In law, a status crime is an offense that criminalises a person’s status, condition or characteristics rather than specific behaviour or actions. Status crimes penalise individuals for who they are rather than what they do. Laws penalising homelessness, addiction or mental illness are often considered criminalising status because they punish individuals for conditions beyond their immediate control, rather than any specific criminal action.

Loitering and truancy are usually status crimes where there are restrictions on people of certain status congregating in particular public spaces or absenting themselves from where they are compulsorily required to be. They are criminalised based on age, gender and even visual cues to class, occupation and identity.

While some status offence laws are enacted to protect persons of certain status, adding criteria of status often raise significant ethical and legal issues about criminalising behaviour that, for persons of different status, would be entirely legal.

Presumed criminality

India, despite formal guarantees of constitutional equality, today is experiencing an atmosphere where biases within the criminal justice system and the impunity granted to those in power have resulted in an ever-increasing criminalisation of the poor and marginalised.

The situation of Muslims in India, particularly, illustrates how state laws, municipal regulations and officials’ pronouncements work together to accuse them of what can only be described as “status crimes”.

Ministers, law enforcement officials and judges frequently use incendiary rhetoric that positions Muslims as inherent threats to national security or social harmony, reinforcing a normative environment where their “criminality” is presumed.

Official pronouncements often label Muslims as disloyal or unpatriotic, making them targets of legal and extra-legal harassment laying the groundwork for laws and policies that aim to restrict their rights and freedoms.

The increasing criminalisation of Muslim identity in India reveals the limits of formal constitutional equality when substantive biases persist in the criminal justice system. As a religious and cultural minority, Indian Muslims face a barrage of regulations and targeted policies that do not criminalise specific criminal acts but their very social and cultural presence, reminiscent of other oppressive regimes.

Inventing crimes

Writing in 1842 Karl Marx, in an article titled “Debates on the Law on Thefts of Wood”, referred to new laws in the German Rhineland that criminalised the collection of fallen wood from forests, a practice previously tolerated as a customary right of the rural poor.

Marx argued that these laws reflected a broader trend where legal definitions were manipulated, creating artificial boundaries around property that were not previously recognised or enforced, to benefit the landowning class at the expense of the peasantry.

He showed how laws could be tools for the ruling class to redefine what is considered criminal behaviour to align with their economic interests, thus marginalising and disenfranchising the powerless.

Historically, ethnic, racial, and religious minorities have been targeted with laws that criminalised aspects of their identity or cultural practices, institutionalising discrimination through legal frameworks. These laws did not merely criminalise specific behaviours: they fundamentally defined certain groups as criminal by virtue of their racial, ethnic, or religious status, leading to systemic exclusion and oppression.

The Jim Crow laws in the United States are a stark example of this. Instituted after the Civil War, these laws were designed to enforce racial segregation and systematically marginalise Black Americans by restricting their access to public facilities, education, housing, and even the right to vote. By criminalising actions as basic as sitting in “white-only” areas or drinking from certain water fountains, Jim Crow laws established Black Americans as “out of place” or inherently criminal in shared social spaces.

These laws perpetuated racial hierarchies, relegating Black Americans to second-class status and enforcing social and economic disadvantages that continued well beyond the formal abolition of the laws.

In colonial India, British policies in India criminalised certain practices associated with some communities, which conflated criminality with specific religious or cultural groups. Laws such as the Thuggee Act labelled entire communities as “criminal tribes”, leading to generational stigmatisation, surveillance and forced reformation or resettlement.

Similarly, in the Ottoman Empire, Christian and Jewish minorities were subjected to laws that restricted their mobility, limited their rights to testify in court, and often imposed extra taxes. While this offered some protection, it reinforced a hierarchy that criminalised dissent or resistance.

Indigenous populations in settler-colonial nations like the United States, Canada, and Australia also faced laws criminalising their religious ceremonies, languages, and traditional ways of life. In the US, for instance, Native American religious practices were banned under the Bureau of Indian Affairs policies, and practices like the Sun Dance were criminalised as part of a broader effort to force assimilation.

Through these laws, criminalisation became a mechanism to strip minorities of autonomy, suppress cultural identities, and maintain social hierarchies that benefited dominant groups. This legalised marginalisation also fostered deep social biases, rationalising exclusion, surveillance, and violence against these groups. The legacy of such status-based criminalisation can still be seen today in the form of racial profiling, discriminatory policing, and laws that disproportionately impact marginalised communities.

Criminalising religious practices

Much like the Jim Crow laws that targeted Black Americans in the United States, various Indian state and municipal regulations disproportionately target Muslim religious practices and spaces. There are regular and systemic crackdowns on religious gatherings and public expressions of faith.

For instance, multiple states have enforced restrictions on mosque construction under the guise of “unauthorised structures” and limitations on gatherings during Eid or Friday prayers. These regulations, imposed selectively on Muslim communities, aim to curtail public manifestations of Muslim identity, implying that their religious practices themselves are a threat to public order.

This mirrors historical attempts, such as the Jim Crow segregation laws, to systematically stigmatise and delegitimise the cultural presence of minority groups.

Policing and surveillance

As seen with the racial profiling that is rampant in other jurisdictions, such as the surveillance of Black communities in the US, Indian Muslims are frequently subject to heightened scrutiny, especially after events like communal violence or terrorist incidents. Routine police surveillance, stop-and-search operations, excessive force in policing, and arbitrary detentions often target Muslim neighbourhoods disproportionately.

Through this lens, ordinary activities – meeting in groups, celebrating religious events, or even renting properties – are viewed with suspicion. The Indian experience here resonates with colonial practices, where the British systematically surveilled and targeted certain communities they perceived as “criminal tribes,” reinforcing a narrative that equated particular social identities with deviance.

Criminalising protest

Instances of Muslim-led protests – for example against discriminatory laws like the Citizenship Amendment Act or communal targeting – are often met with disproportionate state response. Police crackdowns, mass detentions, and indiscriminate firing on protestors have become disturbingly common.

In many cases, peaceful protests are preemptively labeled as threats to public order or national security, justifying heavy-handed measures. The police often adopt a militarised approach, deploying live ammunition or riot gear, as seen during the protests against the Citizenship Amendment Act in Uttar Pradesh and Delhi.

Such responses are rarely witnessed during protests by other groups, revealing the stark double standards in state enforcement. The use of excessive force during Muslim protests often results in fatalities, a stark deviation from the norm of restraint in handling civilian dissent and unarmed assemblies.

The state’s refusal to conduct impartial inquiries or hold officials accountable underscores the systemic devaluation of Muslim lives. This impunity signals that violence against Muslims, even by state actors, is not only permissible but tacitly endorsed.

Guilty until proven innocent

Numerous cases have surfaced in which innocent Muslims, including victims of communal violence, have been detained without evidence or on dubious grounds, sometimes for years, under stringent laws like the Unlawful Activities (Prevention) Act or the National Security Act.

In an already fraught criminal justice system that often treats them as presumptively guilty, Muslim undertrials in Indian prisons find that these legal frameworks, often invoked with little accountability, make bail nearly impossible. The presumption of guilt denies Muslims due process and fundamental rights.

Police practices further exacerbate this, as Muslim victims of communal targeting are sometimes framed as perpetrators, a phenomenon seen in cases from riots in Delhi to lynching incidents across the country. This systemic bias and the excessive reliance on pretrial detention as a punishment serve as a chilling reminder of how being a Muslim is enough of a crime in India.

Criminalising poverty

As Marx noted in his discussion of “theft of wood”, laws can criminalise survival practices essential to the poor. In contemporary India, Muslims, who are disproportionately represented among the poor, face restrictions that affect their livelihoods.

For instance, state governments have enacted laws targeting specific trades commonly practiced by Muslims, such as the meat and leather industries. Bans are imposed on slaughterhouses and meat shops, justified under the rhetoric of animal protection, disproportionately impact poor Muslims’ livelihoods, making their trades legally precarious. These bans are selective and target Muslim livelihoods because Hindu exporters of beef thrive in absence of similar restrictions.

Moreover, regulations restricting street vending and hawking – trades often dominated by economically disadvantaged Muslims – criminalise their attempts to earn a living through adding credibility and impunity to anti-Muslim prejudice in society.

Status-based protection

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, commonly known as the Prevention of Atrocities Act specifically targets a long history of entrenched caste-based discrimination and violence.

Acts like assault, verbal abuse, property destruction, social exclusion or “intentionally insulting with the intent to humiliate” against a person from the Scheduled Castes or Scheduled Tribes, which might ordinarily be treated as minor offenses or civil grievances, are given greater legal weight under the Act. Here, the “status crime” element is reversed: instead of criminalising the marginalised group’s status, the law adds an additional layer of criminality to violence based on the caste status of the accused and the victim.

By attaching additional penalties for crimes against Scheduled Castes and Tribes, the law acknowledges that the humiliation, abuse and violence directed at members of these groups is often intended to reinforce social hierarchies and thwart attempts by these groups to break out of structural discrimination. Thus, this law seeks to not only protect the vulnerable but also break the perpetuation of the caste order.

While critics argue that the Prevention of Atrocities Act introduces inequalities by defining some crimes more severely based on caste status, proponents highlight that it aligns with the principle of substantive justice rather than mere formal equality.

Implications of collective criminalisation

Criminalising an entire minority has far-reaching legal and moral implications that profoundly impact not only the targeted community but also the integrity of state institutions.

Bureaucrats tasked with implementing policies and administering justice act with excessive regulatory zeal in minority neighbourhoods, routinely deny permits, or impose disproportionate punishments for minor infractions if they perceive that their actions have the tacit or overt support of the government.

A judiciary that falters in its duty to uphold the principle of equal protection, risks becoming complicit in perpetuating discrimination, as it fails to check the executive’s overreach or hold the bureaucracy accountable for abuses. This impacts its independence in all domains and erodes public confidence in the justice system.

Disregarding the principles of individual accountability and presumption of innocence signal that the state itself has institutionalised embedding inequality within the legal and social fabric of the country.

This approach dehumanises individuals within the minority, reducing them to mere representatives of a threatening “other,” which further emboldens hate speech, violence, and other forms of social ostracisation.

It reduces compassion, solidarity and a shared sense of belonging, signalling a society in decline.

By acting in this partisan manner the state becomes an agent of division, tearing apart the fabric of society and democracy. Such policies demonstrate a shift from a rights-based society to one that views justice as selective and citizenship as conditional.

By eroding the principles of equality, fairness, and impartiality, the state risks losing its legitimacy, as it ceases to represent the interests of all its citizens and instead becomes an enforcer of exclusionary ideologies.

This transformation not only alienates the minority but reveals a deeper institutional decay leading to fostering an environment of distrust, fear of unchecked authority and undermining the rule of law for everyone.

Ghazala Jamil teaches at the Centre for the Study of Law and Governance at Jawaharlal Nehru University in New Delhi.