On Policing In Pandemic, Mindless Arrests & Prison Overcrowding : Interview Criminal Justice & Police Accountability Project

In this two part series interview with Criminal Justice and Police Accountability Project we are in conversation with Nikita Sonavane, Ameya Bokil and Srujana Bej, lawyers and team members at the CPA project. In the first part we discussed the need of documenting and intervening against the disproportionate harm caused by the criminal justice system against marginalized castes. In this second part, we will discuss their litigation work, policing in the pandemic and the way-forward for Indian criminal justice system.

1. In the last part, we discussed the problems with the substantial criminal law and how we criminalize. But you have also pointed out actual implementation of laws. Can you share how the procedural apparatus of the criminal justice system has exacerbated the situation through your recently published report on pandemic and policing. In your study on policing during the pandemic, you undertook analysis of more than 34000 arrest records and over 500 FIRs.Can you please explain the major findings and learnings of the report?

The state's most visible strategy for addressing the Covid-19 pandemic was through extensive orders on permissible and impermissible movements and activities. These lockdown regulations and orders were vague, overbroad and disproportionate. Already the police with vast surveillance powers, habitual offenders' registers, a strong colonial legacy and discretionary powers disproportionately criminalizes marginalised communities, the pandemic from its earlier days became a tool for further harassing these marginalized groups. We saw visual evidence across media of police excesses during the lockdown- beating, strenuous physical activity or corporal punishment. The images themselves were showing who were these individuals at the receiving end of the violence- they were street vendors, small vegetable sellers, milk or meat sellers and other marginalized groups.

We analyzed 34,000 arrest records and 500 FIRs and found that one out of five FIRs were against people on the street vendors or small shop owners. The proportion of FIR against pedestrians increased from 50% in the first lockdown and second lockdown to 89% during the third lockdown.

A majority of these FIRs were filed as a result of police patrolling. We further conducted interviews with a few of the pedestrians who had been charged with violating the lockdown. Opposite to the narratives of the FIR, the story shared by pedestrians were different, many of the FIRs were cases of movement for essential services like for gas or medicines. But over 90% FIR in almost cut-copy-paste mode only stated that the person has been found to be violating the lockdown and their reasons were deemed to be 'unsatisfactory', 'unnecessarily', 'inappropriate', 'unclear' or 'invalid'. It was apparent that there was no check on the police's discretion in enforcing the lockdown. FIRs were simply recording of the judgment of police without stating the reasons explained by the individuals for stepping out. An FIR is supposed to state only the facts and circumstances of a specific instance, not the police's judgement of the specific issue. Thus the narratives of criminality are being constructed by the police using their discretion as the final word of the law. And the same was used to disproportionately target poor or marginalized groups.

More than shopkeepers, the street vendors were slapped with FIRs, majority of whom were providing essential services and goods within permissible exemptions of lockdown. With respect to people who were selling meat and dairy products, we found that most of the FIRs were against the individuals belonging to the Muslim community. Some of them were charged with as minor things as being a little late in closing the shop despite having the requisite license from District Magistrates etc. Around 21% of the people accused in our FIRs were Muslims whereas the population of Muslims in the state of Madhya Pradesh is less than 7 percent. Almost three times! This was also the result of media narratives of criminality against certain communities. In a few cases the police were actively monitoring social media handles during the lockdown and charging people for 'spreading misinformation'. For instance, one individual was charged for having a WhatsApp display picture that said 'We are with Markaz Nizamuddin'. He was accused of publicly supporting the Jamaat and 'spreading dissatisfaction'. That was the extent of surveillance.

Overall, 6000 individuals were arrested for merely violating the lockdown, and others over 4000 were arrested for petty offences like alcohol possession, excise offence or small time gambling mostly between 100 Rupees to 500 rupees. During the lockdown among those arrested for excise offences 27% belonged to the SC community, 23% belonged to the ST community and 10% to DNT communities.

10.85% of individuals arrested under excise laws were women. But even among those 10.85% individuals, nearly 40% of the women belonged to DNT and nomadic communities like the Kuchbandiya and Kanjar communities and this also tells us about the gendered nature of policing.

For gambling offences nearly 30% of the individuals arrested belong to SC communities and another 20% belong to minority communities. DNTcommunities are not more than 8-10% of the population, although exact data is not available because administrative categories are unreliable. For instance, the Pardhis may be arrested and are considered as belonging to the general category in Bhopal, but in reality they are a DNT community.

Most of the lockdown FIRs in MP were standard like a template with some minor changes. Identical complaints, sometimes the same informants. For instance, there was one informant Patwari who got more than 150 FIRs, all identical, registered at one police station.

2. What does the policing in the pandemic indicate about the structural and larger problems with our criminal justice system?

In our popular imagination especially amongst upper-castes the need for criminal law is stressed through 'law and order' narrative, of putting an end to heinous offences. But the proportion of these offences is miniscule. Victimless petty offences form the bulk of the arrests in the country. Madhya Pradesh's arrest data show that a majority of arrests are for victimless petty offences under gambling and excise laws. Unlike the UAPA or other serious chargers, the arrests in these offences are not for longer periods. But these en-mass arrests contribute to the prison population. Thus despite the Supreme Court's guidelines for decongesting prisons last year, the prison overcrowding in Madhya Pradesh increased from 143% March, 2020 to 174% in March, 2021

Therefore we sought to study and document not just these excessive instances of violence but also ask more fundamental questions- first, when such drastic measures are implemented overnight and an already oppressive institution is empowered with far greater powers, what kind of implications does it have for the marginalized groups?, second, what do we criminalize? What are the justifications for our criminalization principles? Can mere activities like small gamblings, possession of alcohol be used to criminalize marginalized groups and throw them in jail? And third and most importantly, how did we reach a point where in response to a public health crisis the first responder is to increase the power of police and use criminal law?

3. I would like to focus on your litigation practice now. CPA project also has litigation practice and you represent clients from marginalized groups in District Courts, High Courts and the Supreme Court. What has been your experience of litigation and legal aid? What are the challenges you face as a lawyer representing your clients? Also on a related note, what has been your experience of legal aid structures and systems created under the National Legal Services Authority Act, 1987? Are they fulfilling their mandate?

There have been multi-face challenges in our litigation work largely emerging from the bias and prejudices of the system.

Firstly, it is as basic as getting access to documents like FIRs registered against our clients. Police stations are required, barring a few offences, to upload FIRs within 24 hours. An accused person is entitled to accessing the FIR. Not only are these FIRs not uploaded online, a major challenge has been to even go to the police station and assert as a defence lawyer our right to get a copy of the FIR. Because if I don't even have a copy of their FIR, how am I supposed to argue?

Secondly, the rampant targeting of these communities has led to permanent clientele for lawyers. There are networks of lawyers, fake surety for securing bail. This is also a result of lack of quality legal representation because many times lawyers themselves are convinced of the criminality of these communities. Rarely focus is brought to custodial violence, false charges or discovering options of release on personal bonds.

Thirdly, despite long-standing acceptance of release on personal bonds by the Supreme Court, bails are only given through sureties. Personal bonds are almost baffling for many in the system and thus are rarely used. Members of the DNT or other marginalized communities can rarely find these sureties or pay for bail. These cases are largely false prosecutions with stock witnesses, template FIRs thus the person will get acquitted but by the time for bail and release he would have already incurred debts, forcing him into a trap of indebtedness.

Fourthly, NCRB, or even the CCP do not maintain data in a disaggregated manner. Relying largely on the three broad administrative categories of SC. ST and OBC does not present the whole picture. First, these communities are not homogenous categories and in Madhya Pradesh communities like Pardhi are categorized as general despite their history and marginalization. Lack of proper data leaves out a lot of these communities and for us hampers the use of the data for strategic litigation purposes. This is why our focus is equally on research and merging our learnings from research to litigation and vice versa. As a strategy, we argue and attempt to bring on record the history of these communities and their marginalization through criminal law.

Fifthly, the entire economy of private lawyers has emerged as a result of the under-investment in the legal aid system by the state. Legal aid lawyers are paid a paltry sum, given very less or no training which harms their effectiveness. A trial cannot continue until the accused person has legal representation, but this right is treated mechanically with little or no consideration of the right to effective legal aid and representation.

4. I will now come to my last question. What do you think should be the way forward? I ask this question at three levels- in terms of criminalization, procedural and trial level and sentencing. There has been a criminal justice reform committee set up but without any representation of any marginalized community and with serious questions about its methodology. What do you envisage on how do we move away from this legacy of our criminal justice system and move towards more just systems?

We need a fundamental conversation on the harm of over reliance on criminal law and question what we criminalize. These two first principle questions inform the questions of procedure and sentence. Many of these laws are neutrally worded but through procedural laws we will easily see communities that are being criminalised. Take for instance a term like 'criminal antecedents' or 'nigrani badmash', the term for habitual offenders relating to property-related crimes used in Bhopal, MP. Despite having no legal definition whatsoever this term and reasoning around it is so commonly employed across the board, in the judicial system, by the police, by lawyers and by the judges. If we contextualise these terms, we will see that we're actually talking only about a certain strata of society. On the question of sentencing, we have no sentencing policy in India, sentencing has been largely left to the discretion of the courts. There is an absolute lack of uniformity in the way that different judges sentence differently for the same offense.

Further, these fundamental questions also need to be fine tuned. Yes, the criminal justice system targets the poor, but poor is not a homogenous and casteless category in this country.

Any discussion on reform for instance the recent e-committee recommendations on Artificial Intelligence and digitalizing the judicial system would be insufficient. The report recommends use of AI to decide cases for the Motor Vehicle Act. But when an entire infrastructure is steeped in caste system, then any version of it is not going to be not discriminatory, It is only going to replicate the foundational aspect of that system, which is oppressive. Same is the problem with the NLU-Delhi Criminal reform project. Apart from of course the concerns on lack of representation, the committee also is not asking these foundational questions.

For the communities who since early childhood face police extortion and have seen violence as part and parcel of their lives, our aim is not only to continue to document these manifestly unjust police practices but also to challenge these unjust and arbitrary laws and practices through solid evidences, data and move towards an anti-carceral future. The future of the criminal justice system has to be anti-caste through bringing stories of human life, historic injustices and social realities of these communities in light. We wish to do that through litigation, research and a network of anti-caste, anti-carceral lens lawyers.

(Surbhi Karwa is an alumnus of National Law University, Lucknow and National Law University, Delhi. Rajesh Ranjan is founder of SocioLegal Literary and a student at National Law University, Jodhpur)