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 

Reforming the Mental Health Act? A Criminal Justice Perspective

A discussion of the White Paper Reforming the Mental Health Act and what the proposed reforms mean for the criminal justice system.

Megan Georgiou is a postgraduate researcher at the University of Surrey. Her doctoral research explores mental illness in prisons and the ways in which health and justice services are shaped and organised to meet the needs of people in prison with a mental illness. Robert Meadows is a professor in the Department of Sociology, University of Surrey. His research is currently focused on artificial intelligence and mental health and public health responses to sleep.

Published in December 2018, the Independent Review of the Mental Health Act 1983 set out recommendations for government on how the Act required change in both law and practice. The recommendations centred around the notions of modernising mental health services and empowering individuals to have more say in their own care and treatment. It recognised that the way we understand and treat mental health has developed significantly in recent decades, as have public attitudes, however the law has largely remained grounded in a system established in 1959.

The White Paper Reforming the Mental Health Act, published in January 2021, has proposed a range of changes to address the review’s recommendations:

The reforms centre around:

  • Giving patients more control over their care and treatment and promoting dignity and independence.
  • Ensuring the needs of people with learning disabilities and autistic people are better met.
  • Addressing the disproportionate number of people from black, Asian and minority ethnic backgrounds detained under the Act.
  • Ensuring people with a serious mental illness who come into contact with the criminal justice system benefit from the proposed reforms.

It is this last group that we are interested in here, and specifically those in prison. The prevalence of mental health issues in prisons is significant, with an estimated 90 per cent of people aged over 16 years experiencing a mental illness, addiction or personality disorder. Incidents of self-harm and suicide reached record highs in recent years, with the most recent figures reporting 70 self-inflicted deaths in the year to September 2020 and 61,153 self-harm incidents in the 12 months to June 2020. The suicide rate in prisons is around ten times higher than in the general population. The rising number of prison suicides is attributed to cuts in staffing and budgets, too much time in cells, a punitive regime and overcrowding, as well as increased levels of violence and deterioration in safety, and restricted access to rehabilitative activities. Reform is therefore needed. However, is this the reform proposed by the White Paper?

With respect to those in contact with the criminal justice system, the White Paper puts forward the following changes:

  • Continuing efforts to support rapid diversion to mental health care and treatment from court or custody as appropriate.
  • Revising the statutory time limit on transferring people in prison who require treatment in a mental health hospital to ensure they are moved within an appropriate timeframe (28 days).
  • Introducing an independent role to manage transfer processes.
  • Extending the statutory right to an Independent Mental Health Advocate (IMHA) to patients awaiting transfer from a prison or an immigration detention centre.
  • Working to eliminate prisons as a place of safety so that people can be transferred directly from court to a healthcare facility, where they can receive a mental health assessment and treatment under the relevant section of the Act.

These do appear to be useful, necessary and welcome changes. However, it is not clear how they will be achieved. At the very least, if these objectives are to be met the consultation needs to reconsider some of the questions it is asking.

Of most import, it needs to ask, ‘how can improvements be made to the infrastructure to ensure the statutory time limit is managed effectively and patients’ needs are met?’ For instance, in relation to people who require transfer from prison to a mental health inpatient service, existing DHSC Good Practice guidance states that the transfer should take place within 14 days after the first assessment has taken place. Figures from 2016-17 indicate that only 34 per cent of people were transferred in time and 7 per cent of people waited for more than 140 days. The change to 28 days, extending rather than the claimed ‘speeding up’ of the process, does not address the root causes of the initial failures to meet the targets and what needs to be put in place to rectify them. As recognised in a 2008 report, bed occupancy levels and barriers/facilitators to timely progression throughout the secure mental health system must be addressed for the system to function as intended. It also emphasises the need for effective multi-agency working and transfer coordinators to ensure the smooth running of the process.

Further to this, many of the more complex proposals lack detail and clarity as to when they might come into play. Throughout the document there are remarks of “…we will not commence this provision until X is properly embedded” or “…we are not planning to legislate immediately due to X”. It also states that the reforms are subject to affordability and will be subject to future funding decisions, including the Spending Review 2021. Given these uncertainties, perhaps a useful question for the White Paper to ask is ‘how can we convince that we are committed to making meaningful change to mental health legislation, especially within the criminal justice system?”

Ultimately, the proposed reforms are welcome, but it remains unclear whether they can go far enough in addressing the various and multifaceted issues that exist within the criminal justice system in relation to mental health. Significant reform is required to provide people in prison with a package of care that is suitable to their needs and follows them throughout their pathway. Until then, equivalence of outcomes for people receiving healthcare in prison with those in the community will not be achieved.

Megan Georgiou, University of Surrey
Email: m.georgiou@surrey.ac.uk
Twitter: @meggeorgiou

Robert Meadows, University of Surrey
Email: R.Meadows@surrey.ac.uk
Twitter: @RobertMeadows16

Images: Courtesy of authors

In Search of Respect

Gabrielle Watson’s first book, Respect and Criminal Justice, has been published by Oxford University Press.

Gabrielle Watson is the Shaw Foundation Fellow in Law at Lincoln College, Oxford. She was formerly a Leverhulme Early Career Fellow in the Faculty of Law and Postdoctoral Research Fellow in Law at Christ Church, Oxford. She works on topics at the intersection of criminal law, criminal justice, and jurisprudence.

My first book, Respect and Criminal Justice, was published in 2020 by Oxford University Press. It is the newest addition to the Clarendon Studies in Criminology series: the successor to the Cambridge Studies in Criminology series, inaugurated by Sir Leon Radzinowicz—the ‘founding father’ of British criminology—and JWC Turner 80 years ago.

The book offers the first academic study of ‘respect’ in criminal justice in England and Wales, where the value is elusive but of persisting significance. Its publication is especially timely in this political moment, as we reflect on the stark, seemingly intractable problems of police misconduct and deep structural racism, as well as the ongoing threat of COVID-19 and viral contagion in our prisons. Part of the push for criminal justice reform must involve the simple act of listening, followed by the search for robust theoretical ideas with which to frame the debate. In this piece, I reflect on the role and value of respect in prisons.

Owing to some sustained—but ultimately unsuccessful—reform efforts in recent decades, prisons regularly appeal to the word ‘respect’, proclaiming it as a core value in official discourse. Yet, on closer examination, the modern prison’s relationship to respect is not as clear-cut as institutional documentation would have us believe. 

In prisons, respect is a mere slogan. The real value and potential of respect as a critical and regulative ideal has been diminished by the tendency to treat it as peripheral to practical concerns such as target setting, the maintenance of order, and deterrence.

What is respect?

The book begins by attending to the deceptively simple question: what is respect? It turns first to philosophy with its rich Kantian literature on the issue, and its core claim that every human being has a claim to respect no matter what: respect need not be negotiated and cannot be forfeited. But contemporary philosophical accounts complicate matters by identifying respect in a number of ways: as a mode of behaviour, a form of treatment, a kind of valuing, a type of attention, a motive, an attitude, a feeling, a tribute, a principle, a duty, an entitlement, and a moral virtue.

If philosophers cannot agree, it should come as no surprise that prisons in England and Wales—notoriously pragmatic in their approach—have glossed over the meaning of respect. Yet empty appeals to respect distort as much as they communicate. When there is a lack of specificity in understanding and giving effect to respect, it does much to magnify the status inequalities that have come to define imprisonment. It also shows scant regard for the fact that respect—or lack thereof—tends to be felt more keenly by ethnic minority groups and those whose sense of belonging and social possibility in society are precarious.

As part of a reform agenda for the 2020s, prisons must be explicit in their definition of respect if they are to proceed according to—let alone realise—the value. My book offers some suggestions: among them, the idea that respect is both an act and an attitude, that it is ideally reciprocal, that it occurs at both the individual and the institutional level, and is the primary means by which to acknowledge an individual’s intrinsic worth.

Unsavoury punishment

To write a book on respect is an ambitious task, and I spend a good deal of time boundary-drawing in order to render it manageable. Perhaps the most striking illustration of respect—or lack thereof—in the book is to be found in a case study of prison mealtime from the eighteenth century to the present day.

The ritualised preparation and provision of prison food is imbued with considerable symbolic power, and its pivotal role in shaping the daily prison experience has been considerably understated. The dominant narrative in historical accounts of prison mealtime is that, pre-twentieth century, food was intended to punish, debilitate, and degrade. The eighteenth century may have epitomised the most indecent of prison conditions, where a restricted diet was an explicit feature of punishment. Part of the reformative work of John Howard was to offer an incisive critique of the practice of charging prisoners for meals, proposing instead that they be provided with a daily allowance of food. Nonetheless, his vision for respect was strictly minimalist:

‘I am not an advocate for an extravagant and profuse allowance to prisoners. I plead only for necessaries, in such a moderate quantity, as may support health and strength for labour.’

John Howard, The State of the Prisons in England and Wales, with Preliminary Observations, and an Account of Some Foreign Prisons (1777: 33).

By the beginning of the nineteenth century, the experience of imprisonment remained unimpeachably severe. Prison meals had seen no real improvement and consisted chiefly of bread and thin gruel or broths. There was cause for cautious optimism, however, following the introduction of prison inspections in 1835. Prison diet became a national scandal and inspectors made an explicit call for food to no longer act as an instrument of punishment. Advances were made in the quantity—if not the quality—of prison food but an instrumentalist line of thought endured, in part, due to widespread public support for a retributive approach and the prevailing conservative ideology of the period.

By the mid-nineteenth century, prison food had once again been called into question, with leading physicians of the time recommending a substantial reduction in portion sizes on the grounds that the food provided was excessive and insufficiently penal. To provide food sufficient to ensure good health would be to provide conditions of relative comfort, and the extremely poor with a positive incentive to commit crime.

Integral to more progressive developments was the commissioning of a Departmental Committee on Diets and the publication of its report in 1925 (289-292). Following the Committee’s investigation into prison food, the motivation to provide a nutritious diet to inmates was firmly established. The following year, the Committee made further calls for a more balanced and varied diet which included the provision of regular vegetables, the replacement of prison ‘cans’ with aluminium trays and utensils, and opportunities for prisoners to dine in association in the hope that it might cultivate in them a sense of self-respect. These reforms were indicative of a newly configured relationship between the state and its subjects, and a sustained attempt to afford prison mealtime a visibility and form that brought it into line with a society that considered itself to be civilised.

In the decades that followed, prison mealtime was visibly transformed. Prisoners were given increased involvement in menu design, and meals were gradually made available to those with religious, ethnic, cultural, and medical requirements. However, there is compelling evidence to suggest that, in prisons in England and Wales, food—if only implicitly—continues to form part of a penal strategy. Subtle institutional attempts at degradation through food persist, and daily meals serve as painful and periodic bodily expressions of the power that the institution exerts over the individual.

The National Audit Office, for example, noted concerns among prisoners that standards for the storage and preparation of ethnic and cultural food were not met consistently. It seems that prisoners’ lack of trust in this regard was not unfounded. The National Audit Office confirmed several cases in which prisoners had signed up in good faith to receive ethnic meals, which were later found to have been unethically prepared. Four out of sixteen prisons did not store halal meat separately from other meat and, in eleven prisons, kitchen equipment intended for those with Muslim diets was not labelled separately: by no means a peripheral problem in view of the expanding Muslim community in detention in England and Wales.

Such incidents make clear that, in practice, respect is not always reciprocal, whereby prisoners do not—even cannot—respect those responsible for preparing their food. When prisoners are denied ethically prepared ethnic meals, they are likely to become too distracted by the conditions of their confinement to respond respectfully to prison authorities who so unethically denied them respect.

The elusive promise

On 11 July 2018, HM Inspectorate of Prisons for England and Wales published its Annual Report, in which it documented two unannounced inspections that caused deep concern. HMP Wormwood Scrubs suffered from ‘appalling’ (p13) living conditions, violence, an almost complete lack of rehabilitative or resettlement activity, and seemingly intractable problems over repeated inspections. At ‘squalid’ (p5) and fundamentally unsafe HMP Liverpool, inspectors found some of the worst conditions they had ever seen. An impoverished regime, many cells lacked even the basic requirements for health and hygiene and the leadership and management focus on respect was ‘inadequate at every level’ (p15). It appears, then, that respect remains somewhat of an elusive promise.

Although respect is a precious commodity, in our prisons, it need not be utopian. It simply requires a degree of mutual understanding when it is owed to, called for, deserved, elicited, or claimed by another. With a sense of modest realism, the book sets out those challenges in detail—and envisages the advances that could be made—in inscribing respectful relations between state and subject.

Respect and Criminal Justice (2020). Oxford and New York: Oxford University Press. 256 pp.

 

Contact

Dr Gabrielle Watson, Shaw Foundation Fellow in Law, Lincoln College, Oxford.

Email: gabrielle.watson@law.ox.ac.uk

Website: www.law.ox.ac.uk/people/gabrielle-watson

 

Images courtesy of the author