Hate crimes in India

Introduction

“Why is it that, as a culture, we are more comfortable seeing two men holding guns than holding hands” questioned Ernest Gaines, bestselling author and activist, expressing concern over the rising cases of hate crimes against the LGBTQ+ community.

A hate crime[1]is any offence motivated by an irrational dislike or prejudice towards a person’s sex, religion, caste, race, or any such grounds. There is no element of personal vendetta or previous enmity towards the victim. It can take the form of verbal abuse, graffiti, vigilantism, mob lynching, assault, abusive gestures, etc.,

Since it targets a class rather than an individual, a hate crime has a ripple effect, intimidating a community and subjecting them to a perpetually threatened existence. It is against the very core principles of India, which prides itself on embracing a very diverse population and guaranteeing freedom of speech and expression under Article 19 (1)(a)[2], including the freedom to express and revel in one’s identity as a member of any community.

India has been witnessing an increasing trend of hate crimes recently. However, no specific law to combat hate crimes exists in India currently.

Crimes against caste

Data from the National Crime Records Bureau (NCRB)[3] indicates that:

• A total of 50,291 cases were registered for committing a crime against Scheduled Castes (SCs), showing an increase of 9.4% over 2019 (45,961 cases).
• A total of 8,272 cases were registered for committing a crime against Scheduled Tribes (STs), showing an increase of 9.3% over 2019 (7,570 cases).

This shows a marked increase in crimes on caste-based lines.

The Unnao and Hathras rape cases did get widespread media acclaim and outrage. But the caste identity of the victims who were both members of lower castes took a backseat and their identity as women took precedence. There were even people who supported the rapists claiming that an upper caste would not touch a lower caste out of fear of defilement. [4]

However, rape is not just the result of an inability to control biological urges but also a tool to assert superiority and dominance. Hence, it is not a mere coincidence that the National Crime Record Bureau (NCRB) report 2021 [5]reveals that women of scheduled castes and scheduled tribes are more vulnerable to rape and sexual harassment.

The rising influence of khap panchayats especially in Haryana and Uttar Pradesh has led to a surge of honor killing cases.

 Crimes against religion

Tabrez Ansari, a Muslim youth was lynched to death in Jharkhand by a mob that forced him to chant “Jai Shri Ram”. This is not an isolated incident. There was a similar lynching in Durgapur, Guwahati, and Harpur[6]. There are also countless cases of lynching where the mob alleged that the victims were involved in cattle theft or cow slaughter. Conspiracy theories like love jihad and economic jihad continue to escalate the pace at which hate crimes against religion occur.

Recently, the internet has been filled with videos that showcase the perpetrators of hate crimes broadcasting themselves online. One such video shows a Hindu mob vandalizing a Muslim-owned shop in the Mathura market shouting, “Krishna bhakt ab yudh karo, Mathura ko bhi shuddh sudh karo (devotees of Krishna fight to cleanse Mathura).”

A similar incident took place in Indore with a bangle seller. Devraj Pandit, who uploaded the videos, casually told the media that he wanted to let people know of his fight for Hindu Dharma and called for a social and economic boycott of Muslims[7]. No action has been taken against him so far.

During the Citizenship Amendment Act (CAA 2020) protests, star campaigners Anurag Thakur and Pravesh Sahib Singh Verma made highly inflammatory statements regarding a religion. Thakur raised a chant “Desh ke gaddaron ko goli maaro (gun down traitors)” referring to the Shaheen Bagh protestors. Verma claimed that the protesters would enter homes and rape mothers and sisters.[8] Hate speeches coming from high places can incite a chain of hate crimes.

Existing safeguards against hate crimes

Article 17[9] of the Constitution abolishes untouchability. The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989[10] exhaustively penalize crimes against scheduled castes and tribes.

Articles 25 to Article 28 of the Constitution establish that India is a secular nation and everyone has the freedom to profess, propagate and practice their religion subject to a few limitations.

The provisions of the Indian Penal Code dealing with hate crimes[11] include,

• Section 153A deals with wanton vilification of a religion, race, place of birth, residence, language, etc., of any particular group or upon the founders of a religion.
• Section 295 deals with destruction or defilement of a place of worship or an object held sacred, with intent to insult the religion of a class of persons.
• Section 295A seeks to punish deliberate and malicious acts intended to outrage the religious feelings of any class by insulting its religion or beliefs.

Loopholes in the law

The existing laws have time and again proved ineffective in preventing hate crimes.

In Hitesh Verma vs. State of Uttarakhand[12], it was held that harassment would not qualify as an offence under the Scheduled castes and Scheduled tribes Act 1989 if it took place in private. The petition filed on behalf of the victim was quashed because the said harassment took place “within four walls”.

In Alka A. Misra vs. J.P. Shoke[13] it was held that casteist remarks made in a closed office room were private and hence not an offence under the Prevention of Atrocities Act 1989.

However, the major reason for the failure of the Prevention of Atrocities Act 1989 is owing to unreported cases, irregular FIRs, and abysmal conviction rates.

The sections of the Penal Code though strongly worded have been unable to place a check on hate crimes against religion.

Framing fresh legislation

The debate about framing a law against hate crimes or making specific provisions in existing statutes to recognize such offenses has risen several times. However, no step has been taken in this regard. Former Minister of State for Home, Hansraj Ahir stated in the Rajya Sabha “there can be no plans to amend the CrPC (code of criminal procedure) and IPC (Indian penal code) or bring a new law to deal with hate crimes while existing laws are sufficient to deal with a murder committed by one person or ten persons.”[14]

Moreover, hate crimes can only be distinguished from other offenses based on the motive of the offender i.e. a hostility based on religion, caste, race, etc. Motive is but an aggravating or mitigating factor in a crime and not a prerequisite for conviction under the Indian Penal Code 1860. Hence, lawmakers question the need for a separate statute for hate crimes.

There are also other issues to be addressed like:

1)   What is a proper legal definition of a hate crime?

2)   Which groups deserve special protection against hate crimes and on what basis?

3)   Will a special statute be effective in deterring hate crimes or remain a mere paper tiger?

4)   Is there a scope for misuse of the law and if so, how can that be avoided?

Suggestions

1. There is a necessity for a separate law on hate crimes that is caste and religion-specific to protect particularly vulnerable communities.
2. Such a law should take into account cases of online trolling, cyberbullying, and posting defamatory content online. Islamophobic and homophobic memes which usually attract a large cyber audience should be taken down at once. The law should place a heavier burden on tech giants that allow such sensitive content to remain on their platforms even after it has been reported by users.
3. Provisions for punishing mob lynching should be included. Anybody who instigates such lynching should also be penalized. It should also crack down on vigilantism, moral policing, and honor killings.
4. Vote bank politics and speeches, actions of public figures that kindle hatred towards a particular community should be made an aggravated crime. This is because with great power comes great responsibility.

Conclusion

Even as the UK government has made misogyny a hate crime[15], India is yet to take baby steps in framing a law to counter such crimes. While it is true that social change and sensitization are needed to annihilate hate crimes, a strong law will go a long way in allowing the judiciary to scrutinize crimes from the perspective of the victim’s caste, religion, etc., and effectively bring down crime rates.

References:

[1] https://www.justice.gov/hatecrimes/learn-about-hate-crimes

[2] CONSTITUTION OF INDIA, Art. 19(1)(a).

[3] https://ncrb.gov.in/sites/default/files/CII%202020%20Volume%201.pdf

[4] https://www.indiatimes.com/news/india/from-unnao-kathua-to-hathras-casteist-communal-groups-support-sympathise-with-rapists-524160.html

[5] https://ncrb.gov.in/sites/default/files/CII%202020%20Volume%201.pdf

[6] https://www.dnaindia.com/india/report-mob-lynching-7-instances-which-shook-india-2639925

[7] https://scroll.in/article/1004272/viral-terror-why-the-perpetrators-of-anti-muslim-assaults-are-broadcasting-their-own-crimes

[8] https://indianexpress.com/article/explained/explained-what-does-removing-thakur-verma-from-list-of-star-campaigners-mean-for-them-bjp-6241237/

[9] CONSTITUTION OF INDIA, Art. 17

[10] https://tribal.nic.in/actRules/preventionofAtricities.pdf

[11] https://adrindia.org/sites/default/files/Details%20of%20IPC%20Sections%20153A,%20295%20&%20295A.pdf

[12] https://indiankanoon.org/doc/111507500/

[13] https://indiankanoon.org/doc/1600199/

[14] https://timesofindia.indiatimes.com/india/mp-husain-dalwai-introduces-bill-to-amend-ipc-to-prevent-hate-crimes/articleshow/59934472.cms

[15] https://www.familylaw.co.uk/news_and_comment/misogyny-as-a-hate-crime-what-it-means-why-it-s-needed%20

This article has been authored by Jenitha Dharshini. B., a student at SASTRA Deemed University, Thanjavur.