Archive for July, 2024

28 Jul

Of Kangaroo justice and Kafkaesque trials

Posted by vramani in government, human interest, political economy, public affairs, public policy. Tagged: , , , , .

While the origin of the phrase “kangaroo court” is still not certain, the term is quite clearly defined by the Merriam-Webster dictionary as “a mock court in which the principles of law and justice are disregarded or perverted.” I would modify the term to “kangaroo justice” where due process of law is given short shrift.

Three incidents in recent history make us wonder whether we live in an era of kangaroo justice:  (1) In December 2019, four men accused of the rape and murder of a young woman were shot dead by the police when, while in judicial custody, they were being taken to the scene of the crime near Hyderabad for a reconstruction of events as part of the investigation. The subsequent judicial enquiry concluded that these men were summarily eliminated and indicted ten police personnel in this connection. (2) In April 2023, Atiq Ahmed, a former Member of Parliament, and his brother, Ashraf Ahmed, in judicial custody in connection with several crimes, were shot dead by assailants posing as media persons, in the presence of UP police personnel, while being taken for medical examination to hospital at the unearthly hour of midnight.  (3) 84 year old Father Stan Swamy, an accused in the Bhima Koregaon case, passed away in July 2021, after a series of ailments, while in judicial custody, without being given bail on medical grounds.

In the first two instances, summary executions by uniformed persons and by ordinary citizens made a mockery of the rule of law. Legal processes were unfortunately short-circuited to render instant justice (injustice?). While there was public support for the two actions, this does not behoove a democratic society that ought to be totally committed to the rule of law. The third case is even more unfortunate: an octogenarian social worker, who was not questioned by the NIA during his incarceration for eight months in Taloja prison near Mumbai, was refused bail even when it was apparent that his health was failing and that his release on bail posed no threat to the state or society.

“The wheels of justice grind slowly, but grind exceedingly fine” is a metaphor attributed to both ancient Greek and Chinese philosophers, acknowledging the slow pace of delivering justice, though justice is finally done. In the Indian context, delivery of criminal justice is often excruciatingly slow, with the main stakeholders at the pre-trial stage — the police, victims and their families and the accused — left with a feeling of frustrated helplessness as cases drag on for years. The phenomenon of ‘encounter specialists’ taking the law into their hands to dispose of criminals and of public lynching of notorious ant-social elements are but symptoms of a deeper malaise. Shoddy investigation of crimes, prompted sometimes by political pressure and sometimes by the lure of lucre, and interminably long periods between the commission of a crime and the final verdict of guilt seriously affect the credibility of the criminal justice system.

It is against this unsatisfactory background that recourse is had to the arrest of persons for even petty crimes and/or where they are not habitual offenders, just to satisfy public sentiment. Once arrested, the accused remain in jail because, in many cases, they cannot manage to give the surety/security required for grant of bail. The courts and the police are reluctant to trust the release on bail of persons on personal bonds/undertakings. Non-granting of bail and overcrowding in jails are two sides of the same coin. According to the Bureau of Police Research and Development, in 2022, India housed 5.73 lakh persons in its jails as against a prison capacity of 4.36 lakhs. The National Crime Records Bureau has reported that the proportion of people in jails, who are not convicted, rose from 33% in 1947 to 66% in 2012 and 76% in 2022.

More disturbing is the increasing trend of arrests of those deemed by the ruling dispensation to be opposed to them politically or those who raise their voice against actions of those in power that smack of restraint on or misuse of constitutional rights — these range from politicians of opposition parties to “anti-nationals” and “urban naxals”. The draconian provisions of the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA) on grant of bail keep those accused under these Acts in prison for years on end. Under both laws, the court has to be satisfied, before releasing the accused on bail, that a prima facie case of guilt is not made out by the prosecution: this has led to a situation today where courts at all levels are reluctant to grant bail, never mind the provisions for bail and bonds under the newly enacted Bharatiya Nagarik Suraksha Sanhita (BNSS) (or its predecessor Act, the Code of Criminal Procedure). It has long been a judicial precedent that bail ought to be refused only where (a) the offence is likely to be repeated while on bail; (b) the accused may abscond; (c) witnesses may be influenced; (d) evidence may be tampered with. The Hindu newspaper has highlighted (September 10, 2022) the abysmal conviction rates of 3% for those arrested under UAPA between 2018 and 2020, and 0.05% under PMLA until March 2022. As a consequence of the stringent provisions for grant of bail, the accused in the Bhima Koregaon case, Umar Khalid in the Delhi Riots case, AAP politicians Arvind Kejriwal and Manish Sisodia in the Delhi liquor policy and former Jharkhand CM Hemant Soren have been in jail for months and years on end without commencement of trial. The eagerness of a state like Maharashtra to enact the Special Public Security Act, modeled on similar legislation in Chhattisgarh, Odisha and Telangana, with provisions for keeping lower courts from intervening in executive actions under the Act, does not bode well for civil liberties of citizens.

What is clearly required to safeguard the right to liberty of citizens are three sets of legislation to check abuse of authority:

(1) Requiring the courts to reach a preliminary conclusion about the possible guilt of the accused under the UAPA/PMLA vitiates the judicial process of a fair trial. It is essential to delete the proviso to Section 43 D(5) of the UAPA which reads “Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” Similarly, Section 45 (ii) of the PMLA which reads “where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he (sic) is not guilty of such offence and that he is not likely to commit any offence while on bail;” deserves to be removed from the statute book.

(2) The right to bail must be enshrined as a fundamental right, under either Article 21 or 22 of the Constitution of India. This will ensure that special laws do not tamper with the right to bail of an accused, which should be governed only by laws of general application like the BNSS.

(3) India, unfortunately, has no statute governing tort law. Legislation must be put in place which provides for legal damages in the form of monetary compensation for confinement in prison which does not result in conviction. This compensation would be payable by the state. However, where a miscarriage of justice which leads to incarceration is established in a court of law as motivated by mala fides on the part of specific government functionaries or other individuals, compensation to the affected party would also be payable by the concerned persons. The same principle of individual as well as state liability would apply to all deaths in police/judicial custody that are attributable to gross negligence or deliberate actions in violation of the rule of law by the guardians of law or other persons.

Since it is evident that the executive at the Union and State levels seems to lack both the moral authority and the resolve to ensure that law enforcement agencies do not overstep their powers, it is high time that the legislature and the judiciary step in to ensure that the ordinary citizen is protected from arbitrary actions that interfere with her/his enjoyment of personal liberty. This will be a lasting tribute to the framers of the Constitution of India in the seventy fifth year of the Republic of India.

 

 

 

 

14 Jul

Statistics and the Muslim bogey

Posted by vramani in political economy, public affairs, public policy. Tagged: , .

I have been exposed to the subject of statistics through my school, undergraduate and postgraduate years. Hence, I have this strange suspicion about what the numbers tell. Whether it is a government tomtomming its achievements on the economic front or exit pollsters coming up with poll predictions, I take all these prognostications with a generous pinch of salt. There is still some doubt about whether the authorship of the phrase “Lies, damned lies and statistics” can be attributed to Benjamin Disraeli or Mark Twain. Regardless, I am of the firm belief that the numbers that determine the statistics must be stripped to the bone to arrive at reasonable conclusions, untainted by hyperbole.

Which is where I have issues with the recent working paper put out by the Prime Minister’s Economic Advisory Council (EAC-PM) on the status of the Muslim community in India during the period 1950 to 2015 (referred to hereafter as the Report), drawing on country-wise estimates of religious demographics available for 1950 and 2015 from the Religious Characteristics of States Dataset Project – Demographics v. 2.0 (RCS-Dem) published by the Association of Religion Data Archives in the year 2019. The estimates differ from the Census of India figures for 1951 and 2011 only by a couple of percentage points. The Report has reached the conclusion that “…in India, the share of the majority Hindu population decreased by 7.82 percent between 1950 and 2015 (from 84.68 percent to 78.06 percent). The share of Muslim population in 1950 was 9.84 percent and increased to 14.09 percent in 2015 – a 43.15 percent increase in their share.” The increase and decrease in the Muslim and Hindu populations is shown in terms of the percentage change in the respective percentage shares, taking the percentages of 1950 as the base.

This is where the problem arises. Anyone with even a rudimentary understanding of statistics would know that an increase from a low base by a certain number would give a greater percentage increase than a corresponding decrease by the same number from a much higher base. For example, a rise from 5 to 10 is a 100 percent increase while a reduction from 95 to 90 is only a 5.26 percent decrease. Had the Report used the same yardstick of increase in percentage share for the Sikh and Buddhist populations during the same period, the increases would have been 49.19 percent for the former (1.24 percent to 1.85 percent) (the Report wrongly gives the percentage change as 6.58) and a humongous 1520 percent for the latter.

One could have excused this cavalier jugglery with numbers if the conclusions of the Report had not been used by spokespersons close to the BJP to, on the one hand, glorify the approach to support of minority (specifically Muslim) populations over the first six and a half decades and, on the other hand, to repeat ad nauseam the slogan “Hindu khatre mein hain” .

Sudesh Verma[1] has fallen into the familiar trap of equating the change in percentage shares of Hindu and Muslim populations between 1950 and 2015 with the change in percentages of absolute Hindu and Muslim populations between 1950 and 2015. He then plays on the usual fears of the Muslim population overrunning the Hindu population, apparently oblivious of the 2011 Census figures, which show a Hindu population of 980 million and a Muslim population of 172 million. The usual reasons for the higher growth of the Muslim population are trotted out: “rapid reproduction, illegal infiltration encouraged by vested interests and conversion.” The latter two reasons can by no means contribute to any explosive increase in Muslim population. The first reason has also been tempered by the falling birth rates in the Muslim population — the total fertility rate (TFR) of the Muslim and Hindu populations stood at 4.4 and 3.3 respectively during the the National Family Health Survey-1 (NFHS-1) in 1990-91; the TFR came down to 2.6 for the Muslim population and 2.1 for the Hindu population in NFHS-4 (2015-16). As the TFR differentials narrow over time, it would be the height of misinformation to claim that the Hindu population would be overwhelmed in numbers by minority, especially Muslim, populations, when the numbers clearly show that the twain shall never meet.

The Report highlights that “…India is one of the few countries which has a legal definition of minorities and provides constitutionally protected rights for them.” It also refers to the progressive policies and inclusive institutions that are reflected in the growing number of minority populations within India. Significantly, it observes “Given its plural, liberal and democratic nature, India has continued its civilizational tradition of harboring persecuted populations from several countries over the last six decades.”: this, even though India does not have a clear-cut domestic policy or law for refugees and is not a signatory to the 1951 UN Refugee Convention and the 1967 Protocol.

It is ironic that the Report and the article by Surya Prakash[2] should speak in glowing terms of India’s plural, democratic ethos which has, in their view, provided a conducive environment for the growth of minority populations. The period from independence to 2014 (which is the focus period of the Report) has often been disparaged by the current ruling dispensation, with frequent references at the top political levels, even recently, to the appeasement of minorities and infiltration by, and conversion of the majority community population by, minority communities. It is unfortunate that even sections of the higher judiciary appear to subscribe to this distorted worldview[3] .

Nor has the growth in Muslim population been seen in terms of the measures that are needed to bring down the growth rate of that population: these include raising literacy and education levels of women, income earning opportunities, healthcare and outreach to promote family planning practices. It needs to be emphasised repeatedly that minority communities prosper because of constitutional guarantees, proactive social and economic policies and a fraternal environment in society, not because of the magnanimity of the majority community.

This is where governments need to walk the talk in creating a conducive environment for minority communities to realise their potential. Mere assertions of the democratic rights of all citizens (including minorities) are not enough. Union and state governments need to relook at legislations on cattle slaughter and anti-conversion, which have become convenient tools used by vigilante groups to create problems for minorities. Governments also need to firmly rein in the cancer of hate speech and avoid executive actions, like the bulldozer raj, that seem to largely target specific communities. India is a melting pot of many races over many millennia, a fact recognised and embedded in constitutional provisions. Let us, as a nation, not distinguish between people on the basis of religion or any other social marker. In the final analysis, we are all part of the human race, best exemplified in the lyrics of Sahir Ludhianvi:

तू हिन्दु बनेगा ना मुसलमान बनेगा

इन्सान की औलाद है इन्सान बनेगा.

[1] Sudesh Verma: India First – Rising Muslim Population: Arise Before It’s Too Late (News18.com, 11 May 2024)

[2] A. Surya Prakash: The changing face of religious demography (New Indian Express, 23 May 2024)

[3] Prateek Chakraborty: Majority population will become minority one day: High Court on conversions (India Today, 2 July 2024)