UCC, Citizenship, Art 35A/370: BJP Manifesto Light on Legal Reform

What legal reforms does the BJP Manifesto 2019 promise? What are their pros and cons? And can they be delivered?

A week after the Congress released their manifesto for the 2019 election, the Bharatiya Janta Party (BJP) released its own ‘Sankalp Patra’ on Monday, 8 April. PM Narendra Modi’s party has essentially promised ‘more of the same’ in its manifesto when it comes to the economy and development, and also given prominence to issues like building the Ram Mandir and giving a free hand to armed forces to deal with terrorists.

When it comes to legal reforms as well, there is a reiteration of several BJP policy mainstays, like bringing in a Uniform Civil Code (UCC) as well as the abrogation of Article 370 and annulment of Article 35A of the Constitution (which deal with Jammu and Kashmir’s special status). These promises were also present in the party’s 2014 manifesto.

The 2019 manifesto is quite light on legal reform, whether in terms of legislation, policy proposals or judicial reform – especially in comparison with the Congress manifesto, which included around 14 new significant legal reforms.

Here’s a quick assessment of the BJP’s promises on this front, including the BJP’s track record on those which were promised in 2014, and a surprising omission.

1. Uniform Civil Code

• The BJP has reiterated its stand to draft a Uniform Civil Code to deal with personal laws in India.
• They have cited Article 44 of the Constitution, under which drafting a UCC as a Directive Principle of State Policy, as well as gender equality as the reasons behind why a UCC should be drafted.
• They claim their UCC will protect the rights of all women, “drawing upon the best traditions and harmonising them with the modern times.”

PROS:

Currently, issues like marriage, divorce and inheritance are governed by personal laws of one’s religion. As these are widely divergent, there is no consistency in the treatment of these issues for people belonging to different communities, and women have often been at a disadvantage.

Reforms to personal laws have been inconsistent, with multiple amendments brought to Hindu personal laws (which have been enacted), while Muslim law has seen fewer changes – though the Supreme Court’s Triple Talaq judgment could lead to a number of Muslim personal law practices being similarly struck down.

A UCC could lead to consistency and gender equality when it comes to personal laws, and usher in some much needed reforms.

CONS:

Separate personal laws are one of the ways in which people have exercised their right to practice their own religion (Article 25 of the Constitution), which has been particularly important for minorities. The UCC could become a tool to erode this right if not drafted properly. The Law Commission has also warned of the dangers of this approach.

If the UCC is not used in such a way, there are few arguments against its adoption.

WILL IT HAPPEN?

The BJP has made this promise in every manifesto since 1998, but failed to take any action when in power, including when it had a strong mandate in 2014.

If they do try to make it happen, minorities are likely to raise concerns that laws are being passed without any regard to their rights.

2. Citizenship (Amendment) Bill

• The BJP says they are committed to enacting the Citizenship (Amendment) Bill to allow individuals belonging to religious minorities from neighbouring countries to escape persecution.
• The manifesto says that the Bill will specify that “Hindus, Jains, Buddhists and Sikhs escaping persecution from India’s neighbouring countries will be given citizenship in India.”

PROS:

Non-Muslims in Pakistan, for instance, who continue to face discrimination and in some cases persecution, will be able to escape to India and get citizenship.

CONS:

This falls within the manifesto’s ‘Nation First’ section, which appears to indicate that the rights of Hindus, Jains, Buddhists and Sikhs is a national prerogative – which runs contrary to the secularism of the Constitution.

The proposed Bill ignores the manner in which minorities from other religions are also repressed in India’s neighbouring countries, like the Rohingya (who are Muslim) in Myanmar.

Northeastern states were up in arms over the Bill when the Modi government sought to get it passed earlier this year, claiming this would lead to threats to the language, culture, and society of the peoples in those states.

WILL IT HAPPEN?

The strength of opposition to the Bill, especially in the northeastern states, means it could cause serious trouble for the BJP.

The bill is liable to be struck down by the courts on the grounds that it violates Article 14 of the Constitution, whether in terms of failing to have a rational purpose, as well being manifestly arbitrary since it doesn’t allow minorities from other religions to get the same benefits.

3. Abrogate Article 370

• The abrogation of Article 370 of the Constitution has long been on the agenda for the BJP and even its predecessor, the Jan Sangh. Article 370 restricts the issues on which Parliament’s laws can apply to J&K unlike other states, and reflects the terms of J&K’s Instrument of Accession.
• The BJP argues that abrogating Article 370 is in accordance with their commitment to “overcome all obstacles that come in the way of development and provide adequate financial resources to all the regions of the state.”

PROS:

An argument can be made that removing the restrictions on what laws apply to J&K could ensure increased development in the state, though this has tended to be a nationalistic argument over the last few decades and has not been made by the local populace.

CONS:

Article 370 reflects the special arrangements under which Jammu and Kashmir acceded and became a part of India. Removing it would not be well-received in the state and will lead to unrest.

According to Article 370 (3), the President of India may declare that it ceases to operate, but this can only be after receiving the recommendations of the J&K Constituent Assembly. As this Constituent Assembly was dissolved in 1957, it is not possible for the President to abrogate Article 370.

While the heading of Article 370 indicates that it was meant to be temporary, the Supreme Court held in a 2017 judgment on the SARFAESI Act that it can no longer be considered temporary and it has permanent effect, since the Constituent Assembly decided to dissolve itself without recommending further provisions of law to be made applicable to the state. The Jammu and Kashmir High Court has passed judgments affirming this premise as well.

WILL IT HAPPEN?

The BJP made the same promise in 2014 but failed to take any steps towards it during the last five years.

The matter is also sub-judice in the Supreme Court, and so they are unlikely to be able to take any action till the cases are decided, as this could trigger a major constitutional crisis, given Article 370’s role in effectuating the Instrument of Accession.

4. Annul Article 35A

• The BJP says it is committed to annulling Article 35A of the Constitution “as the provision is discriminatory against non-permanent residents and women of Jammu and Kashmir.”
• This is also argued to be necessary for the development of the state, and is tied to promises to ensure safe return of Kashmiri Pandits and resettlement of refugees from West Pakistan, Pakistan-occupied Jammu & Kashmir and Chhamb.

PROS:

Annulling Article 35A would allow non-permanent residents to settle in the state, and would allow Kashmiri women who marry non-permanent residents retain certain property rights which they currently lose.

CONS:

Article 35A was enacted in furtherance of Article 370, which was in turn in furtherance of the terms and conditions under which J&K acceded to India. The right to determine the privileges and rights of permanent residents was a key aspect of the Delhi Agreement between India and J&K, and was brought in as a Constitution Order in 1954 as a result.

This makes Article 35A a crucial foundation stone of India’s relations with J&K, which cannot be removed without affecting the whole structure.

Article 35A is a highly-emotive issue for the Kashmiri people and leaders like Farooq Abdullah and Mehbooba Mufti have affirmed its importance for the state. Abdullah said after the BJP manifesto was released that annulling Article 35A would lead to a revocation of the accession of J&K.

WILL IT HAPPEN?

This is in similar territory as the promise to abrogate Article 370. The BJP has included this as part of its nationalist promises, but it is difficult to see how it could force this through.

The matter is sub-judice before the Supreme Court, and unless the apex court finds an interpretation of the Constitution that allows this to happen, the government cannot take this decision unilaterally.

5. Women’s Reservation in Parliament

• The BJP says welfare and development “will be accorded a high priority at all levels within the government” and that they are committed to providing “33 percent reservation in parliament and state Assemblies through a constitutional amendment.”

PROS:

Current levels of women’s representation in Parliament and other legislatures are very low, and only a small percentage of candidates in the 2019 elections for the major parties like the BJP and the Congress are women.

This would ensure women’s voices are better represented in lawmaking bodies and which will lead to drafting laws which will truly empower women and properly protect their interests.

CONS:

N/A

WILL IT HAPPEN?

The same promise was made by the BJP in their 2014 manifesto, but no attempt was made to bring a bill even though it would have had the support of the opposition parties, which means it could have passed not just the Lok Sabha but the Rajya Sabha as well.

It is unclear therefore whether this will seriously be taken up in Parliament though if it is introduced, it is likely to pass.

What Happened to Judicial Reforms?

One surprising omission from the BJP manifesto for 2019 is judicial reform. The party had made reforming judicial appointments a priority in previous manifestos, and had actually passed a constitutional amendment to bring in a National Judicial Appointments Commission (NJAC) in 2014.

The NJAC was struck down as unconstitutional in 2015 by the Supreme Court, which seems to have led to the BJP throwing in the towel. However, the NJAC judgment shouldn’t mean an end to the debate over whether or not the existing Collegium system is the best way to appoint judges in India.

The underlying basis of the judgment, that judicial primacy cannot be undermined and the judiciary needs to remain independent, could be resolved, for instance, by having an NJAC with more judicial members than non-judicial members, or giving judicial members a veto over decisions of the committee, or having a panel of non-judicial members consult with the Collegium while giving the Collegium the final say.

The apex court itself had said discussions were needed between the court and the government to decide how to improve the Collegium, so obviously all options aren’t off the table. The Congress, for instance has proposed a judicial appointments committee in its manifesto that evidently will seek to operate within the framework set out by the NJAC judgment.