Narendra Modi’s Nationalist-Populism in India and International Law

The rise of populist regimes in many countries has triggered scholarly debates on populism and international law. However, studying populism and international law is fraught with methodological challenges because populism is a difficult term to define. At the most fundamental level, populism is both anti-elitist and anti-pluralist. This is captured in Jan-Werner Müller’s ‘formal’ conception of populism, which Heike Krieger relies on to advance a populist approach to international law. Cas Mudde conceptualizes populism as a thin-centered ideology that divides society into two homogenous and antagonistic groups of ‘pure people’ and ‘corrupt elites’.

Populist politicians claim to be the sole representatives of the ‘pure people’. In this regard, the argument of Marcela Prieto Rudolphy that one cannot determine ‘a’ populist approach to international law until one defines ‘pure people’ is quite persuasive. Accordingly, left-wing populists will define ‘pure people’ largely using ‘class’ as an analytical tool. The right-wing populists will define ‘pure people’ relying on religion, nation, race, and ethnicity. Consequently, the understanding of the ‘elites’ for the left-wing and right-wing populists will differ.

The methodology proposed by Rudolphy can be employed in the case of India – the world’s largest democracy – to determine the approach of the Narendra Damodardas Modi government – globally recognized as a populist regime – towards international law. Towards this, it is important to carefully examine the ‘thicker’ ideological aspects of the Modi regime that are paired with the ‘thin-centered’ ideology of populism. This conceptual framework will help us to decipher who the ‘pure people’ are and thus, in whose name the Modi regime wishes to exercise popular sovereignty or ‘take back control’.

Modi’s Hindutva-populism

The massive victory of Narendra Modi-led Bharatiya Janata Party (BJP) – India’s extreme right-wing party – in the 2014 and 2019 parliamentary elections, has led many political commentators to argue that India’s liberal and secular democracy is now firmly in the grip of Hindutva-populism. Hindutva or Hindu nationalism is the political belief that India is fundamentally “for and of the majority Hindu community”.

Vinayak Damodar Savarkar, one of the most influential Hindutva ideologues, and ideological guru of the Modi regime argued that anyone who regards India as both her fatherland and holy land is a Hindu. Hindus, Sikhs, Jains, and Buddhists satisfy the twin criteria. But, Christians, Jews, Parsis, and most prominently Muslims do not meet these twin principles because members of these religious groups do not regard India as their true holy land. 

The Indian Constitution adopted in 1950 rejected ethnocultural nationalism of the kind that Savarkar propounded. It recognized India as a country where people belonging to multiple religions and ethnicity can live together as equal, rights-bearing citizens. While ethnocultural nationalism remained at the margins in post-Independence India, it gained momentum with the rise of the BJP and has become the dominant narrative from 2014 onward, pushing secular nationalism to the edges.

Thus, the ‘pure people’ in Prime Minister Modi’s India are Hindus and the dominant narrative is as follows. India had a glorious past that was destroyed by Muslim and Christian invaders. Post-independence too, the Hindus have been held back by the ‘corrupt elites’ belonging to the Indian National Congress (INC) – the political party that ruled India for the bulk of the period post-1947. These political ‘elites’ colluded with other left-liberal ‘elites’ like academics, intellectuals and sections of media to perpetuate their interests and of their fellow-ideological travellers. In the name of secularism, they appeased the minorities i.e. the Muslims, and were inimical to the Hindus. Thus, following populism’s anti-pluralist stand, these ‘elites’ cannot represent Hindus, the ‘pure people’. Further, these ‘elites’ are soft on Pakistan – a country with whom India’s conflict occupies a central place in the Hindu nationalist imaginary. An Islamic Pakistan borne out of India’s bloody partition in 1947 is the quintessential external ‘other’, the ‘cultural enemy’, against which all the Hindus in India need to unite.

Therefore, ‘pure people’ are constructed through the intertwining of the populist and religious nationalistic logic in a manner that equates Indian identity to Hindus alone, and where Muslims are the ‘other’. I now examine specific practices of the Modi government where its actions on behalf of the ‘pure people’ reflect its approach towards some branches of international law.

Use of force in international law

India has had strained relations with Pakistan for a long time. However, the enmity between the two nations has acquired a different dimension under Modi’s nationalist-populist government. A boisterous hostility against Pakistan is a vital part of the Hindu nationalist project.

In 2016, India conducted ‘surgical strikes’ against terror launch pads in Pakistan occupied Kashmir by crossing the line of control. In 2019, the Indian Air Force, for the first time after the 1971 war, entered the Pakistani territory and conducted a ‘non-military preemptive strike’ on terror camps. Contrary to India’s past record of self-restraint, these military strikes were conducted to respond to the Pakistan-based groups launching terror attacks in India.

India justified the use of force by pointing, though not convincingly, to the controversial ‘unable or unwilling’ doctrine. According to this doctrine, if a State has been attacked by a non-State actor based in another State, the attacked State can take action against the State where the threat is located, if the latter is unable or unwilling to take action against the non-State actor in its territory. It is arguable whether India’s actions would satisfy even the debatable ‘unable or unwilling’ doctrine because India did not claim that it acted in self-defense but described its strikes as ‘preemptive’. However, these two instances demonstrate that India’s actions contribute towards a troubling practice where States do not shy from using force in international relations against non-State actors. While countries may have different reasons to do so, in the case of India this is a part of popular sovereignty where the government legitimately believes that it is acting as the protector of the ‘pure people’, who exultantly welcomed the military action against Pakistan.

However, when it comes to China, the Modi government’s muscular approach towards the use of force is missing. Although India-China border tensions have flared up recently including military skirmishes, India is not as hawkish towards China as towards Pakistan. Given the power asymmetry, the belief in the Modi establishment is that relations with China should be guided by realism and problems should be resolved through diplomacy. This does not mean that anti-China rhetoric is not part of India’s overall nationalistic narrative. But, the populist dimension is missing since China, unlike Pakistan, does not occupy a conspicuous place in the Hindu nationalist imagination.  

Refugees and human rights  

India recently enacted the Citizenship Amendment Act (CAA) – a huge anti-pluralist stride – that aims to give Indian nationality to non-Muslim illegal migrants (mainly targeted at giving benefits to Hindu migrants) from Afghanistan, Bangladesh, and Pakistan, who came to India due to religious persecution. This law needs to be seen along with a proposed pan-India National Register of Citizens (NRC) whose purpose is to identify illegal immigrants. Illegal Hindu migrants will get citizenship under the CAA, but the illegal Muslim migrants (such as those from countries like Bangladesh and Myanmar) will be deported back. Indeed, in 2018, despite international objections, India deported a group of Rohingya refugees to Myanmar.

The CAA and the NRC read together marks a shift in India’s stand on the principle of non-refoulment – a core principle of international law recognized in international human rights law, international refugee law, and also as part of customary international law. The principle of non-refoulment prohibits a country from returning refugees to countries where they face a clear threat of persecution on account of race, religion, nationality, and political opinion, among others. By speeding up the process of citizenship for non-Muslim immigrants from select countries, and by trying to identify illegal migrants through the proposed NRC with the aim of deportation, notwithstanding the conditions in the refugee’s home country, would be a blatant violation of the principle of non-refoulment. The CAA also violates the non-discrimination principle in international human rights law especially the International Covenant on Civil and Political Rights (ICCPR). It is for these reasons that the UN High Commissioner for Human Rights has filed an intervention application in the Indian Supreme Court in a case where the constitutionality of the CAA has been challenged. The Modi government has objected to this saying it intrudes on India’s sovereignty.

Another nationalist-populist step that the Modi government took was the dilution of Article 370 of the Indian Constitution – a constitutional provision that granted autonomy to the state of Jammu and Kashmir (the only Indian state with a Muslim-majority population) owing to the peculiarities of that state’s accession to India in 1947. The state of Jammu and Kashmir was also divided into two federally administered units. The Hindu nationalist movement has always been against the special constitutional status of Kashmir. Given the asymmetrical nature of India’s federal polity, several other states, not just Kashmir, enjoy special status under the Indian constitution. But, these states are not on the radar of the Hindu nationalists. The Hindu nationalists, as part of mythmaking, projected Article 370 as the root cause for terrorism in Kashmir. Consequently, the reading down of Article 370 was projected as correcting a historical blunder committed by the ‘corrupt elites’ of the INC to appease Muslims. It was received by triumphalism and euphoria by many people (Hindus) in India who unquestioningly accepted the majoritarian narrative, although several constitutional lawyers believe that the manner in which Kashmir has been stripped off its special status is unconstitutional. The reading down of Article 370 was followed by several months of a total lockdown, massive communication and Internet blackout – longest ever in any democracy – and arrests of thousands of political activists in Kashmir. This compelled the UN High Commissioner for Human Rights to intervene asking India to comply with international human rights law.

Protectionism and International Economic Law

The third area where one sees a nationalist-populist backlash against international law is in the area of international economic law. For the last few years, in a major departure from the political consensus that emerged since the 1991 liberalisation of the Indian economy, the Modi government has been consistently raising tariff rates on imports to shield the domestic industry. Recently, Modi, in his address to the nation, quoting Hindu scriptures, and thus indirectly linking Indian identity to Hindu identity, said, “it is said in our scriptures – Eshah Panthah that is – self-sufficient India”. He then went on to say that “every Indian has to become vocal for their local, not only to buy local products but also to promote them proudly.” This message of self-sufficiency (or Atmanirbharta as Modi described it in Hindi) and the call to be ‘vocal about local’ – the Indian equivalent of President Donald Trump’s ‘America First’ – epitomizes trade protectionism. The Indian government wants to empower itself under India’s Customs Act to ban import or export of any goods to prevent injury to the economy. Such trade remedial measures go far beyond what is permitted under the WTO law. As part of popular sovereignty, India has also terminated its bilateral investment treaties so that an international investment tribunal cannot hold it accountable for potential treaty breaches.

The roots of this nativism in international economics also lie in the Hindutva ideology. Deen Dayal Upadhyay, a prominent Hindutva ideologue and one of the ideological gurus of Modi, in his thesis, ‘integral humanism’, argued that the use of ‘foreign articles’ (imported products) and overdependence on ‘foreign aid’ (or foreign investment) is not “the road to progress and development”. 

Conclusion

Narendra Modi, unlike other populist world leaders such as Donald Trump, has not yet spoken against multilateralism or global international institutions and courts. In fact, the Modi regime has made use of international law whenever it suited its ideological project, for instance, bringing a successful case against Pakistan at the International Court of Justice in a case involving the denial of consular access to an Indian national sentenced to death by a Pakistani military court (the Jadhav case).

However, the impact of the nationalist-populist approach of Modi’s regime is discernible in certain areas of international law. In these areas, the nationalist-populist approach is that national law and politics should prevail over international law where the latter is perceived to be detrimental to the interests of ‘pure people’. Thus, in the case of India, while there is no ‘a’ populist approach towards international law as Krieger argues, there certainly is a populist approach towards some areas of international law as Rudolphy contends.