Discrimination in Criminal Justice

Shailesh Poddar writes:

Almost one in five undertrials (18.7%) in India is Muslim, while Muslims make up only 14.2% of the population, according to the National Crime Records Bureau (NCRB) 2019 report. In the US, Black Americans make up a third of the prison population, but just 12% of the population, according to Pew Research Center.

Scholars have pointed out how the criminal justice systems of both India and the US entrap a disproportionate share of minorities, entangled in a cycle of poverty, crime, and policing. As Michelle Alexander draws out in her The New Jim Crow, American laws that seem neutral and colour blind invariably lead to biased prosecutions, yet do not allow legal challenges based on implicit biases. Such legislation was fuelled in the 1980s by an American media obsession with the War on Drugs — an obsession with parallels in the Indian context of conspiracies about so-called ‘jihad’.

Alexander’s in-depth depiction of the American criminal justice system, media culture, and targeted law-making provides a useful framework to examine the Indian condition.

The culture wars

Alexander’s primary example is the War on Drugs, which seemed race-neutral in its inception, but was implemented with widely disproportionate effects on racial populations. The War on Drugs was first officially announced by President Ronald Wilson Reagan in October 1982 as a measure to curb street crime that was on a rise allegedly due to the increase in drug usage. The federal budget for law enforcement agencies was increased and cops were given additional incentives to prosecute drug offenders. Though neutral in its words, it specifically targeted Black and Hispanic Americans leading to a skyrocketing increase in their prison population.

Biases against African Americans in the US were institutionalised with a heavy media campaign intent on using stereotyped images. As pointed out by Alexander: “Almost overnight, the media was saturated with images of black ‘crack whores,’ ‘crack dealers,’ and ‘crack babies’—images that seemed to confirm the worst negative racial stereotypes about impoverished inner-city residents. The media bonanza surrounding the ‘new demon drug’ helped to catapult the War on Drugs from an ambitious federal policy to an actual war.” The media narrative in the US created a justification for discriminatory prosecution.

UP police have repeatedly invoked the NSA in cow slaughter and communal incidents primarily against Muslims.

Similarly, though not as aggressively as the US, India’s government has extensively used media to instil hatred against Muslims. With a rise in Hindutva politics, media have incorrectly characterised Muslims as conspiring to convert and increase their population to create an Islamic society. Channels such as Zee News and Aaj Tak have continuously broadcasted against the so-called ‘love jihad’ by selectively showing Muslim men luring Hindu women for conversion. Catchy phrases like: “Jihad wala love, Khair nahi ab,” by Aaj Tak beamed during a segment on UP’s anti-conversion law. The word jihad has become common parlance to spin conspiracies of so-called zameen jihad, arthik jihad, UPSC jihad. Confirmation of this biased narrative came when, after claiming a ‘corona jihad’ at a Tablighi Jamaat conference in March 2020, just ahead of the first wave, such language was missing during the mass Covid-19-super spreader Kumbh Mela held during the second wave in April 2021.

Such distorted media narrative provides the foundation for seemingly neutral laws, according to Alexander. If in the United States, media coverage provided support for the War on Drugs disproportionately targeting racial minorities; in India, it justifies acts against religious minorities in the name of a ‘War against Jihad’. In Uttar Pradesh, the ​Prohibition of Unlawful Religious Conversion Ordinance (the so-called ‘love jihad law’) does not explicitly mention the conversion of any particular religion. However, out of the 14 cases filed in Uttar Pradesh under this law, 13 involve Hindu women allegedly pressured to convert to Islam. Other states, like Madhya Pradesh, are following suit.

Other religion-neutral Indian laws, such as the Unlawful Activities Prevention Act (UAPA) and the National Security Act (NSA), continue the discriminatory prosecutions. UP police have repeatedly invoked the NSA in cow slaughter and communal incidents primarily against Muslims. Even more, government authorities are given powers under this law to detain at mere apprehension without the need for conclusive evidence of public order disruptions. These laws may use religion-neutral words, but the implementation is starkly selective.

India’s police are not exempt from propaganda. 14 per cent of personnel feel that Muslims are ‘very much’ naturally prone to committing crimes, while 36 per cent feel that Muslims are ‘somewhat’ naturally prone to committing crimes.

Witness how the Tablighi Jamaat convention and the Kumbh Mela, two similar incidents leading to the spread of Covid-19, led to widely differing penal actions in India. In the case of the Tablighi Jamaat, state machinery was immediately put in action. Eleven state governments filed 20 FIRs against 2,765 Tablighi Jamaat members. In UP, police even charged some with attempt to murder. In the end, not even one member of the Jamaat was convicted. Such aggressive state action was missing in the case of Kumbh Mela, where norms were openly flouted in front of the state police. In fact, the state machinery was involved to provide security and logistical support to the event.

India’s police are not exempt from such propaganda. The Status of Policing in India report, published in 2019 by Common Cause and Lokniti/Centre for the Study Developing Societies, states that “14 per cent of personnel feel that Muslims are ‘very much’ naturally prone to committing crimes, while 36 per cent feel that Muslims are ‘somewhat’ naturally prone to committing crimes.”

These statistics can be viewed through Alexander’s explanation of the “circular illogic of racial profiling”, coined by a former New Jersey attorney general. “Law enforcement officials, he explained, often point to the racial composition of our prisons and jails as a justification for targeting racial minorities, but the empirical evidence actually suggested the opposite conclusion was warranted.” The high proportion of minority populations in prisons is due to racial profiling and bias policing.

Discriminatory laws and prosecution

In the US, new drug laws over-criminalised crack cocaine, which was used more by Black Americans, while allowing for leniency with powder cocaine, which was used more by white Americans. Even though Black Americans and white Americans consumed drugs at near similar rates, the prosecution of Black Americans skyrocketed, according to Alexander. The laws include the 1986 Anti-Drug Abuse Act and the Comprehensive Crime Control Act of 1984.

It is striking that similar to how the US government attempted to convince the Black community that these drugs laws were to their benefit, the Indian government has portrayed the criminalisation of triple talaq as protecting Muslim women. The law instead of addressing the issue at its root simply criminalises the act.

The colonial and slave-like practice of criminality by birth continues till today.

Laws that perpetuate the criminalisation of communities have also reincarnated themselves over time. Alexander draws out how slavery, the Jim Crow laws, and the War on Drugs continue to reinvent Black American subjugation in new ways. India also refurbished old colonial laws to continue persecutions against minorities. The Criminal Tribes Act of 1897 — a colonial law that criminalised nearly 200 tribal communities, placing them under constant police harassment and surveillance — was replaced by the Habitual Offenders Act of 1952 after independence. Nikita Sonavane and Ameya Bokil, two law researchers, outline how tribals struck by poverty became "habitual offenders", subject to incessant surveillance. The new act has similarities to California’s Three Strikes Law, which mandated life imprisonment after a third offence. In both cases, the victims of these laws are mostly minorities who are under constant police surveillance.

Studying the Habitual Offenders Act, Mrinal Satish, a professor of law, gives examples of Bhopal police targeting the Pardhi community. The police assume they cannot buy goods and therefore any possessions found on them must have been stolen. Satish also mentions other laws that predetermine criminality, such as a Karnataka Police Manual rule which designates a first-time offender as a “professional criminal” if they belong to a “family of criminals.” The colonial and slave-like practice of criminality by birth continues till today.

Associations with the criminal justice system follow people throughout their lives, leading to major employment repercussions in both countries. In India, mere acquittal in a criminal case is not enough while seeking employment in government jobs: the Supreme Court has highlighted the need for an “honourable acquittal” or a “clean acquittal”. The vague term was upheld in the judgment by the court of State of Rajasthan Vs. Love Kush Meena: “The mere fact of an acquittal would not suffice but rather it would depend on whether it is a clean acquittal based on the total absence of evidence or in the criminal jurisprudence requiring the case to be proved beyond a reasonable doubt, that parameter having not been met, benefit of doubt has been granted to the accused.”

If any meaningful reform is expected, we need to move beyond the facade of a merit-based society. [W]e need to break the blindness of society towards the implicit biases of our media, laws, and prosecutions.

The courts are not immune to this bias either. In the case of McLeskey v Kemp, at the tail end of the War on Drugs, the US Supreme Court rejected the statistical data of discriminatory prosecution of African Americans, stating that the petitioner had to show explicit or deliberate bias in his prosecution. Challenging an implicitly racist set of laws proved more difficult than challenging a blatant one.

Even though the courts often upheld the need for explicit bias proof, they also contradictingly acknowledge the issues. The recent Indian Supreme Court’s judgement in Lt. Col. Nitisha and Ors Vs. Union of India and Ors (a case which involved granting women officers permanent commissions in the army) acknowledged implicit bias resulting in systematic discrimination. The Court held that “the doctrine of indirect discrimination is founded on the compelling insight that discrimination can often be a function, not of conscious design or malicious intent, but unconscious/implicit biases or an inability to recognize how existing structures/institutions, and ways of doing things, have the consequence of freezing an unjust status quo.” Though the case involved implicit gender bias, the concept can be squarely applied to implicit religious/caste bias.

The observation of the US Supreme Court in Yick Wo Vs Hopkins (1886), while overturning the conviction of a Chinese man, makes these comparisons clear: “Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations, between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution”.

Reforming the Indian system

Since Alexander published her book in 2010, the share of African Americans in US prisons has decreased. In India the proportion of imprisoned marginalised communities remains the same. Alexander’s work offers a way to study the systemic problems of the Indian legal system. If any meaningful reform is expected, we need to move beyond the facade of a merit-based society. Borrowing from Alexander, we need to break the blindness of society towards the implicit biases of our media, laws, and prosecutions. We need more than piecemeal efforts of introducing new laws or increasing the number of judges and police. Even increasing the police force’s diversity, while always a welcome effort, does not change the rules of the game.

A structural change in the way society depicts and criminalises minorities is needed. We can learn from other countries where these discussions have become a part of regular conversation.

Shailesh Poddar is a lawyer practising in Ranchi.

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Shailesh Poddar