Islamophobia in the Time of a Pandemic and Human Rights Violations in India: An International Law Perspective

 

Introduction

The growing Islamophobia during the COVID-19 pandemic is yet another instance which exposes India’s religious fault lines and its failure to curb violations of its domestic as well as international legal obligations. International law, particularly international human rights law plays a significant role in safeguarding the freedom of religion and in eliminating religious discrimination. This is most notably manifested in the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981) and multifarious international documents and agreements such as the International Covenant on Civil and Political Rights [ICCPR], the Charter of the United Nations, and the Universal Declaration of Human Rights [UDHR] which impose obligations on State Parties to refrain from and prevent discrimination based on religious lines.

The ongoing outrage over the Tablighi Jamaat event has made national headlines in the Indian media and taken a dangerous Islamophobic turn. The congregation was an event by the Tablighi Jamaat, an Islamic missionary movement, its ‘Markaz’ being in Delhi’s Nizamuddin area and was attended by thousands of Muslims from abroad and India in the second week of March. On March 22, the authorities shut its doors after the city-state government of Delhi imposed restrictions on the movement of people. Screening of those stuck inside the dormitories only started a day after the imposition of lockdown on March 26.

An already polarised country was quick to turn it into a matter of communalism, spewing out Islamophobia. Fake news surrounding the congregation started doing the rounds and ministers from the government have been mentioning the sect’s Markaz in its official statements and comments. Hashtags like #CoronaJihad and #BioJihad inundated Twitter and people  started calling it a conspiracy hatched by Muslims against the Indian State. The Union Minister of Minority Affairs called the event a “Talibani crime” and an “unpardonable sin” committed by the organisation. Ripples of Islamophobia are being felt across the country due to a biased media and fatuous comments made by State officials. For instance, on 13th April, the Guardian reported that there are posters prohibiting Muslims from entering certain localities in several states in the country such as Delhi, Karnataka, Telangana and Madhya Pradesh. In another instance, a Muslim man committed suicide after facing taunts and ostracism despite of him testing negative in Himachal Pradesh’s Una district on April 5. He continued to face harassment from the locals despite testing negative for the novel coronavirus disease (COVID-19). This has not happened for the first time and is not an isolated event either, the seemingly dormant Islamophobia has just found another trigger.

International Law Concerns

Since its inception, the United Nations and the international community have grappled with the issue of protecting minority communities. The UDHR is not a treaty but continues to be a significant document globally which has been the foundation of other international human rights covenants. Some scholars also argue that some provisions of the UDHR reflect customary international law. Article 2 of UDHR, affirms the equal protection of rights without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status and Article 7 of UDHR guarantees protection from discrimination to everyone.

The ICCPR is a legally binding treaty to which India is a party. Article 2 of the ICCPR lays down the scope of the legal obligations undertaken by States Parties to the Covenant. There exists a general obligation on States Parties to respect the rights under the Covenant and to ensure them to all individuals in their territory and subject to their jurisdiction. According to the United Nations Human Rights Committee’s General Comment to Article 2, States Parties are required to adopt legislative, judicial, administrative, educational and other appropriate measures in order to fulfil their legal obligations.

Article 20(2) of the ICCPR is an important right safeguarding rights of religious minorities. It prohibits the “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. State parties are thus not only under an obligation to undertake necessary measures to fulfill the requirements contained in Article 20 but also refrain from any such propaganda or advocacy as mentioned in the General Comment to Article 20. A breach of this would be in direct contravention of the object and purposes of the Charter of the United Nations. One may argue that Article 19 (2) of the same convention guarantees the freedom of expression but this right is not absolute. Article 19 (3) lays down certain limitations which reads as follows-

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (order public), or of public health or morals.

Further, the United Nations Human Rights Commission in General Comment to Article 19 (Freedoms of opinion and expression) has stated that the right guaranteed under Article 20(2) is compatible with Article 19(3) of the ICCPR.

India is bound by the aforementioned provisions due to the principle of pacta sunt servanda which is codified in the Vienna Convention on the Law of Treaties. Due to the contractual nature of the treaty, States Parties are required to give effect to the obligations under the Covenant in good faith pursuant to the principle articulated in Article 26. Individuals are entitled to effective remedies by the State which include legislative, judicial, administrative, educational and other appropriate measures adopted by States Parties in order to fulfil their legal obligations. The global community has a legal interest in the performance by every other State Party of its obligations considering that basic rights of the human person are erga omnes obligations. Responsibility of India to fulfil its human rights obligations can also be engaged by any and all branches of government- executive, legislative and judicial and other public or governmental authorities, at whatever level – national, regional or local.

It is evident that State officials and public figures in India, by making discriminatory remarks are violating international law by widening the already existing religious fault lines in the State. Statements such as the congregation being a “Talibani act” incite religious hatred and amount to hate speech which in turn may lead to hate crimes. The Delhi government has also been issuing a separate account of COVID-19 cases related to the congregation in its daily health bulletin whose reportage by a biased media has been drawing the moth to the flame of Islamophobia. India, by not taking affirmative action in curbing communal hatred and bigotry, not stopping the dissemination of fake news that seeks to incite religious and communal bigotry, mentioning the congregation in official statements by ministers is violating provisions of the ICCPR. India has also systematically failed to curb Islamophobia despite its Constitution guaranteeing secular ethos. There has been an increase in hate crimes against religious minorities and marginalized groups in the country. With no prompt and impartial investigation and prosecution, perpetrators get off scot free. Hate speech is not taken up seriously by the ruling government and many leaders from the ruling party such as the incumbent Chief Minister of Uttar Pradesh have been actively spewing hate speech against Muslims. The aforementioned instances expose India’s lax attitude and failure to take legislative, judicial, administrative, educational and other appropriate measures to fulfill its international legal obligations.

Conclusion

Islamophobia is a threat to global peace and order, every internationally wrongful act of a State entails the international responsibility of that State. India has an obligation to cease its wrongful acts as required under international law. The Jamiat Ulema-e-Hind, a Muslim body has moved the Supreme Court seeking strict action against the dissemination of fake news. However, the issue has deeper roots which are not confined to fake news. The lax attitude of the government in not taking action against the spread of fake news, the pre-existing communal hatred combined with a lack of accountability on the part of the State has transposed Islamophobia into the COVID-19 issue. In a press conference of the World Health Organization on April 6, 2020, Emergency Programme Director Mike Ryan urged countries to not profile COVID-19 cases in terms of religion or any other criteria. India has increasingly been under the scanner for rising Islamophobia and human rights violations in the international community. This is yet another recent display of blatant Islamophobia which finds its roots in the cesspool of misinformation, suspicion and a lack of proclivity to curb communalism, most importantly a lack of respect for and willingness to ensure civil and political rights to its citizens.

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