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The migration and integration of the hate crime approach in India

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Abstract

International norms, standards and practices relating to understanding and addressing hate crime are increasingly comprehensive. Efforts by international organisations to build the capacity of national institutions and agencies with responsibilities to operationalise hate crime law, policies and practice by protecting communities and increasing access to justice and support have intensified in recent years, with some tangible improvements. However, available data shows that the hate crime approach has yet to ‘migrate’ and ‘integrate’ into policing and criminal justice practice. Recent legal developments and ground-breaking work to make the nature and prevalence of hate crime visible in India will be explored with a view to locating India’s place within this international ‘scene’ and to help point to possible ways forward suggested by the ‘hate crime approach’.

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Notes

  1. Valerie Jenness, ‘The Hate Crime Canon and Beyond: A Critical Assessment’ (2001) 12(3) Law and Critique 279.

  2. See ‘Hate Crime Reporting’ (OSCE ODIHR). www.hatecrime.osce.org. Accessed 17 April 2020 (The website presents official hate crime statistics from the 57 Participating States of the Organisation for Security and Cooperation in Europe).

  3. M Mohsin Alam Bhat, ‘Mob, Murder, Motivation: The Emergence of Hate Crime Discourse in India’ (2020) 16(1) Socio-Legal Review (forthcoming).

  4. Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (University of Chicago Press 2005).

  5. ibid.

  6. Lynette J Chua, ‘The Vernacular Mobilization of Human Rights in Myanmar's Sexual Orientation and Gender Identity Movement’ (2015) 49(2) Law & Society Review 299, 329.

  7. ibid.

  8. Merry (n 4) 229.

  9. OSCE Ministerial Council, Decision No. 9/09 on Combating Hate Crimes (2009).

  10. OSCE ODIHR, Hate Crime Laws: A Practical Guide (9 March 2009) 16.

  11. ibid.

  12. ibid.

  13. ibid.

  14. Paul Iganski, ‘Hate Crime’ and the City (The Policy Press 2008); Neil Chakraborti and Jacob Garland (eds), Responding to Hate Crime: The Case for Connecting Policy and Research (The Policy Press 2014); Joanna Perry, ‘Evidencing the Case for ‘Hate Crime’’ in Chakraborti and Garland (eds), Responding to Hate Crime: The Case for Connecting Policy and Research (The Policy Press 2014).

  15. For a useful summary of the main debates on the hate crime concept, see Nathan Hall, Hate Crime, (2nd edn, Routledge 2013).

  16. James B. Jacobs and Kimberly Potter, Hate Crimes, Criminal Law and Identity Politics (OUP 1998); Frederick M. Lawrence, Punishing Hate: Bias Crimes Under American Law, (Harvard University Press 2002).

  17. Iganski (n 14); Also see Neil Chakraborti and Jon Garland, ‘Reconceptualizing Hate Crime Victimization Through the Lens of Vulnerability and ‘Difference’’ (2012) 16(4) Theoretical Criminology 499. (They argue that the situational vulnerability of potential victims can also be a deciding factor in whether a targeted crime is a hate crime.).

  18. Pam Thomas, ‘‘Mate crime’: Ridicule, Hostility and Targeted Attacks Against Disabled People’ (2010) 26(1) Disability and Society 107; Alan Roulstone and Hannah Mason-Bish (eds), Disability, Hate Crime and Violence (Routledge Advances in Disability Studies, 1st edn, Routledge 2012).

  19. Hannah Mason-Bish, ‘We Need to Talk About Women: Examining the Place of Gender in Hate Crime Policy’ in Neil Chakraborti and Jon Garland (eds), Responding to Hate Crime: The Case for Connecting Policy and Research (The Policy Press 2014); Amanda Haynes and Jennifer Schweppe, ‘You Can't Have One Without the Other One: “Gender” in Hate Crime Legislation’ (2020) Criminal Law Review (2) 148.

  20. Hate Crime Laws: A Practical Guide (n 10) 44.

  21. Another more political factor for hate speech’s exclusion is that the OSCE is a consensus organisation and the US, with its strict constitutional protections on freedom of speech is a participating state. A hate crime concept that includes hate speech would not be accepted by the US.

  22. See e.g. ‘Belgium Criminal Code (1999) (excerpts) Unofficial Translation OSCE-ODIHR’ (Legislationonline.org). https://www.legislationline.org/documents/id/15715. Accessed 17 April 2020 (Belgian ‘hate crime’ laws).

  23. See e.g. ‘Criminal Code (excerpts)’ (Legislationonline.org). https://www.legislationline.org/documents/action/popup/id/22244. Accessed 17 April 2020 (Italian ‘hate crime’ laws).

  24. Hate Crime Laws: A Practical Guide (n 10) 7; Conference on Hate Crimes in South-East Europe, Conference Proceedings (University in Sarajevo, 2017) (The OSCE Mission to Bosnia and Herzegovina (2017) edited collection which looked at the impact of hate crime in the post-conflict region of the Western Balkans.).

  25. Gordon Allport, The Nature of Prejudice (Addison-Wesley 1954); See ‘HELP Tutored Courses, Hate Speech and Hate Crime’ (Council of Europe). http://help.elearning.ext.coe.int/course/index.php?categoryid=100. Accessed 17 April 2020.

  26. See Iganski (n 14); The Centre for Hate Studies, Healing the Harms: Identifying How Best to Support Hate Crime Victims (University of Leicester, 2016); Mark A Walters and others, Hate Crime and the Legal Process: Options for Law Reform (University of Sussex 2017).

  27. Hate Crime and the Legal Process: Options for Law Reform (n 26).

  28. Set by the UN, the ECHR and the EU.

  29. Led by the OSCE-ODIHR, the European Union Fundamental Rights Agency and the CoE.

  30. Merry (n 4).

  31. ibid.

  32. Having been the first IGO to introduce the obligation to recognise racist and xenophobic crime in national law through the ICERD, the UN and its agencies, have yet to fully adopt the hate crime concept. UN bodies have used the term ‘hate crime’ and referred to a range of targeted violence within the mandate of the CERD and the Human Rights Council, however, this lack of clarity could allow states to avoid taking action in response to calls for recognition and justice. The recent decision of the UN’s Commission on Crime Prevention and Criminal Justice to consider the ‘responsibility’ of states’ criminal justice systems in ‘preventing and countering crime motivated by intolerance or discrimination of any kind’ in its upcoming conference is an encouraging sign in this regard.

  33. ‘Committee on the Elimination of Racial Discrimination (CERD): Introduction’ (OHCHR). https://www.ohchr.org/EN/HRBodies/CERD/Pages/CERDIntro.aspx. Accessed 17 April 2020.

  34. ‘Human Rights Committee’ (OHCHR). https://www.ohchr.org/en/hrbodies/ccpr/pages/ccprindex.aspx. Accessed 17 April 2020.

  35. Menson and Others v. UK App no 47916/99 (ECtHR, 6 May 2003), paras 13-14; FRA, Unmasking Bias Motives in Crimes: Selected Cases of the European Court of Human Rights (2019) 3.

  36. Nachova and Others v. Bulgaria App nos 43577/98 and 43579/98 (ECtHR, 6 July 2005), paras 160, 161-168.

  37. See Šečić v. Croatia App no 40116/02 (ECtHR, 31 May 2007); Angelova and Iliev v. Bulgaria App no 55523/00 (ECtHR, 26 July 2007); Milanović v. Serbia App no 44614/07 (ECtHR, 14 December 2010); Dordevic v. Croatia App no 41526/10 (ECtHR, 24 July 2012); Identoba and Others v. Georgia App no 73235/12 (ECtHR, 12 May 2015).

  38. Identoba and Others v. Georgia (n 37).

  39. 2008/913/JHA of 28 November 2008

  40. ‘The Development of Hate Crime Reporting, Recording and Data Collection Standards and Practice in Europe’ (Facing Facts). https://www.facingfacts.eu/the-development-of-hate-crime-reporting-recording-and-data-collection-standards-and-practice-in-europe/. Accessed 17 April 2020 (It is an interactive timeline setting out the development of these norms and standards.).

  41. On police training, see OSCE-ODIHR, Training Against Hate Crime for Law Enforcement Programme (TAHCLE): Programme Description (4 October 2012); on prosecutor training see OSCE-ODIHR, Prosecuting Against Hate Crime Training (PAHCT): Programme Description (29 September 2014); on recording and data collection see OSCE-ODIHR, Information Against Hate Crime Toolkit (INFAHCT): Programme Description (29 August 2018); on training for civil society see ‘The Facing Facts Programme’ (Facing Facts Online). https://www.facingfactsonline.eu/. Accessed 17 April 2020; ILGA Europe, Handbook : Monitoring and Reporting Homophobic and Transphobic Incidents (2008); on guidelines see Hate Crime Laws: A Practical Guide (n 10); on data collection see OSCE-ODIHR, Hate Crime Monitoring and Data Collection: A Practical Guide (29 September 2014); on prosecuting hate crime see OSCE-ODHIR, Hate Crime Prosecution: A Practical Guide (29 September 2014); for NGO guidelines see Facing Facts, Make Hate Crimes Visible: Guidelines for Monitoring of Hate Crimes and Hate Motivated Incidents (November 2012); for human rights training for legal professionals see ‘HELP Tutored Courses, Hate Speech and Hate Crime’ (n 25).

  42. Merry (n 4).

  43. Hate Crime Monitoring and Data Collection: A Practical Guide (n 40).

  44. See e.g. UN, United Nations Strategy and Plan of Action on Hate Speech (May 2019); For recent focus of UN Crime Commission see 'Stopping Hate Crime, Supporting SDGs Through Criminal Justice the Focus of 28th Crime Commission’ (UNODC, 20 May 2019). https://www.unodc.org/unodc/en/press/releases/2019/May/stopping-hate-crime--supporting-sdgs-through-criminal-justice-the-focus-of-28th-crime-commission.html. Accessed 17 April 2020.

  45. Merry (n 4).

  46. See e.g. OSCE-ODIHR, Hate Crime Monitoring and Data Collection: A Practical Guide (n 40) 9.

  47. Merry (n 4).

  48. Bhat (n 3).

  49. ‘Letter from CERD to the India’s Representative at the UN’ (UNOHCHR, 30 August 2018). https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/Ind/INT_CERD_ALE_Ind_8759_E.pdf. Accessed 17 April 2020.

  50. ‘Letter from CERD to the India’s Representative at the UN’ (n 48).

  51. UN, List of Issues Prior to Submission of the Fourth Periodic Report of India (CCPR/C/IND/QPR/4, 22 August 2019) para 24.

  52. ‘Hate Crime Reporting’ (n 2).

  53. EU High Level Group on Combating Racism, Xenophobia and Other Forms of Intolerance, ‘Improving the Recording of Hate Crime by Law Enforcement Authorities’ (2017); FRA, Second European Union Minorities and Discrimination Survey: Main Results (2017); ‘EU-MIDIS II: Second European Union Minorities and Discrimination Survey’ (European Commission, 3 October 2018). https://ec.europa.eu/knowledge4policy/dataset/ds00141_en. Accessed 17 April 2020; FRA, Challenges Facing Civil Society Organisations Working on Human Rights in the EU (2018); FRA, Hate Crime Recording and Data Collection Across the EU (2018) 101.

  54. ‘European Commission Against Racism and Intolerance (ECRI): Country Monitoring’ (CoE). https://www.coe.int/en/web/european-commission-against-racism-and-intolerance/country-monitoring. Accessed 17 April 2020; ‘European Commission Against Racism and Intolerance (ECRI) Standards’ (CoE). https://www.coe.int/en/web/european-commission-against-racism-and-intolerance/ecri-standards. Accessed 17 April 2020.

  55. ‘UN Treaty Body Database: Concluding Observations’ (UNOHCHR). https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=4&DocTypeID=5. Accessed 17 April 2020.

  56. UN Human Rights Council, ‘3rd UPR Cycle: Contributions and Participation of “Other Stakeholders” in the UPR'  (UNOHCHR). https://www.ohchr.org/en/hrbodies/upr/pages/ngosnhris.aspx. Accessed 17 April 2020; UN Human Rights Council, ‘Third Cycle (2017-2022)’ (UNOHCHR). https://www.ohchr.org/EN/HRBodies/UPR/Pages/uprcycle3.aspx. Accessed 17 April 2020;

    UN Human Rights Council, ‘UPR Sessions’ (UNOHCHR). https://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRSessions.aspx. Accessed 17 April 2020; UN Human Rights Council, ‘Universal Periodic Review’ (UNOHCHR) https://www.ohchr.org/en/hrbodies/upr/pages/uprmain.aspx. Accessed 17 April 2020.

  57. ‘UN Treaty Body Database: Concluding Observations’ (n 54).

  58. Joanna Perry, 'A Shared Global Perspective on Hate Crime' (2015) 27(6) Criminal Justice Policy Review 610; Jennifer Schweppe, Amanda Haynes, and Mark A Walters, Lifecycle of a Hate Crime: Comparative Report (ICCL 2018); ‘Hate Crime Reporting’ (n 2).

  59. Hate Crime Recording and Data Collection Across the EU (n 52) 101.

  60. Defined as Albania, Bosnia-Herzegovina, Croatia, Kosovo, Montenegro, North Macedonia, Serbia.

  61. Also known as ‘Europeanisation’, or the process of adopting EU norms by third states that are usually on the borders of the EU and at some stage in the process of joining the EU.

  62. Piotr Godzisz, ‘The Europeanization of Anti-LGBT Hate Crime Laws in the Western Balkans' (2019) 71(3) Crime Law and Social Change 291.

  63. See Joanna Perry, ‘Connecting on Hate Crime Data in Europe’ (2019).

  64. These ranged from legal obligations, e.g. the EU Framework Decision, to simply ‘good practice’ recommendations, e.g. cooperation between police and NGOs on hate crime recording. Also see Perry (n 62); 'International Standards Relating to Hate Crime Reporting, Recording and Data Collection' (Facing Facts). https://www.facingfacts.eu/annex-three-international-standards-relating-to-hate-crime-reporting-recording-and-data-collection/. Accessed 17 April 2020.

  65. National relationships were rated ‘green’ (good relationship: effective framework and action with room for improvement), ‘amber’ (adequate relationship: limited framework and action) and ‘red’ (poor relationships: inadequate framework and action).

  66. Perry (n 62).

  67. Amanda Perry-Kessaris and Joanna Perry, ‘Enhancing Participatory Strategies with Designerly Ways for Sociolegal Impact: Lessons From Research Aimed at Making Hate Crime Visible’ (2020) Social and Legal Studies (forthcoming).

  68. Peggy Levitt and Sally Merry, ‘Vernacularization on the Ground: Local Uses of Global Women's Rights in Peru, China, India and the United States’ (2009) 9(4) Global Networks 145.

  69. Chua (n 6).

  70. ibid.

  71. Chua (n 6) 328.

  72. ‘A EU High Level Group on Combating Racism, Xenophobia and Other Forms of Intolerance’ (European Commission, 18 March 2019). https://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=51025. Accessed 17 April 2020; Michael Whine, ‘Cooperation Between Criminal Justice Agencies and Civil Society in Combating Hate Crime’ (2019) 71(3) Crime, Law and Social Change 275; Perry (n 62).

  73. See e.g. UK Ministry of Justice, Statistics on Race and the Criminal Justice System 2010: A Ministry of Justice Publication Under Section 95 of the Criminal Justice Act 1991 (2010).

  74. For e.g. a recent national study into Indians’ perceptions of police found relatively low levels of trust in the police generally and lower levels for poorer communities and religious minorities. The study found that Muslims were most likely ‘to see police as discriminating on grounds of religion’ (26%) and most likely to perceive the police as not being impartial, ‘in the event of religious strife. These perceptions were shared in a context of a significantly higher incarceration rate of Muslims. See CHRI and Quill Foundation, Muslim Voices: Perceptions of Policing in India (2019).

  75. ‘Principles and Practices of Connection’ (Facing Facts, 2019). https://www.facingfacts.eu/principles-and-practices-of-connection/. Accessed 17 April 2020.

  76. Wendy Brown, States of Injury (Princeton University Press 1995).

  77. Merry (n 4) 5.

  78. ‘Principles and Practices of Connection’ (n 74).

  79. Chua (n 6) 324.

  80. See ‘Digital Police’ (Ministry of Home Affairs). https://digitalpolice.gov.in/. Accessed 17 April 2020.

  81. The database is currently being redesigned and was hosted on IndiaSpend.

  82. Citizens Against Hate, Lynching Without End: Report of Fact Finding into Religiously Motivated Vigilante Violence in India (2018).

  83. ‘About the Karwan’ (Karwan e Mohabbat). https://karwanemohabbat.in/. Accessed 17 April 2020.

  84. Human Rights Watch, Violent Cow Protection in India: Vigilante Groups Attack Minorities (2019).

  85. Tehseen S. Poonawalla v Union of India (2018) 9 SCC 501.

  86. Chua (n 6) 329.

  87. Violent Cow Protection in India: Vigilante Groups Attack Minorities (n 83).

  88. See Tore Bjørgo and Miroslav Mares (eds), Vigilantism Against Migrants and Minorities (1st edn, Routledge 2019) 4.

  89. ibid 5.

  90. ibid 5, 11.

  91. ibid 59.

  92. Violent Cow Protection in India: Vigilante Groups Attack Minorities (n 83).

  93. Bjørgo and Mares (n 87) 56.

  94. ibid 315-319.

  95. Violent Cow Protection in India: Vigilante Groups Attack Minorities (n 83).

  96. Iganski (n 14); Healing the Harms: Identifying How Best to Support Hate Crime Victims (n 26).

  97. Iganski (n 14).

  98. Lynching Without End: Report of Fact Finding into Religiously Motivated Vigilante Violence in India (n 81) 39.

  99. Barbara Perry, In the Name of Hate: Understanding Hate Crimes (1st edn, Routledge 2001).

  100. Bhat (n 3).

  101. Joanna Perry, Connecting on Hate Crime Data in Greece (Facing All the Facts, 2019) 21.

  102. See e.g. Racist Violence Recording Network, 2012 Annual Report (2013); Perry (n 100); Human Rights 360, X Them Out! The Black Map of Racist Violence (Topos Books Publications 2019).

  103. Bhat (n 3).

  104. Government of Manipur Secretariat: Law & Legislative Affairs Department, The Manipur Protection from Mob Violence Ordinance, 2018 (2018) (Rajasthan and West Bengal have passed similar bills); See also Harsh Mander, ‘Showing the Way: On Manipur’s New Anti-Lynching Law’ (Karwaan e Mohabbat, 2019). https://www.karwanemohabbat.in/showing-the-way-on-manipurs-new-anti-lynching-law/. Accessed 17 April 2020; See also Bhat (n 3) 20.

  105. M Mohsin Alam Bhat, Vidisha Bajaj and Sanjana A. Kumar, 'The Crime Vanishes: Mob Lynching, Hate Crime and Police Discretion in India’ (2020) 11(1) Jindal Global Law Review.

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    Joanna Perry

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Perry, J. The migration and integration of the hate crime approach in India. Jindal Global Law Review 11, 7–32 (2020). https://doi.org/10.1007/s41020-020-00111-8

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