Political prisoners in the context of India
There have been many attempts worldwide to define who is a political prisoner (see, for example, the Burmese Assistance Association for Political Prisoners, 2014; Parliamentary Assembly of the Council of Europe Resolution 1900 (2012); and the systematic review by Steinert, 2021). In India, despite the high number of people incarcerated as undertrials -- 77% of the prison population today – there is no official definition of political prisoners. Haskar (2021) observes the urgent need to have one and suggests drawing on the existing international definitions.
However, as Disha Wadekar, a lawyer based in New Delhi, India, and co-founder of Community for the Eradication of Discrimination in Education and Employment (CEDE) has argued, such definitions are limited due to their “singular focus”, that is, they are premised on an epistemological understanding of these dissenting people as each one being imprisoned as an individual defender of human rights (Wadekar, 2022).[1] Wadekar has represented Dalit survivors before the Bhima Koregaon Judicial Inquiry Commission (the judicial commission established to investigate the caste violence in Maharashtra’s Bhima Koregaon area) and also advocated for withdrawal of cases against Dalit protesters in the aftermath of the violence at the Bhima Koregaon event. Around 350 cases were withdrawn in February 2020.
As Wadekar argues, the individual-focused definition of political prisoner is problematic in the context of India, where caste privilege has shaped the current mainstream ideas and discourses about civil liberties including dissent. That is, caste privilege defines how we “talk about dissent, who is able to talk about it, who decides what is and what is not dissent”. Hence the discourse about dissent we mostly hear, Wadekar notes is that which is “mainly advanced by Brahmin-Savarna liberal academics, legal practitioners and civil society organisations”. This discourse is mostly premised on history of incarceration of people/intellectuals/activists from privileged backgrounds for dissenting against the British in the colonial period. Consequently it “endows certain individual dissenters (mainly Brahmin-Savarna) with politicity” without consideration of how it “invisibilises and de-politicises [India’s many marginalised] communities” that have a long and “traumatic history of dissent” for which the communities as a whole have been historically as well as in present times “systematically persecuted”. The reason for this persecution, is the nature of these communities’ dissent, which was, has been and continues to be about their rejection of their own marginalisation (Wadekar, 2022, n.p.).
Wadekar draws on the work of Dr B.R. Ambedkar, who referred to Indian society as an “open social jail”,[2] in which each caste group is expected to live by rules codified in the Brahminical text Manusmriti, and to be only within the space marked out for that caste group (see also Murugan, 2021). When communities have dissented against these rules, historically they have been castigated as “untouchables” or “born criminals”. While the former were forced to live on the margins of villages and towns, the latter, who often led a nomadic life, under the British, came to be forced to live in enclosed open prison-like conditions. Today these tribes are labelled as “habitual offenders”, who then live in a state of constant surveillance. They and the Dalits are often arrested for crimes they have no connection with, often not as individuals but whole groups of people (Wadekar, 2022, here and here; see also Criminal Justice and Police Accountability Project (CPA Project), 2020 and 2021 here and here).[3]
Wadekar also argues that the Bhima Koregaon case is an exemplar of how this kind of incarceration risks being further normalised by the mainstream discourse that presents dissent as an individualistic action (2022, n.p.). Their stories of incarceration are often presented as stories of upright (and upper/oppressor-caste) human beings, whose arrest “shakes our conscience”. That is, she argues, it appears as if to become known as a brave and fearless dissenter, you have to possess certain social, class and caste capital.
Wadekar reminds us that over the months that the BK-16 were being imprisoned, there were also other arrests being made in the same case:
“An amendment to Sections 332 (voluntarily causing hurt to deter public servant from his duty) and 353 (assault or criminal force to deter public servant from discharge of his duty) of the IPC in Maharashtra became a tool for rampant misuse of these sections by police officials to criminalise and harass thousands of Dalits protesting the violent attack in Bhima-Koregaon in 2018. In over 655 first information reports [FIRs] registered by police against Dalit protesters across Maharashtra, close to 11 thousand ‘unnamed Dalits’ became potential targets of the State. The amendment had made these offences non-bailable, enhanced punishment from two to five years and made the offences triable by a Sessions Court. A year after the registration of FIRs against Bhima-Koregaon protesters, the police began combing action, arresting, summoning and sending externment (tadipar) notices to Dalit protesters.”
This part of the history of BK-16, which involved the arrest of dissenting marginalised communities as opposed to dissenting individuals has received little attention in the mainstream media. Moreover, the ability of the police to conduct such an action derives from a mindset that constructs the communities that resist being brought under the Brahminical fold, as criminal by nature rather than as a group of conscious dissenters. Thus, Wadekar concludes that when a few political prisoners become the focus of campaigns for upholding civil liberties, when their stories as told in a way that valourises them as individual human rights defenders, “[it implies that some lives are more worthy of freedom than others” and normalises the “Brahmanical system responsible for the over-criminalisation of the marginalised” through laws such as Habitual Offenders Acts, Anti-Begging Acts, Excise Acts and Gambling Acts (see also CPA Project). Consequently, campaigns for political prisoners then are unable to shift the status quo as the deep, structural “systems and processes responsible for unjust incarceration” remain unchallenged.
Thus Wadekar’s critique is important for organisations such as InSAF India that are seeking to understand and intervene in the incarceration of political prisoners such as the BK-16.[4] Since first becoming aware of Wadekar’s argument, and her more recent elaboration in a talk entitled “The Caste of Dissent” on 16 April 2022, presented in the Anti-Caste Histories and Solidarities lecture series, hosted by SASAS Germany and DBAV Women, Trans, Non-binary People’s Collective in collaboration with Rosa Luxemburg Foundation, and reading her article in The Leaflet, we have reflectively approached our view of academic freedom, so that our BK-16 campaign is not only about the freedom of a select few jailed academics but also the incarcerated artistes, lawyers and activists and the dissenting citizens who themselves are from marginalised communities. In other words, our BK-16 campaign aims to situate this case in, and through it also challenge, India’s broader carceral politics.
Wadekar’s 2022 talk was moderated by Nikita Sonavane, co-founder of the CPA project. On 26 June 2022, InSAF India had a conversation with Nikita and an edited version of the transcript is given below.
[1] The term “human rights defender” also is defined from the same vantage point (for example, see UN Office of the High Commissioner for Human Rights, “About human rights defenders”, n.d.).
[2] We thank our InSAF India colleague who introduced us to this term.
[3] These castiesed notions of dissent as individual, and dissenting caste-privileged individuals as noble people, also problematises the use of another term in the context of India: “prisoners of conscience”.
[4] See also Sukanya Shantha (2020) on how caste continues to operate similarly within the prison.
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Nikita
My entry point in this conversation is my talk with Disha in June 2022 and how am I looking at the question of incarceration at large also, particularly with the kind of work my colleagues and I at the Criminal Justice and Police Accountability project are doing. For us the question of criminal justice system (CJS) and the origin story of the CJS in India, and also the question of law and law-making, we trace that back to the caste system. We say that it is an institution that is rooted in and is a byproduct of the caste system and is looking to discipline people along the lines of the caste order -- even the phrase “law and order” can be contested.
So the way we understand this law and order function of the criminal justice system or even its penal functions, these are actually social order functions of the caste system and we trace this back to the Manusmriti. This is because a lot of critiques of law and law making in India particularly of criminal law, and predominantly anti-colonial critiques, say well that it was Victorian morality that was codified and handed down to us. What we’re saying is that yes, we’re not disagreeing with that, but that is a part of the story. We’re tracing this back to the laws of caste, the law of Manu in which there are Aryans, and there are non-Aryans who live on the outskirts of the city, and this is the code of conduct, and if anyone is violating that code of conduct this is the way in which they need to be disciplined. So the codification of law, of the legal framework as we understand it now, through the colonial era is ultimately a codification of Manu’s law. And in the way we understand the penal code and criminal procedures, the entire machinery, the entire judiciary, the police, the entire framework -- we’re not making the distinction between the caste system and the CJS because it is a system whose ethos is Brahmanical and it is rooted in Brahminism and it is designed to reproduce Brahminism.
Therefore when we see data, e.g. the NCRB data or work around death penalty or our own work at CPA Project, the [commonly articulated facts of] overrepresentation of certain communities, whether it is in terms of who is arrested and who is illegally detained and incarcerated, the overrepresentation of the OBC/SC/ST administrative categories and the very marginalised communities that lie along the continuum of these categories, we are saying that that is the natural order of things. So while many people/experts say the “system is broken” or we need to find ways to fix the system, we disagree with that stance, because we’re saying that the way criminalization has been constructed, its entire framework has been created to preserve the framework of caste. Therefore, the communities that are incarcerated by this system are the communities that were always sought to be incarcerated by it. So the argument that we’re making is that actually it is a very well-functioning system. Because it is producing the kind of outcomes it was designed to produce. We’re saying that kind of incarceration of one community is an incarceration of communities and the incarceration of communities that are oppressed by the caste system, whether it is communities that were classified as untouchables or the communities we work with closely, the erstwhile denotified tribes, which include nomadic and semi-nomadic tribes.
We’re saying that kind of incarceration is Brahmanical in nature and because it is caste-based incarceration it is by definition political in nature. So for us the discomfort with the creation [and conceptualization]n of the category of political prisoners is one, it exceptionalises the functioning of the CJS. To say that what we have seen happening with a law like the UAPA, particularly since 2014 is somehow an exceptional phenomenon where certain people espousing certain kinds of views or undertaking certain kinds of activities that we broadly understand as being dissent, or about dissenting against the state or challenging the status quo is political in nature, therefore their incarceration is political in nature, and they are political prisoners. But what we’re saying is that there are so many communities who by their very existence have been dissenting communities, the communities that are classified as criminal tribes, these are communities that do not ascribe to the caste system, their ways of living and functioning, whether it was their occupation or just their modes of being, it was a challenge to the social order of the caste system. So in many ways their existence is [about] dissenting against status quo and therefore there is an entire sort of mechanism with the criminal tribes discourse within the institution of policing that has been designed and devised to keep them in order, keep them in settlements, illegally detaining them, surveilling them, so on and so forth.
So we’re saying that this sort of categorization of political prisoners, this creation of a separate category of political prisoners has untoward effects. First, it takes away from this kind of structural and sort of community-based targeting, caste-based targeting of several groups and their historical incarceration, and secondly what it does is exceptionalising the idea of incarceration itself where we are saying that there are some people who have been incarcerated under some laws and this is an aberration in the system. When on a daily basis in the way in which that institution of policing – and I will speak a little more closely on that since that is the area we have been working on – everyday policing, the way in which the wheels of the system are moving on a daily basis, it is designed to inflict violence on some communities.
So we do not say that XYZ is an act of police brutality. Yes of course if somebody has if somebody has been killed in police custody, this is custodial violence and that needs to be recognized. But we are saying that policing in itself is synonymous with caste-based violence.
So we are not making that kind of distinction, and I think what is happening with this category is that those kind of distinctions are made, and therefore it is very difficult for those of us [working with the outcomes of this kind of everyday policing] make that claim and say that UAPA cases, of course, it is a law that has turned criminal jurisprudence on its head in so many ways, but that law is by no means an exception within the series of laws or procedures or mechanisms that form a part of or comprise this system. Like whether it is cases of theft, whether it is cases of alcohol production or whether it is cases of two people playing cards on the road, which is criminalized under the Gambling Act, we are seeing that a bunch of these cases and which form a bulk of the criminal justice system. So a majority of the people that are incarcerated for these seemingly minor, low level kind of offences, and a law like UAPA is in line with that. Except where, by making that distinction and saying that there are certain people who are incarcerated under the UAPA and we should be pushing for their liberties to be secured (which we should be doing), but by creating and saying that is category of political prisoners, what we are obfuscating in this is the everyday incarceration that is being meted out to people under these various laws and a bunch of other powers that are not even defined by many laws.
So with the communities that we work with, if someone has to go from the area where they reside into a different area, they have to seek permission from the local police station. Because if you are you are a member of an erstwhile criminal tribe, you are deemed to be a habitual offender by the independent Indian state. An it just means that all your movements have to be monitored by the police. It means that each time there is a wedding in your family, you have to get permission from the local police station because a congregation of people belonging to an erstwhile criminal tribe can be perceived as being a conspiracy to commit a crime. So all of these ideas that we are now seeing translate into a law like the UAPA have always existed. And continue to exist in various ways as a way of life for scores of communities.
So saying that we are pushing for the release of the BK-16 as a category of political prisoners, then it makes it very difficult to talk about this everyday violence of the system. And those who are at the receiving end of this everyday violence. Just today on Twitter somebody wrote about Teesta Setalvad and her being detained by the Gujarat Police. I think one of the allegations against her is that of corruption, right? And people are saying you know she lives in this sprawling house. So obviously she has siphoned off money and that is how she has been able to acquire this property. And somebody supposedly well-meaning wanting to make a case for her says, just look at the body of her work and how can you accuse her of this? And they went on to talk about how this is rightful inheritance. Because look at her legacy. Her grandfather was the first Attorney General of India, who played a crucial role in the formulation of the Constitution before independence. Look at her credentials of her father, who was also an eminent lawyer. So this is well-deserved inheritance and therefore this cannot be disputed, because the size of her house speaks to the sort of expanse of the Constitution, and the heart of the Constitution. So this is a really sort of dubious argument to make because of questions of inheritance and talking about how certain kinds of inheritance are – so because she belongs to a certain kind of legacy, we have to be able to see her incarceration in the light of that legacy. And her incarceration therefore being a challenge to the Constitution or in so many ways, unconstitutional.
But how do we then see the incarceration of those who belong to landless communities? And do not come from that legacy, do not even have assets to furnish when they have been granted bail by courts but have a rightful state to their personal liberty. How do we see then that incarceration against this sort of like legacy incarceration of generational human rights defenders? And I think that that sort of characterization by upper-caste intellectuals is, to us very -- I’m not going to mince words here – it is very, very convenient also because a lot of like criminal justice reforms and movements in this country, it is not like the question of caste has not been acknowledged. So if we look at some landmark cases, whether it is the recognition of custodial rape, whether it is the law against sexual harassment at the workplace, or whether it is even the DK Basu judgment which talks about guidelines related to arrest, so on and so forth. These are all cases that have emanated from the violence committed against people belonging to Dalit, Bahujan Adivasi and the Vimukta, the denotified tribes communities. But the outcome of it, or the way in which the movement translates in terms of any kind of strategic action towards bringing about criminal reform or any kind of reform within the criminal justice system, then that tends to completely invisibilise this history or the incidents that have propelled these kind of movements. So it is not like the question of caste is irrelevant, but it only has a sort of limited purpose in being able to push larger narratives. And those are therefore then the narratives of those whose incarcerations are political, which is what it increasingly seems like: that there are some – and this is what a lot of people also argued in the aftermath of 377 being decriminalized in India -- where they said that you know the affidavits, etcetera that formed a part of the court proceedings in the 377 case were affidavits of a lot of trans persons, so many of them sex workers who belong to various Bahujan communities. But when the case was being made in court, several of the litigants were upper-caste gay men who belonged to IITs. So it is almost like you need certain kind of narratives to propel certain kind of movements, but then when cases are made in court, the way in which it is formulated, it is formulated for those that are an exceptional sort of bunch. Because when this case was argued in court, they said, oh look, if like these gay men who went to the best school in the country, which is the Indian Institute of Technology, don’t have the right to be able to love each other, then what do we expect for others.
What that does is that it creates this framework of what kind of incarceration is the ideal form of incarceration. In section violence cases -- and it has been documented by several academics -- who is the ideal victim? And I think what has happened now with the creation of this category of the political prisoner, is an ideal prisoner or an ideal of the prisoner that has been created. Somebody who comes from a legacy of eminent civil rights lawyers, activists, academics and those who have a significant body of work to bolster their profiles and that [is what] has led them to be incarcerated. And I am not say the politicization of that kind of incarceration because it is political. It is the depoliticization of other kinds of incarceration.
That is something that I think we need to look into, because it is not just about ABC communities, it is about what we are missing out on and what we are unable to see or overlooking in the process, is ultimately what the system is rooted in and what is it that these kind of incarcerations tell us about this kind of criminalization.
Question
Thank you. It made me think about the discussion around prison abolition, and people like Angela Davis and all, who called for not just talking about releasing political prisoners or so on, but actually abolishing the idea of the prison because it is part of a system that needs to be overturned. Would you see any overlaps there?
Nikita
Of course, and when I began that is why I said the quest for reform has so many limitations. And that is why the question that we are asking is that even in its most reformed version, e.g. even if a law like the UAPA were to be repealed, would this system cease to be violent? Because in the last couple of years, so much of what we have heard is about repealing the UAPA. That is, nobody is saying the UAPA must exist, but even if the UAPA were to be repealed, would this system cease to be violent? And has the system not been violent even before the existence of laws like the UAPA, Tada and a bunch of other laws to which we are responding.
… And also that the incarceration or the criminalization, if we were to go back to and trace that historicity, we would also be able to see that that incarceration has never been an individual’s incarceration. So like, each time a [so-called] “crime” is committed, it is the state versus the individual who has committed the crime, but actually it is never the individual. It is basically, and the numbers themselves reveal this, the category of the crime that is constructed, it is conceptualized as group criminality. It is a concept that is rooted in the idea of the communities that were either at the lowest rung of the caste system or ones that lay outside of it. So making it about individual human rights defenders takes away from the fact that this structure at play is one that is driven by community-based criminality
Question
I just wonder, when we are talking about individual human rights defenders, I don’t see them as much as individuals but what they’re talking about. Like Stan Swamy, he was critiquing neoliberalism. It is their critiquing and he had actually worked with Adivasis etc. etc. So I don’t see the two things as so distinct. For the Black Panthers, for example in the US, there’s a clear understanding of racial profiling criminalizing you based on race, but then there are activists there, people who who have developed theory and are doing that intellectual work of both working to change the structure but also defining it. So by talking about the Black Panther leaders, we are not invisiblising race.
Nikita
I agree that the incarceration of Stan Swamy or Sudha Bharadwaj, they all of course, speaking against the powers that be and critiquing these structures of power and challenging them. So it is not that we are resisting that incarceration, or speaking against the incarceration of these individuals. The trouble is that, how do we draw that line between saying that these kinds of incarcerations are political, but the rights of those that they are speaking up for is not political. That is the case that we are trying to make here. Which is to say, why is it then like in the Bhima Koregaon case, where so many people were arrested, and the first to be arrested were eight contractual workers who worked at Reliance. But I do not see them being included in the list of the Bhima Koregaon human rights defenders.
And then there is the question of who produces knowledge and how knowledge is produced and who is speaking for what kind of rights is also contested. Who has had access to a certain kind of platform to be able to then set the paradigms for how knowledge is constructed and how definitions are created, so the politics of intellectual creation and intellectual production, that is also something that we need to understand. How are we making that distinction between the Adivasi person who is the subject of your research and the researcher who is then the intellectual talking about the lives of Adivasi communities. And then the Adivasi person’s incarceration under a law like the Public Safety Act becomes an Adivasi person’s incarceration, but an incarceration of someone like Sudha Bharadwaj becomes the incarceration of a political defender. I think that is the distinction and that sort of chasm between our response to, and our understanding of, these two kinds of incarcerations. And so my discomfort is about that kind of gradation, that one kind of incarceration is more worse than the other, and the kind of distinction that has been made with this category of the political prisoners.
With the Black Panthers there has been a very clear understanding of the racialized nature of policing or the racialized nature of the criminal justice system. I think we are still a far cry away from talking about the Brahmanical nature of policing or the Brahminical nature of the criminal justice system. Creating a category of human rights defenders or political prisoners is only further making that sort of critique and making like that reality more difficult to come to terms with.
Question
You mentioned the BK-16 case and how some of the early arrests that were made, you mentioned the Reliance workers, but also these hundreds of tadipar [externment] notices that had been sent out … many of these young, and I’m believe they’re mostly young, men were arrested or had these tadipar notices sent out. These cases were then squashed in the court after the legal battle. Do you think that in the present moment where we are right now, is there anything that we can learn … to actually push our struggles forward.
Nikita
These notices, they’re called externment orders, or where we are, they’re also called zila badar notices, are notices that are often issued to people who are termed as habitual offenders. So in Maharashtra there is also Suvarna Salve, who is associated with the Samta Kala Manch, and who was deemed to be a habitual offender and asked to furnish a bond of Rs. 50 lack for maintaining safety, security, so on and so forth. I’m not aware of the legal position in the Bhima Koregaon case about whether the externment notices were squashed or not, but the sort of overarching powers that exist, which the police like -- so being termed as a habitual offender is like being issued a, a tadipar notice is just one outcome of it. But there is another, that even if you’re acquitted by the court, you’re still subjected to surveillance. Patrolling and routine sort of check-ins by the police. Basically, you’re being, for all intents and purposes, continued to be treated as a criminal. So I think it is important to look at the impact of this kind of criminalization and the impact of these legal battles. Because for a lot of people who were arrested, whether it was during the Bhima Koregaon violence or even during the CAA/NRC protest, several of them belong to upper-caste communities.
I think there is an entire sort of support system that exists in place for people to be able to resist criminalization. If you are released on bail, or even acquitted by the court, people have gone back to doing their PhD, so on and so forth. But like there are entire communities that continue to live under the spectre of criminalization, even when for all intents and purposes the proceedings in the court have ended, and they have been found to be innocent. So I think it is important to look at the question of criminalization also beyond the judicial proceedings. Because there is an entire sort of life of the criminal justice system that exists beyond an FIR being registered, which is supposed to set, at least on paper, criminal law into motion. And I think that life of the criminal justice system beyond the formal structure of the criminal justice system is extremely telling in terms of what criminalization and what looks like, and therefore what is the kind of criminalization and the nature of criminalization, that we are even resisting or confronted with.
Question
These discussions are so relevant even in terms of the anti-Muslim, genocidal processes that are underway, wherein society itself is being made prison but which has been a prison for many -- society as prison was a discussion that we had quite early on [thanks to AA]. And you saying that some communities need a pass to even go from their place to another place in India, Is this a passport? So even the whole country itself is not their country.
Nikita
It is a clear infringement of people’s life, right to movement. And what was being said earlier about the tadipar notices. That essentially means that people are restricted from accessing one part of the country for a specified period, which is like a minimum of six months extending up to two or three years.
Question
There have been such a long-standing interaction between the black anti-slavery movement in the USA and the antislavery movements in India right? So you have Phule’s conversation which talks about Gulamgiri and compares it with black slavery, and then you have the Dalit Panthers and Black Panthers. I wanted to know what’s the current nature of interaction between your movements and the abolitionist movements. Also, how do we, those who are based in the diaspora, standing up for academic freedom, work with you, how do you conceptualize that relationship with academics who are based in the diaspora?
Nikita
So your first question is about how the work that we are doing speaks to the abolitionist movement in the US – it is a useful comparative reference point. A lot of work has happened, not purely within the legal framework, but just talking about abolition as a way of life and what that would mean. Because it is almost like we have not been able to imagine the question of harm beyond the realm of the criminal justice system, but we are unable to see social justice of any kind beyond criminalization. So for instance, when the pandemic happened and when the lockdown was enforced in India, the first responders to it were the police. And for us it was very telling that overnight a public health crisis, an unprecedented public health crisis turns into this law and order situation because the law and order agency is now the first responder to it. So what would it then mean to respond to a public health crisis through the lens of public health and what would it mean to think about the question of social justice beyond the framework of the criminal justice system. What are the kinds of system of accountability that we would have to build within our communities? And that takes us further back to what is the kind of work that we need to do to build communities? And I think a lot of that work has happened within the American context, and a lot of work, even within indigenous communities, not just African Americans scholars, but also indigenous communities.
And I think we take a lot from that and also from our own histories, so this kind of work happening within the anti-caste tradition. Like to talk about principles of collectivizing and talk about principles of or thinking about the question of justice, not simply as punishment, but also as a question of the full attainment of personhood and the personhood of groups of people. So I think which is why we draw from that and not just the abolitionist movement, but also the rich legacy of the work that has already happened in India. And see how we can build on it, and take that further from what we have seen happen across the globe.
As for your second question, so I think there is a lot of room for amplification of that which is happening and thinking about how space can be created for these conversations. And the work that different people have been doing, for those to be centred in university spaces or other spaces. I think that kind of support is required. And the way in which conversations shape up, even within the diasporic community, and we’ve seen this happen, most recently, with what Google did with Thenmozie, I mean, we are seeing that the question of caste is relevant, but it is also something that has been rendered irrelevant. Because there is so much conversation around race and positioning of South Asian, the South Asian community, the South Asian community as persons of colour within these spaces. So I think there is a lot of work that needs to be done and is something I think that academics can support. And I don’t just mean within the framework of criminalization or within their framework of the criminal justice system, but I think there is a lot of work that needs to be done in just being able to centre the question of caste as being the genesis of power within the South Asian community, and I think there is academic work that can support and amplify the work of people who are already who are doing this.
Question
Once in a while you hear in the news that colonial era law blah blah blah has been scrapped. So isn’t most of our Constitution colonial, made up of colonial era laws? Because the Constitution was made in the last 20 years before the independence. So isn’t it a misnomer to even think like there are bunch of laws that are like from post colonial India and then there are these laws which are from pre colonial times, and what you and Disha brought out in the podcast was that you need to go all the way back to Manusmriti in reality. So what is the awareness among the lawyers in Delhi in the High Court and Supreme Court? How thorough are they in their work when they try to trace back where some of these very backward laws are coming from today? Do you have support among these important voices, like the benches in the Supreme Court?
Nikita
The biggest sort of pitfall of the way in which the law is a profession also has been tailored is that there are lawyers that go to court and then lawyers that do the thinking. So a lot of lawyers that are in these courts are not really aware, nor is it a project that they’re interested in talking about. Like you said the legacy of these laws. They’re also responding to cases as they come, and I think that is also the nature of the beast in so many ways. So this is a conversation that we are having. It is also one that is in a nascent stage. There’s still a lot of work to be done around that. For us at the CPA Project, the biggest struggle at this point is to get people to even acknowledge that the question of caste is relevant within the criminal justice system. Because the law as a profession in India is an incredibly … the most popular lawyers in the country, whether it is judges of the Supreme Court, are essentially people from 30 to 40 oppressor caste families that have been dominant in this profession. So it is a legacy profession, so it is very difficult to be able to then make that critique or get people to apply their mind to this question to say that. The law and the legal profession, both are embedded within this
But we are making that effort and I think there are different voices within the anti-caste space, within the Ambedkarite movement that are able to make that intervention through various standpoints, not necessarily through the legal system. And I think these various kinds of interventions are ones that speak to one another and are also supportive of each other.
Question
Are you in touch with groups like in India who are say supporting cases of BK 16 or other incarcerated individuals like this who are in this other general category of political prisoner. Are you in conversation with them?
Nikita
[Not really]. Barring the conversation that Disha and I and some of us have been having, these conversations, I’m sure it would definitely be useful to have that conversation, but I think so many people have just been responding to crisis that there hasn’t been a moment for people to come together and reflect and think through some of these questions. And I think it is also a bit difficult to have these conversations when people are responding to crisis and responding to those forms of incarceration. So at this point, like for us [what is important], when we are talking about pushing the sort of current paradigm of religious persecution to talk about, say, the persecution of oppressed class Muslims, saying that the persecution of Muslims can’t simply be viewed as religious persecution alone. But that conversation is also difficult to have, because I mean, nobody can dispute the fact that, particularly since 2014, Muslims have been persecuted for their religious identity, but to be able to then contextualize that better and say what does other persecution of Muslims look like? Who are the Muslims that are involved in say cattle trade, who are the Kasais? Who are the Qureshis? What does it mean for not just their location within the criminal justice system, but also for their location within Islam right? And these conversations are difficult to have, when one is constantly in a situation when one is vulnerable. But of course, one hopes that these conversations are had and had soon, because these are important conversations and also then shape our interventions into these questions.