This blog inscribed by Palak Rajpal.
“Hate crimes against individuals do harm to more than just that person”
Bill Cohen
Crimes against the historically marginalized section of the society by the better-off members are a form of prejudice and extreme discrimination. When hate crimes take place the right of an individual to live with dignity is harmed along with other traumas that he might face later, that too not alone but rather along with his whole community. The feeling of discrimination, biases and hate towards a certain meticulous set of people is not new in India. Hate crimes in our nation are prominent and age-old. These crimes can be seen in various forms such as; harassment, threats of violence, verbal abuse, bullying, lynching, etc. They are a big threat to peace and equality everywhere. Incidents under this generally involve violence and threat towards a single individual, although the repercussions are not faced by the victim alone. Hate crimes have a unique nature; when imposed even on a single entity it results in the harm of an entire community. Hate crimes are not just physically hurting, they can be mentally and psychologically challenging as well for a community.
A simple example from the Indian subcontinent itself is the 2020 Palghar mob lynching case; wherein two Hindu Sadhus along with their driver was lynched as the people suspected them to be thieves[1]. Often when people take law in their hands and act as reckless vigilantes they end up inflicting harm on the innocent people.
In some parts the people are so used to hate speech and abuses that they do not even consider it as a crime. The stronger oppress the weaker, and when the oppression is so extreme that it results into a crime, it becomes a great deal of a problem for the society as a whole. As there are no specific laws for this problem it becomes even harder to deal with them and work in the interest of the more fragile section of our society. In India hate crimes are mostly motivated by caste, religion and gender. These crimes are done in order to send a message to the weaker faction of the society. Or sometimes these crimes are just means of venting out hatred for a community. This mostly results in fear among the community members.
Meaning
According to the Organization for Security and Co-operation in Europe (OSCE); hate crimes are acts of criminal nature done with a bias motive. Whenever a criminal offence is added up with a bias motivation the outcome is nothing but hate crime[2]. There is a very fine line between Hate crime and normal crime, the line is the motivation behind the criminal act. If the crime has been motivated by hatred or biasness towards the victim it is not just a crime, rather it is a hate crime.
In simple understanding terms, it would not be wrong to say that hate crimes are those crimes which when directed towards a single person affects the community of the victim at large, making it more dreadful and heinous crime than any other form of a criminal offence.[3]
History of Hate-Crime
Hate-crime as a concept came into the picture in the late 1970s in the United States[4]. But without any doubt such crimes existed way before the 1970s, they were just not defined and given much thought before that. The slaughtering of the Jews by the Nazi’s can be one very prominent example of Hate crime at its peak. Other eye-catching examples would be lynching of Afro Americans, assault on the LGBTQ community, and so on[5].
In the land called India, the concept of hate-crime is not new. There have always been gender-biased, religion-biased and caste-based crimes in the nation. Indian states were formed and divided on the basis of religion; this is clearly an example of biasness. India has always been a nation which has given importance to religion and caste. According to a report by NCRB maximum cases of hate crime in India are motivated on the basis of religion and caste, closely followed by gender[6].
Types of hate-crime and Indian laws related to them
Hate Speech-
Hate speech has not been defined in any of the existing laws of our nation, yet there are prohibitions for using some certain forms of speech. However, the 267th report of the ‘Law Commission of India’ states hate speech as; a provocation to hatred principally against a faction of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and so on[7].
Legal Aspect: apart from hate speech being an exception to Article 19- freedom of speech and expression, there are other legislations also which regulate the use of hate speech, like;
- The Indian Penal Code, 1860– Section 124A- punishment for sedation, Section 153A- punishment for an attack on religion, place of birth, race, etc
- The protection of the Civil Rights Act, 1955- Section 7(13)
- The Religious institutions (Prevention of Misuse) Act, 1988: Section 3(g)[14].
All these aforementioned laws are not directly concerned with hate speech, but when interpreted widely the concept of hate speech is in one way or the other embedded within these laws. Other than these, The Representation of People Act, Unlawful Activities (Prevention) Act, 1967 also cover certain provisions concerned with hate speech.
Lynching-
Lynching was defined by the Hon’ble Supreme Court in Tehseen S. Poonawala v. Union of India[8] as; any form of targeted violence which affects the human body and is against private and public property. Lynching related attacks predominantly include vigilantism, murder, attempt to murder, gang-rape, assault, harassment, etc.
The Supreme Court in 2018 expressed it as a “horrendous act of mobocracy”, and also directed the parliament to pass laws and punishments that aim towards formulating lynching as an offence separately.
Legal aspect: Although there is no particular law for lynching or mob attacks, there are laws that cover them under their ambit.
- Section 223(a) – Persons accused of the same offence committed in the course of same transaction. It basically talks about that category of people who can be tried jointly. As lynching is performed in groups the mentioned section covers the aspect of lynching. It includes persons who have committed the crime and persons who have abetted the crime.
- Section 153A of Indian Penal Code-this section deals with the punishment of persons who indulge in attacks upon someone in the name of religion, race, place of birth, residence, language, etc. as India is a witness of religion biased crimes; this section too covers lynching under its umbrella.
- Section 295A of Indian Penal Code- Punishment for deliberately and maliciously outraging the religious feelings of any class of Indian Citizens. Includes any form of insult or attempt of an insult towards the religious beliefs of a particular class. Again this covers any form of lynching in name of religion.
- Section 295B of Indian Penal Code- Punishment for tarnishing or inuring a place of worship with intent to insult a class of religion.
Other provisions that cover lynching as a crime are mentioned as follows:
- Section 304 of Indian Penal Code- Punishment for culpable homicide not amounting to murder.
- Section 307 of Indian Penal Code- Punishment in case of attempt to murder.
- Section 323 and section 325 of Indian Penal Code- Punishment for causing hurt voluntarily and Punishment for causing grievous hurt voluntarily, respectively.
- Section 34 of Indian Penal Code- Punishment for an act done by a group of people with a common intention.
- Section 120B of Indian Penal Code- Punishment for participating in a criminal conspiracy.
In the year 2018 after the Supreme Court asked the parliament to lay down laws on lynching, the Manipur government[9] came up with the law against lynching. Later Rajasthan and West Bengal followed and formulated with laws related to lynching along with punishments with regards to the same.
Conclusion
Need of Legislation in India- to defy Hate Crimes
There is no uncertainty in the fact that the Indian constitution clearly states India as a secular nation. Our nation is all-encompassing but there are times when hatred and biases take over the minds of the people. The Indian subcontinent has always been a witness of biases and hatred towards the marginalised section of the society. This hatred when expelled out results in crimes. To counter this, our country needs specific laws and provisions which it lacks now. Even after the directions given by the Supreme Court, there are still states that have no laws regarding lynching. Although there have been significant actions taken up by certain state governments with regards to lynching other hate crimes still go unattended. Laws with respect to bias-motivated crimes have come up in many nations. For example, in the US[10] and the UK, there are precise laws that provide for bias as a part of the legal definition. Similarly, India needs to consider this and build legislations as per requirement, including within those laws not just lynching but other hate crimes as well.
Considering the current mayhem and commotion that India is in with regards to hate crime laws, immediate action is the need of the hour. On a daily basis, there are a numerous number of cases that take place in this subcontinent, some are filled and most of them are just part of the victim’s daily life. The biasness and extremism behaviour that back these cases are not in any circumstance a way forward for a heterogeneous and varied society like ours. To make cohabitation possible for all the existing communities of this multi-cultured land separate legislation for hate crimes is a must. Along with that the general public’s education and awareness should also be kept in mind, a lot can be done by educating the public about the repercussions of hate crime and why it should be avoided. Other state governments should follow Manipur and make separate and operative laws not just on lynching but various other forms of hate crimes also.
The consequences of such crimes should be taken into consideration and no crime that has been motivated by biasness should go unattended or without any action. Solitary and group offences both should be covered under legal provisions.
[1] https://www.bbc.com/news/world-asia-india-52350728
[2] https://hatecrime.osce.org/what-hate-crime
[3] https://archive.nytimes.com/www.nytimes.com/books/first/j/jacobs-hate.html
[4] https://www.britannica.com/topic/hate-crime
[5] http://lawtimesjournal.in/hate-crimes-their-nature-and-laws-connected-with-them/
[6] https://www.telegraphindia.com/opinion/selective-omission-of-data-on-hate-crimes-from-ncrb-report/cid/1714708
[7] http://www.legalserviceindia.com/legal/article-1056-hate-speech-in-india.html
[8] https://indiankanoon.org/doc/71965246/
