Excerpts from SPIR 20-21 (Volume II): Panel Discussion: Ms Nikita Sonavane, Lawyer and Activist

Ms Nikita Sonavane, Lawyer and Activist

About the Report

Thank you so much for having me here and inviting me to share my thoughts on the release of this very important report. I think the kind of policing that took place during the pandemic mandates attention. It’s important for us to reflect on the pertinent questions that the Status of Policing in India Report (SPIR) 2020-2021 (Volume II) has raised around policing during the pandemic, including who was at the receiving end. Questions raised about the institution of policing in India also merit further reflection. I want to reflect on these questions today, from our experience of engaging with them as lawyers and researchers working in Madhya Pradesh. We have done work around the question of pandemic policing in Madhya Pradesh. I want to contextualise the findings of today’s report, in light of our experiences in the state.

So, I want to start with the question: ‘Who is arrested during the pandemic? We saw that as soon as the lockdown was imposed, the police were the first responders to the pandemic and enforcers of the lockdown. I also want to reflect on something

Almost every fifth individual arrested was either a street vendor or a low-income shopkeeper

the report mentions: the poorest were thrice as likely to report many cases of forcible eviction. In addition, socio-religious groups like the Dalits, Muslims and other minorities were likely to be forcefully evicted during the lockdown. Generally, the report says that these were the groups at the receiving end during the pandemic.

During our work in Madhya Pradesh, we found that nearly 30% of individuals arrested for violating lockdown regulations belonged to SC-ST and denotified tribal communities while 20% belonged to the OBC groups. Nearly 25% belong to the Muslim communities. So, you know, we’re looking at approximately three out of every four individuals belonging to marginalised society.

Also, in the Tablighi Jamaat incident, the spread of COVID-19 was pinned on the particular community of Muslims. We saw that while the population of Muslims in Madhya Pradesh was close to 7%, their representation within arrested people was 25%. This can also be contextualised in the experiences of people. We saw that FIRs were filed, particularly against people from Muslim communities. In one instance, an FIR was registered against a person who had put up a WhatsApp status saying ‘Mai Nizamuddin markaz ke saath hoon (I am with Nizamuddin Markaz).” An FIR was registered against that person, detailing

Arrests were in stark contrast to the jurisprudence and the directions of the Supreme Court.

that the Tablighi Jamaat has been responsible for the spread of Covid-19 and a WhatsApp status contributes to that general dissatisfaction against a religious community. Subsequently several High Courts quashed FIRs against members of the Tablighi Jamaat. However, FIRs like these, filed by the police on a daily basis, perpetuated and cemented the narrative that certain sections had disproportionately contributed to the spread of the pandemic.

On Persecution during the Lockdown

I also want to focus on the people against whom FIRs were registered and who were subsequently arrested for violating the lockdown rules. So, who are these people? We saw that 45% of them are actually providers of essential goods such as groceries, vegetables, fruits and dairy products. Almost a majority of these FIRs were filed against pedestrians, in stark contrast to the few registered against four-wheeler drivers. It puts events in perspective. It denotes the social location of people who were targeted and arrested by the police during the pandemic. We saw that almost every fifth individual arrested was either a street vendor or a low-income shopkeeper.

It is also important to see what kind of offences they were arrested for. We saw that starting from March 22, 2020, when the janta curfew was imposed, till the beginning of June, 82.5% of all the arrested people were apprehended for low level crimes, or infractions. Let me put that in perspective. It means that, in terms of the law, these were all people arrested for offences punishable by seven years or less of imprisonment. According to the honourable Supreme Court’s 2014 Arnesh Kumar judgment, cases where offences are punishable with less than seven years of imprisonment, do not mandate arrest. We saw that bailable IPC offences constituted the largest proportion of crimes, for which arrests were made in this period.

As a lawyer who engages with communities arrested in this period, I want to contextualise what this means for the arrested. We had a client, a young 20-year-old man from the Pardhi community a denotified community, which bears the stigma of historical criminalisation. The 20-yearold was arrested for allegedly transporting about 60 litres of country liquor. He was incarcerated for three months during the pandemic even though he suffered from tuberculosis. The offence for which he was arrested is punishable by a maximum of three years. We saw that these arrests were in stark contrast to the jurisprudence and the directions of the Supreme Court. Right at the beginning of the pandemic, the Supreme Court took cognisance of overcrowding in Indian prisons and really enforced the Arnesh Kumar judgment in letter and spirit. It directed that we shouldn’t be making arrests for offences that are punishable by less than seven years, unless there are compelling reasons to do so. We looked at FIRs during this period, to see whether there was any mention of compelling reasons that would warrant arrests. But we saw that there weren’t any. Instead, there were standard responses, mentioning that the reasons provided by the accused were unsatisfactory and unnecessary or unclear. Therefore, arrests were made without any kind of compliance or reflection on what they mean in terms of the law

On Police Discretion

Discretion is one of the ethos of policing and a crucial element for

What we saw during the pandemic is a culmination of everyday policing, and abuse of discretionary powers.

the discharge of policing duties. And while one understands the importance of police discretion, it is also important to think about the people against whom these discretionary powers are exercised. As SPIR notes, and what our experiences tell us, this discretion, more often than not, is exercised against people of marginalised communities. These people are at the receiving end of violence and subjected to illegal detention. During the pandemic, they were also arrested and therefore, exposed to the threat of the virus.

It is important for us to see the social context within which the police are operating. We are a society struggling with questions of casteism and communalism. Hence, we have to see how immune the institution of the police is to the biases existing in society. What we have seen during the pandemic is a culmination of everyday policing, and abuse of discretionary powers. Policing during the pandemic is the essence of everyday policing in which marginalised communities bear the biggest brunt.

Police accountability has been documented by various reports, including the Law commission reports, the commission set for criminal law reforms, and SC’s Prakash Singh judgment on police reforms from 2006. We have to reflect on these questions after seeing the way policing has panned out during the pandemic. These kinds of indiscriminate arrests during the pandemic have contributed to overcrowding of prisons. In the context of Madhya Pradesh, the prison population grew from 153% at the beginning of the pandemic to 180% about two months ago, which is slightly a year into the pandemic. We also need to think what policing means not just for particular communities, but the implications it has for the prison system and the criminal justice system as a whole.


Dr Ish Kumar, Former DGP & Head, NCRB >>

July-September, 2021