India is a country with rich history and culture. The intricate culture of India attributes to the coexistence of communities of different religion, caste, language, place of origin etc. India, being a diverse country, hate crime is not a new phenomenon. Recently, India witnessed several instances of mob-lynching based on love-jihad conspiracy and in the name of cow vigilantism, and caste-based killings. Amnesty International India documented 218 hate crimes in the year 2018, 142 of which were against Dalits, 50 against Muslims, 40 against women, and eight each against Christians, Adivasis, and transgendered people. In 2018 alone there were 97 incidents of Assault, 87 of Murder, 77 of Harassment, 24 of Property Damage, 21 of Rape & 19 of Sexual Harassment.
A hate crime is a crime committed by the perpetrator on the victim, motivated by prejudice, because of their actual or perceived membership of a community, based on gender identity, sexual orientation, ethnicity, religion, caste, nationality, disability, physical appearance etc. Hate crimes are more atrocious than ordinary crimes because the motive is based on identity, causing trauma and lack of self-worth to the victim and leaves the entire community of the victim vulnerable. Countries like the USA and UK have separate legislation for hate crimes while India does not.
Indian Penal Code, 1860
IPC under sections 153A, 153B, 295A, 298, 505(1) and 505(2) limit the freedom of expression to an extent with the objective of safeguarding religious harmony and public tranquility. Since the objective isn’t concerned with the rights of an individual, it does not combat hate crimes.
The Protection of Civil Rights Act, 1955
The Protection of Civil Rights Act penalizes discriminatory acts on the grounds of untouchability such as refusing entry in public spaces like hospitals and places of worship, refusing to sell goods or render services, preventing from exercising rights, molesting, causing injury or annoyance, insulting etc. The practise of untouchability, though declining, has its roots firm in many parts of the country. There is a lack of awareness among the masses regarding this act and it isn’t seriously implemented.
The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989
The SC/ST Atrocities Act was enacted to prohibit discrimination, prevent atrocities and hate crimes against scheduled castes and scheduled tribes. It provides protection from casteist acts such as a denial of access to certain places and to use a customary passage, forceful drinking or eating of inedible food, sexual exploitation, injury, atrocities affecting properties, malicious prosecution, economic exploitation etc. This act provides higher punishment than the IPC provisions to deter hate crimes committed by non-SCs and non-STs against SCs and STs and certain offences that are not provided in IPC.
According to data released by the National Crime Records Bureau in 2019, the conviction rate under the SC/ST Atrocities Act was 32% nationally and the pendency rate was 94%, which is very unsettling. Moreover, several crimes against lower caste people go unreported because of the socio-political dynamics where upper caste people hold positions of power and have government jobs, unlike the lower caste people, who typically work in the unorganized sector. Sometimes, such acts are either denied or justified by local politicians. A study, by the Economic & Political Weekly showed that nearly 50% of cases filed under the Act do not go to court and are closed by the police. Oftentimes, investigations of crimes against dalits are negligently conducted and concluded due to “lack of evidence”. In the Hathras case, where a Dalit woman was brutally gangraped by 4 upper caste men, the police initially refused to register a case and the girl had to lay in the normal ward of a hospital for more than a week, until they were pressurised. In the gangrape case of Bhanwari Devi, the rapists were acquitted on the grounds that “upper caste men cannot rape lower caste women because of purity reasons”. This shows that the state machinery and criminal justice system are complicit.
Lynching refers to extra-judicial killing by a mob to punish an alleged transgressor. This is not a new phenomenon in India but, the sudden spike in such incidents is alarming. Most of these attacks were carried out by cow-vigilantes based on allegations of beef-eating, cattle smuggling and cattle-slaughtering, other than incidents based on accusations of child-lifting, sexual assault etc. The victims of attacks by cow-vigilantes were Muslims, Dalits and Christians. According to a survey by IndiaSpend, from 2010 to 2017, 63 cow vigilante attacks occurred, out of which 86% of the victims killed were Muslims. The IPC provisions applied in cases for mob violence are 302, 304, 307, 323 and 323. These sections can only be applied for a mob when read with sections 34, 141, 149, 147, 148 and 120B. The number of mob-lynching cases is sky-rocketing and most of these incidents qualify as hate crimes. Yet, we don’t have a special law to deal with it. In the judgement of Tehseen S Poonawalla V. Union of India & Others, the Supreme Court recommended the parliament to formulate a law for mob-lynching as a separate offence and also laid out guidelines. The guidelines include speedy trials in fast-track courts, compensating the families of the victims, holding public officials accountable on failure to perform their duty etc., which are not being followed in our country. As cases of mob-lynching are rising unabated, it is crucial for us to implement the guidelines laid down by the Supreme Court and a law definining mob-lynching as a seperate offence, taking it seriously, as it has become a weapon for anti-minority and anti-dalit bigotry.
Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005
The Communal Violence Prevention Bill was introduced in Rajya Sabha in 2005, remained inactive for years and was later withdrawn in 2014 by the UPA government. The bill has provisions for speedy trials and rehabilitation of victims. It gives power to the state government to declare an area as communally disturbed. It provides double the punishment mentioned in the existing laws. It provides for Communal Disturbance Relief and Rehabilitation Councils to be formed at national, state and district levels. It has provisions for holding public officials accountable for not performing their duty. It also has provisions for protecting the identity and address of the witnesses.
Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011
This bill was prepared by the National Advisory Council led by Sonia Gandhi, meant to replace the Communal Violence Prevention Bill, 2005. It recognizes identity-based crimes and organized mass violence as separate offences. It has provisions for holding public officials accountable for failure to perform their duty, establishment of relief camps, compensating the victims etc. It has provisions calling for the formation of National Authority and State Authorities to monitor the performance of public officials and prevent communal violence. On inaction on the part of government and public officials, they will issue advisories and recommendations. The NAC stated that the bill would extend to regional minorities like migrant workers and Kashmiri Pandits. The government claimed that this bill would tackle state-sponsored pogroms.
But, the bill wasn’t enacted because the issue of legislative competence of the bill was questioned by the opposition. In addition, the bill was criticized for only protecting minorities. This is a flawed argument because the minority groups are the ones that face the brunt of the violence. It is the duty of the state to protect vulnerable groups. When majority groups hold positions of power and influence, it is unreasonable to state that they need laws to protect them. Oftentimes, communal violence is organized, socially engineered and even state-sponsored.
The Constitution of India
The Constitution has guaranteed to protect human rights and provide equality, justice and liberty. The fundamental rights in part III are so essential that unconditional protection, with reasonable restrictions, has been provided to these rights. These rights include principles of equality before law, prohibition of discrimination and untouchability, freedom of speech and expression, right to life and personal liberty, and secularism. When hate crimes are committed, at least one of these fundamental rights is violated and it is the duty of the state to protect these rights.
India is a signatory to international covenants such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and International Convention on the Elimination of All forms of Racial Discrimination, which provide for the basic human rights to be protected by the state. They provide for equality before law without any discrimination based on identity and limits the rights of individuals against others. As a signatory to these declarations, India has a duty to incorporate the principles enshrined within them, in its machinery and justice system.
Hate Crime Legislation in the USA
Since the USA has the largest immigrant population in the world, racial violence is very common and people of the African descent have always been the main targets of racial violence. The Civil Rights Movement in the 1960s addressed the issues of black people, the rights of women, LGBTQ+ community, people with disabilities etc. This led to the enactment of the Civil Rights Act of 1968 which prohibited any act that is discriminatory and violates the federally-protected rights of people on the basis of their race, colour, religion or place of origin. Subsequently, many states of the USA started to enact hate crime laws. The Hate Crime Statistics Act of 1990 mandated the Department of Justice to collect data on identity-based crimes. In 1998, America witnessed two separate incidents of murder of two men, James Byrd, Jr., an African American man, and Matthew Shepard, a gay college student. The case of Matthew Shepard exposed a deficiency in the Civil Rights Act of 1968, as it did not cover hate crimes based on sexual orientation. This led to the enactment of the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act, 2009, which made crimes based on actual or perceived race, colour, religion, national origin, gender, sexual orientation, gender identity, or disability, a substantive offence. Though hate crimes continue to happen, the legislation has certainly acted as a deterrent.
It is undeniable that the rate at which hate crimes happen in our country at present is alarming. It has become indispensable for us to make legislation for hate crimes. The definition must include the grounds of gender, gender identity and sexual orientation along with other factors such as religion, caste, language and place of birth. The National Crime Records Bureau collected data on crime including communal killings and mob-lynching in 2017, and published the report where the data on hate crimes was excluded, claiming that the data is unreliable and that such heads have vague definitions. The NRCB should collect hate crime data like how it is done in the USA. However, legislation is not enough when Muslims and Dalits are systemically and institutionally oppressed. Oftentimes, victims belonging to marginalized groups hesitate to report hate crimes fearing social backlash. Lack of awareness of legal provisions is another issue. Yet, anti-hate crime legislation is crucial to deter hate crimes and to symbolize condemnation of bigotry even though it cannot completely eradicate the culture of hate.