The Indian Constitution gives pride of place to the fundamental rights of a citizen, including the right to life and liberty. One would assume that it implies two basic legal principles: one, that the accused is innocent until proven guilty; and two, that bail is the norm and jail the exception. The stories of thousands of undertrials — mostly Muslims and people from other oppressed sections of society — languishing in jails across the country, however, run against the grain of the constitutional promise that “no person shall be deprived of his life or personal liberty except according to procedure established by law” (Article 21). But what if the legal procedures themselves are stacked against the underprivileged and the dissidents?
After the collapse of the socialist world, a political thesis heralding the ‘end of history’ emerged. US-based political scientist Samuel Huntington, who envisioned the final triumph of liberal democracy, prophesied that the clash of ideologies that had been dominating world history since the Russian Revolution in 1917 would be replaced by a clash of civilisations. Though Huntington went on to retract his hypothesis, the clash of the civilisations continued to rip the world apart through most of the past three decades.
This new political dynamic made it necessary for liberal democracies across the globe to replicate a trait that was earlier considered to be peculiar to fascism: the concept of an enemy within. Once the communist challenge to the dominant world order bit the dust in a gradual process of decay from the 1970s to the 1990s, culture emerged as a key sphere for the emerging neoliberal financial order to assert its dominance. In India, the slot of ‘the enemy within’ could be most conveniently filled by the largest minority — the Muslims — and that is exactly how national politics panned out in the late 20th and early 21st century. And the process reached its zenith in the aftermath of the 9/11 attacks in the US, when Muslims were recast as the dangerous ‘outsider’, both as immigrants and even in their own native places where they happened to be in a minority.
The political economy of India had already undergone a tectonic shift that was triggered when the doors to liberalisation and globalisation were flung open in the mid-1980s. The rise of the Hindu Right following the Babri Masjid demolition in 1992 coincided with an insidious process of dispossession and alienation of the already-marginalised castes, classes and communities. Communal riots became an essential part of the political script and were increasingly used to prevent the oppressed from various communities to come together and resist the onslaught of dispossession. Muslims were portrayed as conspirators and instigators of violence, and condemned as enemies not just of the State but also of the much-celebrated Nehruvian idea of “unity in diversity”.
Besides Muslims, other communities living on the margins of the national mainstream — Dalits, Adivasis, fisherfolk etc — were left out of the growth trajectory as they failed to make the cut as consumers in the emerging market-driven economy. Though various political organisations, including several Left parties, were critical of the emerging economic order, the State had by then become increasingly militarised, stifling dissent when and where necessary. Sedition laws were imposed against those who questioned the dominant readings of ‘democracy’ and ‘development’. Anti-terror laws were passed and updated at regular intervals. The conviction rate of these laws was abysmally low.
The draconian provisions in extraordinary laws such as the Terrorist and Disruptive Activities (Prevention) Act (TADA), Prevention of Terrorism Act (POTA) and now the Unlawful Activities (Prevention) Act (UAPA), ensured that the accused were more often than not denied bail. In many cases, the accused spent long years in jail before being acquitted of all charges. The case of Abdul Nasser Maudany, who was incarcerated for nine years before the court found him innocent in the Coimbatore blast case, is a classic example of the oppressive and partisan nature of the anti-terror laws.
Parliamentary democracy rests on the assumption that there is enough freedom for dissenting ideas to be propagated so that the citizens can make informed political choices through the electoral system. The reality of Indian democracy, however, is a far cry from this ideal model. Had it been otherwise, the number of inmates rotting in the prisons would not have gone up so steeply in the past few years when the neoliberal development model was questioned and assailed by large sections of society.
In fact, most jail inmates in India are those who are yet to be proven guilty, and therefore, according to the legal principle mentioned earlier, are “innocent”. No less than 60 percent of prisoners in the country are undertrials. In 2014, the shocking numbers forced the apex court to direct all state governments to release every undertrial who had completed half of the maximum sentence for the crime he or she was accused of.
In light of the high and the mighty managing to secure their legal rights more often than not, the tragic case of the underprivileged undertrials stands testimony to the skewed application of basic legal principles under the Indian State. Of the thousands of such victims of the injustice of law, Tehelka profiles three to give a worm’s eye view of the partisan operation of our legal system.