Protecting and Promoting Minority Rights in India’s Criminal Justice System: Need for a Special Law Paper in honour of Justice PB Sawant
09, Jul 2021 | KS Subramanian
Minority rights in India’s criminal justice system (CJS) are in dire straits as revealed graphically in institutional murder of Father Stan Swamy, the tribal rights activist. The indifference of the authorities to end such horrific human rights violations has been graphically brought out in several recent reports. The persisting violence and crimes against the minority Muslim, Christian, Sikh and ‘national or ethnic minorities’ (UN terminology) elsewhere in India including the Northeast where I was posted for several years, poses a challenge to India’s criminal justice system.
This matter came up for serious consideration at the 8th session of the UN Forum on Minority Rights in the Criminal Justice System (CJS) at Geneva (November 23-25, 2015) to which the present writer was the lone invitee from India. The report of the UN Special Rapporteur Rita Izsak on the subject was presented to the 70th Session of the UNGA. As an expert invitee, I made presentations at the four sessions of the UN meeting mentioned above.
Aspects of the crisis
- The criminal justice system in India vis-a-vis the minority rights, especially of the Muslims, Christian and the ethnic communities in the Northeast, is in virtual collapse. Members of these communities are being implicated in false cases, tortured and ill-treated.
- The Supreme Court of India has said that the majority of the arrests made by the police are illegal or unnecessary.
- Some time ago, a South Indian voluntary agency found, on the basis of field investigations mainly in north India, that about 1.8 million people, many of the minority communities, were being tortured in police custody every year, an underestimate.
- Extrajudicial executions or ‘encounter killings’ of the minorities are replacing torture as the main method of police investigations. Such killings have occurred in several states of the country such as Jammu & Kashmir, Gujarat, Andhra Pradesh, the Central Tribal Districts, Manipur, Nagaland and other states of the Northeast.
- ‘Encounter’ is an event in which the police shoot dead a person and later claim falsely that the person was killed while he undertook an alleged ‘encounter’ with the police.
- The entire criminal justice system created by the colonial authorities was retained uncritically by the Indian elite.
- The penal and procedural codes enacted by the British in India in the 1860s, have mandated suppression of people’s protest. Section 144 of the Criminal Procedure Code, 1861, prevents the gathering of more than 5 persons as an ‘unlawful assembly’. More recently, sedition is the more favoured section of the law imposed in India.
- The Indian Penal Code begins with chapters on ‘criminal conspiracy’ and ‘Offences against the State. The prevention and detection of offences, the main task of the police, is relegated to Chapter XVI and Section 299. The offence of ‘sedition’ was included in the Code in 1870. The Criminal Procedure Code, 1861 and the Police Act 1860 make it possible for the police to violate human rights on a large scale.
- The Supreme Court of India has said that ‘dehumanising torture, assault and death in custody are so widespread as to raise serious questions about the credibility of rule of law and criminal justice’.
- The Second Administrative Reforms Commission, 2007 noted the ills of the Indian police: ‘politically oriented partisan performance, corruption and inefficiency. The public complained of rudeness, intimidation, suppression or concoction of evidence and malicious padding of cases’. 80 percent of the people surveyed mentioned they had to pay a bribe in their dealings with the police. Out of the 11 public agencies surveyed, police were found to be the most unsatisfactory.
- ‘In the name of investigating crimes, torture is inflicted not only on the accused, but also upon bona fide petitioners, complainants, informers and innocent bystanders’. These provisions adversely affect minorities.
- Police training is abysmal.
- In 2003, the Justice Malimath Committee was set up to reform the criminal justice system but its recommendations have remained on paper.
- The Indian judiciary is over-burdened with a huge backlog of cases.
Legal framework and key concepts
The Constitution of India, 1950, does not define minorities. It only refers to ‘minorities’ and speaks of minorities based on ‘religion and language’. Their rights are spelt out in Part III on Fundamental Rights, which are legally enforceable. Part IV provides the Directive Principles of State Policy, which are not enforceable by law.
The government of India set up a National Commission on Minorities in 2005, which mentions five religious Minorities: Muslims; Christians; Sikhs; Buddhists; and Zoroastrians. The Jains were added in 2014.
The Ministry of Minority Affairs and the Ministry of Home Affairs in the government of India deal with minority issues.
The UN Declaration of 1992 mentions ‘National or Ethnic, Religious and Linguistic Minorities’. This is a comprehensive phrase which goes beyond the category of the six religious minorities mentioned by the National Commission on Minorities in India. It is necessary for India to adopt a comprehensive term and include national, ethnic and linguistic minorities. The Constitution of India needs amendment to take into account the violence especially against the Muslim minority that has been going on for a long time and has intensified recently. There is also increasing violence against other minorities such as the indigenous communities in central and Northeast India, which are not included in the approved list of the National Commission for Minorities.
The Commission has the powers of a civil court and can summon witnesses. The Constitution needs to be amended to give it criminal powers of the level of a High Court. The same should apply to the National Commission for Women and the National Commissions for the SCs and the STs along with the existing National Human Rights Commission.
The Constitution of India, 1950, in view of the existence of a multiplicity of minorities in India including national and ethnic minorities and in view of the conflicts that are emerging from identity assertions across the country, must revise the definition of the term ‘minority’ and enumerate the categories including religious, linguistic, national, ethnic minorities. The Constitution must also incorporate specific provisions for the protection of minorities from all forms of violence and provide them justice and fair play in the criminal justice system.
The Preamble to the Constitution of India declares India to be a ‘secular’ state (this is of special relevance to religious minorities) and to secure to all ‘liberty of thought, expression, faith and worship and equality of status and opportunity.
Significant for the minorities is the elimination of inequalities ensuring their welfare as for the weaker sections (besides the Scheduled Castes and Tribes). It should be the duty of citizens to promote the promote harmony and the spirit of common brotherhood transcending religious, linguistic, regional or sectional diversities and preserve the country’s rich heritage and composite culture.
The Fundamental Rights in the Constitution, include, among other things, equality before the law; equal protection of the law; prohibition of discrimination on grounds of religion, race, caste, sex or place of birth; freedom to profess, practise and propagate any particular religion; freedom of religious instruction and worship etc. These are essential for a multi-religious, multi-cultural, multi-racial Indian society such as India with communal harmony.
The Muslim, the Christian and Sikh minorities have been victims of extrajudicial executions, torture, rape, intimidation, and implication in false cases, destruction of property and utilities and other illegal acts under the criminal justice system. Non-listed minorities in the North-eastern region too have been subjected to similar abuses.
The Sikhs were subjected to genocidal killings after some members of the Sikh security forces assassinated former Prime Minister Indira Gandhi in protest against the killing of Sikhs during and after Operation ‘Blue Star’ in 1984. The genocidal killings of the Muslims in Gujarat in 2002 and the attacks on Christians in Kandhamal, Orissa in 2008, also violated the norms of the criminal justice system.
There are no specific protective legal provisions for the minorities in the Indian Constitution. Police, prosecution and the judiciary are not sensitised to minority issues and function within the existing framework of law and order.
International principles and standards on minority issues are yet to be incorporated in the Indian criminal justice system.
Minorities in the exercise of police powers
The Justice Rajinder Sachar Committee Report 2005 is the first of its kind in India that provides insights into the socio-economic and security issues facing the Muslim-minority constituting 13.4 percent of the population. Muslims are the biggest chunk of the Indian minorities.
The Rajinder Sachar Committee report states:
i) Muslims in India face a double burden in that they are regarded as anti-national and are at the same time are said to be pampered by the government;
ii) police are highhanded in dealing with Muslims; whenever an incident occurs and Muslim boys are picked by the police;
iii) the state does not function in an impartial manner, the acid test for a just state; iv) Muslims, the largest minority in India, are lagging behind the other Indian communities in terms of most human development indicators;
iv) ‘every bearded man is considered an agent of the Pakistani Inter Service Intelligence’;
v) fake encounter killing of Muslims is common;
vi) Police presence in Muslim areas is more common than the presence of industry, schools, public hospitals, banks and the like;
vii) security personnel enter Muslim homes at the slightest provocation;
viii) the plight of Muslims living in border areas is worse since they are treated as foreigners and are subjected to harassment by the police and the administration;
ix) violent communal conflicts, often include targeted sexual violence against women, which tends to have a ‘spread effect’ even in areas not affected by communal violence;
x) immense fear and a feeling of vulnerability that prevail have a visible impact on mobility and education, especially of girls;
xi) the lack of adequate representation 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;
xii) insecurity leads to Muslims living in ghettos;
xiii) the perception of being discriminated against is overpowering amongst a wide cross section of Muslims, resulting in collective alienation.
Demands of the minorities in the criminal justice system
The new anti-terrorist politics have encouraged the devaluation of the criminal justice system and its perversion resulting in the prosecution of innocent Muslims, not involved in terrorist activities, are falsely implicated by the police in such cases in order to obtain government recognition and rewards. The functioning of the criminal justice system (CJS), now jocularly termed ‘criminal administration of justice’ is in crisis! Far from getting any specialised attention and protection, the minority communities especially the Muslims in India are targets of police harassment for allegedly ‘terrorist’ activities.
This problem is clearly brought in a study, which documents registration of false cases against innocent Muslims (and ethnic minorities from the North-east) are subjected to systematic police harassment, cruelty and torture and false criminal cases under special security legislations involving prolonged imprisonment and more (see: ‘Framed, Damned, Acquitted: Dossiers of a very Special Cell, A Report by the Jamia Teachers Solidarity Association, New Delhi, 2015)
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, which 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. Provision for punitive policing. Police officers are vested with vast powers and even the constabulary vested with vast powers. The persistence of repressive colonial laws has contributed to the unpopularity of the police.
In 1856, the British 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”.
David Bayley, a leading authority has said, “Police officers are preoccupied with politics, penetrated by politics and participate in it individually and collectively.”
Anti-minority carnage in Gujarat, 2002: Criminal justice issues
There were multiple failures in the functioning of the police. They did focus on the Hindu fundamentalists who were the real culprits. They delayed Imposition of the curfew; neglected criminal law and acted under political influence; their intelligence was poor; they facilitated and participated in the violence; neglected rape victims; allowed criminal Hindu mobs to have their way; they ignored recommendations of the National Human Rights Commission; failed to impose Disturbed Areas Act,1976 and Prevention of Damage to Public Property Act 1984; failed to follow laid down instructions of the central government on communal disturbances.
The Pehlu Khan case
An independent fact-finding mission found glaring gaps in police investigations of the case of the brutal lynching of Pehlu Khan, a Muslim farmer, at Alwar in Rajasthan in April 2017.
The lynching had been carried out by a ruling party-oriented group of self-styled gaurakshaks (‘cow-protectors’) when the victim was returning home after purchasing cattle. Earlier in 2015 at Dadri in Uttar Pradesh, a farmer named Mohammad Akhlaq had been lynched by some gau rakshaks on suspicion of storing cow meat at home.
Police investigations in both cases revealed motivated doctoring of the evidence to enable the culprits to get off the hook and escape judicial scrutiny and punishment. Unusually, a central government minister of the ruling establishment took an active role in saving the culprits affiliated to the ruling party from coming under judicial scrutiny and punishment.
The ruling establishment not only remained silent but, in some cases, the guilty policemen were even lauded by the ruling elites.
Political mobilisation against the Muslims since the 1990s was articulated by the ruling establishment. It gathered strength and led to the demolition of the Babri Masjid in 1992; orchestrated violence against Muslim took place in Mumbai in 1992-93 followed by the apocalyptic violence in Gujarat, 2002.
The Vohra Committee report 1993, dealt with the ‘criminalisation of politics and politicisation of crime. ‘Criminalisation of politics and politicisation of crime’ and the nexus between politicians, criminals and civil servants were noted.
Causes of discrimination in criminal justice
Lack of political will and non-implementation of recommendations made by several reforms Commissions are among the main causes. Structural inequality and injustice in the social and political system too need mention. Muslims (13.4 percent of the Population) and Christian (2 percent of the population) and Sikhs (about 2 percent) are the primary victims of failure of the criminal justice.
The National Commission on Minorities recognises six religious minorities: Christians, Muslims, Buddhists, Zoroastrians; Sikhs and Jains. Several national, linguistic and ethnic minorities in the Northeast are not recognised.
The Rajinder Sachar Committee 2005 identified the special disabilities felt by the Muslims in India. In the name of fighting ‘terrorism’, Muslims are targeted by the police. The Christians and Sikhs are much smaller but are equal victims.
Some practical steps
- Amend the Constitution of India to include, not just religious minorities but also national and ethnic, indigenous (Scheduled Tribes) and caste (Scheduled Castes) minorities and their languages and cultures; a list of recognised minorities;
- Enact new law to prevent and punish crimes against the minorities, especially Muslims and Christians, on the lines of the SC/ST (Prevention of Atrocities) Act, 1989;
- Establish accountability mechanisms for the Indian police and politicians to end impunity;
- Implement far criminal justice reforms of a far-reaching nature. All the penal laws, including the IPC, the CrPC, the Evidence, Act, and the Police Act need to be further reformed to suit the democratic, republican nature of the Constitution of India.
- Adopt UN Code of Conduct for Law Enforcement officials, prosecutors, lawyers and judges;
- Adopt UN Basic Principles on the Use of Force and Firearms; Standards and Norms in Crime Prevention and Criminal Justice;
- Establish Special Procedures of the UN Human Rights Council such as Working Groups on Arbitrary Detention, Enforced and Involuntary Disappearances, Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and Standing Invitation to Special Rapporteur on the human rights and Fundamental Freedoms of Indigenous Communities.
*The writer was a member of the Concerned Citizens Tribunal on Gujarat 2002, who interacted and learned from Justice PB Sawant during his work on the Tribunal. He was a member of the Indian Police Service (1963 batch). He was Director of the Research and policy Division of the Union Home Ministry in New Delhi and Director General of Police and Director General of the Institute of Public Administration and Rural Development in the government of Tripura.