Dear Mr. prime minister: There must be justice for India’s Muslim minority

Respected Prime Minister Narendra Modi: Congratulations! You won a significant victory in the recent Indian state assembly elections. This may give you an opportunity to implement your development agenda, which, I suggest, should be termed “human development” to make it more meaningful for the people at the receiving end of injustice.

It may also provide an opportunity for you to look at long-neglected issues such as policing and criminal-justice reforms.

May I draw your kind attention to the important but neglected issue of wrongful prosecution of members of India’s Muslim minority which is leading to increasing discontent in the community? This discontent could threaten India’s national security by facilitating the penetration of the Islamic State into the country. This seems to be happening already.

Discontent is also growing alarmingly fast among the ethnic and religious minority communities in the Northeast arising from increasing state violence against them. Insurgency in the region is best viewed as a reciprocal relationship between violent state actors and violent non-state actors. My understanding of the region may be seen in my book, State, Policy and conflicts in Northeast India, (Routledge, 2017).   

The issue of wrongful prosecutions was discussed March 11 at the well-attended meeting of the People’s Tribunal on Wrongful Prosecution set up by the Innocence Network and others at Kozhikode in Kerala.

As the former director of the research and policy division (now defunct) of the home ministry (1980-85), I was invited to be part of the jury which heard depositions from victims of wrongful prosecutions. Other jury members were: Ravivarma Kumar, former additional solicitor-general of Karnataka state; Professor M.G.S. Narayanan, historian and former chairman of the Indian council of historical research; Professor M.V. Narayanan of Calicut University; Vasudha Nagaraj, advocate, and Sajjad Hassan, a former officer of the Indian Administrative Service.

The jury heard depositions of wrongful prosecutions, torture in police custody, prolonged incarceration, and eventual judicial exoneration, though without compensation or rehabilitation.  The depositions were often cheered by the large audience at Tagore Hall.

The jury heard one tragic story after another. It saw that the criminal-justice system in India is in deep crisis and that there is deliberate targeting of specific communities, namely Muslims, by wrongfully accusing them of terrorist offences, which could not be substantiated at trial.

The cases reported by the victims were not faulty investigations by security agencies; the cases seemed to be the result of politically biased malicious and deliberate framing of innocent people. Horrific torture was inflicted upon the accused in police custody. No compensation is adequate. The losses are simply too large.

The first step in rehabilitating these victims of false accusation in terror cases is to acknowledge the wrongs inflicted by the criminal-justice system and by society as a whole. 

The jury recommended that:

— India must convert its commitment to the International Convention on Civil and Political Rights (ICCPR) into legislation at the earliest. The convention article which obliges the state to pay compensation for wrongful incarceration and prosecution must be turned into law.

— The courts must read Article 14 (6) of the ICCPR into Article 21 of the Indian constitution and take a proactive position in compensating innocent people who are acquitted in terror-related trials.

— Existing legal provisions, such as the offence of fabricated evidence in India’s Code of Criminal Procedure, must be used to ensure police officials are punished.

— Legal and constitutional provisions and civil tort law should be used widely to seek compensation from the courts.

The jury felt that an expression of exoneration and regret by the state would help the social rehabilitation of victims.

The jury recognized that those acquitted in such cases may continue to face threat and intimidation, and that it may be extremely difficult for them to receive compensation from the courts. In such a scenario, the jury recommended the creation of institutions which can function as independent ombudsmen to file for compensation and seek prosecution of police officers on behalf of the acquitted.

Sensitization and reform

1. The jury saw the need for sensitivity training of high-court judges, sessions judges, and advocates in national judicial academies across the country.
2. Cases of wrongful prosecution must be documented on a national scale. Such data need to be shared among the judicial fraternity both active and retired.
3. A cadre of lawyers needs to be trained to take such cases
4. Sessions courts cannot be allowed simply to say that a prosecution failed to prove guilt. It must make a positive recording of bad–faith investigation if it finds that innocents have been falsely implicated.
5. Wide-ranging reform of the police structure and its practices are needed to end its “law and order” approach and deliver justice. (A comprehensive paper on the subject written by me may be seen at www.socialwatchindia.net Perspective Paper 3 titled Are the Indian Police a Law unto Themselves A Rights-based Assessment)

Mr. prime minister, you are aware that Justice Rajindar Sachar’s ground-breaking committee report on the Social, Economic and Educational Status of the Muslim Community in India, 2006, graphically set out the deplorable situation of Muslims in India today. It stated that the “functioning of the state in an impartial manner is an acid test of its being a just state.”

Muslims carry a double burden of being labelled “anti-national” and being “appeased” at the same time. Concern was expressed to the committee about police highhandedness in dealing with Muslims. Whenever an incident occurs, Muslim boys are picked up by the police. Every bearded man is considered a Pakistani ISI agent.

The report notes that: “The perception of being discriminated against is overpowering among a wide section of Muslims resulting in collective alienation.” While not everyone has lost hope, many feel that “any change in the attitude of the state requires  commitment and a change in the mindset.”

A senior police officer who studied a communal riot in Uttar Pradesh reported that most of those killed were Muslims and most of those arrested were Muslims as well. Hindu-Muslim communal violence has been a recurrent feature of independent India’s politics and society.

Given these realities, it would be highly appropriate for someone in your exalted position to provide leadership by implementing the recommendations made above by the People’s Tribunal on Wrongful Prosecution. This would bring immense credit to you and to India.