Naveed Mehmood Ahmad is currently working as a Research Fellow at Vidhi Centre for Legal Policy. He works in the area of criminal justice reform and has previously worked on the issue of criminalization of drug use in India.
Human behaviour is governed by socially constructed norms that create acceptable paths of conduct. Any nonconformity with this is termed, by the mainstream, as ‘deviant behaviour’. When a conduct challenges societal sensibilities, recourse is often taken to laws for a more formal and sustained sanction. Criminal laws reflect this socially constructed idea of ‘deviant behaviour’ and categorize conduct that attract society’s condemnation as ‘crimes’. Since there is an underlying social and political current that drives criminal law, the legal construction of crime changes with the societal construction of deviance. This willingness of the State to co-opt social condemnation risks criminalising trivial acts or conduct that may offend sensibilities of the majority or dominant communities.
Conceptualising ‘crime’ and stricter penalties to satiate demands of the society often leads to a crisis of over-criminalisation and over-penalisation. It also institutionalises societal divisions and leads to marginalisation. For years, millions of people across the world have been criminalised for the mere expression of their sexual orientation or for consumption of prohibited drugs. Most legal systems today continue to respond to dominant value systems either by retaining or by removing criminal sanctions against drug use and homosexuality. Similarly, differing value systems continue to reflect in the criminal laws that seek to regulate, faith, personal relationships, eating habits etc.
Since, societal sensibilities govern conceptualisation of crime, their effect can also be seen in enforcement of criminal law. Inherent prejudices tend to categorise only certain kinds of deviant behaviour and even communities as criminal. This is evident from enforcement of criminal laws across the world, where racial/religious minorities are disproportionately affected by law enforcement.
Mirroring trends across the globe, the Indian prison statistics show that the percentage of scheduled caste and scheduled tribe prisoners in Indian jails is substantially higher, when compared to their proportion in the population. Research also suggests that Muslims are likely to be overrepresented in prisons as pre-trial and undertrial detainees and therefore tend to be over-incarcerated. As analysed here, 22 states in India have a higher proportion of Muslim prisoners than the Muslim population in the state. In a more recent trend, the politics of criminalisation has changed its character. It has now been used as an effective tool to further a goal of political, social and economic marginalisation.
Although preventive detention laws have for long been used to subvert judicial processes and fair trial, over the past few years it seems these laws have been exceedingly used to against Muslims. Forming only 14% of India’s population, Muslims form 16.6% of the convicts, 18.7% of the undertrial prisoners and 35.8% of the detainees in Indian prisons. The percentage of Muslims detainees has grown exponentially in Uttar Pradesh where it has gone from 33% in 2017 and 58% in 2018 to 83.9% in 2019. In addition to preventive detention, laws against cow slaughter, religious conversion and triple talaq – a form of instant divorce practiced by some Muslims, are pushing more Muslims into the criminal justice system.
Rooted in Brahmanical tradition, laws against slaughter of bovine animals criminalise millions of beef eating Hindus, Muslims, Christians etc. and marginalise farmers and cattle traders who now find it rather perilous to keep cows. Although the more vociferous opposition to these laws has come from Dalit groups trying to resist this attempt at maintaining caste hegemony, the manner in which the laws have been used in the recent years reflects a rather concerted political action. Over the past few years, due to an overwhelmingly communal rhetoric, dozens of people – mostly Muslims, have been lynched by mobs for transporting cows and for allegedly eating, storing or carrying beef. It has been reported that 98% of such violent incidents, since 2010, have taken place after the current dispensation came into power in 2014. Instead of attempting to put an end to this vigilante violence, the State has chosen to reinforce the beef ban through laws; institutionalise cow protection groups; register cases against victims and shield perpetrators. As the debate on cow protection reignites, a more recent push for enacting an anti-cow slaughter law in Karnataka has been termed to be state sanctioned violence against Muslims and Dalits under the cover of law.
Criminalisation of Muslims was taken a step ahead when the government enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019. Although the Act is in accordance with the constitutional bench decision of the Supreme Court and declares ‘triple talaq’ to be void, having no effect on the marriage, it goes on to criminalise the act of pronouncing ‘talaq’ thrice, attracting an imprisonment of three years. While the government justified the enactment by stating that it will bring justice to Muslim women, it has been termed as an attempt to criminalise Muslim men rather than an attempt to emancipate Muslim women.
Male chauvinism and Islamophobia resurfaced as legal paternalism when anti-conversion laws began to be reshaped to have a chilling effect on inter-religious marriages. Although the recently passed Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 has been criticised for criminalising the right to choice, it is even more problematic for it has roots in the idea of preserving caste through endogamy. Building on claims that Hindu women are being converted to Islam under the garb of marriage, the new anti-conversion laws, while being blatantly sexist are aimed at vilifying Muslim men and to create more avenues for pushing them into the criminal justice system. With dozens of people already arrested under the law, it has proved to be a shot in the arm for communal forces operating on ground.
The concerns discussed above are a mere reflection of the unprecedented change occurring in India’s social and political life. While this may continue for the foreseeable future, there is an emergent need to revisit the debates on the extent of criminal law. The fact that criminal law can be so easily guided to achieve political ends, is reflective of the fact that its superstructure is not based on solid principles, immune from divisive political agendas. Although the ‘harm principles’ have been central to the discussion on the extent of criminal law, they have never really been universally followed, perhaps because legal systems haven’t conceptualised a force behind them. While stating that shifting and subjective notions of right and wrong cannot be a valid justification for restriction of fundamental rights, the Naz Foundation judgement envisioned constitutional morality as guiding framework for criminal laws and not popular morality. If the tendency of criminal law to co-opt social and political goals is to be checked and its marginalising tendency eradicated, the policy of criminalisation must be guided by constitutional principles.
Naveed Mehmood Ahmad works as a Research Fellow with the Criminal Justice team at Vidhi Centre for Legal Policy, New Delhi.
Photographs courtesy of author