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Hate Crimes in India: An Analysis

Introduction

Every country with different groups of people having diverse ethnic and religious backgrounds faces several challenges concerning maintaining peace among them. There is a persistent risk of conflict and if not responded to appropriately, could escalate into a crisis. One such challenge is hate crimes. Although there is no single universally accepted definition of hate crimes, they are broadly defined as crimes that are motivated by some preconceived notions or biases about a community or a person.[1] Thus, they are also known as bias-motivated crimes.[2] The ‘community’ could be based on caste, religion, sex, ethnicity, etc.[3] Hate crimes are targeted crimes committed against persons belonging to these groups and are generally violent in nature. Here, the term ‘hate’ can be a misnomer as in the context of hate crimes, the term ‘hate’ indicates prejudices against a group that leads to violent crimes. Hate crimes can take various forms like hate speeches, mob lynching, assault, murder, cow vigilantism, harassment, etc. All such acts lead to a feeling of alienation and fear among the victim community. Hate crimes are mostly committed against minorities as they do not necessarily fit into the mainstream. In recent years, most hate crimes in India occurred against religious minorities like Muslims and Christians or against backward castes. With the rise of majoritarianism and intolerance fuelled by polarizing politics, we are witnessing a rise in the frequency of such hate crimes. There is not a specific law that deals with hate crimes in India but several sections of the Indian Penal Code (IPC) deal with hate speech in particular.

Hate Crimes in the Indian Context

India as a nation emerged out of extreme communal violence during the Partition of British India. Hence, India is not new to incidents of hate crimes sometimes also referred to as ‘communal riots’. An example is the Anti- Sikh riots of 1984 after the assassination of Prime Minister Indira Gandhi. Such instances emerge majorly because of the political atmosphere of the time. Even today, politics plays a major role in determining the public sentiment against certain communities. For instance, there were 84 incidents of hate crime reported between October 2021 and March 2022 in the poll-bound states for the 2022 Assembly elections.[4] All these incidents were associated with statements made by politicians targeting a particular religious community.

Another form of hate crime that has become prominent in recent years is cow vigilantism. It is the use of force, usually by mobs in the name of “cow protection”, which can also take the form of mob lynching. They display a form of religious extremism and target specific groups under the guise of the protection of cows. Minorities are disproportionately targeted (and sometimes killed) by such mobs. These minority groups have historically relied on the leather, beef, and cattle industries for their survival, with Muslims running slaughterhouses and Dalits performing what were seen as lower-caste tasks like working with cow carcasses.[5]Hate speech has also become more prevalent in today’s society. It is the use of offensive language and using derogatory terms to incite violence or feelings of hatred towards members of certain communities based on characteristics like race, religion, etc.[6] The freedom of speech and expression guaranteed by the Constitution of India is often misused or used to justify instances of hate speech. It can become a weapon leading to “systemic discrimination and eventual political marginalization of a community”.[7] Cases registered under Section 153A of IPC dealing with the “Promotion of enmity between different groups[8] increased by close to 500% between 2014 and 2020[9], indicating the surge in the usage of hate speech.

Laws Related to hate Crimes in India

There are no comprehensive legislations that deal with hate crimes in India. However, there are some sections of Indian Penal Code and acts such as the Representation of People’s Act, 1951 which deal with what can be considered hate speech, though it is not legally defined. Section 153[10] talks about intentionally provoking riots. Section 153A[11] deals with promoting enmity on the grounds of religion, race, place of birth, residence, language, etc. Section 153B[12] deals with “imputations, assertions prejudicial to national integration”. Section 295A[13] penalises outraging religious beliefs. Section 298 also deals with hurting religious feelings. Section 505[14] talks about public mischief, including inciting a community to commit an offence against another community. Under The Representation of the People Act, 1951, a person is barred from running for office under Section 8 if they are found guilty of engaging in activities that constitute the improper exercise of their right to free speech and expression.[15] The promotion of animosity based on religion, race, caste, community, or language in connection with elections is prohibited under Sections 123(3A)[16] and 125[17] as a corrupt electoral practice.

From the above legislations, it can be understood that unlike legislations like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which specifically pertains to discrimination and violence faced by Scheduled Castes and Scheduled Tribes, the intention with which the crimes are committed is not taken into consideration, which fails to address the root cause of the commission of such acts. Hate crimes can also manifest as rape, harassment, etc. which have penal provisions of their own but due to lack of a separate hate crime law, are not prosecuted considering the context in which they occur.[18]

There is ambiguity surrounding laws relating to hate crimes in India as some deal with only the aspect of hate speech, some deal with hate crimes against a specific community, etc. There is a need to form a clear mechanism to prosecute specifically those who commit hate crimes and not treat such acts as typical acts of violence. It is important to understand while prosecuting a hate crime that these have a direct impact on fundamental rights and are committed with the intention to promote communal ideologies and division of society.[19] The incorporation of hate crimes into criminal laws should be given careful thought. Recognizing hate crime as a separate type of crime is one strategy to combat it.[20] With the worrying trend of hate crimes across the country, the need for judicial intervention is the need of the hour. Just as the Supreme Court established guidelines in situations involving lynching, there is also a need to consider new criminal and punitive legislation to stop hate speech.[21]

Conclusion

With the exponential increase in hate crimes in India, the existing legislations are insufficient to ensure the peace and safety of vulnerable communities. Not the crime itself, but the underlying motivation behind it is what makes a crime a hate crime. The Law Commission of India’s 267th Report[22] calls for separate laws to particularly deal with hate speech. It also acknowledged that discrimination based on sex, gender identity, and sexual orientation is a serious problem for some populations. There is a need to clearly define hate crimes and protect our minorities from such exploitation. Citizens need to be aware of incidents of hate crimes and the motive behind them to curb the menace of hate and to progress as a society.

Author(s) Name: Tulika Singh (University School of Law and Legal Studies, GGSIPU, Delhi)

References:

[1] Tanmay Sinha & Deepika Gupta, ‘Hate Crimes-A Rising Menace’ (2018) 1 (4) IJLMH

[2] Ibid

[3] S. Hasthisha Desikan, ‘Legal Regulation of Hate Crimes in India: A Look at the Current Regime and its Shortcomings’ (2021) 4(5) IJLMH 1234

[4] Naomi Barton, ‘89 Instances of Hate Crimes, Hate Speech Across Six North Indian States in Four Months’ (The Wire, 9 March 2022) <https://thewire.in/communalism/89-instances-of-hate-crimes-hate-speech-across-six-north-indian-states-in-four-months> accessed 2 August 2022

[5] Shreya Maskara, ‘Cow Protection Legislation and Vigilante Violence in India’ (ACLED, 3 May 2021) <https://acleddata.com/2021/05/03/cow-protection-legislation-and-vigilante-violence-in-india/> accessed 2 August 2022

[6] Law Commission of India, Hate Speech ((Law Com. No. 267 2017) 49 <https://lawcommissionofindia.nic.in/reports/Report267.pdf> accessed 2 August 2022

[7] Shahrukh Alam, ‘Hate Speech: What It Is and Why It Matters’ (The Wire, 23 January 2022) <https://thewire.in/law/hate-speech-what-it-is-and-why-it-matters> accessed 2 August 2022

[8] The Indian Penal Code, 1860, s 153A

[9] Nidhi Jacob, ‘Data Dive: Sixfold Rise in Cases Filed under Hate Speech-Related Law in 7 Years’ (FactChecker, 21 June 2022) <www.factchecker.in/data-dive/data-dive-sixfold-rise-in-cases-filed-under-hate-speech-related-law-in-7-years-822966> accessed 6 August 2022

[10] Indian Penal Code, 1860, s 153

[11] Indian Penal Code, 1860, s 153A

[12] Indian Penal Code, 1860, s 153B

[13] Indian penal Code, 1860, s 295A

[14] Indian penal code, 1860, s 505

[15] Representation of the People Act, 1951, s 8

[16] Representation of the People Act, 1951, s 123 (3A)

[17] Representation of the People Act, 1951, s 125

[18]  Ninad Shah, ‘A Study to Analyze Evolving Jurisprudence of Prosecution of Hate Crimes in India and Its Changing Dynamics’ (SSRN E-Journal, 18 November 2021) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3930927> accessed 6 August 2022

[19] Ibid

[20] Likhita Banerji, ‘India’s Legal System Should Recognise Lynching as a Hate Crime’ (The Wire, 21 September 2018) <https://thewire.in/rights/indias-legal-system-should-recognise-lynching-as-a-hate-crime> accessed 8 August 2022

[21] Editorial, ‘Preventing harm: On judicial intervention against hate speech’ (The Hindu, 28 April 2022) <https://www.thehindu.com/opinion/editorial/preventing-harm-the-hindu-editorial-on-judicial-intervention-against-hate-speech/article65360677.ece> accessed 8 August 2022

[22] Law Commission of India (n 6)