Hate Crimes are motivated crimes and originate with prejudice against a particular identity. They are provoked by planned strategies. They are usually motivated by thrill, revenge or differences of religion, caste, sexual orientation, ideologies etc. India has been grappling with an increased rate of hate crimes in the past decade. What is the nature of these hate crimes and what are the combined alternatives that are used by the higher judiciary and legislators in absence of targeted legislation for hate crimes?
Hate Crimes
Hate crimes originate with prejudice against a particular identity. They are motivated by the bias of race, religion, sexual orientation, ethnicity etc. As Yuval Noah Harari[1] in his book Sapiens says that, even these identities are an imagined reality. But, the truth is that they matter. Some examples can include discrimination based on colour against African Americans, mass killing of people from the Sikh community in 1984 post the assassination of Mrs Indira Gandhi, caste divide, Hindu-Muslim division, crimes against LGBTQIA+ community.
While many media house claim that India has been grappling with hate crimes over the past decade. But, the truth is they have existed in our society all along. In the 18th CE US, it was normal to look down upon and torture people of colour. In 17th CE America, it was normal and only fair to execute women by blaming them for witchcraft. If we look at some more incidents like stories of partition in 1947, they are filled with bloodshed and hate crimes. A day before the very same families lived in complete harmony, the next day they wanted to murder each other.
A man who killed his daughter for marrying a man of another caste believed he did it for the honour of the family. People are made to think they are doing something evil for the greater good. It can be for the sake of achieving something bigger, something which they were brainwashed to envision. In their heads, they must have done it for the religion, for the country or just because they felt that others are different. Most of these crimes are mobilized and executed working on herd mentality. The offenders usually do not have a personal vendetta against individuals upon who becomes a victim of these crimes.
The difference is used as a weapon by those who want to use people to fuel their political ecosystem. The strategy of “Divide and rule” never went away with the British Raj. Most of these agendas do not serve individuals who are a part of it. They are provoked by planned strategies. Could be media, could be political parties or organizations.
Speaking in the Indian context, Sister Nivedita once said that Galilieo wouldn’t have been killed had he lived in “Bharat”. She believed that India is diverse and believes in accepting, no matter how different belief systems are. Which India was she talking about? As the killing of Kashmiri Pandits in their own home, mob lynching of a dairy farmer in anticipation that he killed a cow, mob lynching of Sadhus in Palghar are some heart-wrenching incidents that make us doubt what Sister Nivedita believed in.
The George Floyd incident brought to light the deep-rooted racism engrained in the very system. While this incident got the attention that it deserved, many hate crimes go unreported. Especially in India, as most incidents are given a communal angle and termed as “riots”. Mahatma Gandhi said “I object to violence because when it appears to do good, the good is only temporary. The evil it does is permanent.” In the aforementioned cases, there is no good at all. Not even temporary.
The then CJI, Deepak Mishra said in the matter of Tehseem S Poonawala vs. Union of India (2018) 9 SCC 501[2] said that “India is turning into a mobocracy”. Such incidents subserve the rule of law. In 2020, a plea was filed by Advocate Reepak Kansal[3], which sought appropriate amendments in IPC provisions dealing with sexual assault to include transgender/transsexual/kinnar in the definitions and to direct the government to make gender-neutral laws on sexual harassment. It was noted that the third gender are being deprived of many of the rights and privileges which other persons enjoy as citizens of this country.
Laws Related to Hate Crimes
With developments in society and changes in identities, laws and regulations take shape. The Constitution of India has conferred upon its people, Article 14, 15, 16 and 18. Where to discriminate on the basis of caste, sex, religion, race and colour has been categorically termed as unconstitutional.
India has strong legislation for hate speech. But it does not have specific legislation targeting hate crimes. Indian Constitution, Indian Penal Code and Code of Criminal procedure does provide protection to weaker sections. Various governmental departments work on designing programs, providing employment and creating awareness about the Transgender community for example Ministry of Social Justice and Empowerment. The amicable approach of legislators and the higher judiciary has so far been prominent in bringing to light varied hate crimes.
India’s Supreme Court, in its judgment of July 17[4], provides a refreshing approach towards dealing with hate crimes. It said, “There is no dispute that the act of lynching is unlawful but we are not concerned with any specific case since it has become a sweeping phenomenon with a far-reaching impact. No citizen can assault the human dignity of another, for such an action would comatose the majesty of the law.” The apex court directed trial courts to consider giving maximum punishment under IPC in such cases and set up strong precedents.
Governor of Kerela, Shri Arif Mohommad Khan in his speech for Rotary club, Kottayam mentioned that our ancient belief systems have always involved seeing “one in many and many in one.”
On a societal level what we need is a positive approach to not feel threatened by differences. To not eat lies served to us by biased media houses, political parties. But, to understand that differences promote growth. We wouldn’t want to live in a world where everything is the same.
The question that arises is that do we need specific legislation for hate crimes? Can the experience of the USA be an eye-opener for India? Are the currently available legislations enough to provide justice to victims of hate crimes? A combination of setting strong precedents, publicly accepting hate crimes, data collection and an attempt to inclusively define hate crimes might be a way to see a decline in the rising graph of such incidents.
[1] Yuval N. Harari, Sapiens: a Brief History of Humankind, New York, Harper, 2015.
[2] Tehseem Poonawala v. Union of India (2018) 9 SCC 501
[3] Sexual Violence Against Transgender, The Indian Express
[4] Law and Policy Report 2018, 9th Issue, OP Jindal University