The past week witnessed Shashi Tharoor, the notable Congress leader, accuse the BJP of wanting to turn India into a “Hindu Pakistan.” His argument stemmed from the concept of Hindu Rashtra, which is espoused by many in the BJP. Tharoor’s comments, which kicked up a huge storm, actually came at the end of a longer statement in which Tharoor highlighted his concerns of what will happen if the BJP wins again in 2019. Specifically, his view that Modi and company will change the constitution to the detriment of minorities. Naturally, comparing India to Pakistan drew a world of criticism from the BJP who took strong exception to Tharoor’s accusation that they would turn India into Pakistan.

Not long after his controversial statement, did former Vice President Hamid Ansari note in an interview that India should have Sharia Courts because, per his statement, India’s legal system recognizes that communities can have their own rules. He went on to note that “people are confusing social practices with legal systems. The legal system is there, but our laws also recognize that each community can have its own rules.”

Defenders of Ansari were quick to point out Sharia Courts will simply provide a means of arbitration to help bypass India’s notoriously slow legal system. They highlighted how US companies often choose arbitration to settle legal differences, rather than the court system.

However, there are two problems with this defence.

First, the US arbitration system is sanctioned by the legal system, and its conclusions are upheld as the final say. All parties that enter arbitration agree that whatever judgment is rendered is final and cannot be appealed in court. Arbitration is not meant to simply provide guidance, but offer a conclusive judgment based on the existing US laws. For Sharia Courts to serve as arbitration courts, their judgement would need to be final (not guidance), they would make their decisions based on current laws, and the broader legal system would sanction their existence upholding their decisions. Therefore, Sharia Courts would not be outside the gambit of the legal system, but very much within it.

Second, and as an extension of the first point mentioned above, did Ansari then in fact imply that a parallel legal system should be provided because the broader law already provides provisions for various communities to have laws specific to them?

If so, does this not make Tharoor’s comments about the BJP turning India into Pakistan a tad bit hypocritical when the Congress Party is advocating for the creation of a religious based court system for one specific community? Perhaps Ansari’s definition of Sharia Courts is different than other nations. However, the idea that India’s legal system allows for different communities to have different laws can be troublesome in politics today.

All of this goes back to the BJP’s argument that Congress is not secular, and true secularism would then entail the abolishment of ideas like Triple Talaq, the implementation of a universal civil code, and one legal system for all residents regardless of their religion.

Plenty of blame can be laid at the BJP’s feet for being divisive and supporting policies that come at the detriment of select groups. There is no shortage of complaints and allegations that can be justifiably hurled at the party.

However, the opposition does not do itself any favors, and in fact helps support the BJP’s cause, by muddling its response and messaging as badly as it did this past week. To first imply that the BJP will end India’s secular traditions and implement a laws largely based on theocracy, as is the case in Pakistan, and then to follow up by advocating for India to create religion based courts that allow certain groups to continue to practice law based on their beliefs, rather than a universal believes that hold all citizens together regardless of religion, wreaks of duplicity to many voters.

While everyone may not be on board with the BJP’s brand of politics, or policies, the idea that one set of laws should be applicable for everyone is likely supported by the majority under the aegis of secularism. The BJP has long argued that India should have one set of laws, and as a secular nation, different religions should not be given space to practice their own form of law. The reason they push for this idea is of course political. However, when Congress calls for social and legal policy to be crafted differently for Indians based on their religion, they end up helping the BJP’s prove their allegations that Congress is not secular.

Ultimately, it makes statements like Tharoors all the more problematic when his own party is supporting the very legal constructs that exist in Pakistan today. This mismanaged political messaging is precisely what continues to hold Congress back and prevents it from eating into the BJP’s support base.

To take a term from the recently concluded World Cup, Congress has, once again, scored an own-goal.

Shailesh Kumar is director, South Asia at Washington-based Eurasia Group and analyses political and economic risks and developments in India, Pakistan, Sri Lanka and Bangladesh.

First Published:Jul 18, 2018 8:34 AM IST