A lot has been said about police brutality in India, the criminal justice system, and preventive detention. However, one issue which warrants notice and more coverage is the plight of under-trial prisoners, and the social composition of these prisoners.
Under-Trials And The Indian Justice System
Among the total number of prisoners in India, around 70% are currently under-trial, ie still in court, according to the National Crime Record Bureau’s ‘Prison Statistics India 2019’. Only 14 countries in the world have a higher number of under-trial prisoners.
Out of the many languishing in prison while under-trial, a majority are from minority communities. Around 64% are Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBC). Another 21.5% of undertrial prisoners are Muslim. This means that more than 85% of those in jail who have not been adequately represented and protected by the justice system are oppressed minorities.
The very recent case of Munawar Faruqui is one among many examples of bias and hatred fueled attacks on minorities by the state machinery.
These statistics bring out two important aspects that seemingly govern the way justice operates in India, regardless of who is in power at the Centre. These aspects are the concept of social control and privilege.
The Role Of Privilege
Privilege (i.e a lack thereof) here is also further divided into two aspects. The first being that many from marginalised communities are not able to afford the high costs of litigation, post bail and have to settle for an already over-burdened and lower quality of legal aid. The second aspect of privilege playing a role in who is languishing in India’s jails comes from the discriminatory nature of the justice system and state machinery itself.
Over-policing, inherent caste-discrimination, religious discrimination, and so on are some of the reasons why these communities face the brunt of state machinery. The ruling majority, in both a political and social sense, that is the BJP and the Upper-Caste Hindu, often, do not even face the justice system.
Whether one takes into account the current Munawar Faruqui case in Indore, where the comedian who was attacked on the suspicion that he might make an ‘anti-Hindu’ joke in the future is in jail, while his attackers, associated with the BJP are scot-free.
Historically, there can be many examples that can be examined to show how privilege plays a role in who is arrested. Most Ranvir Sena, an upper-caste militia active in Bihar in the 1990s known for several massacres like Laxmanpur Bathe, are still active even after a ban in 1995, and most leaders are out on bail or not arrested. The BJP Murli Manohar Joshi and former PM Chandra Shekhar have even been complicit in their massacre of Dalits in Bihar.
Social Control And The Hindu Rashtra
Social control is a sociological concept, defined simply as control of the society over individuals. In a positive simplified sense, it is the mechanisms that make sure society functions and punishes, either formally through legal penalties or informally through shame, ridicule, etc those who are seen to be deviants from social norms.
In the context of India, I use the word social control, when I talk about the incarceration of minorities, to shed light on the ugly mutation Indian society has been going through for quite some time. A society that is dominated by the will of the Upper-caste Hindu male, ie the ‘Hindu Rashtra (Hindu nation)’ that the BJP is trying to sell.
Within a society like this, any minority who does not tamely accept subjugation could be seen as a deviant and is punished both legally and informally. Legally, by what has been discussed above, and informally, through the atrocities perpetrated on Dalits, Bahujan, Muslims, and women by the UC Hindu.
To conclude, this incarceration of minorities at an excessive scale has always existed in India, as caste and majoritarian privilege have always existed in India. It has, however, never been as explicit as it is during the BJP regime; when anyone who protests or demands their rights as a minority is punished through the state machinery, through lengthy under-trial periods, preventive detention, or continued harassment from the police.’