Need for a special law to protect and promote minority rights in the criminal justice system | KS Subramanian

The below text was presented at Discussion on Indian Constitution @75: A Federal Democracy Perspective, 25 January 2025

Minority rights in India are in dire straits as revealed in the January 2018 horrific abduction, gangrape and murder in a Hindu temple, of the eight-year-old Asifa Bano of the minority Muslim community at Kathua in Jammu & Kashmir. The culprits were from the majority Hindu community represented by the ruling Bharatiya Janata Party (BJP).

The persisting violence and crimes against the minority Muslim, Christian, Sikh and ‘national or ethnic minorities’ in the Northeast of India poses a challenge to India’s criminal justice system (CJS).

The issue of minority rights in the CJS came up for serious consideration at the 8th session of the UN Forum on Minority Rights in the Criminal Justice System (CJS) at Geneva (November 23-25, 2015). The present writer was an expert invitee to the UN session.

The report of the UN Special Rapporteur Ms. Rita Izsak on the subject was placed before the 70th Session of the UNGA in 2016.

In my presentations at the four sessions of the UN, I touched on several aspects of the crisis: i) legal framework and key concepts; ii) minorities in the criminal justice system; iii) what the minorities demand from the criminal justice system; iv) the causes of the failures of the CJS; and v) some practical steps.

The CJS in India vis-a-vis minority rights, especially of the Muslims, Christian and the ethnic communities in the Northeast, is in virtual collapse. Members of these communities are being implicated in false cases, tortured and ill-treated. The Supreme Court of India has said that the majority of the arrests made by the police are illegal or unnecessary. In 2009, a voluntary organisation found, on the basis of field investigations primarily in north India, that about 1.8 million people, many of the minority communities and the poor, were being tortured in police custody every year. Extrajudicial executions or ‘encounter killings’ of minorities are replacing torture as the main method of police investigations. Such killings have occurred in several states: Jammu & Kashmir, Gujarat, Andhra Pradesh, the Central Tribal Districts: Manipur, Nagaland and other states of the Northeast. ‘Encounter’ is an event in which the police shoot dead a person and later claim falsely that he was killed while he undertook an alleged ‘encounter’ with the police. The entire criminal justice system created by the colonial authorities has been retained uncritically in India. The penal and procedural codes enacted by the British in India in the 1860s, have mandated suppression of people’s protest. Section 144 of the Criminal Procedure Code (CrPC), 1861, prevents the gathering of more than 5 persons as an ‘unlawful assembly’. The Indian Penal Code begins with chapters on ‘criminal conspiracy’ and ‘Offences against the State’. The prevention and detection of offences, the main task of the police, are relegated to Chapter XVI and Section 299. The offence of ‘sedition’ was included in the Code in 1870. The CrPC, 1861 and the Police Act 1860 make it possible for the police to violate human rights by the police.

The Supreme Court of India has said that ‘dehumanising torture, assault and death in custody are so widespread as to raise serious questions about the credibility of rule of law and criminal justice’. The Second Administrative Reforms Commission, 2007 noted the ills of the Indian police: ‘politically oriented partisan performance, corruption and inefficiency. The public complained of rudeness, intimidation, suppression or concoction of evidence and malicious padding of cases’. 80 percent of the people surveyed mentioned they had to pay a bribe in their dealings with the police. Out of the 11 public agencies surveyed, police were found to be the most unsatisfactory. ‘In the name of investigating crimes, torture is inflicted not only on the accused, but also upon bona fide petitioners, complainants, informers and innocent bystanders’. These provisions adversely affect minorities.

Police training is abysmal. In 2003, the Justice Malimath Committee was set up to reform the criminal justice system but its recommendations have remained on paper. The Indian judiciary is over-burdened with a huge backlog of cases.

The Constitution of India, 1950, does not define minorities. It simply refers to ‘minorities’ and speaks of minorities based on ‘religion and language’. Their rights are spelt out in Part III on Fundamental Rights, which are legally enforceable. Part IV providing the Directive Principles of State Policy are not enforceable by law.

The government of India set up a National Commission on Minorities in 2005, which mentions five religious Minorities: Muslims; Christians; Sikhs; Buddhists; and Zoroastrians. The Jains were added in 2014. The Ministry of Minority Affairs and the Ministry of Home Affairs in the government of India deal with minority issues.

The UN Declaration of 1992 mentions ‘National or Ethnic, Religious and Linguistic Minorities’. This is a more comprehensive term which goes beyond the category of the six religious minorities mentioned by the National Commission on Minorities in India. It is necessary for India to adopt a comprehensive term and include national, ethnic and linguistic minorities.

The Constitution of India needs amendment to take into account the violence especially against the Muslim minority that has been going on for a long time and has intensified recently. There is also increasing violence against other minorities such as the indigenous communities in central and Northeast India, which are not included in the approved list of the National Commission for Minorities.

The Commission has the powers of a civil court and can summon witnesses. The Constitution needs to be amended to give it criminal powers of the level of a High Court. The same should apply to the National Commission for Women and the National Commissions for the SCs and the STs along with the existing National Human Rights Commission.

The Constitution of India, 1950, in view of the existence of a multiplicity of minorities in India including national and ethnic minorities and in view of the conflicts that are emerging from identity assertions across the country, must revise the definition of the term ‘minority’ and enumerate the categories including religious, linguistic, national and ethnic minorities. The Constitution must also incorporate specific provisions for the protection of minorities from all forms of violence and provide them justice and fair play in the CJS.

The Preamble to the Constitution of India declares India to be a ‘secular’ state (of special relevance to religious minorities) and to secure to all ‘liberty of thought, expression, faith and worship and equality of status and opportunity. Significant for the minorities is the elimination of inequalities ensuring their welfare as for the weaker sections (besides the Scheduled Castes and Tribes). It should be the duty of citizens to promote harmony and the spirit of common brotherhood transcending religious, linguistic, regional or sectional diversities and preserve the country’s rich heritage and composite culture.

The Fundamental Rights in the Constitution, include, among other things, equality before the law; equal protection of the law; prohibition of discrimination on grounds of religion, race, caste, sex or place of birth; freedom to profess, practise and propagate any particular religion; freedom of religious instruction and worship etc. These are essential for a multi-religious, multi-cultural, multi-racial Indian society such as India with communal harmony.

The Muslim, the Christian and Sikh minorities have been victims of extrajudicial executions, torture, rape, intimidation, and implication in false cases, destruction of property and utilities and other illegal acts under the CJS. Non-listed minorities in the North-eastern region too have been subjected to similar abuses.

The Sikhs were subjected to genocidal killings after some members of the Sikh security forces assassinated former Prime Minister Indira Gandhi in protest against the killing of Sikhs during and after Operation ‘Blue Star’ in 1984. The genocidal killings of the Muslims in Gujarat in 2002 and the attacks on Christians in Kandhamal, Orissa in 2008, also violated the norms of the CJS.

There are no specific protective legal provisions for the minorities in the Indian Constitution. Police, prosecution and the judiciary are not sensitised to minority issues and function within the existing framework of law and order.

International principles and standards on minority issues are yet to be incorporated in the Indian CJS.

The Justice Rajinder Sachar Committee Report 2005 is the first of its kind that provides insights into the human security issues facing the Muslim-minority (13.4 percent of the population). Muslims are the biggest chunk of the Indian minorities.

The new anti-terrorist politics have encouraged the devaluation of the CJS) and its perversion. This has led to the prosecution by the police of innocent Muslims, not involved in terrorist activities in order to obtain government recognition and rewards. The functioning of (CJS), now jocularly termed ‘criminal administration of justice’ is in crisis! Far from getting any specialised attention and protection, the minority communities especially the Muslims in India are targets of police harassment for alleged ‘terrorist’ activities.

The study ‘Framed, damned, acquitted: Dossiers of a very Special Cell, A Report by the Jamia Teachers Solidarity Association, New Delhi, 2015, documents registration of false cases against innocent Muslims (and ethnic minorities from the North-east) who are subjected to systematic police harassment, cruelty and torture and false criminal cases under special security legislations which involve prolonged imprisonment and more.

The Cr PC, 1861 has chapters on security for keeping the peace and maintenance of public order including use of force by the police, which take precedence over the investigation and trial of criminal offences.

The Police Act of 1861 prioritises collection of political intelligence. The prevention and investigation of crime is only from section 23 of this tiny Act. It has a provision for punitive policing. Police officers are vested with vast powers and even the constabulary has vast powers. The persistence of repressive colonial laws has contributed to the unpopularity of the police.

In 1856, the British had said: “the Indian police are all but useless for the prevention and sadly inefficient in the detection of crime; unscrupulous in the exercise of authority they have generalised reputation for corruption and oppression”. The situation continues thanks to failure of police reforms.

David Bayley, a leading authority on the Indian police said in 1983: ‘police officers are preoccupied with politics, penetrated by politics and participate in it individually and collectively.

In the Pehlu Khan case in the Alwar district of Rajasthan in 2017, an independent fact-finding mission found glaring gaps in police investigations. So was the case with respect to the 2015 Mohammad Akhlaq case at Dadri in UP.

The Vohra Committee report 1993, dealt with the ‘criminalisation of politics and politicisation of crime. ‘Criminalisation of politics and politicisation of crime’ and the nexus between politicians, criminals and civil servants were noted.

The causes of discrimination in the CJS include lack of political will and non-implementation of recommendations made by several reforms Commissions. Structural inequality and injustice in the social and political system too need mention.

The National Commission on Minorities which recognises six religious minorities: Christians, Muslims, Buddhists, Zoroastrians; Sikhs and Jains, neglected to mention several national, linguistic and ethnic minorities in the Northeast. There are 31 such communities in Manipur and 19 in Tripura. I was posted in both states. There are many more in the other states of the Northeast.

As noted by the Sachar Committee in 2005, Muslims are targeted by the police in the name of fighting ‘terrorism’. The Christians and Sikhs are much smaller in numbers but are equal victims.

The following practical steps are needed urgently.

• Amend the Constitution of India to include, not just religious minorities but also national and ethnic, indigenous (Scheduled Tribes) and caste (Scheduled Castes) minorities and their languages and cultures; and mention a list of recognised minorities;
• Enact new law to prevent and punish crimes against the minorities, especially Muslims, Christians and Sikhs, on the lines of the SC/ST (Prevention of Atrocities) Act, 1989;
• Establish accountability mechanisms for the Indian police and politicians to end impunity;
• Implement far criminal justice reforms in the light of the Justice Malimath Committee, Report 2003;
• Adopt UN Code of Conduct for Law Enforcement officials, prosecutors, lawyers and judges.

(The author, a member of the Indian Police Service is the former Director General of Police, Tripura)