By Kadayam Subramanian on November 2, 2015
The UN Declaration on Minorities, 1992 brings out the need for special attention to the ‘national or ethnic, religious and linguistic minorities’.
The Constitution of India, 1950 does not define ‘minorities’ or mention whom it considers minorities but provides in Part III that the cultural and religious rights of ‘minorities’ must be protected.
The National Commission on Minorities, 2002 mentions only religious minorities namely, the Muslims, Christians, Sikhs, Parsis, (Zoroastrians), Buddhists and Jains (added in 2014).
Following the emergence of a Hindu nationalist Prime Minister of India in 2014, there have been serious incidents of discrimination and violence against the Muslims and Christians in the Indian polity.
Muslim, Christian and Sikh minorities have been victims of extrajudicial executions, torture, rape, intimidation, implication in false cases, destruction of property, utilities and other illegal acts under the Indian criminal justice system.
Non-listed ethnic minorities — many of them non-Christian or animistic — in the North-eastern region have also been subjected to serious abuses under the criminal law of the state.
The Sikhs were subjected to genocidal killings in 1984 with the significant participation of members of the security forces. The Muslims were subjected to genocidal killings in Gujarat in 2002 and the tribal Christians became victims of serious violence in Kandhamal, Odisha, in 2008.
‘Transfer of power’ in 1947 saw India retaining intact the colonial criminal laws such as the Indian Penal Code (IPC), 1860, the Criminal Procedure Code (CrPC), 1861 and the Evidence Act, 1874 in addition to the Police Act, 1860 and other repressive legislations affecting and distorting criminal justice processes.
The Indian criminal laws are mainly focused on security of state, public order and state-centric political intelligence collection. Investigation of cases took a back seat.
These laws do not contain any specific protective provisions for the minorities. International principles and standards on minority issues are yet to be incorporated in the Indian criminal justice system.
The Justice Sachar Committee Report 2005 is the first of its kind in India that provides us valuable insights into the socio-economic and security issues facing the Muslim-minority (13.4% of the population) who constitute the biggest chunk of the Indian minorities.
The Committee report stated:
- Muslims in India face a double burden in that they are regarded as anti-national and are at the same time viewed as being pampered by government
- Police are highhanded in dealing with Muslims; whenever an incident occurs, Muslim boys are picked up
- The state must function in an impartial manner, which is the acid test for a just state
- Muslims, the largest minority in India, lag behind other Indian communities in terms of most human development indicators
- “Every bearded man is considered an agent of the Pakistani Inter Service Intelligence”
- Fake encounter killing of Muslims is prevalent
- Police presence in Muslim areas is more common than the presence of industry, schools, public hospitals, banks and the like
- Security personnel freely enter Muslim homes at the slightest provocation
- The plight of Muslims living in border areas is worse since they are treated as foreigners and are subjected to police and administrative harassment
- Violent communal conflicts often include targeted sexual violence against Muslim women, which tends to have a ‘spread effect’ even in areas not affected by communal violence
- The immense fear and feeling of vulnerability that prevail among the Muslims have a visible impact on their mobility and education, especially of girls
- Lack of adequate representation of Muslims in the police force accentuates the problem in almost all Indian states and heightens the perceived sense of insecurity, especially in a communally sensitive situation
- Insecurity leads to Muslims living in ghettos
- The perception of being discriminated against is overpowering among a cross-section of Muslims resulting in collective alienation.
The anti-terrorist politics today have encouraged the devaluation and perversion of the criminal justice system resulting in the prosecution of innocent Muslims who are not involved in terrorist activities.
They are falsely implicated by the police in many cases reportedly to obtain government recognition and rewards. The study ‘Framed, Damned, and Acquitted: Dossiers of a very Special Cell, A Report by the Jamia Teachers Solidarity Association, 2015’ documents the issue graphically.
The Indian police organisation is of colonial-repressive origins with no professional autonomy. It is a paramilitary force relying on brute force and secrecy.
Its understanding of the causes of violence is limited at best. It indulges in periodic exhibitions of force with interplay of police and military functions.
It is linked to rural and urban propertied interests and equates force with authority and opposition with crime. It enjoys impunity and is subject to supervisory and classificatory systems of manipulation and control.
In the Criminal Procedure Code, 1861 (CrPC) has chapters on security for keeping the peace and maintenance of public order including use of force by the police. These take precedence over the investigation and trial of criminal offences.
The Police Act of 1861 prioritises collection of political intelligence. The prevention and investigation of crime is only from section 23 with a provision for punitive policing.
Police officers and even constables are vested with vast powers. The persistence of repressive colonial laws has contributed to the unpopularity of the police.
The British (1856) had said: “The Indian police are all but useless for the prevention and sadly inefficient in the detection of crime; unscrupulous in the use of authority, they had a generalised reputation for corruption and oppression”.
The situation is largely the same today since no fundamental police reforms have taken place after the British left.
David Bayley (1984) observed that police officers in India were preoccupied with politics, penetrated by politics and were participating in it individually and collectively.
The reports of the National Police Commission (1979-81) and of the Second Administrative Reforms Commission (2007) are gathering dust in government archives.
In Gujarat carnage, 2002, the police failed to focus on Hindu fundamentalists who were the real culprits.
Other failures include delayed imposition of the curfew; neglect of criminal law under political influence; failure of intelligence; police participation in the violence; illegal registration of cases; registration of omnibus cases; ignoring the real culprits; neglect of identification parades; malicious combing operations in minority areas; neglect of rape victims; allowing criminal Hindu mobs to have their way and ignoring the recommendations of the National Human Rights Commission.
The National Human Rights Commission (NHRC) has stated that 60% of the arrests made are unjustified or unnecessary and that 75% of all the complaints received by the commission were against the police.
The Supreme Court of India has observed: ‘Dehumanising torture, assault and death in custody are so widespread that questions have arisen about the credibility of the rule of law and the administration of criminal justice’.
The Vohra Committee report 1993, noted the criminalisation of politics and politicisation of crime.
The persistence of the problems here arises from the lack of political will and non-implementation of recommendations made by various reforms commissions. Structural inequality and injustice in the social and political system too are responsible.
The Muslims, Christians and Sikhs are the primary victims of the failure of the criminal justice system in India.
The Constitution of India must include not just religious minorities. It must be amended to take note of all national and ethnic, indigenous (Scheduled Tribes) and caste (Scheduled Castes) minorities and their languages and cultures.
A new criminal law must be enacted to deal with and punish crimes against minorities on the lines of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Accountability mechanisms for the police and politicians must be strengthened to end impunity and implementation of far more radical criminal justice reforms must be undertaken in the light of the available UN recommendations on criminal justice.
This is based on the author’s presentation at the forthcoming UN Conference on minorities and the criminal justice system at Geneva. He is a former Director General of Police in India’s Northeast and author of ‘State, Policy and Conflicts in Northeast India’ Routledge, 2015
