Dr. Sylvia Karpagam
The human rights organisation, Amnesty International has brought out two reports, one in 2016 and another in 2017, highlighting details of prisoners facing death penalties and of undertrials in India. However both reports fail to mention that a majority of those facing death penalties or undertrials awaiting a hearing belong to the historically marginalised Scheduled caste and Scheduled tribes (SC/ST) as well as religious minorities, predominantly Muslim. While this can easily be passed off as oversight, in a country where the SC/ST and religious minorities, specifically Muslim, face enormous systemic and state sponsored violence and oppression, this oversight by an International Human rights organisation, calls for serious introspection. Ironically, it was an article in 1961, titled The Forgotten Prisoners, by British lawyer Peter Benenson, and published in the Observer that gave birth to the collective action around Amnesty International’s work. He writes about his disgust at people being imprisoned for their political views or religious orientation.
With the current debate in the United Kingdom about caste discrimination and bringing in an equality law, one cannot undermine how dominant caste groups take what are often straight forward cases of caste and communal based discrimination and couch them in such words and language that the very core of the discrimination is erased completely. Is this the case with Amnesty as well is a question that needs to be asked and seriously introspected.
Report on Death penalties, Amnesty International Global Report, 2016
The Amnesty International Global Report published in 2016 reports on death sentences and executions in different countries and shows significantly higher numbers of death sentences in countries like Bangladesh, Cameroon, Democratic Republic of the Congo, India, Indonesia, Iraq, Lebanon, Nigeria, Pakistan, Somalia, Thailand and Zambia than in the previous year. In India, the recorded deaths sentences for 2016 was 136, with more than 400 facing death sentences at the end of 2016 with ‘most prisoners on death row from economically vulnerable and socially disadvantaged groups’ . The report drew its data on India from the National Law School University report of 2016 .
The National Law University report, however, shows in great detail, that the proportion of people belonging to SC/ST and religious minorities are higher among those facing death penalty with the proportions increasing the higher one goes on the legal hierarchy, leading up to the Supreme court. While the proportion of SC/ST rose from 20.7% at the High court pending stage to 27.5% in the Supreme court pending stage, the religious minorities went up from 19.6% to 29.4% in those same categories.
When linked to the educational profiles, the data is even more damning, with 73.9% (the maximum proportion of prisoners) who had not completed their secondary school belonging to SC/ST and 64% to religious minority. On disaggregating the data on economic vulnerability for each social profile category, 85.4% of the prisoners who were SC/STs were also economically vulnerable and among religious minorities, 76% were also economically vulnerable. This data is even more stark in some of the states of India. .
Report on undertrials, Amnesty India, June 2017
On June 2017, another report was released by Amnesty International India office and focused on pre-trial detention in India.  The undertrial report in India has reference to the National Criminal Records Bureau (NCRB) data for reference . The Amnesty India report states that India has one of the highest undertrial populations in the world. “As of December 2015, 67% of prisoners in India’s prisons were ‘undertrials’ – people who were awaiting trial or whose trials were still ongoing, and who have not been convicted. In other words, there are twice as many undertrials in India’s prisons as there are convicts”. A text box in the report makes passing mention that 29% of undertrials are not formally literate, 42% had not completed secondary education, and that 53% of the undertrial population disproportionately comprises Muslims, dalits and adivasis while their share in in the population of the country is 39%.
The report then goes on to talk about legal aid, remuneration of legal aid lawyers and police escorts. Its recommendations focus on remuneration of legal aid lawyers to receive ‘competitive salaries in a timely manner’, computerised database, awareness programs, police escorts etc. 
The NCRB data that the Amnesty India report on undertrials has referred to, shows that over 55 per cent of undertrials across the country are either Muslims, Dalits or tribals. This number is not proportion with their combined representation in the census, which is close to 39 per cent. The Muslim community which makes up 14.2% of total population of India has a proportion of 20.9% among undertrials and 15.8% among convicts. SCs who comprise 16.6% of the country’s population make up 21.6% of undertrials and 20.9% of convicts. STs comprise 8.6% of the population constitute 13.7% convicts and 12.4% undertrials.
This means that even taken separately, these three groups have a higher rate of being undertrials than their general composition in the population. Break up by states shows that in Maharashtra and Tamil Nadu, the percentage of Muslims in the incarcerated population was almost thrice the percentage of Muslims in the overall population.
In states such as West Bengal, Gujarat and Rajasthan, Muslims have almost double the share of undertrial populations in prisons than their share in the populations of the states. In all states, the share of Muslims among convicts is higher than their share of population, but lower than their share among undertrials. In Uttar Pradesh, Muslims represent 19% of all convicts which is exactly proportional to their share in the population of the state. However, among undertrials, the share of Muslims in 27%.
Data for Delhi and Madhya Pradesh also show wide gaps between the share of Muslims in their populations and the share of Muslims in their jails. With a 13% share in the population of Delhi, the community accounted for 22% of undertrials in jail and 19% of convicts. In MP, with a share of 7% in population, Muslims made up 13% of undertrials and 10% of convicts.
It is well known that a standard way to measure where pretrial detention is highest is to estimate the rate of pretrial detention as a proportion of the general population. This provides a standardized comparison across countries of varying sizes, and is not altered by changes in the sentenced prison population. Comparing undertrial proportions with conviction rates also gives a general idea of the processes of incarceration and the justice system of the country.
Erasure of caste and religion from Amnesty reports
The data on death penalty by the National Law University  and on undertrials by the National Crime Records Bureau  provide clear evidence that there is a predominance of religious minorities, overwhelmingly Muslim and SC/ST. Amnesty has however skirted around this important data which is central to understanding the nature of these human rights violations.
The recommendations by Amnesty are generic and at no point factors in the caste and religious bias within the Indian justice system. That marginalised and deprived communities are over-represented as under-trials in prisons, is not new information. The fact that Amnesty has put in human, financial and time resources into this report and left out vital information is a real cause for concern. Amnesty International’s claim to have ‘stood testimony to the vision of every person enjoying all the rights enshrined in the Universal Declaration of Human Rights and other international human rights standards, independent of any government, political ideology, economic interest or religion’ doesn’t mean that discrimination based on these very premises should be ignored. They should be brought to the fore and argued forcefully.
Pre-trial detention has a lasting impact on the detainee, his family and friends as well as society at large. It leads to severe financial, social, health and psychological consequences. The preponderance of certain communities in prisons whether for pre-trial or for the death sentence is well known and has been analysed extensively. Bill Quigley  discusses why American jails are full of black and poor people. One reason he attributes this to is discrimination by the police.
In India it is well known that police tend to arrest people who meet certain descriptions. In India, being SC/ST and/or Muslim is a high risk factor to be picked up by the police and has led to a fear among the communities even to perform ordinary activities. Under pressure by the politicians and middle class to arrest the ‘accused’ often these young men are picked up in lieu of upper class criminals. The torture and violence that goes on in prisons to get people to ‘confess’ crime is not even a secret any longer. The fact that many of the undertrials do not have the necessary social capital, media coverage, civil society networks or plain economic power, means that they do not have the band-width to get out of prisons even in bailable cases. For an Amnesty ‘project’ that costs at the very least, for human resources, travel and administrative costs, at least a crore (approximately 120,000 GBP) this is a costly and unacceptable ‘oversight”.
It also brings one then to the pressing question of whether Amnesty’s erasure of caste and religion in its report on prisons comes from its own caste and religious location – overwhelmingly comprised of elite dominant caste from the majoritarian religion Hinduism. Does the caste and religious background of the researchers of the Undertrial project, the manager, the senior management contribute to what gets foregrounded and how? In human rights work, what gets left out is as significant and worthy of being addressed as what gets included. Is it important to understand why some data gets left out. For instance, if a human rights organisation was comprised of only men, what are the chances of issues around gender and women’s rights being left out? If it comprises primarily of ‘able’ persons, do the issues of differently abled get left out? How does relevant data get ‘left out’? How is a national and international audience going to know about the existence of a problem unless it is articulated and foregrounded? These questions have to be asked. It is not about what is included in a report which can be questioned openly but what is not included and why.
Let it not be the case that the very people who Peter Benenson set out to be a voice for and creating collective action for, end up being The Forgotten prisoners !!
 Amnesty International Global Report, “Death Sentences and Executions,” Amnesty International, 2016.
 National Law University, New Delhi, “The death penalty India report,” NLU, Delhi Press, 2016.
 Amnesty International India, “Justice under trial: A study of pre-trial detention in India,” Amnesty International India, 2017.
 National Crime Records Bureau, “Prison Statistics India,” Ministry of Home Affairs, 2015.
 B. Quigley, “40 Reasons Why Our Jails Are Full of Black and Poor People,” Huffington Post, 2 February 2015.
The writer is a public health doctor and researcher who worked for a period of six months at the Amnesty International India office and resigned because of organisational resistance to addressing caste.