Often in various news reports, journals & even at public places we find the spread of hate towards the one who are different in terms of caste, creed, sex, community, religion, etc. and no doubt it is not an emerging concept but yes with the spread of mass media various social & political actors started highlighting the visible rise in media recorded incidents and spreading it nation vide and at times at international level. The concept and definition of hate crime cannot be summed up into a single definition as there do exist no. of complexities involved in deciphering the conceptualization, legislation, and social impact of hate crimes. Hate crime, can be characterized by bias-motivated violence or hostility towards individuals or groups based on their identity, it continue to pose a significant challenge the secularity & diversity of the nation, in preserving this India do faces such challenges which no other country face as non can match the sheer of variety we as a nation has. Things we witness today, the good and the bad has it religious and political roots,hence cannot be fully eradicated but the harm caused by such crimes can be mitigated if the law enforcement officers, prosecutors, and judges have correct sight on tackling such situation while recognizing the same and responding to them in way which can upheld the ‘unity & diversity of the country’.
Understanding the concept
Hate crime emerges from the structural hierarchies of privilege & power and express deep-rooted social exclusion and marginalization. The socio-economic tensions, cultural understanding and some being superior to other along with cultural histories that see minorities as outsiders are responsible for forming the theoretical grounds for commission of hate crimes. It is simply denial of any civil right & liberty to one social group by the other social group. One cannot rightly state that it is always the majority or the dominant groups using their privilege and power.
And the commission of such crime is not a single act, it could be a public display of dread, danger, damage to property, ambush, murder, or any illegal act. It consists of two elements- a criminal offence, which is committed with biased motive. But a hate crime is not same as crime there exist a very thin difference between the two- as in a crime the aspect of mens rea is necessary to prove the commission whereas in hate crime there exists no clear intention for commission of a crime, it is governed more by motivation, than intention. Because of which in many states and at many times, people get away with committing hate crime since the motive to commit a crime is rarely investigated. And Indian legislation does not recognize the term ‘hate crime,’ though at certain level it is safeguarded under various provisions of Indian Penal Code.
Effect of Hate Crime
To understand gravity and complete nature it is necessary to know the far-reaching effect and factors responsible behind such effect. Here the individuals or groups can both be the victim and perpetrators. Incite riots/ clashes in multiple communities is one such example where the culprit set out to create conditions that would be ideal for their criminal enterprise by spreading widespread fear & perplexity by highlighting issues based on conflicts over religious buildings, religious practices, reservations, meat sale & consumption, etc. with the help of using religious & ethnic differences, caste discrimination, social media & false information, regionalism, differences in opinion as important tools for commission of such crime which not only result in physical but psychological & emotional harm, one such example of this is LGBT community victims, for the reason of their sexual orientation, suffer much more in emotional & psychological terms and hence to protect themselves they tend to modify and manage their behavior and traits to be recognized as heterosexual & avoid becoming a target of violences.
Still in presence of so much suffering many a times, most of such crime remains unreported, the victims either choose blaming themselves or make a belief that the police & authorities will not understand and be sympathetic towards their victimization. Therefore, a rights legislation is the only means to transport the idea of positive action into the criminal law system because it is a multi-layered crime having physical, psychological, emotional, and social outcomes, which makes their victims many times more severe when compared to parallel crimes.
Hate Crime as per Indian Perspective
Indeed, the idea and happening of hate crime in India is not new, there have been multiple instances of hate crime like the discrimination against the minority Hindu Kashmiri Pandit giving them option either to leave their home or pass away resulted in overnight riots, killing of many innocent people in order to fulfil some religious and political agenda. As well as the conflict surrounding Ayodhya, the demolition of Babri Masjid, leading to riots and killing of many innocents’ lives, etc. And all this took place time after time because of poor handling of such crimes by the investigating officials, and the judiciary not using the discretion to impose longer sentences that consider the offender’s state of mind.
In India, under various laws, including Indian Penal Code, The Protection of Civil Rights Act, the Scheduled Castes & Scheduled Tribes Act, and the Prevention of Atrocities Act, hate crime is safeguarded. Section 153A and 295A of IPC deals with promotion of enmity between different sects and while addressing deliberate & malicious act intended to outrage religious feelings, respectively. All these laws work on creating awareness among citizens about their legal rights under these legal provisions ailing with the Article 25-28 of the Indian constitution establishing the nation as a secular, guaranteeing citizen rights to freely express, disseminate, and engage in religious & social activities within reasonable bounds, aiming at preserving the freedom of speech and expression of its citizens within the ambit of Article 19-21.
Apart from the existing laws, from time to time whenever required, the Indian judiciary through remarkable cases, defined the scope of Section 153A of IPC and have stated that there can be no space for hate crime in a secular and diverse nation like India. The recent case of Tehseen S. Poonawalla Vs. Union of India played an incredibly significant role and can be seen as an initial step towards law and policy formulation in context to hate crimes, have also highlighted & recognized lunching & mob-violence as hate crimes. Through this landmark judgment, the Hon’ble Supreme Court of India has undoubtedly & aptly conveyed the seriousness of the issue, stating how it have the potential to ruin the democratic fabric of any welfare nation-state and also by providing recommendations which unfortunately have not yet been acted upon.
And when the freedom of speech & expression under Article 19 of Indian constitution in terms of legitimacy of Section 153A of Indian Penal Code came into question in the landmark case of S. Rangarajan Vs. P. Jagjivan Ram, the court clarified the compromise required between the right to freedom of speech & expression and special interest as such freedom may not be surpassed in cases where society’s safety and the communities are threatened.
Still the debate about framing of a specific law to combat hate crime and the present existing laws providing justice to the victims of hate crime is in full go because of various loopholes present which is highlighted by the judiciary proving inefficacy of existing laws in preventing hate crimes as in Alka A. Misra Vs. J.P. Shoke held that the casteist remark made in a closed office room were private and hence not an offence under the Prevention of Atrocities Act, 1989. Similarly, a petition filed on behalf of the victim of hate crime which took place in private was quashed in the case of Hitesh Verma Vs. State of Uttarakhand as it did not qualify as harassment under the Scheduled caste & Scheduled tribe Act, 1989.
Therefore, it is evident that in India although there seem to be adequate provision that could handle the Hate Crime, but in presence of a specific provision as opted by the German Criminal Code or Constitution of Iran we will be enable to cover all the present loopholes acting as a hurdle in terms of securing justice for all.
Suggestion & Conclusion
Thus, in nutshell Hate crimes are indeed serious evils of our society, and India is yet to take baby steps in framing a law to counter such crimes which pose a significant threat to social cohesion, human rights, and democracy.; Addressing the issue requires a multifaceted approach that encompasses legislative reforms, public awareness campaigns, and law enforcement interventions. By enacting robust hate crime legislation, promoting inclusive social norms, and ensuring accountability for perpetrators, India can create a more just and inclusive society where all individuals are treated with dignity and respect.
Esha Gandhi (Legal Intern)