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4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal Panel T 01-P12 Session 1 Non Decision Making and Power Title of the paper Non-decision in security policy in India: the United Progressive Alliance Government (2004-14), Muslims and the communal violence bill Author(s) Heewon Kim SOAS, University of London [email protected] Date of presentation June 27, 2019 1 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal [DISCUSSION DRAFT: NOT FOR CITATION OR FURTHER CIRCULATION] Key words: Muslim, India, security, communal violence, legislation, non-decision Introduction 1 Social policy formulation is invariably associated with indigenous traditions of statecraft. From welfare to management of migration and diversity, social issues are often framed in terms of tradition, history, and path dependence. However, major ‘critical junctures’ and the enduring persistence of social problems often require a radical departure in the policy cycle. In this policy cycle, key actors operate within an institutional context in which there are ‘formal or informal rules, and conventions, as well as ethical, ideological, and epistemic concerns [that] help to shape actors’ behaviour by conditioning their perception of their interests and the probability of these interests being realised’ (Howlett and Ramesh, 2003: 53). The actors’ ‘assumptive worlds’ or the ‘mental models’ that ‘provide both an interpretation of the environment and a prescription as to how that environment should be structured’ (Arthur and Douglass, 1994: 4), are critical in shaping appropriate solutions. If institutions are heavily biased towards a particular policy path, key actors are likely to adopt a conservative and instrumentalist approach or seek to operate within the ‘rules of the game’ (ibid.). Under these circumstances, governments act, or maintain, the status quo and take negative or ‘non-decisions’. Decisions can be ‘negative’ (opposed to the policy), ‘positive’ (supportive of the policy), or ‘non- decisions’ (deliberate inaction) (ibid., 165). Whereas negative decisions move through agenda- setting, policy formulation and to decision-making, and terminate at that stage, non-decisions can filter out policy options throughout the policy cycle – agenda-setting, policy formulation, decision-making and implementation. Non-decisions are determined by the constraints under which key policy actors operate. Indeed, decision-making, or non-decisions, involves a range of actors and institutions that need to be engaged at various levels of the political system. Equal protection under the law for racial, ethnic, religious and other minorities is considered an essential right, and in the 1980s and 1990s, western democracies increasingly 1 Some part of this paper was published in Kim, Heewon (2019) The Struggle for Equality: India's Muslims and Rethinking the UPA Experience . New Delhi: Cambridge University Press. 2 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal adopted legislation that outlawed specific forms of hate crime targeted at minorities. In India, special legislative provisions for vulnerable groups, such as the anti-discrimination measures in the Protection of Civil Rights Act (1955) and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (1989), have provided strong legal protection and security to caste groups in the wake of violence. In contrast, though religious minorities, especially Muslims, have been the target of violence during communal riots, they (and other) religious minorities lack equivalent protection. Hindu-Muslim riots and anti-Muslim pogroms have become the defining feature of post-1947 collective violence in India, and the regular recurrence of such events presents a serious challenge to the principles of secularism and religious tolerance. Historically, in the aftermath of violence in India, state and central governments have usually taken actions, some stronger than others, to deal with riots. State government and police have often been partisan in controlling the violence, managing the post-conflict situations, and providing relief and rehabilitation (Gonsalves 2002; Gupta 2011; Wilkinson 2004). Discrimination against Muslims has been most visible in the use of force, preventive arrests, treatment of persons detained, investigation, and the detection and prosecution of cases registered during riots (Engineer 1994; Hansen 1999; Shani 2007; Subramanian 2007; Veer 1996). The ambiguous attitudes of the authorities and their failure to control the violence was also witnessed in the Gujarat riots of 2002, which resulted in the death of more than 2,000 Muslims and the displacement of 150,000 into relief camps (Hasan 2006). The events in Gujarat were the culmination of almost two decades’ aggressive mobilisation by the Hindu right that led to the emergence of the Bharatiya Janata Party (BJP) as a national force. Although the BJP- led National Democratic Alliance (NDA) was defeated in the 2004 Lok Sabha elections, the majoritarian sentiment in government’s approach towards religious minorities persisted. In 2004, the United Progressive Alliance (UPA) government came to power on a commitment of ‘delivering full equality of opportunity for religious minorities’ (National Common Minimum Programme of the Government of India). In order to address the concerns of religious minorities, especially disadvantaged Muslims, the UPA administration introduced new policies, administrative innovations and executive actions to promote substantive equality of opportunity in a regime of ‘competing equalities’ (Galanter 1984) for backward and disadvantaged castes. Such an effort was a radical departure from the conventional 3 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal interpretation of the Indian Constitution that equality of opportunity is, for some groups, dependent on the recognition of their cultural rights. Despite the UPA’s efforts, however, most of its policies were not legislated upon. Conventional political science analyses of UPA policies on religious minorities emphasise electoral incentives (Wilkinson 2004, 2012), normative political theory that highlight the role of political ideology (Bajpai 2010), social justice (Verma 2012), and social exclusion (Hasan 2009) that limited the potential for policy change. These mainstream explanations provide some meaningful insights into the UPA policy outcomes, but they offer only limited analysis of why the government failed to implement the measures. What were the political forces and institutional factors that frustrated the implementation of these policies? Why, in spite of the UPA’s manifesto commitment is its record on core policy initiatives, especially with reference to India’s Muslims, unconvincing? This paper offers a case-study of the UPA’s effort to legislate a model anti-communal violence bill by focusing on legislative process throughout UPA (I: 2004-09) and (II: 2009-14) and the policy actors around the bill. The objective of this paper is to better understand the underlying modes of institutional and political resistance to policy-making (passing a bill in this case), especially when directed towards Muslims. It will examine the context in which the UPA introduced the measure, provide an overview of how the bill was piloted through the parliament during the UPA (I) and (II), the emergence of Muslim civil society organisations as a potential coalition of policy change, and finally why the bill proved to be difficult to be legislated upon. In order to understand UPA’s experience historically, this paper draws on historical institutionalism and its associated concept of path dependence which will enable us to make better sense of recurring patterns of government performance, and explain how the framework for minority rights established at Independence continued to affect UPA’s policy- making for religious minorities, especially Muslims. 2 2 This paper borrows from historical institutionalism, especially its emphasis on the enduring impact of institutions, to provide the broad perspective for situating the comparative experience of minorities, particularly Muslims. Within historical institutionalism we highlight recurring behaviour and outcomes through the use of the concept of path dependence: that is, a critical juncture, the creation of particular institutional structures at a given point in time (e.g. India’s constitution-making), which produce a chain of events (path dependence) that generates ‘increasing returns’ to actors who benefit from existing institutional arrangements that make policy change increasingly difficult. Policy changes that require a radical reassessment of existing arrangements often require another critical juncture. Thus, it is my argument that the distinction between caste and religion established at Independence in the provision of reservations for socio-economically disadvantaged castes has ‘locked-in’ a form of path dependence that has witnessed the increasing expansion of reservations for SCs, STs and OBCs since 1950, while on the other hand, the claims of disadvantaged religious minorities have become 4 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal India’s Muslims and the promise of the Congress-led United Progressive Alliance government (2004-14): tackling anti-religious discrimination After forming the government in 2004, the UPA had pledged to tackle anti-religious discrimination and to bring

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