After working with poor tribals who face arbitrary police action, two lawyers explain how the police use sweeping powers to torture and illegally detain people from marginalised communities. Police accountability, they argue, must increase
AMEYA BOKIL & NIKITA SONAVANE
Bhopal: The police arrested Aarun (name changed) and his father a day before Tarun’s class V exams. The charge was theft.
At the Kamla Nagar Police Station in Madhya Pradesh’s capital, his father was hit continuously on a leg that had recently been operated on, said Tarun, who was stripped naked, ‘beaten mercilessly’ and told to confess to a crime he said he had not committed.
“I eventually relented despite being falsely implicated,” said Tarun.
A complaint was eventually filed before the Madhya Pradesh State Human Rights Commission (SHRC), which in 2009 held the police official who had made the arrest guilty of violence. The police department was asked to provide compensation to Tarun and his family by the SHRC but, said Tarun, “We never received it. Earlier when produced before the Juvenile Justice Board in Bhopal in the case filed against me, the judge had asked me to read alphabets in Hindi and then scolded me for failing to be able to do so.”
In part 1 and part 2 of this series, we wrote how criminal laws are used to target certain communities once deemed ‘criminal’ under British colonial-era law. These include denotified tribal communities, Dalits, Adivasis and other minorities. In independent India, law enforcement continues to use its abundant powers of discretion to continue to stigmatise those it deems ‘habitual offenders’.
Some criminal laws and procedures themselves fall foul of the Constitution, but the problem is certainly bigger than what formal adherence to the text of the Constitution can ensure. These problematic aspects are part of an industry, in our experience, of social control based on caste that rests on the systematic marginalisation, stigmatisation and incarceration of certain communities using unchecked state powers.
The police force operates as a cog in the wheel of this criminalisation complex, but they are not its only constituents. Lawyers, the judiciary and certain casteist-political forces are part of this nexus, and their role requires deeper examination.
In the final part of our investigation, we will highlight how the criminalisation of communities by the criminal justice system and the police is structural and plays a crucial role in replicating and reifying the casteist Brahmanical structure of society.
The Problem Of Over-Arresting
In the US, there has been considerable attention to the biases of the criminal justice system against Black lives. Angela Davis, Michelle Alexander and others have consistently written about how mass incarceration is not merely a product of prejudice against black communities, but is itself a system of racialized social control constituting the prison-industrial complex and war on drugs.
Serious malaise grips India’s prison system as well. Given our large undertrial population, most discussion around reforms is restricted to the undeniably important question of bail.
But reform focused on bail alone is unlikely to bring down the undertrial percentage in our prisons because the undertrial population in India is largely a floating one, or as legal scholars Krishnaswamy and Bail pointed out in September 2014, a majority of those in prisons are jailed for less than six months. According to them, the undertrial problem is the result of either a high rate of arrests during the investigation stage or a low rate of conviction thus making a case for “substantive reforms to the investigation and trial process.”
We argue that the problem of over-arresting is a major contributing factor to the undertrial population.
According to 2016 data, India’s arrest rate is 14.6 times its incarceration rate while for the USA, it is much lower at 4.72 (481.3 vs 3,298.5 per 100,000 population), which means that is the number of people the police are arresting for every person they send to the prison. The numbers for arrests under certain special legislation have been given below. Most of the offences under these laws are minor, bailable crimes.
Moreover, as Krishnamurthy and Bail state in the article cited above, “Irrespective of the length of undertrial detention, the core of the undertrial problem may be its disparate social, economic and religious impact.” Prison Records published by the National Crime Records Bureau (NCRB) demonstrate how persons classified as SCs, STs and minorities are overrepresented in the prison population.
While disaggregation of arrest data on the basis of community is not officially available, there is little reason to believe the pattern of overrepresentation will be much varied. In Bhopal, one finds that certain denotified tribes, nomadic tribes and other Adivasi communities -- Pardhi, Kanjar, Kasai, Gonds etc. are at the receiving end of the practice of over-arresting. Another problem, as the table above notes is the pursuance of minor, low-level offences such as gambling, alcohol possession and gambling, which we have already talked about in the first part of this series.
Illegal Detentions and Torture
While the arrest numbers themselves reveal a problem, they are hardly representative of the detention rate. We have found that in a vast majority of cases involving criminalised communities, the police detain accused people at the police station for days without producing them before a magistrate and eventually releasing them after taking bribes or otherwise.
Detention by the police inevitably also means being subjected to torture in police custody, which is the biggest open secret of the police system in India. It is routine for accused people from criminalised communities to be tortured in police custody to leverage the extortion of money from families. The ordeal of being brutalized in police custody is described by Article 22 of the Constitution, which enshrines the rights of the accused on being arrested. During this period of being detained and tortured in police custody, the accused is often denied legal representation as required by the law.
In part 1 of this series, we wrote about Santosh, a Gond Adivasi man, was arrested on charges of theft of temple bells and charged with seven cases in April 2019.
“My husband was picked up by the police station and beaten for almost two days before he was sent to the jail,” said Sarita, Santosh’s wife.
The Story Of Indramal Bai
Targeting by the police ensures that the narrative of criminality of these communities is further entrenched. This narrative of criminality is utilized even in cases where the victim belongs to a denotified tribe. The case of Indramal Bai, a Pardhi woman, who died by suicide due to police harassment is a gruesome example of this.
Indramal Bai was continuously harassed for bribes in exchange for not charging her with theft. On 17 November 2017, she warned the three policemen who had appeared at her house that she would immolate herself if they continued to harass her. The policemen told her to go ahead and even passed her the matchstick themselves and then tried to stop her family from reaching the hospital, found the Asian Human Rights Commission.
Indramal Bai died three days later. Any attempt to register a case of abetting suicide or actively causing her death failed. The police administration carried out an internal inquiry absolving the accused policemen and claimed it was a “drunken” accident. For this, they did not stop at falsifying records, suppressing others and producing her “criminal antecedents” that almost justified her death in a report submitted to the Madhya Pradesh High Court when the family approached the court for an impartial investigation.
The writ petition followed street protests by the community and the Shahari Mazdoor Sangathan, a union of Bhopal waste-pickers during which the police attacked the protestors.
Over two years, while the case was pending, it came to light that of the nine cases that the police relied on to establish Indramal Bai’s so-called criminal antecedents, seven were cases in which she had already been acquitted, only two others remained pending. During the hearing before the High Court, the government counsel put forth the argument that Indramal Bai was a Pardhi woman and that Pardhis are a criminal community.
During the police enquiry, eyewitness accounts of Indramal Bai’s family members and neighbors were discarded and statements of witnesses wholly unrelated to the case were recorded to establish the ‘criminality’ of the Pardhi community. Several of these witnesses identified themselves as members of Vishwa Hindu Parishad (VHP) and Bajrang Dal, and it is common for the state to find such allies.
In the statements given below, each of the members of these groups claim that the Pardhis are trying to falsely implicate the police.
The High Court has now ordered a CBI inquiry after criticising the police’s actions.
The Police-Lawyer Nexus
It is also important to highlight the role of lawyers in aiding the violence unleashed on the communities by the police. Lawyers usually step into the picture at the time of filing for bail. This police-lawyer nexus, as we have observed in Bhopal, is particularly prominent while securing bail.
In Santosh’s case, he was required to submit sureties worth Rs. 2,50,000 for all seven cases that he was charged with. As a daily wage labourer with no assets and immediate family members to stand as surety, he could not have tendered the required surety which would have resulted in him languishing in jail. His case exemplifies the entrapment of the bail system in India that most people from marginalized communities find themselves in.
In an institutional set up that targets marginalized communities, most people find themselves in this situation -- lawyers act as agents by procuring fake sureties for their clients. Which means that the accused person is required to pay a fraction, usually 10 per cent, of the whole surety amount that is split between the lawyer and the surety. Families of the accused often borrow money from local moneylenders at rates of 20 per cent or more interest to post bail, thereby ensuring that they are caught in a cycle of debt. This over-reliance on the option of securing bail only secures temporary relief for the accused, ensuring that they continue to remain embedded within the criminal justice system.
Beyond The Rhetoric Of Police Reforms
In his pioneering 1986 book Police Power and Colonial Rule, Madras, 1859-1947, Historian David Arnold wrote that the colonial Indian police performed the function of controlling, coercing and surveilling Indian subjects. The case of Criminal Tribes Act shows us that the worst of oppressions were reserved for certain communities. According to Historian Rajnarayan Chandavarkar in his 1998 book Imperial Power and Popular Politics: Class, Resistance and the State in India 1850–1950, the police concentrated its resources on particular visible targets because this created an ‘appearance’ of public peace.
This tells us that not much has changed in terms of everyday policing functions. The police have always been at the root of a system for managing and producing inequality. Therefore, we argue, incremental reforms are unlikely to overturn centuries of deep-rooted attitudes. If policing exercised at the behest of the ruling class, the Brahmanical underpinnings of policing today does not come as a surprise. This has been amply evidenced in our series, whether through substantive laws and procedures themselves, selective policing of certain communities, words of law enforcement officials, lawyers, judges, official records submitted before courts as well as the embeddedness of casteist-political forces in the criminal law process.
Any conversation on police reform, must not only be towards developing a system of checks and balances and to reduce the scope of their power but also to bring down the criminalisation complex by striking at its colonial and casteist roots. Our conception of reform is often parochial and rests primarily on ways to “humanize” the police through measures such as community policing. This has allowed casteist-political forces such as the VHP and Bajrang Dal to now formally infiltrate the system.
We also need to introspect on our reliance on criminal laws as an intuitive response to dealing with any crises. We have argued elsewhere on the pitfalls of relying on this approach, particularly in times of a pandemic such as the one we are facing. It would also be helpful to invest in restorative justice practices. These systems would also allow us to reduce our dependability on systems of retributive justice that the criminal justice system is rooted in. If criminal law is targeted towards the marginalised, the retreat of criminal law will mainly benefit the marginalised.
Previously on Article 14:
(Ameya Bokil and Nikita Sonavane are lawyers and co-founders of the Criminal Justice and Police Accountability Project, a research -litigation intervention in Bhopal. This article is derived from their experience of working on the issue of criminalisation of certain communities by the criminal justice system. Issues covered in this article are also the subject matter of the curation for the Detention Solidarity Network (DetSolNet) on Twitter.)