Political & Social Control Through Criminal Laws: politics of criminalisation in India

The marginalising tendency of criminal law has been effectively used to further a goal of political, social and economic marginalisation.

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.

Contact

Naveed Mehmood Ahmad works as a Research Fellow with the Criminal Justice team at Vidhi Centre for Legal Policy, New Delhi.

Email: ahmadnaveed183@gmail.com

Photographs courtesy of author 

Silencing the Streets: From Covid Exceptions to Police Crackdowns

Roxana Pessoa Cavalcanti, Deanna Dadusc, Raph Schlembach and Lambros Fatsis

Previously published by the Centre for Spatial, Environmental and Cultural Politics, University of Brighton

As news of the kidnapping and murder of Sarah Everard by a Metropolitan Police Officer became a headline story, a vigil held in her memory was violently suppressed by the very same police force on Clapham Common in London. Both incidents should shock us, but they should occasion no surprise. The world may have suddenly woken up to the reality of violence against women — as it belatedly grappled with police racism after last summer’s #BLM protests — but institutionalised misogyny and police violence are nothing new.

Rather than representing an exception, these events confirmed once more that police violence is not the result of “bad apples” of “isolated accidents”. Migrant women, Black women, women of colour and those who are non-normatively gendered are subject to  racist policing and patriarchal violence every day. For decades, they have been saying that the police are not the answer to gendered and racist violence, but part of the problem. The strength of this political moment — however delayed — is that many (carceral) feminist groups who still addressed the police as a solution to gendered violence and who called for more security, more police and more prisons can now learn from the demands and struggles of social movements and community groups that call for the abolition of the police and the criminal legal system as a whole.

These new alliances, coalitions and the protests they inspire are powerful, but they are already targeted and pursued as “dangerous” and “threatening” by the state and its law enforcement institutions through the introduction of the UK government’s Policing, Crime, Sentencing and Courts Bill. Rightly nicknamed the “crackdown bill” by those who oppose it, this 296-page document parades its anti-protest stance with pride — raising concerns over its illiberal, undemocratic and discriminatory nature from leading human rights organisations, charities, campaigners and more than 700 legal scholars who (rightly) fear that that aspects of the current emergency powers included in the Coronavirus Act are here to stay. Introduced as a piece of legislation that gives new protections and powers to the police, this new Bill allows senior police officers and the Home Secretary to restrict protest activity in unprecedented ways, while also criminalising the living circumstances of Gypsy, Roma and Traveller communities.

When Protesting Became a Crime

Under the Policing, Crime, Sentencing and Courts Bill, the police can now impose conditions on static assemblies, including timings and approved noise levels, even when the protest is held by just a single person. It will now become a crime to fail to follow police restrictions that protesters “ought” to have known and it will become an offence to intentionally or recklessly cause public nuisance as part of a protest, however vague or ill-defined this phrase is. Such authoritarian crackdowns on the right to protest are hardly unexpected and entirely consistent with the government’s “law and order” agenda, whose enmity towards protest has been expressed in public statements that described the most recent wave of the Black Lives Matter protests as ‘dreadful’ and labelled Extinction Rebellion activists as ‘criminals’ who ‘disrupt our free society’. Such inflammatory remarks could be ignored as mere reactionary ramblings, yet they threaten to become law. A recent HM Inspectorate of Constabulary, Fire & Rescue Services (HMICFRS) report, which accompanies and complements the Policing, Crime, Sentencing and Courts Bill, describes ‘activity that seeks to bring about political or social change but does so in a way that involves unlawful behaviour or criminality’ as ‘aggravated activism’. Adopting a Counter Terrorism Policing definition of activism as a form of domestic extremism, such language signals an era of renewed expansion of surveillance on political and social movements.

The criminalisation of dissent that such new legislation further enables is an assault on everyone’s protest rights. The violent suppression of last weekend’s vigils, however, reminds us that men and women are policed differently, as a national study on anti-fracking protests revealed. Scenes of police officers barging into a crowd of mourners, throwing women to the ground and making arrests — as eyewitnesses report — are of a piece with groping and the pulling of clothing to reveal women’s breasts by police officers. A public inquiry is currently investigating the extent to which secretive undercover policing units permitted police officers to deceive female activists into long-term, intimate relationships. Those women who have found that they had been targeted for such operations after their partners’ sudden departures from their lives have long accused the police of institutional sexism and are seeking redress. The practice of having sexual relationships with women in protest groups was apparently so common that some of the victims have spoken of officers conspiring to rape.

As a group of Criminologists at the University of Brighton, we are deeply concerned and angered by tactics used to clamp down on the women-led vigil in Victoria Gardens by the local police force. Neither the statement from Sussex Police, nor the silence from Sussex Police and Crime Commissioner Katy Bourne fill us with confidence that lessons will be learned, or decision-makers will be held accountable. It comes as no surprise to us that further protests have been held outside Brighton police station. Many messages and notes left at the temporary memorial to Sarah Everard in Brighton reveal the deep-seated distrust of policing solutions to male violence. “Police don’t protect”, reads one. “You can’t trust the police anymore”, says another. And “more police powers is never the answer”. As many claimed: “We do not want your protection – just stop killing us”.

Policing Protests and the Politics of Disposability

Making sense of these events, urges us to set up before us a broader canvas for a better understanding of policing and violence against women than conventional portraits of the matter allow. It is worth remembering that the protest vigils were met with police violence because they were against police violence. Such attempts to control, limit, silence and dilute dissenting voices is part of a long process of serving, protecting, maintaining and enforcing an unequal social order that is marked by hierarchies of gender, class, sexuality and “race”. What the policing against last weekend’s vigil and the introduction of the crackdown Bill as an extension of police powers and emergency government reveal, is an attempt to dismantle political opposition and social movements. This political logic exposes the State’s hostile relationship to those who are racialised, gendered and classed as subordinate by ensuring that they feel the full force of the law. Such politics of disposability, or what Achille Mbembe calls ‘necropolitics’ encourage us to understand policing, state violence and gender-based violence as interrelated. Defining ‘who matters and who does not, who is disposable and who is not’, as Mbembe notes, reminds us that the social order we are educated and socialised into is racial, as it is gendered and classed. To maintain such an order, an order maintenance institution is required, and the police are happy to oblige. This helps explain why those who are policed and treated with violence; physical, psychological or structural are Black people, those who are non-normatively gendered and those who are classed as a precarious and disposable workforce.

As we grapple with the implications of the current moment and the intersectional thinking that it requires of us, it is imperative to recognise, as the Combahee River Collective Statement compels us to do four decades after its publication, that ‘the liberation of all oppressed peoples necessitates the destruction of the political-economic systems of capitalism and imperialism as well as patriarchy’. Rethinking our current political moment, therefore, requires us to think about capitalism, imperialism and patriarchy as political economic and cultural systems of oppression that share a common language, ethic and purpose. The policing of protests against police violence therefore illustrates what policing is, what it does, who does it do it to, and who does it do it for; urging us to understand policing as an order maintenance institution that serves and protects a social order that is racialised as “white”, gendered as male or divided into heteronormative binaries and classed according to economic status. If we are to understand policing, we also ought to understand state violence. And to understand state violence, we need to understand that state formation itself is violent, depending as it does on an extractive and repressive logic that is imposed and therefore coercive by its very nature. And this extractive and repressive logic is disproportionately exercised on those who are racialised, gendered and classed as subordinate. As the State proceeds by arming itself with extra powers, empowering ourselves with the knowledge that “toxic masculinity kills” and that “police don’t keep us safe” is the first step towards making our demands heard and remaking the world we want to live in by mobilising our energies to create the conditions for the abolition of interlocking systems of oppression.

Originally published by the Centre for Spatial, Environmental and Cultural Politics, University of Brighton

Covid and the Penal System

This review reveals some of the ‘behind the scenes’ issues dealt with by the English courts during the Covid-19 pandemic period.

Susanna Menis is a Lecturer in Law at Birkbeck London University, School of Law. She was a member of the Independent Monitoring Boards of Prisons for many years.

News concerning sentencing in the UK during the pandemic period are mixed in tone and expectation. Typical to the media’s lack of restraint in informing the public, we can read headlines such as ‘Criminals handed coronavirus discounts as sentences shortened because of harsh new prison conditions’; and ‘Paedophiles, thugs and drugs dealers have sentences cut because coronavirus makes prisons too harsh’. Other concerns have also been reported, for example that ‘prisoners locked up for 23 hours a day due to Covid rules is dangerous’. The aim of this blog entry is to reveal some of the ‘behind the scenes’ issues dealt with by the English courts during this pandemic period. Some of the prison related concerns that the judiciary came across have been sentencing, prison conditions, release on licence, extradition and early discharge. The following will review the extent to which Covid-19 has affected some of these circumstances.

One of the first stories released by the media at the end of March 2020 was the governmental instruction for early discharge from prison. The conditions for such a release were that the prisoner was of low risk and within two months of their original release date. In the first application for early release that we have a record (6 April 2020), the Queen’s Bench Division made an interesting observation (Chelsea Football Club Ltd 2020). The Court was concerned as to whether the early release scheme might undermine the rule of law. The answer was ‘yes’ in principle, but ‘no’ in practice. It was considered that the scheme was part of a bigger picture of protecting public interests by reducing the burden on the NHS in case of a Covid-19 outbreak in prison. In hindsight, most prisons were able to limit the spread of the Covid-19 first wave, and this was the reason why the scheme was very quickly shelved.

The court also touched on a concern which came up in several forthcoming cases, that is, the balance between more restricted prison conditions and the proportionality of the sentence. It was this that has mainly caught media attention: imposing the lowest threshold of a sentence on individuals which in normal circumstances might not have escaped imprisonment or longer sentences so easily. The restricted prison regimes used to control the spread of the virus meant that prisoners were confined in their cells for longer hours and family visits were not permitted; although similar or worse circumstances were faced by the public, the courts took the pandemic as a factor in determining the suitability of a prison sentence (Manning 2020) – would imprisonment during this period inevitably restrict even more the level of privation of the individual? And should this be taken into consideration?

The courts believed that they should (Manning 2020; Smith 2020; Ranshawa 2020; Khan 2020; Davey 2020); although not without challenge by the Solicitor General (Manning 2020; Gaves 2020; Mohamed 2020; Bastri 2020). Indeed, despite decades of overcrowding, questionable conditions, and doubtful rehabilitative impact on low risk offenders, it is only with the pandemic – ironically, given the safer environment during the first Covid-19 wave – that the courts felt it acceptable to waive a prison sentence and replace it with, for example, a suspended sentence accompanied by any of the range of rehabilitation, prevention and curfew orders. Another eyebrow-raising observation made by the Courts was the rational used to justify a suspended sentence on an offender who ‘posed a high risk to a “known child”’ (Manning 2020); that is, that the curfew imposed was further enhanced by the lockdown forced by the government. Of course, having experienced several lockdowns since, it is clear that the inhibition of this person’s movement would have been but little affected by the lockdown.        

It seems that the courts have started to back down from this reasoning, perhaps because the state of emergency had become the norm by November 2020. However, before this shift took place in England, the Appeal Court in Scotland made its stance clear earlier in June 2020 (HM Advocate, 2020). Accordingly, in the context of the pandemic, coughing in jest justified a longer prison sentence. This court response to the approach taken in England was first, that opting for a suspended sentence instead, and ‘take account of the emergency as a reason for discounting – would only serve to discriminate against those who might have been given a short term sentence before lockdown’. Second, the court thought that by now, prisons had found ways to mitigate the conditions dictated by the pandemic. For example, they were told that Inverness prison was about to implement a ‘virtual’ family visits scheme. It is difficult to tell whether this case had any effect on the English courts as it was only cited once and not in relation to the pointers mentioned above. Nevertheless, since November 2020, the English courts have showed greater reluctance in allowing the initially applied lax approach to sentencing (Strong 2020; Gaves 2020; Mohamed 2020). 

Although apparently less newsworthy but perhaps most significant, the last two questions faced by the courts during this period concerned extradition and immigration bail. The travel restrictions meant that several extraditions had to be postponed. The issue at hand was not so much the longer detention period that followed, but rather what was considered to be an unlawful detention – habeas corpus. The courts clarified that there was no case to answer. The original detention was set by a judge following lawful legal procedures; this was the case also for the order authorising the postponement of the extradition term (Cosar 2020; Verde 2020). Referring to an EU decision on that matter, it was explained by the court that postponing these extraditions was justified on a serious humanitarian reason and that this was a situation beyond states’ control (EU Council Decision 2002/584/JHA Article 23).

Different has been the case for immigration bail. Individuals granted bail from immigration detention to an approved premise had their rights mostly compromised during this period. The lockdowns and social distancing experienced meant that approved premises have struggled to meet the increasing demands– particularly detrimental in cases of immigration. Here, the Home Secretary for the Home Department was delaying removals due to lack of suitable accommodation, leaving people in detention for longer than justifiable. Applications for interim relief to urge action, were framed around the violation of the Hardial Singh principles concerning lawful detention in the context of immigration. The Courts recognised the impact of COVID-19 on these situations stating that it ‘made an already difficult task virtually impossible’ (Mahboubian, 2020); however, it was also stated that the need to avoid false imprisonment was not mitigated by the pandemic (Merca 2020; Ko 2020; CN 2020; Diriye 2020; Tutaj 2020; Mahboubian 2020).

Almost reaching a full year of life under pandemic conditions, initial media focus on punishment and justice is dwindling. Unsurprisingly, attention is now shifted towards crimes committed in the context of Covid-19. Still, in the background, the criminal justice system is facing a real struggle in balancing public interests against individual liberties.

Case reference

Chelsea Football Club Ltd v Nichols [2020] EWHC 827 (QB)

R. v Manning (Christopher) [2020] EWCA Crim 592

R. v Peter James Smith [2020] EWCA Crim 1014

R. v Randhawa [2020] EWCA Crim 1071

 R. v Khan [2020] EWCA Crim 1617

R. v Davey  [2020] EWCA Crim 1448 

R. v Gaves [2020] EWCA Crim 1728

R. v Mohamed [2020] WCA Crim 1745

R. v Basri [2020] EWCA Crim 1218

HM Advocate v Lindsay (Iain) [2020] HCJAC 26

R. v Strong [2020] EWCA Crim 1712

Cosar v Governor of HMP Wandsworth [2020] EWHC 1142

Verde v Governor of Wandsworth Prison [2020] EWHC 1219

R. (on the application of Mahboubian) v Secretary of State for the Home Department [2020] EWHC 3289 

R. (on the application of Merca) v Secretary of State for the Home Department [2020] EWHC 1479

R. (on the application of Ko) v Secretary of State for the Home Department [2020] EWHC 2678

R. (on the application of CN) v Secretary of State for the Home Department [2020] 10 WLUK 85

R. (on the application of Diriye) v Secretary of State for the Home Department [2020] EWHC 3033

R. (on the application of Tutaj) v Secretary of State for the Home Department [2020] EWHC 3579

R. (on the application of Mahboubian) v Secretary of State for the Home Department [2020] EWHC 3289

Susanna Menis, School of Law, Birkbeck, University of London, Malet Street, London WC1E 7HX

Email: s.menis@bbk.ac.uk

Images: Courtesy of author