[Ed Note: Over the next few days, we shall be discussing Prof. (Dr.) Upendra Baxi’s article titled “Human Rights in the Administration of Criminal Justice: The Concept of Fair Trial” published in the Annual Journal of the National Human Rights Commission, Volume-19, 2020. This is the third response to the article by Ameya Bokil, co-founder of the Criminal Justice and Police Accountability Project. The introductory post and the links for responses from other commentators (Prof. Amita Dhanda & Prof. Jinee Lokaneeta) can be found here.]
Though overcome with protest for its content, I welcome Professor Baxi’s article on fair trial and human rights as a springboard for being able to express some of my thoughts on this very subject. I must apologise to Prof. Baxi and the readers expecting an engagement from what might be considered a place of reasonableness. To paraphrase anarchist criminologist Prof. Jeff Ferrell, I believe the legal and cultural machinery of the State and a life lived under the current regime of power compels one to present unreasonable and unthinkable propositions. I intend to respond to Prof. Baxi from a human rights skeptic and abolitionist perspective. I personally do not consider these perspectives unthinkable, having been written about for over a century by Anarchists and libertarian socialists, Marxists, and Black feminists and being put in practice by social movements.
I write this with the custodial death of Father Stan Swamy in fresh memory; in the midst of the Pegasus spyware scandal and reports of falsified evidence being planted in the devices of the ‘Bhima Koregaon’ accused; at a time, Jammu & Kashmir continues to be under military occupation with thousands detained under the Jammu & Kashmir Public Safety Act with the remedy of habeas corpus frustrated by the High Court and the Supreme Court (“SC”); families being put into detention camps in Assam through a process riddled with arbitrariness; and the detention of people protesting the destruction of their homes in Khori, each of these actions, either sanctioned or acquiesced by the SC.
The purpose of listing these out is to ask what it would take for critical scholars to be less hopeful about human rights. There has been an expanding scholarship on the left that questions the foundations of the post-World War II human rights discourse as well as its utility of its invocation by social movements. It is argued that the human rights discourse rather than being reduced by “the emergence and entrenchment of market-friendly and trade-related governance and development” as Prof. Baxi sees it is an invention of capitalism and imperialism, which in turn helped the creation of the essential preconditions required for these to function: turning of complex relationships and claims as obtainable and tradable commodities.
It does so by diluting political claims (whether for overturning existing power relations or ending oppressions) to rights claims that everyone from the financial institutions like the World Bank and world’s neo-imperialist powerhouse United States seem to uphold. Some examples that D’Souza cites is the reframing of the indigenous people’s claim over land (“synonymous with Time’s claim to places”) and third world anti-colonial claim of sovereignty into claims of right to property, and right to free and fair elections respectively: claims that must now invoke of international law and invite capitalist and imperialist interventions.
Reframing Equality and Liberty to Fair Trial
Prof. Baxi wants to locate his jural postulates of a civilized Criminal Justice System (“CJS”) mainly within the Constitution of India. The 10 postulates are distilled into the concept of ‘the right to fair trial’; a concept rooted in concepts of equality and liberty.
Prior to the moment of the framing of our Constitution, liberty and equality were political demands of the anti-colonial and anti-caste struggles and responses to direct oppressions of the colonial state and the Brahmanical order. Not all participants of these struggles perhaps shared the same articulation of equality and liberty. In particular the conception of equality shared by Savarna caste leaders of Indian National Congress was discriminatory and harmful, and was the subject of criticism by BR Ambedkar. Yet, the most radical articulations of these demands were at least available to be drawn upon for the framing of the Constitution. BR Ambedkar refers to the significance of the liberty to choose one’s profession in a caste based society. On the question of law and order which is relevant to our discussion, KG Kannabiran and Gautam Bhatia refer to speeches of Motilal Nehru and CR Das. CR Das had noted in his 1922 Congress presidential address, “The personal liberty of every Indian today depends to a great extent on the exercise by persons in authority of wide, arbitrary or discretionary powers. Where such powers are allowed the rule of law is denied.”
Bhatia defines this particular ‘civil liberties tradition’ by three characteristics: its locating of personal liberty in opposition to concentrated coercive power of the State; its critique of the various aspects state of exception; and its universalism that would allow it to be applied to a post-independence State. I believe these held within them a larger critique of the state of exception itself that would have gone further than the text of the Constitution as it was framed in ensuring liberty remained inviolable even when ‘national security’ was purported to be under threat.
Turning to how this claim came to be ignored while framing our fundamental rights chapter, we can refer to the exceptions, and the absence of due process requirements in Article 21 to say this political claim was not reflected in the text. We can refer to the fact that freedom themselves were defined in a way that ignored culture and needs of Adivasi communities as Jaipal Singh Munda had tried to resist. We might also refer to Articles 22(4) to 22(7), and the saving of the preventive detention regime. An earlier discussion on LAOT between Abhinav Sekhri and Shrimoyee Ghosh captures the violence embedded in these clauses with Ghosh also pointing out the denial of even these basic safeguards and suspension of habeas corpus in J&K until 1979, all that Prof. Baxi seems to have passed over while venerating Article 22(1.
To borrow Ghosh’s words, there is a lot to answer for the “constitutive violence at the heart of India’s constitutional democracy”, and the answer is not to reduce notions of liberty into tiny pieces of fair trial. And thus, Prof. Baxi’s postulate and Indian SC’s rhetoric on presumption of innocence cannot undo the foundational rejection of the claim of liberation in this wider sense during the Constituent Assembly and the consistent history of utilisation of the preventive detention regime.
Indeed, the postulate “All investigation should be constitutionally just and reasonable, and the difference of kind as well as degree between prosecution and persecution must at all times be observed”, rests on the absolutely misplaced presumption that the police are hapless individuals lacking the discipline and the capacity to respect constitutional values of equality and liberty, instead of what are essentially a casteist, colonial and capitalist institution of coercion and control.
The reframing of claims of liberty and equality into fair trial has not only legitimised a permanent state of exception that we live in but has allowed its co-option in self-interest by the very oppressive institutions against which liberty and equality protects us. A recent example is the attempt by the SC E-committee to package surveillance technologies sold by corporations and used by the executive as a tool for speedy and fair trial. Artificial Intelligence based technologies have also been introduced by the SC through the Supreme Court Portal for Assistance in Courts Efficiency (SUPACE), for allocation of cases as well as helping judges in decision making. The logical end seems to be, as we have seen in some US jurisdictions, taking AI’s help in making decisions with respect to bail and sentencing.
In the normative world of rights, Prof. Baxi’s postulates might have led us to better (but not entirely liberatory) outcomes. Sadly, the normative world is much too disparate from the real world and curiously, legal scholars fail to acknowledge this. This begins with the refusal to take into account the actual nature of the state and its institutions.
Can we change the nature of these institutions and the state by pleas based on human rights alone or just incremental reforms? For instance, can the postulate asking treating bail as a right and jail as an exception disturb the violence at the core of criminalisation and imprisonment? An ideology of incarceration is not one that can permit a principled usage of bail and imprisoning.
Incidentally, the emergence of imprisonment as a punishment was itself a reform brought about in Europe as a reform to crueler modes of punishments, with the rise of capitalism. This was possible only upon the recognition of inalienable rights of individuals, rights that could be taken away as punishment.
The prison system in India, David Arnold writes, “grew out of the British preoccupation with the extraction of revenue and the maintenance of ‘law and order’… [It was] a strictly material adjunct to a colonial system of economic exploitation and political control.” Criminalisation was borne out of the need to protect its immediate economic interests of safe transport, revenue and monopoly over land and forest resources. This led to laws meant to deter ‘Thuggee’ and later, the Criminal Tribes Act (“CTA”), aimed at the sedentarisation of nomadic forest dwelling and forest dependent communities, mainly Adivasi and communities who now identify as Vimukta, by branding them as ‘hereditary criminals’, and incarcerating them in penal colonies. The rationale for this was provided by the caste system which already determined one’s status and occupation by birth.
Arnold writes, one of the cardinal ways the British came up with to profit from the captive prison population: one, the incarcerated were subject to “practical form of colonial control over productive labour” and jails were turned into factories producing carpets to lithographs and profits for the British.
The prison system (and CJS) to this day exists with these characteristics: overwhelmingly, the offences for which pretrial incarceration remains common, fall in the domain of order maintenance, revenue extraction and protection of capital; that these disproportionately house persons based on the rationale of caste through the continual process of criminalisation of communities; and that these continue to exploit physical labour.
Entire gamut of everyday policing practices is geared towards maintaining order and control: in our analysis of the arrests made during 2020’s lockdowns in Madhya Pradesh in a study on pandemic policing, 81% of all arrests were for harmless/low-harm or victimless order-maintenance related offences constituting minor quarrels under the IPC and offences under the Excise Act and the Public Gambling Act. This is largely true with some variation of the degree for other states and at other times. This alongside discriminatory policing, which is a legacy of the CTA but sustained by the persistent caste system and colonising mindset, and access to good legal representation determined by social and economic capital has led to a situation where 66% of the prison population belongs to the SC, ST and OBC administrative categories. On the backs of convicts, State Prison departments reap enormous profits by running prisons as factories with operations and revenue expanding every year. This is in its own way Prison-Industrial Complex with caste taking up a central role by continuing to determine how work is assigned. According to the National Crime Records Bureau’s Prison Statistics India Report from 2019, prisons netted a revenue of Rs. 845 Crores through selling products the inmates manufactured with Telangana alone contributing nearly Rs. 600 Crores amounting to Rs. 8,93,093 worth of goods produced per inmate who are paid Rs. 30 to Rs. 100 per day. No state pays anything even close to their respective minimum wages.
Knowing this, I define our CJS as a system of colonial and casteist social control relying on systematic criminalisation, incarceration and exploitation of the labour of certain communities to protect the Brahmanical, Patriarchal, Capitalist and Colonial social order. It has been so since its origin and so by design. And there does not seem to be a way to fix this system without abandoning oppressive institutions themselves.
When movements talk of abolishing prisons, they are not imagining a brick and mortar institution with a different name but what Angela Y Davis calls “a constellation of alternative strategies and institutions” that includes working to annihilate the fundamental systems of oppressions: Brahmanism, Patriarchy, Capitalism, Colonialism and the State itself, but do this while pre-figurative politics of setting up institutions of care and for resolution of conflicts that center survivors of abuse.
As practitioners, we cannot ignore the need for tactical deployment of the postulates advanced by Prof Baxi, and we indeed push the courts to read rights in more liberatory ways. However, we should hope normative discussions like the one presently initiated will push us into the next century of how social movements will engage with the violence and oppressions, and neither postulates nor ‘human rights discursivity’ can bring us meaningful liberation and equality. As D’Souza suggests, human rights discursivity continues to be invoked ad nauseam despite its failures in delivering outcomes for social movements owing to “liberalism’s capacity to generate an unending series of new hopes and a feeling of agency”.
I ask you to abandon this false hope that this system is fixable without dealing with ‘constitutive violence’, and ask social movements consider whether they want the next seven decades to be just like the last seven. Then, propositions like abolition of prisons and our CJS will not seem as ‘unthinkable’.
 Present discourse on the subject can be traced to works of Angela Y Davis, Ruth Wilson Gilmore, Michelle Alexander and Mariame Kaba.
 Please see Radha D’Souza, What’s Wrong with Rights?: Social Movements, Law and Liberal Imaginations (2018), Jessica Whyte, The Morals of the Market: Human Rights and the Rise of Neoliberalism (2019), Samuel Moyn, Not Enough: Human Rights in an Unequal World (2018); Samuel Moyn, The Last Utopia: Human Rights in History (2010) and James Peck, Ideal Illusions: How the U.S. Government Co-opted Human Rights (2010).
 D’ Souza and certainly indigenous writers before her define land as a relationship between humans and nature and one another. This was transformed into property by rights discourse, hence tradeable on the market.
 D’ Souza argues that the ‘will of the people’ in Global South’s newly independent countries was repackaged as a question of free and fair election opening doors to international election monitoring agencies that have legitimized anti-democratic interventions whether by occupying armies of financial institutions like the World Bank. For the full argument please see Chapter 4 of D’ Souza (2018).
 BR Ambedkar, Annihilation of Caste (1936). In this undelivered lecture, Dr. Ambedkar cites several examples of the attitudes of Congress leaders including the attempt by BG Tilak and WC Bonnerji to shut down Social Conference, a wing complementary to the National Congress to focus on social reform focused on ending inequities within Hindu Society that he believed must precede political reform that demanded self-rule. See Also, BR Ambedkar, What Congress and Gandhi Did to the Untouchables? (1945) where he speaks of MK Gandhi and other leaders’ endorsement of the caste system and its practices and their unwillingness to allow social and political reforms geared towards equality including Separate Electorates for the Depressed Classes.
 KG Kannabiran, Wages of Impunity: Power, Justice, and Human Rights (2004).
 Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (2019).
 Motilal Nehru in his 1919 Congress Presidential Address took on the Rowlatt Act passed by the British: “[just] because there are … Some persons who endanger public safety, the whole nation must submit to the disgrace of allowing this terror to hang over it … the only justification pleaded is that the Act is not meant for the innocent and the law-abiding who need have no fear of its application to them. But … the sole judge of the innocence or guilt of any person … is the executive”.
 Jaipal Singh Munda raised the demand for the right to bear arms for Adivasis on cultural and practical grounds with respect to Article 19(1)(b) (the freedom to assemble peaceably and without arms).
 See Chapter 1 of Aditi Pradhan et al., Countermapping Pandemic Policing: A Study of Sanctioned Violence in Madhya Pradesh, Criminal Justice and Police Accountability Project (September 2020) and David Arnold, Police Power and Colonial Control: Madras 1869-1947 (1986).
 Jelsyna Chacko, The integration of Artificial Intelligence in the Indian judiciary: In conversation with CEO of MCIL, Manthan Trivedi, Bar & Bench (3 July 2021) available at: https://www.barandbench.com/interviews/integration-artificial-intelligence-indian-judiciary-mcil-ceo-manthan-trivedi-interview and Tom Simonite, Algorithms Were Supposed to Fix the Bail System. They Haven’t, Wired (19 February 2020) available here: https://www.wired.com/story/algorithms-supposed-fix-bail-system-they-havent/
 Michel Foucault, Discipline and Punish: Discipline and Punish: The Birth of the Prison (1975) and Chapter 4 of Angela Y Davis, Are Prisons Obsolete? (2003). This way these inalienable rights were framed also allowed exceptions to be made that ostensibly legitimised genocides and African slave trade, sufferers not deemed to be full individuals by the white man.
 Also see Padmini Swaminathan, Prison as Factory: A Study of Jail Manufactures in the Madras Presidency, Studies in History 11(1) (1995) for colonial attempts to rationalize it.
 Aditi Pradhan et al., Drunk on Power: A Study of Alcohol Policing in Madhya Pradesh, Criminal Justice and Police Accountability Project (August 2021). Here we find that policing of people from marginalised communities manufacturing and selling small quantities of country liquor is motivated by corporations/ persons given the exclusive contract to sell the liquor in an area who employ people to complain against the former. This ‘legitimate’ trade is monopolized by people from Savarna communities.
 Please see Sukanya Shantha, From Segregation to Labour, Manu’s Caste Law Governs the Indian Prison System, The Wire (10 December 2020) for an analysis of various Prison Manuals as well as prevailing practices. This adds a new layer to the understanding of Prison-Industrial Complex which is defined as a set of complex relationships between prison inmates, the state and private corporations with the latter too exploiting prison labour for profits and with vested interest in expanding prison population, privatisation of prisons, etc.
 Manipur is supposed to pay as little as Rs. 8 to an unskilled worker per day for their labour. Not enough information is public but private companies including The Himalaya Drug Company and Minda Furukawa Electric Pvt. Ltd. have been utilising prison labour and yet expanding their programmes.
 Here I use ‘colonial’ not just as the legacy of the past but policies the Indian State presently has towards Kashmiris, indigenous people in mainland India and the North East, and others as well as their lands and resources. ‘Social control’ is exerted of course not only through incarceration (mass incarceration is a separate problem seen in US) but overarresting, surveillance of certain communities and their labeling as ‘Habitual Offenders’, , ‘Goondas’, etc., violence and keeping communities under the hold of the police. People quoted in Drunk on Power report say boys and men refrain from accessing markets and big towns should they be detained and falsely implicated, thereby having their freedom of movement limited by the police.