Hate Crimes — Need for Special Law

By Shobha Ram

The killing of north Indian man on a suburban train on 28.10.2008 has brought into sharp focus the issue of ‘hate crimes’ and whether we have the laws to deal with them. Though the police claim that hate was not behind Dharamdey Rai’s murder; Rai’s companions, who were also targeted by the attackers, said they were taunted for being “bhaiyyas”.

Definition of Hate Crime

Hate crime is committed out of racial, religion, sex, caste or place of birth prejudice, which target minority group and which often violates anti-discrimination laws. Hate crime or bias motivated crimes occur when a perpetrator targets a victim because of his or her membership in a certain social group usually defined by racial group, sexual orientation, disability, ethnicity, nationality, age, gender identity, political affiliation or place of birth.

Summarily it may be said that hatred is a strong term that goes beyond simply causing offence or hostility. A hate crime is any criminal offence committed against a person or property which is motivated by an offender’s hatred of someone because of their:

Race
Colour, ethnic origin, nationality or national origin
Religion
Gender or gender identity
Sexual orientation
Disability

Form of Hate Crime

Incidents may involve physical assault, damage to property, bullying, harassment, verbal abuse, insults, offensive graffiti or letters.

History of Hate Crime

Concern about hate crimes has become increasingly prominent among policy makers in many nations and at all levels of government in recent years, but the phenomenon is not new. Examples from the past include Roman persecution of Christians, the Ottoman genocide of Armenians, the Nazi Final Solution for the Jews and, most recently, the ethnic cleansing in Bosnia and genocide in Rwanda.

Hate crimes have shaped and sometimes defined world history. In the United States, racial and religious biases have inspired most hate crimes. As Europeans began to colonize the New World in the 16th and 17th centuries, Native Americans increasingly became the targets of bias-motivated intimidation and violence.

During the past two centuries some typical examples of hate crime in the US include lynchings of African Americans, cross burning to drive black families from predominantly white neighbourhoods, assaults on gay, lesbian and transgendered people and the painting of swastikas on Jewish synagogues.

Indian Law on Hate Crimes

The Constitution of India contains in Chapter III on Fundamental Rights several provisions that emphasize complete legal equality of its citizens and prohibit any kind of place-based discrimination between them. Among these provisions are the following:

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
The State shall not deny to any person equality before the law or equal protection of the laws within the territory of India.
The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
No citizen shall on grounds only of religion, race, caste, sex, residence be subjected to any disability, liability, restriction or condition with regard to access to, or use of, various public places.
No citizen shall on grounds only of residence be ineligible for or be discriminated against in respect of any employment or office under the State.

Many developed countries have recognized the threat hate crimes pose to the rule of law and have special laws to deal with the menace. In sharp contrast, law-enforcing agencies in India rely on conventional laws like IPC to bring culprits to justice. There are a few laws dealing with hate, but only for casteist crime.

India’s only laws to battle hate crimes are caste specific. No surprise, considering that one of Independent India’s main priorities was to combat caste-based discrimination. It is time to fine tune the law so it can deal with contemporary problems and protect new disadvantaged groups. The Communal Violence Bill, which has been stuck in Parliament for three years, may just fill the gap.

The Communal Violence Bill was proposed by the UPA government in 2005 against the backdrop of communal violence occurring with unerring frequency across the country. The Bill defines communal violence as “criminal force against any group, caste or community resulting in death or destruction of property”, and violent acts committed with a view “to create disharmony or feelings of enmity, hatred or ill-will between different groups, castes or communities”.

The Bill would allow the government to declare certain areas as communally disturbed. Anyone violating curfew and assembling with deadly weapons in these areas could get three years imprisonment, instead of the two under the IPC. The Bill also allows for speedy investigation of cases and fast track courts and extends punishment to twice the longest term of imprisonment prescribed for the same offence under the IPC.

The Bill’s most controversial proposal, however, bans any person convicted under the Act from holding any post or office in government for six years from the date of conviction.

Right-wing groups have opposed the Bill, while Leftist parties say it should give the Centre a larger role. Rights activists and NGOs have asked for the Bill to specify stricter action against the perpetrators and compensation for victims.

Anti-Hate Laws Elsewhere

France: In 2003, France enacted penalty-enhancement hate-crime laws for crimes motivated by bias against the victim’s actual or perceived ethnicity, nation, race, religion or sexual orientation. The penalties for murder were raised from 30 years (for non-hate crimes) to life imprisonment (for hate crimes), and the penalties for violent attacks leading to permanent disability were raised from 10 years (for non-hate crimes) to 15 years (for hate crimes).

Britain: The Crime and Disorder Act, 1998, created a number of new racially and religiously aggravated offences.

Canada: Since 1966, the Canadian Criminal Code has included a penalty-enhancement provision for crimes motivated by bias, prejudice or hate based on racial group, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor.

United States: Forty-five states and the District of Columbia have statutes criminalizing various types of hate crimes. Thirty-one states and the District of Columbia have statutes creating a civil cause of action in addition to the criminal penalty for similar acts.

Conclusion & Suggestions

Harsher punishment should be given to hate criminals because hate crime causes greater individual and societal harm. In Wisconsin v. Mitchell, Supreme Court of US held that “bias motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims and incite community unrest”. Jurist Blackstone said long ago “it is but reasonable that among crimes of different natures, those should be most severely punished which are most destructive of the public safety and happiness.”

The U.S. Supreme Court also found that penalty enhancement hate crime statutes do not conflict with free speech rights because they do not punish an individual for exercising freedom of expression; rather they allow courts to consider motive when sentencing a criminal for conduct.

Communal Violence Bill should be passed by Parliament.
Training should be given to police personnel to deal with hate crimes.
A multi-agency task force should be established in hate crime regions.
Presentations to youth can help them understand when they are victims of hate crime and when they are engaging in criminal act.
Hate crimes are closely related to gaining political mileage. For stopping this trend Election Commission should take appropriate action against concerned political parties.