Systemic bias

NCRB data and other reports indicate how the most marginalised sections are also the most criminalised.

Muslims protesting against the killing of eight SIMI members in an "encounter", in Kolkata on November 4.

THE police and investigation agencies may deny bias in justice delivery, but prisons tell another story. Statistics released by the National Crime Records Bureau (NCRB) for 2015 show that Muslims constituted a greater share in the prison population than any other segment of people. While their share in India’s population as per Census 2011 was 14.2 per cent, their proportion in the undertrial prison population stood at 20.9 per cent. The percentage of convicted Muslims was 15.8 per cent. The percentage of Muslims among detainees was also high at 23.8 per cent. In fact, they fared as badly as Dalits and the tribal people. Together, these three communities constituted 39 per cent of the population but accounted for more than 55 per cent of all undertrials and 50.4 per cent of all convicts.

The Scheduled Castes (S.Cs) accounted for 16.6 per cent of the population but made up 21.6 per cent of all undertrials and 20.9 per cent of all convicts, whereas the Scheduled Tribes (S.Ts) accounted for 8.6 per cent of the population but made up 12.4 per cent of all undertrials and 13.7 per cent of all convicts.

This showed how the most marginalised people of the country were also the most criminalised. While tribal people and backward classes are easily branded as Maoists, Muslims automatically become terrorists and bear the social stigma throughout their lives even if they get acquitted.

The NCRB data also showed that in most States with a sizable number of Muslims, their percentage among undertrials and convicts was significantly higher than their share of the State population.

In Maharashtra, for instance, they accounted for only 11.5 per cent of the population but made up 30 per cent of all undertrials and 20 per cent of the convicts. In West Bengal, they formed 27 per cent of the population but made up almost half of all undertrials at 47 per cent and 40 per cent of the convicts.

In undivided Andhra Pradesh, while their share in population was low at 10 per cent, their share among undertrials stood at 9 per cent and among convicts at 8 per cent. In Delhi, Muslims constituted 13 per cent of the population but their share among undertrials was 22 per cent and among convicts 19 per cent.

Muslims in Madhya Pradesh account for a low 7 per cent of the population but their share among undertrials was nearly double at 13 per cent and among convicts, it was 10 per cent.

In Tamil Nadu, Muslims accounted for less than 6 per cent of the population but made up 16 per cent of undertrials and 17 per cent of convicts, while in Rajasthan, where they accounted for 9 per cent of the State population, their share of undertrials was 16 per cent and that of convicts 18 per cent.

The large-scale incarceration of Muslims did not happen by accident, and the “encounter” killing of eight Students Islamic Movement of India activists near Bhopal puts the spotlight back on the outlawed SIMI. Most of the Muslim youths picked up across the country and charged under sections of the draconian anti-terror laws such as the Unlawful Activities Prevention Act (UAPA) were also directly or indirectly linked to the SIMI—either they were members of it before it was banned in 2001 or some of their friends or relatives were members or they were charged for something as banal as possession of SIMI material praising God or newspaper clippings. The patterns of arrest fit the counterterrorism strategy of governments after the September 11, 2001, attacks in New York.

The Jamia Teachers Solidarity Association (JTSA) has documented cases where Muslim youths were victimised on trumped-up charges and incarcerated for long periods of time. It has released several reports over the years illustrating how, under the UAPA, Muslim youth were picked up, detained, arrested and then framed on terror charges after particular incidents of violence or simply on charges of furthering the activities of an unlawful association.

It linked the large number of cases to the continuation of the ban on SIMI. “These cases validate the extension of the ban; the ban legitimises the witch-hunt in the name of combating the ‘terrorist organisation’, creating a vicious circle,” the JTSA said.

Under the UAPA, a ban on an association lasts for two years, but it can be reviewed by a tribunal after that period. The government has extended the ban on SIMI six times. Every tribunal instituted to rule on the issue has upheld the ban, with the exception of the one headed by Justice Geeta Mittal in 2008, which revoked the ban citing scarcity of evidence and facts against the organisation. The decision was overturned by the Supreme Court. During the last tribunal in 2014 under Justice Suresh Kait, the ban was extended until 2019. Former members of SIMI challenged the continuation of the ban. A writ petition submitted by two erstwhile members of SIMI, which was heard in 2014, showed that as part of a background note prepared by the Centre, it was noted that 97 of 111 cases related to SIMI under the UAPA ended in acquittal or in the government dropping the charges. An appeal challenging the ban is pending in the Supreme Court. Meanwhile, the JTSA’s report, “Guilt by Association”, said the ban led to more Muslim youths being picked up and more arrests being made, which was used to justify the continuation of the ban. “It is a tragic tautology that has played out for the past decade and more,” the report said. Through fact findings and an examination of court documents, the report showed how Muslim youths were framed on flimsy grounds. In Madhya Pradesh, where the “encounter” happened recently, despite the absence of any terror-related violence in the past several years, with the exception of a shootout in Teen Pulia in Khandwa in 2008, where three people including a constable died, the number of cases registered against the accused for furthering the activities of a banned organisation was fairly high.

An analysis by the JTSA showed that not only were men accused of identical crimes, but the set of accused, date and time of the crimes were also identical. For instance, first information report (FIR) No. 537/00 and FIR No. 663/00 were registered in police stations at Talliya and Shahjanabad respectively on October 22, 2000, against the same set of accused: Sorab Ahmed, Maulana Arsad Ilyas Ahtesham, Abdul Razzaq, Mohd Aleem, Muneer Uz Zama Deshmukh and Khalid Naim. The six were accused of sticking provocative posters. The six then appeared in many other FIRs filed in the two stations in various permutations and combinations. The report also documented the case of Mohd Aquil Khilji, one of the men gunned down near Bhopal. On April 16, 2006, according to the prosecution’s case, the Station House Officer (SHO) of Kotwali police station in Khandwa received a call from an informer that Khilji was furthering subversive activities of SIMI by addressing people about its ideology. A booklet titled “25 years of SIMI” was found on the spot and in later raids at his house the police seized a SIMI constitution ( dastoor ), membership forms, and copies of Tehreek , Tehreek-e-Millat and Tameeer-e-Millat , none of which are banned texts. The literature seized became the basis of the charges against him under the UAPA and subsequent conviction. The JTSA exposed several loopholes in the investigation as well as the judicial process but nothing came of it.