Hate crimes in India

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HATE CRIME – NEED FOR A COMPREHENSIVE LEGISLATION IN INDIA

Author: ANAGHA MENON C
Hate crimes in India
Hate crimes in India


ABSTRACT

Crimes that leave a never healing mark of self doubt and self worth are the most dangerous of all crimes. Those violent mob lynching, cow based violence and harassments in the name of religion, race, ethnicity, gender and sexual orientation that make up the headlines of national channels are the ones that affect not only the victim but also the group that shares the perceived identity. All these crimes can be combined and put under one heading ‘Hate crime’. India, the nation which has always welcomed everyone with folded hands adhering to its motto ‘Vasudhaiva kutumbakam’ has not yet properly recognized hate based crimes which hamper the ethno-cultural diversity of the country. Hate crimes are yet to find a place in our penal provisions. Through this research article an attempt has been made to define what is a hate crime, what are the existing legal provisions under which hate crimes are tried, hate crime legislations enacted in foreign countries and why a country like India must differentiate these crimes from normal crimes and also provide more stringent punishment which would act as deterrent to those who spread hate. The paper also emphasizes the need for recording and preparing a data of such crimes for effective law enforcement.

  1. INTRODUCTION

1.2 DEFINITION

As per Black’s law dictionary a hate crime is defined as “a crime motivated by the victim’s race, color, ethnicity, religion or national origin”.1Some definitions include the term sexual orientation as like the definition provided by the United States government under Violent Crime Control and Law Enforcement Act of 1994 which defines hate crimes as “a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is 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.”2Thus there are basically two essentials conditions to constitute a hate crime; first the accused must commit a crime which may or may not be grievous and second that such act was undertaken due to the hatred towards that person’s or that group’s perceived identity.
Therefore here comes the basic difference between a normal crime and a hate crime; a normal crime may only require actus reus and mens rea but to prove a hate crime, apart from the above two conditions, ‘hatred’ as a primary and sole motive or is the sine quo non behind the commission of such crime must be established. Hate crimes, therefore, are fundamentally different from normal crimes because they are motivated by discrimination.

Our legislations fail to recognize this prime and essential motive behind the crime and henceforth there is no clear cut differentiation between a normal murder and a hate induced murder.

  1. INCIDENTS OF HATE CRIME IN INDIA

Over the years our country have seen hate crimes in various forms and in various kinds. Especially religion base hate crimes have always been on the high in our country and reports suggest that this number has spiked since 2014. The most recent being in the name of cow protection by the so called cow vigilante groups which has lead to unprecedented deaths. As per a report by Satistica.com, crimes in the pretext of cow protection were the highest with 27 reported cases. This happened as an aftermath to the recent legislation brought about by the NDA government banning sale and purchase of cattle for slaughter.

‘Halt the hate’ an interactive website of Amnesty International India which collects data regarding hate crime, reports that about 218 incidents of hate crime have been reported by the English news channels  in  our  country  in  2018  alone  of  which  142  incidents  against  Dalits, 50 against Muslims, and 8 each against Christians, Adivasis, and Transgender people. 3
statistics of Hate crimes in India
statistics of Hate crimes in India
Also there has been a significant increase in the general number of hate crimes that are being reported in the country over the years. The following graph by Statistica.com shows the number of hate crimes that are being reported in the media from 2010 to 2018.
statistics of Hate crimes in India4
Many of these cases got national attention like that of the case of a 16 year old Muslim boy, Junaid Khan who was stabbed to death in a Mathura bound train by a group of men over an heated argument
for seats which later lead to such misfortunate incident. The alleged men identified Junaid and his brothers as Muslims and taunted them and called them beef eaters before throwing them out in the next station. The rape and murder of an 8 year old girl, Asifa Bano in Kathua district of Jammu and Kashmir can be termed as one of the gravest cases of hate based crime that mankind would have ever seen.

Unfortunately there aren’t any official records of such crimes since National Crime Records Bureau; the government agency responsible for collecting data on crimes does not have a data on the number of hate based crimes in the country.
Hate crimes in India

  1. WHY HATE CRIMES  ARE MORE GRIEVOUS THAN OTHER CRIMES

Many research studies show that greater harm is inflicted upon a victim of hate crime as compared to victims of parallel crime. The harms most commonly claimed are concerned to the experience of psychological and emotional trauma by victims following a hate crime and also trauma vicariously experienced by those who share the same identity as of the primary victim.5 Also many empirical data collected shows that the victims of hate crimes experience a greater degree of negative psychological impacts as compared to victims of similar crime. As per a report by two clinical psychologists Craig-Henderson and Sloan it is inferred that the negative emotions experienced by victims of racist crime are “qualitatively distinct” from the emotions experienced by victims of parallel crimes.6 It is also found out that the chances of the victims of hate crime experiencing post traumatic distress are high as compare to victims of parallel crimes. Similarly it is also found out that there is quantitative difference between hate crime victims and victims of parallel non hate crime victims in experiencing such symptoms have also been illuminated by a number of research studies — at first in the United States, and more recently in the United Kingdom.

Furthermore with regards to specific symptoms of distress, compared to victims of parallel non hate crime, hate crime victims are likely to experience.
  1. Higher levels of depression and withdrawal from society
  2. Anxiety and nervousness
  3. Loss of confidence
  4. Anger
  5. Increased sleep difficulties
  6. Difficulty in concentrating
  7. Fear and reduced feelings of safety7
Craig-Henderson and Sloan have argued that the reason for such unique reaction of the victims of hate crimes is due to their perception in the experience of victimization as an attack upon the core of their identity.
Thus these evidences itself proves that the gravity of hate crimes are very high as compared to parallel non hate crimes.

  1. EXISISTING LEGISLATIONS UNDER WHICH HATE CRIMES ARE PUNISHED

As of now in India, there aren’t any specific legislations or laws regulating hate based crime except the SC/ST Atrocities Act. The Indian Penal provisions contain several separate sections that are similar to hate crime legislation like section 153-A of IPC. This section of IPC deals with promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony. In order to constitute an offence under this section it is imperative 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.8 This section is commonly used to gauge religious based hate crimes in India. 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. By contrast, the punishment under Section 298 of the Indian Penal Code, which deals with uttering words with deliberate intent to wound a person’s religious feelings, is limited to one year. However in most cases including that of Junaid Khan, the police have failed to include these charges in both the FIR and charge sheet.9

Similarly section 295-A of the IPC 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.

Similarly in case of mob lynching the alleged people may be charged for murder as per section 302 of IPC 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.

Also under Section 223 (a) of the Criminal Procedure Code it is allowed to try two or more accused for conducting a crime as a “same transaction”.

In all these instances the gravity of hate crime as an offence compared to other offences is being disregarded and undermined. As a result there is no complete justice being served to the victim and his identified community or group.

Nowhere in IPC 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.

  1. Manipur Protection from Mob Violence Act 2018

As a positive step to curb the discriminatory violence in the state, the Manipur Assembly recently passed the Manipur Protection from Mob Violence Bill, 2018, becoming the first state in India to pass a law on mob lynching. The newly passed act defines mob lynching as “any act or series of acts of violence or aiding, abetting such act/acts thereof, whether spontaneous or planned, by a mob on the grounds of religion, race, caste, sex, place of birth, language, dietary practices, sexual orientation, political affiliation, ethnicity or any other related grounds” .

The offence of mob lynching is made cognizable, non bailable and non compoundable. There are several key attractions to the act including life imprisonment and fine up to 5 lakhs if an act of mob violence leads to death of the victims. One main feature of the act is that it provides for 6 months imprisonment to those people who create a hostile environment against people of the community who has been lynched.

It lays down the duty and responsibility of the State government to make arrangements for the protection of victims and witnesses against any kind of intimidation, coercion, inducement, violence or threats of violence.

It calls for creating a nodal officer to control such crimes in every district. The nodal officer has been mandated to form a special task force to procure intelligence reports about people likely to commit such crimes or have been previously engaged in such crimes. The law provides for special courts and speedy justice.10

Condemning the increasing mob violence and lynching in the country, the Supreme Court recently in Tehseen Poonawalla case11 laid down guidelines in the form of measures to be adopted by the Central government and State governments namely preventive, remedial and punitive measures which provides for
  • Appointment of a nodal officer to check and prevent instances of such violence.
  • Identification of problematic regions and periodic patrolling.
  • Prevention of dissemination offensive material through social media platforms in the form of messages or videos and filing of an FIR under 153A of Indian Penal Code in case of such publication.
  • Provision for creation of a compensation scheme for the victims of mob violence/lynching as per section 357A of Criminal Procedure Code within and providing interim relief to them.
  • Provision for free legal aid for the victims and speedy trial of cases including pending ones.
  • Action against police officers or officers of the district administration in case they fail in their duty to prevent, investigate or facilitate expeditious trial of any case of mob violence or lynching.
Hate crimes in India

  1. HATE CRIME LEGISLATIONS IN FOREIGN COUNTRIES

  1. USA

Since 1968, the United States federal laws have covered a significant class of hate crimes mainly:
  • Crimes committed based on religion, race or national origin
  • Crimes against people who are engaged in federally protected activities like voting, attending school etc.
However this law was not sufficient since it did not penalize crimes motivated by the victim’s gender, sexual orientation and also those acts committed when the victims are not engaged in federally protected activities. Thus a new law was formed after the attack on a gay student Matthew Shepherd and a black man, James Byrd Jnr and was named as the Matthew Shepard  and James Byrd Jr Hate Crimes Prevention Act 2010 which expanded the 1968 federal law on hate crime.

  1. Canada

The Canadian criminal code also known as Code Criminel considers hate crime as an act which is committed when someone sets out to intimidate or harm any person or any group of people to which the person belongs. Section 318 and 319 of the act states that it is a crime to incite hatred and section 318 specifically states that it is a crime to “advocate or promote genocide- to call for, support, encourage or argue for the killing of members of a group based on colour, race, religion, ethnic origin or sexual orientation”.12
Similarly section 13 of the Canadian Human Rights Act condemns the act of hate messages via telecommunications equipment including the internet.
Hate crimes in India

  1. Australia

Anti discriminatory legislations in Australia have always mainly focused on sexual harassment in the past, but the legislations in the country are now being made up-to-date to combat even other kinds of harassment which are not sexual in nature and also has brought under its ambit crimes motivated by a person’s religion, ethnicity, disability and homophobia.
Similarly the Racial Discrimination Act 1975 forbids hate speech and also there are numerous state laws in the country that condemn acts based on hate in their respective jurisdiction.

CONCLUSION

As Sir William Blackstone, the eighteenth-century British legal scholar says “it is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness”, hate crimes which not only inflict physical harm to the victim but also makes him feel guilty of being himself is the most severest of all the crimes. It not only erodes the happiness of the victim but also the whole of community who have to live with the fear of being attacked. India being a country which recognizes and celebrates the diversity in language, religion, culture must condemn and punish such acts of violence which hampers this unity in diversity.

Therefore through this paper it is proposed that the country must:
  • Codify hate crime and make a separate provision for hate crime or make changes to the existing provision such as section 153-A of IPC, to include in its ambit classifications like sexual orientation and also acts like mob lynching, sexual harassment and provide for stringent punishments.

  • The National Crime Records Bureau create a data on such crimes and systematically collect statistics to enable the law makers and the police to take effective measures to control such crimes in the country.

Providing for such measures will create awareness about hate crimes among the general public and will instill fear and a sense of duty not to indulge in such crimes and to prevent others from committing such crime.

Hate crimes in India
1 BLACK’S LAW DICTIONARY 428 (9th ed. 2009).
2 Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 280003, 108 Stat. 1796, 2096
3 Over 200 Alleged Hate Crimes in 2018, Reveals ‘Halt the Hate’ Website, AMNESTY INTERNATIONAL INDIA, https://amnesty.org.in/news-update/over-200-alleged-hate-crimes-in-2018-reveals-halt-the-hate-website/ (last visited Apr 10, 2019).
4 INDIA – HATE CRIMES 2018 | STATISTICA, https://www.statista.com/statistics/978957/hate-crimes-india/ (last visited Apr 7, 2019)
5 HATE CRIMES HURT MORE SEMANTIC SCHOLAR.ORG,
https://pdfs.semanticscholar.org/5859/e825729a7bb890d5f21ea278be32303c19f7.pdf?_ga=2.19272442.379657640. 1555347105-1098192832.1555347105 (last visited Apr 12, 2019
6 Craig-Henderson & Sloan, L.R. (2003). After the hate: helping psychologists help victims of racist hate crime. Clinical Psychology: Science and Practice, 10(4), 481-490 (last visited April 21, 2019)

7 (McDevitt et al., 2001) (Ehrlich 1992); (Ehrlich 1992) (McDevitt et al., 2001) (Ehrlich 1992) (Herek, Gillis, Cogan∙ & Glunt 1997 (Ehrlich 1992 (McDevitt et al., 2001) (McDevitt et al., 2001);∙
8 Pg no 1459 of Penal law of India 11th edition 18/04/19
9 INDIA IS UNDERCOUNTING RELIGIOUS HATE CRIMES BY FAILING TO INVOKE A CRUCIAL SECTION OF THE
LAW Scroll.in, https://scroll.in/article/863176/2017-india-is-undercounting-religious-hate-crimes-by-not-invoking- a-crucial-section-of-the-law (last visited Apr 21, 2019)

10 MANIPUR PROTECTION FROM MOB VIOLENCE BILL, 2018- A STEP IN THE RIGHT DIRECTION.FORUMIAS BLOG,
https://blog.forumias.com/manipur-protection-from-mob-violence-bill-2018-a-step-in-the-right-direction/ (last visited Apr 21, 2019)
11 Tehseen S. Poonawalla vs. Union of India (UOI) and Ors. (2018)6 SC 72
12 HATE CRIME ONLINE: HERE‘S EVERYTHING YOU NEED TO KNOW IN 2019.WHOISHOSTINGTHIS.COM,
< span style="color: #333333; font-size: 10pt;">https://www.whoishostingthis.com/resources/hate-crime/#hate-crime-canada (last visited Apr 14, 2019)

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