By Babita Jha March 14, 2023 Legal Issues

HATE CRIMES: THE EMERGING CHALLENGE FOR INDIA

Table of Contents

Relevancy of Hate Crime Laws

Cases of hate speech and hate crimes (or allegations thereof) have increased in the country in recent years. Social media is giving it new energy. In January, 2022, two such important cases have come to the Supreme Court. On December 31, 2022 Jamiat Ulama-e-Hind and Islamic scholar Maulana Saeed Madani have filed a petition related to such crimes. This petition mentions many such crimes and the action taken on them in recent years.

In January, 2022 itself, the Supreme Court prohibited police from taking further action against those accused of writing on social media regarding the Tripura violence. This violence is also being considered a hate crime.

In December, 2022 76 advocates of the Supreme Court wrote a letter to Chief Justice N. V. Ramanna, praying to take suo- motu action against the hate speeches given in Haridwar and Delhi, which openly showed hatred towards the Muslim community, and call for genocide. Later, in both these cases, the police have registered an FIR.

Some people are also considering the Bully Bai App case as a hate crime.

The Kerala High Court passed direction for lodging FIR against a Christian preacher for making hate speech about Hindus.

Last July, a 65-year-old man from the minority community, who was allegedly subjected to physical violence because of his religious identity, approached the Supreme Court seeking compensation for being victims of hate crimes. Petitioner also prayed for punitive action against the police officials for not taking action.

What is Hate Speech and Hate Crimes?

In simple words, hate crime means a crime committed against a group or its member due to the feeling of hatred towards a community or a group. Unlike other crimes, the offender has neither expected personal gain nor there is personal enmity between the offender and victim. This offence is committed only because he is a member of a particular community or group. The basis of the feeling of hatred can be anything, for example; it can be on the caste, colour, religion, national origin, race, gender etc. The offence may involve causing an injury of any kind—physical, property, or reputation.

In another word, the core of hate crime is hatred for the alleged identity of the victim or the group to which he or she belongs.

Caste clash, communal violence, mob lynching (murder of a person by a mob, especially that mob justified its act as justice done by them) etc. are the most heinous forms of hate crime. Hate speech means speech inciting the feelings of any group/community to commit such crimes. Incidents of mob lynching are result of a mob taking the task of the judiciary into their own hands. Not all, but many mob lynching cases are enstricated by hatred toward a group or a community.

The Black Law Dictionary defines a hate crime as a crime motivated by a victim’s race, colour, ethnicity, religion or national origin. (Black Law Dictionary 428 (9th ed. 2009)1

Violence against migrants from other countries has increased in Europe in recent years. The reason behind this is that the local people there hate such immigrants. They believe that the arrival of migrants reduces their employment opportunities, their culture is affected etc. Communal riots often involve brutal sexual violence against women from targeted community.

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The purpose behind this is to “punish” her for being a member of that particular community. Racial crimes in America and pre-independence South Africa are also examples of hate crimes.

Why is it necessary to stop hate crimes?

Hate crime tends to be more horrifying for two reasons:

1. Victims of this type of crime are usually innocent people,

2. The motivating factor of the crime is to inflict more pain to the victim to express hatred and anger. So, there is often utmost cruelty involved in this type of crimes.

Such crimes destroy the normal fabric of society and promote anarchy. This kind of thinking is even more dangerous for a pluralistic country like India.

This is the reason why the law is stricter for such crimes.

Difference between normal crime and hate crime

There is a fundamental difference between an ordinary crime and a hate crime. Ordinary crime may require only actus rea (the physical element of the offence) and mens rea (the mental element of the offence), but to prove a hate crime we must have to establish ‘hatred’ as the primary and sole motive.

History of Hate Crimes in India

The history of hate crimes in India began even before independence, which culminated in the riots at the time of independence and partition, which are counted among the world’s worst genocide. But it didn’t stop here. Thousands of innocent people lost their lives in many communal riots, small and big, like the 1984 anti-Sikh riots, 1992 Mumbai riots, 2002 post-Godhra riots in Gujarat.

The January, 1990 exodus from the Kashmir Valley is also an example of similar hatred.

Hate speech and hate crimes, including heinous crimes such as mob lynchings, have also made headlines in recent years.

Social media contribution

Though the positive impact of social media cannot be ignored. However, it is also true that in the last decade hate crimes have received new energy from new media technology.

Social media has emerged as a great medium for spreading rumours and hatred. Many hate crimes in recent years have been directly the result of rumours spread on social media. The Tripura violence last October and the violence in some places in Maharashtra in response to it show its worrying side.

Legal Provisions on Hate Crime

At present, there is no specific law in India to deal with such crimes except the SC/ST Atrocities Act. There is a provision for punishment for such offences under the Indian Penal Code (IPC).

Following are the important sections related to it in the IPC:

Section 153A. Promoting enmity between different groups on grounds of religion, race, language, place of birth, residence, etc. and doing acts prejudicial to maintenance of harmony.

This section provides for punishment for such offences up to three years which may be with or without a fine. Sub-section (2) of the same section extends the punishment to five years if such offence is committed in any place of worship or with the assembly of persons engaged in religious worship or act. Also, there will be fine.

Section 153AA. Provides punishment for the willful carrying of arms in any procession or conducting or organizing or participating in any mass drill or mass training with arms.

Section 153B. makes imputation prejudicial to national integrity, punishable with imprisonment for a term which may extend to three years, with or without a fine. Sub-section (2) of the same section extends the punishment to five years if such offence is committed at a religious place or against persons engaged in religious worship or act.

These sections are covered under Chapter 8 of the IPC, which deals with “offences against public tranquility”.

Since religion has been a sensitive issue for national integration in India. Therefore Chapter 15 of the IPC is “On Offenses Related to Religion”.

Section 295 of IPC provides “Injuring or defiling place of worship, with intent to insult the religion of any class” punishable with imprisonment for 2 years (with or without fine).

Section 295A makes “Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.” punishable with imprisonment for three years. Disturbing religious assembly (Section 296), Trespassing on burial places, etc. (Section 297) Uttering words, etc., with deliberate intent to wound religious feelings (Section 298) makes it an offence punishable with imprisonment for various terms and with fine.

Section 302- Those involved in mob lynching can be charged with murder under Section 302 of the IPC read with section 34 if having a “common intension” or read with section 149 if having a “common object”. As per the principle of joint liability under section 34 or 149 a person can be punished for murder if they did not commit the murder directly, but have been involved in one way or another.

Hate crime can also be punished under other sections of the IPC according to its particular act. For example; offences for conspiracy under section 120B, rioting under section 146 or unlawful assembly of section 141, or attempt to murder under section 307.

Section 223 (A) of CrPC (the Code of Criminal Procedure) allows two or more accused to be tried together for an offence.

Similarly, the Information Technology Act, 2000 is also accompanied by the IPC when there is a crime through cyber means.

The Constitution of India makes it a fundamental duty of all citizens to uphold the “sovereignty, unity and integrity” of the nation. Preamble aims at social and legal justice. Article 14 gives “equal protection of the law” to all people, while Article 21 gives the fundamental right to “life” to all.

Therefore, the violation of the rights of another person cannot be tolerated under any circumstances by merely being subject to the feeling of hatred.

Supreme Court’s stand on hate crime

The Supreme Court has made observations in several cases regarding hate crime, hate speech and mob lynching. Tehseen S. Poonawalla v Union of India & Ors [(2018) 9 SCC 501] is one of the leading cases in this regard. In this case, the Supreme Court (bench of Chief Justice Dipak Misra, Justice D.Y. Chandrachud, Justice Ajay Manikarao Khanwilkar) has issued some guidelines to stop the increasing incidents of mob lynching.

The facts of this case were as follows: A person was lynched by a mob on the charge of cow slaughter at Dadri (UP). The similar incidents took place in Jharkhand, Rajasthan and some other places. These incidents drew sharp reactions across the country. Tehseen Poonawalla, a social activist, filed a Public Interest Litigation against the state under Article 32 of the Constitution.

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Similarly, Tushar Gandhi filed a second PIL seeking to ascertain the responsibility of the state for incidents of mob lynching. Both the cases were heard together by a three-judges bench of the Supreme Court.

The Bench held that no person can take the work of justice into his own hands and that every person has to be subject to the order of law.

The court gave an interim order to the states to appoint a nodal officer and make arrangement for patrolling on the highway. Apart from some other orders and observations by the court, the court also gave guidelines for the governments in this matter.

These guidelines can be divided into three parts: Preventive measures, Remedial measures and Punitive measures.

Preventive measures– state governments should appoint nodal officers and issue guidelines for their works;

Police should disperse the assembly under Section 129 of CrPC and lodge First Information Report (FIR) under section 153A of the IPC;

The Central and State Governments should prevent the spread of information of violence and try to spread alerting information about violence legal consequences;

Remedial Measures– If any such incident happens then FIR should be registered and information should be given to the nodal officer. There has to be effective disposal of the case by fast track court, compensation scheme and free legal aid should be provided to the victim.

Punitive Measures – To prevent such incidents from happening, departmental action should be taken against the officers who do not follow the above measures. Such an act shall be considered as criminal neglect or misconduct. Such departmental proceedings should be concluded within six months.

The court had also recommended that Parliament enact a special law providing for harsh punishment for mob lynching.

law to stop mob lynching

As per the directions of the Supreme Court, several states like; Uttar Pradesh, Manipur, Rajasthan, West Bengal etc. came out with draft laws to deal with mob lynchings. The Parliament of India is also contemplating making a comprehensive law on this issue.

Meanwhile, incidents of lynchings continue to rise.

Hate Speech

Before the Tehseen Poonawalla case, the Supreme Court observed in the case “Pravasi Bhalai Sangthan V. Union of India and others” (AIR 2014 SC 1591) that the Law Commission of India should seriously consider the issue of hate speech. Accordingly, the subject matter of Law Commission’s report number 267, which was submitted to the government in March 2017, was hate speech.

In this report, various aspects of hate speech were studied in detail and the criteria and penal provisions for its detection were reconsidered. A comparative study with other countries was also done. The commission has made several judicial and non-judicial suggestions to deal with such offences. Based on these suggestions, the government passed the Criminal Law (Amendment) Bill, 2017. By this amendment, sections 153C and 505A were inserted in the IPC and the First Schedule to the CrPC was amended accordingly.

Conclusion

The Father of the Nation Mr MK Gandhi once said that the object of violence is violence because when it feels good, the good is only temporary; the evil it does is permanent. It is imperative to have a rigorous, well-thought-out and futuristic penal policy to save the nation from lasting damage. The law enforcement agency has to have a zero-tolerance policy towards hate crimes and mob lynchings.

By Babita Jha March 14, 2023 Legal Issues