Being Muslim in India How the law and society treat you differently
18, Mar 2018 | KS Subramanian
This is the concluding part of KS Subramanian’s essay ‘Babri Masjid 1992 – Gujarat 2002 – Kashmir 2016: How the Sangh Parivar has wrecked India’s secular social fabric by sustained anti-minority violence’. Here the author who is a senior, retired member of the Indian Police Service-IPS, explains how systematic othering has led to marginalisation of Muslims in India.
Sachar Committee Report on the status of Muslims in India, 2006
The Justice Sachar Committee Report 2005 is the first of its kind in India that provides useful insights into the socio-economic and security issues facing the Muslim-minority constituting 13.4 percent (about 173 million) of the population). Muslims are the biggest chunk of the Indian minorities.
The 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 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.
The much discussed and lauded secularism of the Indian state appears bogus when judged by the scale, intensity and widespread nature of the violence against India’s largest minority community since independence.
Though detailed research is needed and despite the many factors that must be considered, it can be broadly stated that in electoral terms, the ruling Bharatiya Janata party (BJP) has been the biggest gainer in the unprecedented communal mobilisation and mass violence against the Muslims that have been unleashed in Indian politics through the 1980s, the 1990s and after. In successive parliamentary elections, the party has steadily bettered its performance: the successive parliamentary (Lok Sabha) election years mentioned here are followed by seats won, in brackets: 1984, 8th Lok Sabha (2); 1989, 9th Lok Sabha (86); 1991, 10th Lok Sabha (120); 1996, 11th Lok Sabha (161); 1998, 12th Lok Sabha (182); 1999, 13th Lok Sabha (182); 2004, 14th Lok Sabha (138); 2009, 15th Lok Sabha (116); 2014, 16th Lok Sabha (282).
The communal mobilisation of the last few decades in India has benefited the BJP di hugely in electoral terms. Besides winning three successive state assembly elections in Gujarat (never mind the carnage of 2002), the BJP led by Narendra Modi won the big parliamentary election in 2014 even if he won only 31 percent of the popular vote. The biggest losers in this process have, of course, been the Indian electorate!
It is not surprising that Prime Minister Narendra Modi is hesitant to condemn stoutly the Hindu communal mobilisation and violence that confronts him as Prime minister, no matter if it gives his party and government a bad name and his country a black mark.
The Criminal Justice System
Following features of the Indian criminal justice system are noteworthy: i) criminal justice system in India vis-a-vis the minorities, especially the Muslims, Christian and the ethnic communities in the Northeast, is in virtual collapse. Members of these communities are being implicated in many false cases, tortured and ill-treated in the criminal justice system; ii) The Supreme Court of India said that over 60 percent of the arrests made are illegal or unnecessary; iii) In 2009, it was found, on the basis of field investigations in several states, that about 1.8 million people are being tortured in police custody every year. Many of the victims are members of the minorities and weaker sections; iv) extrajudicial executions or ‘encounter’ killings are taking the place of torture in investigation. Such killings are occurring in several states of India.; v) ‘Encounter’ is an event in which the police shoot dead a person and later claim that he was killed while he undertook an ‘encounter’ with the police; vi) the repressive criminal justice system created by the colonial authorities was retained after independence; vii) the penal and procedural codes enacted by the British in the 1860s need revision in the light of the imperatives of the Constitution of India 1950; vii) 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 are relegated to Chapter XVI and Section 299. The Bengal Regulation III 1818 used to deport people was not repealed. The offence of ‘sedition’, untenable in a parliamentary democratic system, introduced in 1870 in the Penal Code has been retained. Legitimate protest in a democracy is being penalised as ‘sedition’. Similar provisions can be found in the Criminal Procedure Code, 1861 and the Police Act 1860 (Anandswarup Gupta, 1979, Police in British India 1861-1947’); viii) 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’; ix) the Second Administrative Reforms Commission, 2007 noted the ills of the Indian police as: ‘politically oriented partisan performance, partiality, corruption, 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; x) 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’; xi) police training is abysmal; xii) the Indian judiciary needs reform and is over-burdened with a huge backlog of cases.
Other relevant points
The Constitution of India, 1950does not define minorities but refers to ‘minorities’ and speaks of minorities based on ‘religion and language’ spelling out their rights in Part III on Fundamental Rights, which are legally enforceable.
Part IV of the Constitution provides the Directive Principles of State Policy, which are not enforceable by law.
The government of India passed a National Minorities Commission Act 1992 and set up a National Commission for Minorities, 1993. The Commission 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 India’s National Commission on Minorities, 2005.
It would be advisable for India to adopt a more comprehensive term and include national, ethnic and linguistic minorities. The Constitution of India needs amendment for this purpose. There must be a separate law for the prevention of violence against minorities in India.
There is increasing violence against minorities other than Muslims: indigenous communities in Central India and ethnic minorities in the Northeast of India, which are not included in the list of the National Commission on Minorities in India.
The National Commission on Minorities has the powers of a civil court and can summon witnesses. The Constitution needs to be amendment to provide the Commission with criminal powers of a High Court of India. The same should apply to the National Commission for Women and the National Commissions for the SCs and the STs along with the National Human Rights Commission, all concerned with minority protection.
The Constitution of India came into force in 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, there is a need for amendment of the Constitution of India and define 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 a fair and just criminal justice system. A separate law on minority protection on the lines of the existing law for the protection of the Scheduled Castes and the Scheduled Tribes needs to be passed in Parliament.
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’.
The Fundamental Rights enumerated in Part III of the Constitution are judicially enforceable. The Directive Principles of State Policy enumerated in Part IV, though not judicially enforceable, are fundamental in the governance of the country. It shall be the duty of the state to apply these Principles in the making of laws.
Significant for the minorities are elimination of inequalities. The Fundamental Rights 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 provide for a multi-religious, multi-cultural, multi-racial Indian society 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 abuse.
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’ (1984). The genocidal killings of the Muslims in Gujarat (2002) also violated the norms of the criminal justice system.
‘Transfer of power’ in 1947, led to the retention of colonial criminal laws, such as the Indian Penal Code (IPC), 1860, the Criminal Procedure Code (CrPC), 1861 and the Evidence Act, 1874 and the Police Act, 1860, which do not institutionalize human rights of minorities.
The primary focus of the Indian criminal laws is on the security of state, public order maintenance and state-centric intelligence collection. The first 299 sections of the IPC do not have anything to do with the investigation and detection of crimes.
There are no specific protective legal provisions for the minorities, who are increasingly subjected to violence, torture and extrajudicial executions in the Criminal justice process. Police, prosecution and the judiciary are not sensitised to minority issues; they tend to 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.
Police powers and Muslims
The new anti-terrorist politics have encouraged the devaluation of the criminal justice system resulting in the prosecution of innocent Muslims. They are not involved in terrorist activities but are falsely implicated by the police in such cases for getting government recognition and rewards. The criminal Justice System (CJS), now jocularly termed ‘criminal administration of justice’. Far from getting any specialised attention and protection, the minority communities especially the Muslims are targets of police harassment for alleged ‘terrorist’ activities.
This problem is clearly brought in a study, which documents registration of false cases against innocent Muslims (and an ethnic minority person from the North-east) who are subjected to systematic police harassment, cruelty and torture and implication in 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)
Indian police organisation is of colonial-repressive, paramilitary origins and subject to civilian authorities and politicians. Its priorities are not service to the people but to their political masters. Police is centralised and relies on secrecy with limited understanding of the causes of communal violence. It indulges in periodic exhibitions of force with interplay of police and military functions. It is linked rural and urban propertied interests and equates force with authority and opposition with crime. In the law, police officers cannot be prosecuted without prior permission from their superior authorities.
The Indian Penal Code, 1860 (IPC) is preoccupied with state security and begins with chapters on criminal conspiracy and offences against the state. The detection of property offences and offences against the person come only from Part XVI and section 299. Obnoxious regulations such as Bengal Regulations III, 1918 which was used to deport freedom fighters are retained. The offence of ‘sedition’ was added as an IPC offence in 1870.
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. It provides for punitive policing. Police officers including the constabulary vested with vast powers.
The police are not popular given the persistence of repressive colonial laws which have continued.
The East India Company’s Board of Directors had said (1856)that ‘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 (‘Police and Political Order in India’, Asian Survey, 1983) said: ‘police officers are preoccupied with politics, penetrated by politics and participate in it individually and collectively.
No serious police reforms have taken place in India since independence. The reports of the National Police Commission (1979-81) and of the Second Administrative Reforms Commission (2007) are gathering dust in government archives.
More generally, i) the National Human Rights Commission NHRC) said that 60 percent of the arrests made are unjustified or unnecessary; and 75 percent of the complaints made to the NHRC were against the police; ii) the Supreme Court of India observed that: ‘dehumanising torture, assault and death in custody are so widespread that questions about the credibility of the rule of law and the administration of criminal justice arose’; iii) the Vohra Committee report 1993, dealt with the ‘criminalisation of politics and politicisation of crime. It noted the ‘nexus between politicians, criminals and civil servants’.
Addressing root causes
Lack of political will and non-implementation of recommendations made by several reforms Commissions are among the causes. Structural inequality and injustice in the social and political system too need to be mentioned. Muslims (13.4 percent of the Population) and Christian (2 percent of the population) and Sikhs (about 2 percent) are the primary victims of the failure of the criminal justice system in India.
Some practical suggestions
- The Constitution of India needs amendment 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 should be provided.
- A new law must be enacted to prevent and punish crimes against the minorities, especially Muslims and Christians, on the lines of the SC/ST (Prevention of Atrocities) Act, 1989.
- Accountability mechanisms must be strengthened for police and political misbehaviour.
- Criminal justice reforms must include UN guidelines such as i) the Code of Conduct for Law Enforcement officials, prosecutors, lawyers and judges; ii) Basic Principles on the Use of Force and Firearms; Standards and Norms in Crime Prevention and Criminal Justice; iii) Special Procedures of the UN Human Rights Council such as Working Groups on Arbitrary Detention, Enforced and 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.
About the author
K.S. Subramanian is a former officer of the Indian Police Service. He was a member of the Concerned Citizens’ Tribunal on Gujarat 2002 led by Justice VR Krishna Iyer. He has a PhD in Political Science (Karnatak University). He has worked in the Delhi administration; Himachal Pradesh and the Northeast; the Intelligence Bureau; and the Union Home Ministry. He was professor the Indian Institute of Public Administration, New Delhi; and the Jamia Millia University, New Delhi. He was Visiting Fellow at the Indian Institute of Advanced Study, Shimla; Queen Elizabeth House, Oxford; Centre for Contemporary Studies, Nehru Memorial Library, New Delhi; and Institute of Development of Studies, Sussex. He was a member of the Concerned Citizens’ Tribunal on Gujarat, 2002. He has authored several books three on the Indian Police and two on the Northeast. He is the author of ‘Parliamentary Communism: Crisis in the Indian Communist Movement (1989) and State, Policy and Conflicts in Northeast India, (2017). He contributes to Asian Age, Hongkong.
Feature Image Courtesy Al Jazeera/AP
