Binit Agrawal and Mansi Gupta

Criminal justice systems (CJS) across the world often come under the influence of socio-political movements. If not restricted in due time, such influence leads to the CJS becoming the most potent tool in the hands of dictators and segregationist groups. The hallmark of such ideological influence is the creation of victimless-crimes: crimes where there are no victims, except for ideology. Nazis, for example, made it a crime for Jews to not wear a yellow badge when in public. To a reasonable person, creation of such crimes represent over-criminalization. Nonetheless, ideological passions allow such crimes to not just exist, but to become the most abhorrent of crimes. In this essay, we will take the reader through two such over-criminalization policies from two leading democracies: the War on Drugs in the United States and the Love Jihad Ordinance in India (Uttar Pradesh). The nature of these policies are uncannily similar and seek to exploit the factum of ‘procedure as punishment’. We will argue that usage of over-criminalisation as a tool for social control leads us down a road from where there may be no return.

War on Drugs

The playbook of demagogues across democracies has been to rule by engendering a fear of existential crisis within the majority communities. They refer to the triumph and stability of the past and then shed light on the crisis of today. The villains, they claim, are the minorities who are fast becoming powerful and numerous. The US faced such a crisis in the post-civil war era, when African-Americans started to gain political and social standing. Soon, the demagogues ensured that the African-Americans are put in their place through the introduction of Jim Crow or social segregation laws, which was deemed as, “return to sanity”. These laws, however, started to see their decline by the 1950s due to the civil rights movement and were finally abolished. This, however, was unpalatable to the white-majority and populists, who saw this as disturbing the racial equilibrium. Soon the Republican Party changed its rhetoric from “segregation” to “law and order”. The plank of their 1964 election was, “choose the way of the Johnson administration and you have the way of mobs in the street”. Richard Nixon, soon to be president, referring to the civil rights movement warned, “increasing rate of crimes can be traced directly to the spread of the corrosive doctrine that every citizen possesses an inherent right to decide for himself which laws to obey”. For over a decade, movements and protests against discrimination were linked with the issue of law and order and rising crimes. Added to this was the view that most of these protestors were just freeloaders and druggies, pejoratively referred to as “welfare queens”, an imagery of a black woman exploiting the welfare system. The propaganda and strong imagery created a view that blacks were engaging in crimes, destabilizing the nation, and were drug abusers.

This notion especially picked during the Nixon era, who popularly chuckled at his campaign-ad claiming, “It’s all about those damn Negro-Puerto Rican groups out there”. Finally, when in power, Nixon rallied for a “War on Drugs”, which was perceived by most white supremacists as a war on African-Americans. War on Drugs involved criminalization of any form of use or trading of prohibited drugs, even in the smallest of quantities. This not only criminalized a victimless crime but caused extreme-criminalization. Soon, due procedure rights were weakened, and unexpected support came from the Supreme Court in Terry v. Ohio. The court upheld the stop-and-frisk rule, which allowed weaponization of rumours and suspicion. As a result of this holding, any police officer, even if he had no suspicion or if he has received an anonymous tip, could stop and frisk anyone, anywhere, without a warrant. The result was that African-Americans across the country were frisked and detained even without any suspicion. The overwhelming evidence has been that the war on drugs had made effective use of “procedure as the punishment”. While the arrests happen en masse, conviction rate for drug-related arrests is low. In such a scenario, the process itself is the punishment for someone whose car seats have been ripped apart to search for drugs, or for someone who has been beaten up for not conceding to the police. The fate of George Floyd is a prime example of this. When a large chunk of the population belonging to a certain social group keep going to prison for no reason, that group has no choice but to live in fear: one never knows if they will come back to their house that night without having to encounter police abuse. One also realizes that all it takes for a white person is to call the police on her, relegating them to second class citizenship. What is worse is that through the deployment of mass propaganda in television-media and popular cinema, all of this has been romanticized, taking away all sense of dignity.

War on Love

The Love Jihad Ordinance in UP has borrowed extensively from the War on Drugs playbook. Over the course of the last few years, through the help of media, an imagery of the anti-national Muslim has been carefully woven. All one needs to do, in order to identify an arsonist and an anti-national, is “to look at their clothes”. This has clothed Islamophobia as a disgust for ‘anti-nationals’, who challenge law and order. Further, the ‘anti-nationals’ have also been branded as the ones who benefitted from appeasement politics for decades, at the cost of the Hindu majority. In addition, through a myriad of conspiracy theories, it has been proven that these anti-nationals are waging a civilizational war to transform India into an Islamic nation. The easiest way to do this, the demagogues’ posit, is by marrying Hindu girls, while not allowing Muslim girls to marry outside their religion. While not backed by any evidence, the theory has an instant appeal to anyone who already has some suspicion against the minorities, which in itself has been created though years of manipulation.

Once this branding has successfully been undertaken, much similar to the creation of “welfare queens” and “law-and-order disrupters” in the US, it is not difficult for ideologues to criminalize what are essentially victim-less crimes. No one is hurt in an inter-religious marriage, or consumption of beef, or in a peaceful protest. What is hurt, however, is the ideology which has been implanted in the majority of the population, who feel that these acts signify the beginning of the end of ‘sanity and order’. If not nipped in the bud, they feel, it would jeopardize their very existence. This begins the process of over-criminalization, primarily relying on “procedure as the punishment”.

UP government left no stone unturned in bypassing the constitutional guarantee of right to pursue faith of one’s choice as was recently pronounced by the Supreme Court in Shafin Jahan. The ordinance is vague and manifestly arbitrary creating a social imbalance wherein state can misuse their powers even to persecute individuals who decide to marry outside their faith. The law is a severe intrusion in the personal space of individuals who are required to notify the District magistrate 60 days in advance if they wish to convert. This shall culminate into a public notification and invitation of public objections before conversion. Hence, the entire process is cloak for inviting hostility and public wrath for inter-faith marriages.

Immediately following the ordinance, there were reports of arrests which have been spurned by rumors and tip-offs, resulting in undue arrests not leading to conviction. In one instance, a scheduled marriage was stopped even though the families had consented, requiring the families to seek a certificate from the district magistrate. In another instance, a married girl was forced into miscarriage as the marriage was inter-religious and police wanted to investigate the matter further. In yet another instance, an ongoing marriage between a Muslim couple too was stopped because of a rumour that the girl was Hindu. They were let gone off only the next day. These examples tell us the extent of impact a mere phone call from a neighbor can have on a Muslim marriage, inter-faith or not. The result is that a Muslim citizen would be under constant fear as the police can turn-up any time before, during or after a marriage. This relegates them to second class citizenship, just like the African-Americans have been. While much smaller in extent when compared to the war on drugs, the Love-Jihad ordinance is a signifier of the bigger things to unravel in new India. It will not stop with intimate and personal decisions of marriage, or food habits, or the criminalization of basic rights like the right to protest, but shall erode the very foundation of constitutional morality in India.

What such Over-Criminalization does to a Nation?

The effect of the War on Drugs can be gauged from the fact that in the 30 years since it started, prison population in the US has exploded from under 300,000 to over 2.3 million in 2016. It is even shocking to note that while 3% of the adult population has been to prison, the same is at 15% for the African-American community. In some cities, upto 80% of young African-Americans have been to prison. Over the years, successive governments poured billions of dollars into prison-expansion and police funding, totaling to over a trillion dollars. Aside from the budgetary costs and costs on specific groups, such over-criminalization also wrecks the enforcement and judicial institutions. The enforcement authorities keep their focus on such civilizational crimes, leaving them little resources for other crimes. The judiciary too is kept busy with the trial of such crimes, over-burdening it and ensuring that judicial system on a whole fails.

One can imagine the impact over-criminalization of specific social practices can have on our judiciary, which is already over-burdened and slow. The enforcement authorities will gain immense exploitative powers to harass specific groups of citizens. The economic costs too, while not as high as in the US, will be significant and will drain the enforcement authorities of the resources necessary to handle other crimes.

The worst consequence of such over-criminalization, however, is that they lead us down a path of no return. While we would not argue that it would lead to the creation of a Nazi-style polity, as some commentators have done, it would certainly create a new-normal. Today, even after widespread protests in the US, activists have found it difficult to prevail over the governments to defund the police and to impose checks on them. Even moderate politicians find it difficult to support these policies, for the fear of losing popular support. Similarly, in India, such policies will normalize state-sponsored discrimination and legitimize social prejudice which are already deep-rooted (e.g. “we don’t sell or rent houses to Muslims in this residential society”). Thus, even those parties, which now advocate non-discrimination, will be forced to soften their positions to remain politically relevant. We are already seeing some parties advocate ‘soft-Hindutva’ and the trend of such over-criminalization will only hasten the process. The pressing need of the hour is to acknowledge the transformative power of the Constitution which not only seeks to protect individual rights against the state, but also keeps majoritarianism in limits. Hence, unless we turn towards a constitutional-morality based approach to criminalisation, and the judiciary fulfils its role of keeping such executive tendencies in check, we may soon have a segregationist criminal justice system.

The authors are students of BA LLB (Hons.) at the National Law School of India University, Bengaluru.

Image Credits: Indian Express