Hate Crimes in India
The author, Sulagna Chatterjee, is a second year LLB student at IIT Kharagpur.
Hate crimes have frequently pervaded the social and economic paradigms of this secular country. This paper succinctly covers the hate crimes against the transgender community, the north eastern citizens, the communal fervour and the nascent corona related discrimination. The international treaties and domestic criminal codes are consulted too. The society, dexterously, develops a new way to discriminate against a person or community. The evolving times yields evolving measures of discrimination.
On splitting the phrase “hate crime”, the term “hate” in itself can be misleading. “Hate” in this context does not stand for rage, anger or general dislike, but it directs to a bias against people or groups with specific characteristics that are defined by law. Whereas the term “crime” in the phrase would indicate a violent crime such as assault, murder, arson, vandalism or threats to commit such crimes.1
A more specific definition of the same by the FBI would be as a “criminal offence against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”2
Hate in itself will not constitute a crime.
Hate crimes have a wider effect than most other criminal offences as the victims in such cases would include not only the crime’s immediate target but also others who can be perceived to have a similar identity to the crime’s victim. Hate crimes thus affect families, communities and sometimes even the nation on the basis of the victim’s perceived or actual race, colour, religion, national origin, sexual orientation, gender, gender identity or disability.
In National Legal Services Authority v. Union of India3, the Supreme Court addresses the ridicule and abuse endured by the transgender community in public places owing to their gender identity and sexual orientation. The petitioners in the present case filed a petition seeking a legal declaration of their gender identity as the third gender. The judgement contained alibis of hijras, eunuch and other transgenders who face oppression on a daily basis due to their gender identity. Oppression of the transgender community can be traced back to the colonial rule where Criminal Tribes Act equated transgenders to criminals. This Act was later repealed. Even Section 377 of the Indian Penal Code, though related to sexual acts, it highlighted certain gender identities and the Section was used as an instrument of their harassment. The petitioner was able to provide instances of sexual assault which includes molestation, rape, forced anal and oral sex, gang rape and stripping which is being committed against the community with reliable statistics and material. The judgement delivered by Justice Radhakrishnan and Justice Sikri led to the creation of an expert committee which would study the problems faced by the community and suggest measures to the government to alleviate their problems.
In Karma Dorjee v. Union of India4, the judgement delivered by Justice Chandrachud aimed at curbing racial discrimination against citizens from the north-eastern states. The petitioner in his plaint has referred to several incidents of stalking, assault leading to death, murder, molestation and circulation of racial taunts and ridiculing of the community belonging to such states in various parts of the country. The relief sought by the petitioners were a mandamus directing the Government to set up a mechanism to address such racial atrocities. In order to achieve the aim, sensitivity and inclusion must be fostered referring to the history and cultural heritage of India. A committee along with the previously set up Bezbaruah Committee is to monitor, address and resolve all complaints relating to racial discrimination against citizens hailing from the north-eastern states.
In Tehseen Poonawala v. Union of India5, the Court addressed the issues of cow vigilantism and other incidents of lynching persisting in the country. The learned senior counsel for the petitioner submitted increase in such incidents in which citizens belonging to the minority communities has been targeted victims of violence upon suspicion or misinformation that the victims were involved in illegal cattle trade. A group of such cow vigilantes have brazenly taken laws into themselves. The judgement directed the State Governments to set up special task force to address such vigilantism.
There are umpteen incidents where a citizen belonging to the minority community has been targeted based on his religious preference. On 22nd June, 2019 a young muslim man, Tabrez Ansari, in a video scouting social media, was seen tied up and bleeding profusely while being forced to chant “Jai Shri Ram” by a mob. A teacher who taught in a muslim seminary, Hafeez Mohammed Haldar, was assaulted and pushed off a train in West Bengal by a mob which insisted on him chanting “Jai Shri Ram”6.
The International Convention on the Elimination of All Forms of Racial Discrimination, 1965 which was adopted by the United Nations General Assembly on 21 December 1965 and ratified by India in 1968 under Article 2.1, states that the parties must condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination.
Further, International Covenant on Civil and Political Rights, 1966 in Article 17 states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation and that everyone has the right to protection of law against such interference or attacks.
Article 1 of the Universal declaration on Human Rights7 states that all human-beings are born free and equal in dignity and rights while Article 3 states that everyone has a right to life, liberty and security of person. Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights, 1966 provide that no one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment. United Nations Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment, 1987 specifically deals with protection of individuals and groups made vulnerable by discrimination or marginalization.
Article 15 of the Indian Constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth and Article 14 states that the State shall not deny to “any person” equality before the law or the equal protection of the laws within the territory of India. Equality includes the full and equal enjoyment of all rights and freedom. Right to equality has been declared as the basic feature of the Constitution and treatment of equals as un-equals or unequals as equals will be violative of the basic structure of the Constitution.
The right to freedom of speech and expression in Article 19(1) of the Constitution allows its citizens to identify oneself with a gender, race or religion under one’s volition. Article 21 protects the dignity of human life, one’s personal autonomy, one’s right to privacy after its broad interpretation in a number of judicial pronouncements with the right to dignity being recognized as an essential part of the right to life and accrues to all persons on account of being humans.
Section 153A of the Penal Code punishes any act or attempt to promote enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony which is a penal provision for a direct violation of Art. 15 and 19 of the Constitution with imprisonment extending to 3 years with or without fine.
Section 153B of the Penal Code punishes imputations, assertions prejudicial to national integrity with three years’ imprisonment with or without fine.
Section 505 of the Penal Code penalises statements with intention of disrupting tranquillity in the society and intentional statements which would create or promote enmity, hatred or ill-will between classes with three years’ imprisonment and desecration of holy places with five years imprisonment.
A new category of hate crimes which was recently brought into the world are the corona virus hate crimes. On 6th March, 2020, Mok, a 23-year-old Singaporean student studying in the University of London was assaulted on Oxford Street with the offender saying “I don’t want your corona virus in my country”. Similar hate crimes have also been reported in New York City.8 The same may soon extend to corona affected countries like India too.
Hate crimes have not per se been defined in the Indian Penal Code but have been referred to in a more generic manner as crimes against public tranquillity and order. However, the provisions of the Code deal with such crimes aptly as per their gravity along with recommendations passed onto the State Government. These judicial pronouncements lay down the foundation for future cases based on our Common law system adopted and support the system to deal with them aptly. It is crystal clear that any threat to the integrity and sovereignty of the country will not be taken lightly but the severest of punishment shall be awarded to insinuate deterrence. However, one may observe that the delay in delivery of these tactful judgement makes it redundant, as the judgement is usually delivered well after the fervour is lost. I draw my reference from the religious commemoration held in Delhi’s Nizzamuddin on 13th March, 2020. The Bombay High Court delivered its judgement on 21st August, 2020. But these four months of social banishment faced by the community still remains unaccounted for. It is often observed that a communal angle is brought in to cover the government’s incompetence. A proactive judiciary seems to be the only approach to inhibit such malefactors, as rightly stated by the Supreme Court with reference to the Tablighi judgement, “Governments don’t act until they are directed by court”.9
1. The United States Department of Justice, available at: https://www.justice.gov/hatecrimes/learn-about- hatecrimes (Last visited on March 3, 2020)
2. Federal Bureau of Investigation, available at: https://www.fbi.gov/investigate/civil-rights/hate-crimes (Last visited on March 3, 2020)
3. (2014) 5 SCC 438
4. (2017) 1 SCC 799
5. (2018) 10 SCC 498
6. Rana Ayyub, “What a Rising Tide of Violence Against Muslims in India Says About Modi’s Second Term” TIME, June 28, 2019.
7. Universal declaration on Human Rights, 1948
8. Anna Russell, “The Rise of Corona Virus Hate Crimes” The New Yorker, March 17, 2020
9. Editorial, “Governments don’t act until they are directed to by the court, says SC on Tablighi Jamaat case” The New Indian Express, Aug. 7, 2020.