against minorities, encouraged by politicians, mostly from the BJP and its affiliates (here, here, here and here). These are acts that not only embolden mobs but also law-enforcement agencies against Muslims.
For instance, on 11 September 2022, Hindu extremists forced Muslim pilgrims offering namaz on a UP road to do situps and hauled them to the police, who fined the bus driver for carrying excess pilgrims.
The pilgrims had to provide the police with a written apology for praying.
A United State department of state report on India in its “2021 Country Reports on Human Rights Practices” released on 12 April 2022 noted that Muslims in India were vulnerable to communal violence, discrimination, degrading treatment or puishment by police and prison officials, forcible displacement, and arbitrary arrests and detentions by the government.
A 2019 report by Common Cause, a non-governmental organisation, found that half of police surveyed showed anti-Muslim bias, making them less likely to intervene to stop crimes against Muslims.
The police have been accused of looking the other way when Muslims sought help during the Delhi riots of February 2020 (here, here and here). Police complicity was also brought to fore during the Jahangirpuri riots of April 2022.
To build its case against the alleged perpetrators of violence in the UP city of Kanpur in June 2022, the UP police echoed a conspiracy theory that local Muslims were trying to “take over” Hindu land “under the guise of riots”.
While Muslim gatherings for offering namaz continue to be treated with suspicion and hate, a separate budgetary allocation was made by the government for the Kanwar Yatra (an annual pilgrimage of devotees of Shiva).
The fact that kanwariyas were showered with flower petals in the Uttarakhand town of Haridwar from a helicopter reveals the State’s selective attitude.
Several senior administrative and police officers, including the chief minister of Uttarakhand, Pushkar Singh Dhami who washed the feet of devotees, took part in various programmes (here and here) to welcome the kanwariyas.
A grand welcome for 11 rape and murder convicts in the Bilkis Bano case upon remission of their sentence on 15 August 2022 in Gujarat reflected how Hindus got special treatement. A member of the legislative assembly, who was on the board that granted the pardon, said: "They are Brahmins. Brahmins are men of good sanskaars (of good religious values and culture).”
Prejudices embedded in the government have also infiltrated courts of law which have, sometimes, resulted in lack of judicial redress for victims of the persecuted minority.
Courts have, in some cases, overturned convictions or dismissed matters that accused Hindus of involvement in violence against Muslims. Other courts have been questioned (here and here) for their inaction and failure to take prompt or suo moto cognisance of the selective bulldozing of Muslim homes by the State on the pretext of “illegal encroachments”.
A contempt of court petition against Yati Narsighanand, a Hindu priest who was arrested in January 2022 for abusing Muslims and calling for genocide, is yet to be listed for a first hearing before the Supreme Court. The case has been pending for more than seven months since it was filed, even though the Attorney General of India consented to contempt proceedings.
Narsinghanad continues to make disruptive speeches at various events, freely violating bail conditions.
On 12 September 2022, a Varanasi district court allowed a suit seeking the right to worship Hindu deities inside Gyanvapi Mosque complex while rejecting the plea of Muslim petitioners that the suit was illegal. The court ruled that the suit was not barred by any provisions of the Places of Worship (Special Provisions) Act, 1991.
The Hindu right has over the past year quietly built a well-oiled litigation machine to churn out identically-worded suits against the Gyanvapi mosque, meant to overwhelm Muslim defendants, pressurise the judiciary to place faith over law, keep the media attentive and destablise the syncretic nature of Hinduism’s holiest city, Article 14 reported in May 2022.
There are now 12 similar claims on mosques and Islamic-era monuments in at least four states.
BJP leaders in UP and other parts of the country welcomed the decision of the Varanasi court. “There’s a wave of happiness,” said UP’s Deputy Chief Minister, Brajesh Pathak. “I am getting many phone calls expressing happiness.”
(Mani Chander is a lawyer based in New Delhi.)