Aryan Khan Gets Bail, Now Lets Now Talk About Undertrials – 70% India’s Prison Population

An entire nation watched while the son of a superstar was arrested and kept in jail for three weeks, for ‘conscious possession’ of illegal substances. We got a blow by blow account of how Aryan Khan cried in jail, how his mother did not allow kheer to be made while her son was detained; how Shah Rukh Khan cried when bail was finally granted. With the resources at his disposal, SRK would have secured his son’s release sooner or later – that shouldn’t concern us. As Indian citizens, we should be concerned that 70% of Indian prisoners are undertrials. It should concern us that the Narcotics Control Bureau is going after end users. It should concern us that this could happen to any of us – or our kids.

It is well known that the Aryan Khan did not have contraband substances in his possession, nor was he found to be under the influence. Charges of conspiracy and dealing appeared to be based mainly on WhatsApp chats according to the information in the public sphere. In spite of the flimsiness of the ‘evidence’, an Indian citizen spent three weeks in jail based on something called ‘conscious possession’. It took this battery of extremely expensive lawyers making multiple applications before more than one court to finally secure the release of Khan, Arbaaz Merchant and Munmun Dhamecha.

Now think of all the other prisoners in our jails. Shockingly, 70% of the inmates are undertrials. These are the people who are arrested but may not yet be charge-sheeted or may be awaiting trial. In other words, they are in prison for ‘crimes’ they may or may not have committed. Clearly, the process is the punishment here.

SRK has the money, fame and influence to take on the system and secure the release of his son. None of the 70% have that luxury. They could literally rot in jail for years for crimes they may not have committed. A significant proportion of that 70% will be held ‘Not Guilty’ after the trial – which means that they suffered terrible privations needlessly. An overwhelming majority of undertrials are from underprivileged and marginalised communities – easy pickings for the police and without a hope in hell of taking on the might of state apparatus.

There is a lot of sanctimonious disapproval on social media – people saying that Aryan Khan should be made to pay for being a drug user; that his release is actually injustice. For them, let me draw a parallel: many of us could have had a few drinks or even tried out recreational substances like weed, say at a party. Some of our kids may have done it or may do in the future. There is curiosity, the misguided desire to fit in, peer pressure… any number of reasons.

Or maybe one is present a party where others are in possession of illegal substances. But then there is a raid and everyone is detained – that could be you or me, your child, a family member, a neighbour. ‘Conscious possession’ is a thing, remember? A few grams on a friend and an over-zealous law-enforcement person is apparently all that is needed for a potentially innocent person to be put away. And if they aren't a celebrity's son, who knows how long that could be for? There could be a personal enmity, or a police person trying to score brownie points with a senior. In the Aryan Khan case, the presence of shadowy characters like Gosawi raises significant questions about due process, contamination of evidence and so on.

There is no doubt that the drug menace is destroying lives and families all over the country, and that something needs to be done. But examine what the NCB is doing: 99.9% of people charged under NDPS (Narcotic Drugs and Psychotropic Substances Act) in 2018 were end-users, not suppliers, peddlers or smugglers. The act is draconian – it criminalises users, people caught with small amounts. Also, it presumes people are guilty till proved innocent – against the basic principles of jurisprudence.

Many of those detained aren't even seen to be using hard drugs; just charas, ganja and so on, which were legal in Indian until we bowed to American pressure and banned these under the NDPS Act. It seems as though the authorities are going after soft targets and not doing enough to nab real culprits. For instance, in the massive 3,000kg heroin seizure at the Adani-run Mundra Port, 9 people including Afghan and Uzbek nationals have been arrested. But who in India is receiving and distributing these huge quantities of hard drugs? It seems few people in India are interested in the answer to these questions. The story about a celebrity spending weeks in jail; who may or may not be using recreational drugs is so much more interesting.

In progressive societies, users are treated as addicts or victims, not as criminals. However, in India, users are often rounded up while we rarely hear of the actual criminals; particularly those at the top of the drugs supply chain actually doing time. The approach of Sikkim Anti-Drugs Act (SADA) is instructive. Under this act, authorities distinguish between peddlers and consumers. Users are rehabilitated, not punished. The act also has a better system of determining drug quantities so that people in possession of non-commercial quantities of drugs are not victimised.

So whether one is an SRK fan celebrating the release of Aryan Khan or someone who is angry that a ‘criminal’ was set free, think about the real pressing issues this case highlights – not the fate of a few celebrities with both resources and clout.