In this three part seties, the author draws a comparative analysis of the Indian criminal justice system in light of the Black Lives Matters movements of USA. Earlier, the author depicted lessons in democratic values of peoples movements. In this second article of the series, the author draws parallels between a racialised policing system of USA and the caste-communal prejudice ridden policing system of India.
India and the U.S. are both common law countries but their criminal justice systems have some crucial differences. About 97% of all accused in the U.S. plead guilty, or are rather forced to plead guilty, which means only 3% of the cases go to trial. The war-on-drugs, tough-on-crime propaganda started by the 1970’s administration kickstarted the mass incarceration of Black and Latinx communities, and this was just around the time when the civil rights movement was gaining national traction.
Criminalization of poverty through high bail amounts, mandatory minimum sentences, and discriminatory stop-and-frisk of Black and Latinx people has exacerbated the situation. According to Prison Policy Initiative, out of 331 million total population in the U.S., over 77 million have a criminal record, 4.9 million have been formerly incarcerated, 2.3 million are currently incarcerated, and over 113 million adults have a family member who has ever been to prison. These numbers are utterly shocking, to say the least. No other country in the world has such huge numbers. Out of the 2.3 million currently incarcerated, 33% are Black (12% total population), 23% Hispanic/Latinx (16% total population), and 30% White (64% total population).
Mass incarceration in the U.S. has never been about preserving law and order. Policing in the U.S. is heavily racialized and militarized. Police departments are massively funded and police unions enjoy huge political support. They lobby with the legislators and make sure corrupt and criminal cops remain free and employed. Prosecutors have immense power; they are elected officials with political affiliations and enforce racialized policies that specifically target Black and Latinx people. The dimensions of policing in the U.S. are mind-boggling. The moment someone has a criminal record, the racialized administrative structures make sure that this record becomes an unofficial death warrant. Entire communities and neighborhoods are targeted by the police. It’s not just the police, but also common white people and vigilante groups that constantly use their white privilege and power to subjugate Black, Latinx, and Indigenous people through their everyday actions.
“What movements like the Civil Rights Movements and Black Lives Matter have done is to normalize conversations around the everydayness of this systemic violence.”
The current criminal justice system, health care, educational system, and the larger political and economic structures in the U.S., are an extension of slavery, and its subsequent legacies- such as Jim Crow Laws- have lead to mob lynching and segregation. Like Prof. Cedric J. Robinson said, “Capitalism in the U.S. is racial capitalism”. What movements like the Civil Rights Movements and Black Lives Matter have done is to normalize conversations around the everydayness of this systemic violence. They have shown that systemic discrimination is not a one-time big event, but something that completely engulfs the life of a marginalized person and his/her community for many generations.
Generational violence prevents communities from breaking out of the cycle of social, economic, and political impoverishment. This normalization results in a wider recognition of the problem and mobilization of marginalized peoples’ rightful anger. The current uprisings and lootings in different cities of the U.S. aren’t just a reaction to centuries of racist policing methods, but also to a racist economic system that keeps Black people poor while depriving them of the fruits of their labor. Consequently, a call for protest by Black Lives Matter and other Black liberation groups has galvanized into a revolution across the country.
India’s Marginalised Communities in Criminal Justice Systems
In India too, as many commentators on caste have established, education, health, politics and economy are all controlled by upper-caste and dominant-caste communities, and the criminal justice system is not an exception to this. This means that the people drafting and enforcing laws are upper and dominant caste people, while the ones being punished are historically marginalized communities. The current prison population in India is about half a million (466,084) out of which the majority (70%) are under-trial prisoners. Out of this, over 53% of the prisoners are Dalit, Muslim, and Adivasis, when their combined share in the total population is only 39%.
“Last year, the National Crime Records Bureau dropped the caste and religion markers from NCRB prison data. This is certainly a cause for concern.”
The prison population in India has been growing steadily over the past 20 years. In 2000 it was 2,70,000 and right now it has doubled. Last year, the National Crime Records Bureau dropped the caste and religion markers from NCRB prison data. This is certainly a cause for concern. If there are no markers that indicate who constitute the prison population, the state gets a free hand to commit atrocities using an opaque system. But does the current prison population in India match the magnitude of mass incarceration in the U.S.? The appropriate answer is not yet.
“But does the current prison population in India match the magnitude of mass incarceration in the U.S.?”
India has over 1.3 billion people, whereas the prison population is about half a million. In the U.S., out of just 331 million population, 2.3 million are currently in prison with 555,000 being the pre-trial prisoners, which makes it the highest in the world. The numbers we discussed here hold a mirror up to the pervasiveness of prison industrial complex in the U.S. However, our understanding of abuse of criminal justice mechanism in India should not be dictated by these numbers alone, but what mechanisms used by the state lead to increasing violence against minorities in the country.
Policing in India
Police accountability in India has always been in complete shambles. Police departments are massively understaffed and overworked, which means there is no real division between investigation and maintenance of law and order. Most police officers get deployed for maintenance of law and order, which means that they are constantly on the street or providing “bandobast” (security) to politicians. Their lack of professionalism, sensitivity to social justice issues, and deep-rooted corruption is common knowledge in marginalized communities. Police are not separate from the society they belong to, a society that is profoundly bigoted. As discussed before, dismal representation of minorities in police departments means police departments are filled with upper and dominant caste Hindus that hold deeply negative opinions about minorities.
“Police are not separate from the society they belong to, a society that is profoundly bigoted.”
There’s enough historical evidence to show police hardly accept complaints from marginalized communities because often the higher officers in these police stations are upper or dominant caste, who base their opinions on generations of prejudice. While things started to change in 1990’s because of the enactment of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, pendency in police investigation of these cases continued. Cases of crimes against Scheduled Castes pending police investigation have nearly doubled (99%), from 8,380 cases in 2006 to 16,654 cases in 2016. In the case of crime against Scheduled Tribes, the pendency of investigation has risen 55% from 1,679 cases in 2006 to 2,602 cases by the end of 2016.
Further, conviction rates for crimes against Dalits and Adivasis, be it under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, or Manual Scavengers and Their Rehabilitation Act, 2013 (the 2013 Act), are terribly low because of slapdash investigations of easily corruptible police officers and prosecutors. It is also highly unfortunate that other marginalized groups do not have the protection of an anti-discrimination law like the Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act 1989.
In a report titled “Broken System”, Human Rights Watch has recorded the vulnerability of marginalized groups, including sexual minorities, and abuse of police power. The report states, “Police often fail to investigate crimes against them because of discrimination, the victims’ inability to pay bribes, or their lack of social status or political connections. Members of these groups are also more vulnerable to arbitrary arrest and torture, especially meted out by police as punishment for alleged crimes.” The recent atrocities committed by Delhi police against anti-CAA protestors, and the brutal enforcement of COVID-19 lockdown by police throughout India has once again highlighted how police go scot-free even after committing such public crimes.
The first ever National Police Commission on police reforms was instituted by Janata Party in 1977. This commission came out with several important recommendations, that spanned over 8 reports. Barring a few, most of these recommendations remained on paper. In 2006, the Supreme Court of India issued important guidelines in Prakash Singh & Ors. vs. UOI & Ors. [(2006) 8 SCC 1] on police accountability. As per this judgment, states governments were supposed to set up Police Complaints Authorities (PAC), with some independent members overseeing the functioning of the authority. However, only a handful of states have established PAC and they too are toothless tigers. This judgment also led to the drafting of the Model Police Act, 2006, which never got passed.
“About 80% of police and 50% of citizens think police violence is acceptable towards “criminals” and it is okay to torture them to extract confessions. This is a reflection of an uninformed and apathetic society.”
As per 2016 and 2018 National Crime Records Bureau, 209 and 89 cases were registered against police for human rights violations, but not a single officer got convicted. This is nothing new as the tradition of impunity has continued for decades. Lastly, the police enjoy high public approval in India. About 80% of police and 50% of citizens think police violence is acceptable towards “criminals” and it is okay to torture them to extract confessions. This is a reflection of an uninformed and apathetic society.
(The author is a Fulbright India Fellow currently based in Philadelphia, U.S.A. Views expressed are personal.)