- ABSTRACT
“I felt for my crime a just terror; I looked on my life with hate, and my passion with horror.”
— Jean Racine
Last two decades have witnessed the mass media, academic and legal sphere parroting, ad nauseam, the appellation “Hate Crime” or “crime based on prejudge”, though the treatment of these crimes by many countries remain stagnate. The paramount plight remains the paucity of victims reporting these hate offences and classification of instance by investigating authority.
Freedom of speech[1] guaranteed by the Constitution provides us with the right to express our opinions freely, but it does not include the right to humiliate or cause any kind of harm to another person or property (bias-motive conduct, including threats, assault and vandalism, and not merely hateful thoughts or words).[2]Laws relating to hate crimes are required to be drafted with utmost care, so as to showcase the difference between hateful acts and the fundamental rights guaranteed under the Constitution.
These are crimes which are attempted keeping in mind the victims real or perceived membership of a particular group such as religion, caste or ethnicity.[3]“They are suppressing it very blatantly and very shamelessly,” said Roma Malik, a tribal rights activist[4], it is disheartening to exist in a world where you are censured upon things you can do nothing about. This article accentuates, in essence, hate-crimes being an exception to freedom of speech[5].
Keywords: Hate-crimes, First Amendment, Hate Speech, Democratic Space
- INTRODUCTION
“Hate crimes are one of the most unnerving crimes in the world, the reason being that the ones who commit these believe what they did was right.” -Cheryl LaPiere
When we hate something, we enunciate intense detestation for that thing and any criminal act driven from the depths of such abhorrence is what leads to the birth of hate crime. Thence, we can say that hate crime stems from the prejudice in perception of a specific belief. A person who habitually commits such crimes, therefore, has a divergent view. Hate crimes are thus constructed on the platform of crimes motivated by bias on the basis of appearance, sexual orientation, who they worship etc. A hate crime is usually violent and intense in nature as it’s driving force is emotion.
Consequently, to know whether a crime is a hate crime, we examine the core driving force or motivation behind the actions. This motivation usually arises out of a bias or hatred towards a difference in opinion and belief of people which may emerge due to race, religion, ethnicity, customs, practices and the like. In a country like India which is rich with cultures that constantly collide with one another, the state is duty bound to protect its citizens from such atrocities and maintain the rule of law and provide equal protection of the law, so that every citizen can practice their right to dignity and protect the person’s rights given to him by virtue of being an Indian Citizen.
Many reports, worldwide, have declared 2018 as the “year of online hate”.[6]The number of hate crimes around the globe is surging at an alarming rate, and India is no exception to this.[7]
Fundamental rights aim at protecting and procuring the needs of the citizens, they have been designed so as to set us “the citizens” free i.e. there would be no restriction upon us doing what pleases us. Threats to kill or hurt people, called criminal threats or terrorist threats, are not coherentto the First Amendment or to part III of the Indian Constitution.
In India hatred has led to horrendous hate crimes, including communal riots, series of violent clashes between religious communities,[8]all arising as a result of inflammatory speech propagated by divisive groups.[9]Brawls that include ghastly killings have been reported wherein “hate”for other communities have been the core stimulus.
“Attacking people with disabilities is the lowest display of power I can think of.”
– Morgan Freeman
Free speech and expression aren’t absolute, they accompany a number of restrictions (like prohibitions against slander and libel).There is no doubt that speech too can constitute crime, like criminal threats[10], this under certain circumstances can be called as the terrorist threat, malicious harassment, or by other terms, occurs when someone threatens to kill[11] or physically harm someone else.[12]
“For India to be committed towards ending hate crimes – where people are targeted because of their identity stemming from race, religion, caste and gender amongst others, it is essential for the country’s penal laws to first recognize the bias behind the commission of such crimes and document the occurrence of such incidents – both of which remain conspicuously absent currently,” said Aakar Patel of Amnesty International India.[13]
III. HATE SPEECH: AN AVENUETOWARDS HATE CRIME
Unchaperoned hate is not a crime, it is required to codicil with it a criminal misdemeanor against a person or property born out of the offender’s perception/bias towards the victim’sidentity and his beliefs.This consequently turns out to be heinous which may result in direct physical and psychological harm to the victims.[14]It hits its victim in intangible ways triggering to flesh crawling effect on the victims right to free speech and expression[15] which eventually denouement in disbar from engagement in the democratic process and public discourse.
“Offensive” would not be an appropriate term that would highlight the gravity of hate speech, it undoubtedly is way more pathetic and demeaning that mere offensiveness. It certainly includes words that may be provocative,insulting, and derogatory which may lead to situations that may disrupt the harmony and peace of the society.[16]This is how a hate crime is processed.
All kinds of speech are not covered under the First Amendment, butconcerns of exclusively private gist are at issue.[17] The reason being that the edict of speech on issues of private concerns does not “threaten the free and robust debate of public issues” or “potentially interferewith a meaningful dialogue of ideas.”[18]
Ergo, there is clearly,though miniscule, line of difference between freedom of speech and hate speech, and when hate speech crosses the line it results in a crime termed as “hate crime”.
- FREEDOM OF SPEECH[19]
Most of the ‘speech’ related offences that criminalize various forms of speech have only burgeoned in scope “by prohibiting a myriad of crime prevention offences that target risk-creating speech”.[20]This applies for India as well. It is well recognized that freedom of speech and expression[21] under the fundamental rights is not absolute and is subject to limitations itself listed in the Constitution.[22]
The poignant case of writer Perumal Murugan[23], raises a very germane fundamental question, what is the speech that comes under the gamut of Article 19(1)(a)[24]of the Indian Constitution. It indeed also questions as to what precisely becomes the cynosure of criminal provisions of the law. It gradually ends up raising question upon the nature of our law itself. Freedom of speech and expression[25] cannot be sacrificed and give into the demands of the mob so as to maintain law and order.[26]If we study this closely, it will clarify the fact that such concerns are germane to the ongoing discussion on the scope and extent of criminalization of speech.
However, despite this, a plethora of offences can be found that impose further restrictions on speech (not only those related to hate speech) of individuals across the length and breadth of the legal landscape that is indicative of the ‘overcriminalization of speech’ phenomena.[27]
Indian legal sphere provides for various laws under the Indian Penal Code, Criminal Procedure code etc. that curtails the use of freedom of speech and expression.[28] The government is entitled with rights under Section 95 of the Code of Criminal Procedure and under Section 124A, Section 153A, Section 153B,Section 292 ,Section 293 and Section 295A of the Indian Penal Code, via which it may punish or declare certain publications as forfeited.[29]
No person can under any circumstance canpromote or attempt to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, also do any act that may disturb public tranquility otherwise he may be punished with imprisonment which may extend to three years, or with fine, or with both according to Section 153A,IPC.[30]
Consciously with a deliberate and malicious intend any person who outrageous the feelings of another person or community shall also be entitled to punishment.[31] These may seem very quotidianbut this later on leads to the commission of grievous offences that may cause severe damage to the diversity of the country at large. Therefore, it certainly is very important to understand the thin line of difference between normal speech and hate speech, in order to maintain peace in our country. India, certainly is a country which is known for its diversity; hence it is even more important to control and keep check upon what you speak. Your words should not hurt the feeling of any other community or person, the right to life[32] is guaranteed to each and every citizen withoutany sort of discrimination.
Along these lines, even if a speech that is ardent, sardonic, and sometimes abrasive is protected from State mediation. It acts as a barrier against the States power to regulate speech. The reason behind the reluctance of the judiciary to provide exceptions to this freedom is within the value it holds and that any restriction or limitation may curtail the spirit of this right.[33]
V. DIVERSE INDIA AND HATECRIMES
In 2015, Amnesty International India initiated a webpage called “Halt the hate[34]”, reason being the paucity of data available on hate crimes that the public has access to and the need to document instances of alleged hate crimes in India. This need arose after the blood curdling episode of murder instigated by the suspicion that a 52-year-old Muslim man in Dadri, Uttar Pradesh, Mohammad Akhlaq had been eating beef.
“Halt the Hate”[35] has documented 902 cases of hate crimes reported in India from length of time between September 2015 till January 2019 and 181 alleged instances of hate crimes between January and June 2019. In the same duration, two thirds of the victims had to bear the brunt of hate crimes due to their identity as a Muslim (40), an Adivasi (12), a Christian (4), or sexual orientation (6) and led by their identity as a Dalit. Around 17 cases related to cow-vigilantism and honor killing related hate crimes were also recorded. Victims seemed to be targeted for having intersecting identities as well specifically in case of hate crimes, 58 cases were directed towards women who also recognized themselves as Dalit, Christian, Muslim, Adivasi or Lesbian, Bisexual and Transgender persons. Out of these 58 cases, 30 were sexually assaulted or brutally raped.[36]
Another incident on similar lines was the upshot of the Pulwama suicide bomb incident in early 2019, which led to the demise of 42 brave souls of the Indian Army. The consequences of this were the 14 cases of mob onslaughts on Kashmiri Muslims. The month of February in 2019 recorded the largest total of hate crimes, 37 cases followed by no less than 36 cases in March. It is also pertinent to mention that in the period between September 2015 and June 2019, Uttar Pradesh has seen the highest incidence of alleged hate crimes in India with a grand total of 216 reports. It is also interesting to glean on the fact that the National Crime Records Bureau (NCRB) has been releasing its ―Crime in India‖ reports with unreasonable and extensive delays.[37]
CONCLUSION
“He continued to racially abuse me throughout the journey, berating “strange people” who “come over here on banana boats”.” [38] –statement of a victim
Hate crimes are the sum of twisted perception and prejudice; a burden that lies heavily on the weary shoulders of the world. The negative emotional component which constitutes it is what fuels the grave consequences of the act.
Especially in a nation like India, where we find an abundance of cultures coexisting with one another, we understand the significance of accommodation distinct opinions and beliefs. Whereby, it becomes the primary duty of the state to ensure the protection of its people. The Constitution of India vested in each citizen fundamental rights which protect him invariably. Freedom of speech[39] is one such right which is provided to the people but, with reasonable restrictions.
This therefore, makes it vital to have separate legislations for hate crimes in India. Laws which specifically help curb bias motivated hate crimes and rigid implementation of these laws. The severity and intensity of the motivation behind these acts should be taken into account while framing these laws and along with it the consequences of its upshot should be highlighted.
Educating people regarding the damage that “hate” is causing to our society may help. Also helping them understand the origin of customs and minority groups along with areas where their contribution has helped us as a nation thrive will definitely give birth to respect between the citizens. Together as a country we can drive out hatred and stand as a solitary soul known for its diversity across the nations worldwide.
[1] Id.
[2]Wisconsin v. Mitchell, 508 U.S. 476 (1993).
[3]Number of hate crimes reported in India 2010-2018, STATISTA RESEARCH DEPARTMENT, (Apr.8,2020,11:45PM), https://www.statista.com/statistics/978957/hate-crimes-india/.
[4]Kai Schultz, Suhasini Raj, Jeffrey Gettleman & Hari Kumar, In India, Release of Hate Crime Data Depends on Who the Haters Are, THE NEW YORK TIMES, (Apr.9,2020,5:00PM), https://www.nytimes.com/2019/10/24/world/asia/india-modi-hindu-violence.html.
[5] CONST., supra note 1.
[6] Geoffrey A. Fowler& Drew Harwell et. al, 2018 was the year of online hate. Meet the people whose lives it changed, THE WASHINGTON POST, (Apr.10,2020,12:00PM), https://www.washingtonpost.com/business/technology/2018-was-the-year-of-online-hate-meet-the-people-whose-lives-it-changed/2018/12/28/95ac0558-f7dd-11e8-8c9a-860ce2a8148f_story.html?noredirect=on.
[7]Hate Crime Reports on An Alarming Rise – Reveals Amnesty International India’s ‘Halt the Hate’, AMNESTY INTERNATIONAL INDIA, (Apr.9,2020,6:54PM), https://amnesty.org.in/news-update/hate-crime-reports-on-an-alarming-rise-reveals-amnesty-international-indias-halt-the-hate/.
[8]Muzaffarnagar riots: The inciteful speeches that fanned rioters’ fury, FIRST POST, (Apr.9,2020,4:00PM), https://www.firstpost.com/politics/muzaffarnagar-riots-the-inciteful-speeches-that-fanned-rioters-fury-1103789.html.
[9] Harsh Mender, the mob that hates, INDIAN EXPRESS, (Apr.9,2020,6:30PM), https://indianexpress.com/article/opinion/columns/supreme-court-on-mob-lynching-law-against-lynching-case-social-media-whatsapp-rumuors-5265173/.
[10] INDIAN PENAL CODE, s.503.
[11]Joe Evans, Defending Freedom of Speech Against the Violent Attacks from the Left, AMMOLAND, (Apr.13,2020,8:30PM), https://www.ammoland.com/2017/02/defending-freedom-of-speech-against-the-violent-attacks-from-the-left/#axzz6JVLy2P988.
[12] Mark Theoharis, Criminal Threats, CRIMINAL DEFENSE LAWYER, (Ape.9,2020,11:56PM), https://www.criminaldefenselawyer.com/crime-penalties/federal/Criminal-Threats.htm.
[13] Flower & Harwell, supra note 7.
[14] Parliamentary Assembly, Council of Europe, Recommendation 1805, Blasphemy, religious insults and hate speech against persons on grounds of their religion, (Apr.9,2020,10:10AM), http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17569&lang=en.
[15] CONST., supra note 1.
[16] AMERICAN LIBRARY ASSOCIATION, (Apr.10,2020,3:42PM), http://www.ala.org/advocacy/intfreedom/hate.
[17] Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988).
[18] Berit Brogaard, Should Hate Speech Be Free Speech, PSYCOLOGY TODAY, (Apr,10,2020,2:03AM), https://www.psychologytoday.com/us/blog/the-superhuman-mind/201903/should-hate-speech-be-free-speech.
[19]CONST., supra note 1.
[20] Michal Buchhandler-Raphael, “Over criminalizing Speech” 36 Cardozo L. Rev. 1617 (2015).
[21] CONST., supra note 1.
[22] COUNTERING HATE SPEECH IN INDIA: LOOKING FOR ANSWERS BEYOND THE LAW, Anandita Yadav, ILI Law Review Vol. II WINTER ISSUE 2018.
[23]Salem, Perumal Murugan case: full court judgment ordered on July 5, 2016, THE HINDU, (Apr,10,2:30AM), https://www.thehindu.com/news/national/tamil-nadu/Perumal-Murugan-case-full-court-judgment-ordered-on-July-5-2016/article14472664.ece.
[24] The Constitution of India, art.19(1)(a).
[25] Id.
[26] Gautam Bhatia, Fault in our speech, THE HINDU, Apr.10,2020,3:10AM) https://www.thehindu.com/opinion/lead/perumal-murugan-book-controversy-and-madras-high-court/article14476037.ece.
[27] Yadav, supra note23.
[28] CONST., supra note 1.
[29]THE CLAMPDOWN CULTURE, THE TELEGRAPH, (Apr.10,2020,4:00AM), https://www.telegraphindia.com/opinion/the-clampdown-culture/cid/595607.
[30] Indian Penal Code,1860, No.45.
[31] Id.
[32] INDIA CONST. art.21.
[33] MEGHNA BUCHASIA, Hate Speech in India, LEGAL SERVICES INDIA, (Apr,10,2020,4:08PM), http://www.legalserviceindia.com/legal/article-1056-hate-speech-in-india.html.
[34]Halt the Hate, (Apr,10,2020,9:00AM), http://haltthehate.amnesty.org.in/.
[35] Id.
[36] Halt the Hate, supra note 6.
[37] Id.
[38] Anita Sethi,” I was the victim of race hate crime – but by speaking up I felt empowered”, THE GUARDIAN, (Apr.14,2020, (1:28PM), https://www.theguardian.com/commentisfree/2019/jun/23/victim-race-hate-crime.
[39]CONST., supra note 1.
