The Black’s law dictionary defines hate crime as ‘a crime motivated by the victim’s race, color, ethnicity, religion or national origin’ (BLACK’S LAW DICTIONARY
428; 9th ed. 2009). The definitions or understanding about the hate crime also includes the term sexual orientation as spoken by the United States government under Violent Crime Control and Law Enforcement Act of 1994. Furthermore, hate
crimes are a crime in which the defendant intentionally selects a victim, or in the
case of a property crime, the property which happens to be the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity,
gender, disability, or sexual orientation of any person. (Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 280003, 108 Stat. 1796,
2096).
After analysing all this we find that there are basically two essential conditions to constitute a hate crime; firstly, the accused must have committed a crime which may or may not be grievous and secondly, that such act was ventured as a result of the hatred towards that person’s or that group’s perceived identity. Thus, we see that there is a basic difference between a normal crime and a hate crime; the normal crime may only require ‘actus reus’ and ‘mens rea’ but for a hate crime to be proved apart from these two given conditions, we need to establish ‘hatred’ as a primary and sole motive which is the sine qua non behind the commission of such offence. Hate crimes are radically different from normal crimes because they are motivated by discrimination.
EVOLUTION AND CHRONOLOGY OF HATE CRIMES IN INDIA
There have been number of hate crime incidents in India since independence few of
them are so ill-famed and gruesome that they have found a separate locus in the
crime history of India. Some of them are following:-
(A) The Anti-Sikh Riots of 1984: The anti-Sikh massacre of 1984 refers to a series
of organized mass-killings against members of the Sikh community across India.
The then Prime Minister Indira Gandhi ordered the charge of Indian Army into the
holy shrine of Sikh, the Golden Temple situated in Amritsar to wipe out militants
hidden inside followed by an operation known as ‘Operation Blue Star’ by the Indian
military which was criticized by Sikhs worldwide.
It was rather interpreted as an assault on the Sikh Religion as a whole. This operation resulted in the assassination of Indira Gandhi by her own Sikh bodyguards on October 31st 1984, as an act of revenge. It further led to a public outcry thus resulting in anti Sikh riots killing more than 3,000 Sikhs in the capital of the country itself and 8,000 across India. It is known as the darkest era of the Sikh history.
(B) Babri Masjid Riots and The Bombay Riots, 1992: The demolition of Babri
Masjid on 6th December, 1992 led to the deadly riots and changed India. Now, ever
since it happened it continues to be a topic of debates and the news headlines, until
recently when the Supreme Court unanimously passed the Babri Masjid judgment
on the 9th of November, 2019. December 6, 1992 marked the beginning 
unrestrained tyranny that has polarized and divided the Indian society very deeply.
Though demolition of the holy shrine sparked riots across India, it was Bombay
where the worst brutal bloodbath took place. Around 900 Bombay residents were
left dead in the two stages of riots of which 575 were Muslims, 275 were Hindus
and the remaining 50 were from other religions.
(C) The Gujarat Riots, 2002: The 2002 Gujarat riots or the Godhra Riots stands
among one of the most ruthless and carnage riots the land of Mahatma had ever
encountered. The burning of a train in Godhra, a municipality in Panchmahal district
of Gujarat on the 27th of February 2002, caused the deaths of around 58 Hindu
karsevaks returning from Ayodhya leading to a unspectacular three day period of
inter communal violence in the state resulting to the death of 1,044 people according
to official records. Around 2,500 were injured and around 223 people went missing
in the clash between the two religions. Among the people who died around 790 were
Muslims and 254 were Hindus.
This destruction has been considered as a communal
riot but till date there have been debates and discussions where the renowned
scholars have opined and alleged that the said riots was more of a planned attack and
the attack on the train was further commented to be a ‘staged trigger’ for what
followed suit. Due to the nature of this communal riot it was considered to be so
heinous that it has been categorically mentioned by the observers as the legal
definition of genocide which was later also referred as the state terrorism or ethnic
cleansing. Thereafter, many instances happened that followed suit to the Godhra
riots; some of them were the Naroda Patiya Massacre, the Gulbarg society massacre.
Since independence India had seen many communal riots but the Godhra riots of
2002 stands out among all for its specific targeting of women and children who were
subjected to the most callous and remorseless forms of violence. The Tribunal
reported that the women were raped, objects were inserted into their bodies and those
who survived such torture were later burnt alive.
(D) The Mass Exodus of Kashmiri Hindus: Kashmir, the paradise of India has
been one of the prominent places of riots. But of all, the most unforgettable is the
mass exodus of Kashmiri Hindus back in the cold winter nights of January, 1990.
The Kashmiri Hindus or Kashmiri Pandits as they are known were threatened by the
Muslims to either convert to Islam, or to leave the land or to die. Colonel Tej Kumar
Tikoo in his book very aptly described the situation and talked about the three
choices given to the Kashmiri Pandits – Ralive, Tsaliv ya Galive which stands for
convert to Islam, leave Kashmir or to be killed. It was apparent that the Kashmiri
Muslims had decided to throw the pandits out from the valley. Many well known
Kashmiri pandits gruesomely murdered by the Kashmiri Muslims in the nights of
January 1990. India has seen several changes since the fateful night in 1990
nationwide but till today thousands of Kashmiri Pandits who were once chased out
of their own homes have still not been able to find their way back to the place they
called home despite the change in governments and number of developments that
took place.
The rate of hate crimes have also risen to quite an extent over the past few years.
Amnesty International India has documented around 721 such incidents between the
years 2015 to 2018. In the year 2018 alone they had tracked down around 218 hate
crimes out of which 142 were against schedule caste and tribes, 50 were against
Muslims and eight were against Christians, and transgenders. While digging into the
roots, it was found out that the hate crimes were majorly honor killings, a concept
sadly prevailing since decades. Another branch of hate crime which has become very
frequent in the last few years is the cow related violence. It has been seen that cow
related violence in India has seen an upsurge in past few years. Hate Crime Watch,
a database of religious-bias-motivated hate crime in India points out that hate crimes
based on religious identity have increased from single digits to massive three digits
after the 2014 national elections. The year 2017 saw a rise in communal violence by
28% from the year 2014. Uttar Pradesh, a state in central India saw a rise of 47%
from 133 in 2014 to 195 in 2017, the most by any state. There have been instances
where the exact figures have never been counted or declared. One such is when the
National Crime Records Bureau published its annual report after a year’s delay in
the year 2019 and left out hate crime and lynching because they found the available
data regarding the same to be vague and unreliable. The said report also left out data
on crimes committed by religious leaders and khap panchayats. The NCRB report
also did lie silent on data regarding data on honor killings, rapes committed during
communal violence which clearly falls under the umbrella of hate crime. The year
2018 started the count with the ghastly tale of an 8 year old Asifa Bano’s body which
was found, beaten severely to death on the 17th of January in the pastureland of
Kathua, Jammu and Kashmir. This case created quite a cry in the nation with human
rights organization banging the high shut doors of the government asking for justice.
Later, many such incidents kept happening like the communal riots of state of West
Bengal followed by a technology driven incident like an innocent forwarded
message on Whats App which was circulated and claimed about a ten year old girl
being raped. It resulted into a communal clash in Rudraprayag in the state of
Uttarakhand which is considered to be the most peaceful state. Another instance was
from Assam’s Tinsukia district where a Facebook post became the reason of not one
but two communal clashes which further resulted in a protest thus blocking the
national highway. In addition to this, there was a phenomenal increase of 33% in
number of cases registered by National Human Rights Commission. In the year
2016-17 NHRC registered 505 cases whereas in the year 2018-19 this figure rose to
672. The NHRC registered 2,008 cases between 2016 and 2019 where minorities
and Dalits were harassed. The data in itself is quite alarming and thought-provoking.
EFFECT OF NEW MEDIA TECHNOLOGIES
A new kind of hate crime has come to the light lately which is about ‘auctioning’ of
several prominent and vocal Muslim women. This demeaning act is being done
through the apps called ‘Bulli Bai’ and ‘Sulli Deals’. This is seriously condemnable
and this indicates that the digital natives are not irrepressible against problems such
as disinformation, hate speech and the potential for radicalization that have plagued
our informational spaces. But now we need to delve into a broader context of
decreasing levels of social cohesion in Indian society which led to the situation
wherein such apps were even created. We need to think in a way that can point us
towards the right set of long-term interventions.
Thus to understand the fundamentals of these problems that have begun to surface,
we need to start by looking at the effect of new media technologies which have been
developed over the last 20 years on our collective behaviour and identities. The new
technologies have totally changed the scale and structure of human networks which
has led to abundance and virality of information. Social scientists are of the opinion
that these rapid transitions have altered the way individuals and groups influence
each other within our social systems. The swiftness of technological evolution
coupled with the speed of diffusion of these influences has also meant that we neither
fully understand the changes nor can we predict their outcomes. Our identities
ultimately bear on our analytical processes and arguments against our defining
values can activate the same tactile paths as the threat of physical violence. On the
one hand, the rise of social media has been linked to the strengthening of personal
social identities at the cost of increasing inter-group divisions while on the other
hand, the factual observation shows that people on social media gravitate towards
people with whom they have certain agreement despite frequent interaction with
ideas and people with whom they disagree. Still we ought to have a better
understanding of the broader psychodynamic effects, specifically in the Indian
context. The past ordeal suggests that when these beliefs are prejudices and
resentment against a specific group of people, the feedback loops of social
confirmation and validation can result in violence. Moreover, it can destabilize the
delicate social-political relations built over decades. The harms arising out of
increasing levels of polarization and radicalization are primarily analysed through
the lens of disinformation and hate speech which gives primacy to motives. This
leaves room for some actors to steer clear of responsibility since motives can be
deemed subjective. And for others to be unaware of the downstream consequences
of their actions often, even those taken with good intentions can have unpredictable
and adverse outcomes. The information ecosystem metaphor, proposed by Whitney
Phillips and Ryan M. Milner, compares the current information dysfunction with
environmental pollution. It encourages us to prioritize outcomes over motives. For
this, we should be more concerned with how it spreads and not whether someone
intended to pollute or not. Besides, it also makes us think that the effects of such
pollution integrate over time and attempts to ignore, or worse, exploit this pollution
only aggravates the problem, not just for those victimized by them, but for everyone
around. Hence, our focus tends to be on those who command the largest audiences
or have the loudest voices or on those who say the most dreadful things. The
polluters no matter big or small feed off each other’s actions and content across
social media, traditional media as well as physical spaces. There is no clear
distinction between ‘online’ and ‘offline’ effects neither they can be methodically
categorized nor easily distinguished. The ‘online’ harassment is harassment. The
actors could be varied as bored students, local political aspirants, content creators or
the influencers, national-level politicians or someone trying to gain clout, etc. seize
the entire information ecosystem. Their underlying motivations can range from
hackneyed to the disturbing to the discursive and so on. The interactions of these
heterogeneous sets of actors and motivations result in a complex and unpredictable
system, composed of multiple intersecting self-reinforcing and self-diminishing
cycles, where untested interventions can have unanticipated and unintended
consequences.
Many people have called for action by platforms to address hate speech. The content
moderation should be considered as a late-stage intervention rather such individuals
need to be stopped early in the path to radicalization and extremist behaviour to
prevent the development of apps such as ‘Bulli Bai’. The counter speech tactics to
counter hate speech by presenting an alternative narrative can play a significant role.
In fact, the counter speech could take the form of messages aimed at building affinity
with edify those targeted; enforcing social norms around respect or openness; or
condense a dialogue. Remarkably, this excludes fact-checking. Since behaviours in
online and physical spaces are linked an in-person community action and outreach
can be helpful. Social norms can be imparted through families, friends and
educational institutions, influencers and those in positions of leadership can have a
significant impact in shaping these norms.
EXISISTING LEGISLATIONS UNDER WHICH HATE CRIMES ARE
PUNISHED IN INDIA
In India, we do not have any specific legislations or laws that regulate hate based
crime except the SC/ST Atrocities Act. Though the Indian Penal provisions contain
several separate sections that are similar to hate crime legislation like Section 153-
A of Indian Penal Code. This section of Indian Penal Code deals with promoting
enmity between different groups on grounds of religion, race, place of birth,
residence, language etc. and doing acts that are prejudicial to maintenance of
harmony. To constitute an offence under this section it is essential that two or more
groups must be involved and therefore merely inciting the feeling of one community
or group without any reference to any other community or group cannot attract this
section. (Pg no 1459 of Penal law of India 11th edition 18/04/19). This section is
mostly used with respect to religion based hate crimes in India. Under this section
the punishment provided is imprisonment up to three years and it could extend to
five years if the alleged act is conducted in a place of religious worship. Then we
have Section 298 of the Indian Penal Code, which deals with uttering words with
deliberate intent to wound a person’s religious feelings, where the punishment is
limited to one year. In addition to this we have Section 295-A of the Indian Penal
Code which specifically deals with acts that are prejudicial in maintaining religious
harmony. This section penalizes any deliberate and malicious acts intended to
outrage the religious feelings of any class by insulting its religion or religious beliefs
and provides punishment of imprisonment up to a term of three years or fine or both.
Likewise in the cases of mob lynching the alleged people may be charged for murder
as per Section 302 of Indian Penal Code read with common intention as per Section
34 or conspiracy as under Section 120B and in case the victim survives the attack
then the mob maybe charged for rioting as per Section 146 or for unlawful assembly
as per Section 141 or for attempt to murder as per Section 307. Similarly, Section
223 (a) of the Criminal Procedure Code allows to try two or more accused for
conducting a crime as a ‘same transaction’. But when we closely analyse, we find,
in all these instances the gravity of hate crime as an offence compared to other
offences is being overlooked and subverted. Due to this there is no complete justice
being served to the victim and his identified community or group. Nowhere, in
Indian Penal Code is there a section that penalizes any violent acts carried against
any person or any group based on their sexual orientation. With the recent judgment
which partially strikes down Section 377, there must be a comprehensive legislation
to look after the rights of the LGBT community.
ARGUMENT FOR ENHANCE PUNISHMENT AND FEDERAL
MONITORING AGENCY
The first stage to solve a problem is to recognise its existence. The Supreme Court
has made certain observations about hate crime, hate speech and mob lynching. It is
technically the first step towards penalizing the hate crime. The measures suggested
by the Court categorically outlines the vision for a comprehensive penal policy in
this regard. It recognizes the core issues that are involved and at the same time it
provides some course correction. Firstly, the Court calls for recognising the
existence of hate crimes, mob-violence, and mob-lynching. Secondly, it talks about
speedy trial, protection to witnesses, compensation to the victims of hate crimes and
stern punishment for the offenders. Thirdly, court also felt the need for alternative,
effective and coordinated policing, right from district level to that of ministry of
Home affairs, Government of India for greater crime control.
CONCLUSION:
In Tehseen S. Poonawalla v. Union of India & ors, the Supreme Court of India
laid down certain guidelines for preventing the growing incidents of lynching. Every
state government was ordered to designate a senior police officer to prevent and take
prompt action against the mob violence and set up fast track court in such cases. In
addition to this, it should also be noted that there exists a collective responsibility of
every organ of the government to deal with this crime in an appropriate
manner. Thus, as per the directions of the Supreme Court, several states came up
with draft legislation to deal with mob lynching. The draft legislation devised by UP
Law Commission seems to have dealt with the problem methodically. The UP-draft
legislation in its proposal talks about the enhanced punishment to lynchers along
with punishment of three years on erring police officials. (Bajpai, 2019). Another
state that came up with the legislation with respect to lynching was Manipur in 2018.
The proposed legislation sought for protection to the victim of mob violence and
witness protection including schemes for rehabilitation of victims. The Rajasthan
and West Bengal government came up with bill against mob lynching in the year
2019. However, all these provisions are just a cursory attempt to deal with hate
crime. The Parliament of India is also contemplating to have a comprehensive law
on this issue. In the meanwhile, the lynching instances continue to rise. M. K.
Gandhi, the father of the nation, has once said that the object to violence because
when it appears to do good, the good is only temporary; the evil it does is permanent.
Thus, it is imperative to have a stringent, well-crafted, futuristic penal policy in order
to save the nation from a permanent scar. It is essential to place a policy of zerotolerance towards hate crime and mob lynching before the law enforcement agency.
In fact, as directed by Supreme Court, the criminal justice system needs to evolve
the policy of enhanced punishment for hate crimes which will send a twin message
simultaneously to all future offender that a crime committed out of prejudice or hate
will be dealt sternly and at the same time message will also be send to the victim or
the victim’s community that state will afford protection to all and no one should ever
feel downhearted.
The hate crime which is threatening the core of pluralistic ethos, diminishing the rule
of law, and eroding constitutional values need to be tackled differently. This sort of
crime which generates hatred and disharmony needs to be dealt with iron hand. In
this regard, having a Federal Hate Crime Monitoring Agency could serve the
purpose. The idea of having this body for a greater coordination is very much
enshrined in the directives of Supreme Court itself. Apart from having inter-state
coordination, this agency can preserve the data and sensitive information related to
the hate crimes. This can work in the line of principle of cooperative federalism and
will essentially sub-serve the constitutional objectives. Having centralised
bureaucracy for civil administration as well as policing, functioning of such a
mechanism will not be much problematic. Besides, the publication of hateful
comments and threats against any community on print and social media should be
closely monitored. Lastly, the common citizens should also make efforts in creating
awareness against the hate crime and how essential it is to eradicate this evil from
the society.
Also Read:
Rights of undertrial prisoners in India
NALSA vs union of India
