In December 2017, Shambhu Lal Raigher (a Hindu), brutally killed a Muslim labourer named Afrazul Khan in Rajasthan, without any immediate or individualised cause. The reason for the killing is attributed to Raigher’s perception of Muslims as those who get romantically involved with Hindu women to lure them into Islam—what has been called the phenomenon of love jihad. In light of this case, this article discusses how the mythical campaign of love jihad—used as a justification for hatred and violence towards Muslim communities—motivates hate crimes. I also discuss how the current legal framework in India deals with hate crimes, as the existing law does not make a distinction between hate crimes and ordinary crimes. The article flags some of the complexities involved in incorporating a hate crimes legislation into the socio-political and legal context of contemporary India.
On 6 December 2017 in the Rajsamand district of Rajasthan, Afrazul Khan, a Muslim daily wage earner—who hailed from West Bengal—was brutally hacked to death by a Hindu man named Shambhu Lal Raigher, allegedly without any immediate cause or reason. This incident was impenitently video recorded on a mobile phone by Raigher with the help of his minor nephew. On the next day, the video went viral on digital platforms.Footnote 1 It captures Afrazul repeatedly begging for his life while Raigher is attacking him with an axe. The recording also shows Raigher making the following statement—as Afrazul’s body lies in a pool of blood—speaking right into the camera as if addressing a larger group of spectators who have watched this act of execution,
Jihadiyon, ye tumhari halat hogi, ye love jihad phailaoge humare desh me… humare desh me aisa karo, ye tumhare har jihadi ki halat… Jihad khatam kar do… baaki ye halat hogi tumhare har jihadi ki.
[Jihadis, this is what your condition is going to be, you spread this love jihad in our country, if you do this in our country, this will be the fate of each of you Jihadis. End Jihad… or else this will be the end of each of you Jihadis.]Footnote 2
The video further captures Raigher striking a last blow on the already dead body after which he sprinkles oil from a plastic bottle and immolates it. The next day, this video was widely circulated in the media along with a brief monologue where Raigher warns his ‘Hindu sisters’ to beware of such ‘love jihadis’. He also claims that love jihad is an organised effort being spread by Muslims to subjugate Hindu women to their lust and to convert them into being followers of Islam.Footnote 3
This incident further led to a media uproar when Raigher’s arrest two days after the incident attracted miscreants belonging to Hindu right-wing groups. These groups were protesting in Raigher’s support outside the District and Sessions Court, Udaipur, Rajasthan where Raigher was appearing before the Magistrate for the first time after his arrest. Some of these protestors even climbed atop the gate of the court and unfurled a saffron flag, which led to police taking action to control the protestors, during which about 12 police officers got injured.Footnote 4 Consequently, more than 220 people were arrested or detained by the police and Section 144 of the Criminal Procedure Code, 1973 (CrPC) was imposed to control the situation.Footnote 5
This incident is easily the perfect crime in the new-age social media driven India, which is exacerbating an already existing fear for Muslims in the country.Footnote 6 Moreover, the incident provokes the questions: Was Afrazul Khan’s Muslim-sounding name enough for his brutal and unwarranted killing? Who is Raigher, and what is his role in structuring how Muslim people evaluate the severity of what was done to Afrazul? Why were Hindu right-wing groups unfurling saffron flags, supporting Raigher when he committed a crime? What is love jihad? Who is this crime hurting?Footnote 7 Such questions also demand more insight regarding the socio-political context of love jihad in contemporary India.
Moreover, these questions lead us to reflect on how the law responds to such incidents, as this has a crucial bearing on the extent to which Muslims and other minorities repose confidence in the criminal justice system. Even as more facts of this case remain to be confirmed, Afrazul’s killing has thrown open issues of solving hate crimes in India into the public policy arena. There are increased calls for the enactment of hate crime legislation to protect religious minorities, as well as suggestions for specific changes in provisions in the Indian Penal Code, 1860 (IPC) concerning hate speech.Footnote 8 However, what is a hate crime, a term unfamiliar under the existing Indian laws? Is Afrazul’s killing a hate crime? Is hate crime prohibited in India? How is hate crime different from an ordinary crime under the law? Meanwhile, how do we prove hate crimes under the existing laws? What are some critical challenges to incorporating hate crime laws in India?
This article is motivated by some of these questions and aims to offer insights into the discourse of love jihad, Afrazul’s killing as a form of hate crime, and its treatment under the existing laws. The article does not seek to argue in favour of criminalising previously lawful acts. Instead, it acknowledges the distinct nature of crimes based on bias motive targeted at a particular group because of their identity. This distinction is essential for evaluating the context and impact of such violence, and offering responses—legal or otherwise. This article, however, does not intend to suggest that how the law responds to bias or prejudice could entirely purge the Muslim community’s discontent with the criminal justice system. My attempt is to offer a critical assessment of the current law and to indicate some of the genuine complexities of incorporating a hate crimes legislation into the socio-political and legal context of our times.
The discourse of love jihad
The discourse of love jihad is not new to India. Yet, it is undoubtedly an alarming one which targets the Muslim community explicitly. Even Afrazul’s murder is an extension of the love jihad discourse in India, as evidenced by Raigher’s usage of the term ‘love jihad’ in his recorded speech in the video. Love jihad is a ‘movement or a project’ which allegedly aims to forcefully convert vulnerable women to follow Islam through the pretence of love and marriage by Muslim men.Footnote 9 The term ‘love jihad’ first became prominent in 2009 in the states of Kerala and Karnataka where the Hindu nationalist Bharatiya Janta Party (BJP) had historically struggled to gain political control.Footnote 10 Over time, discourse on love jihad intensified in non-BJP-governed states, with the most recent examples of Uttar Pradesh and Rajasthan, to construct an antagonistic populist front between the BJP with its allies and other parties.Footnote 11 The expression has gained even more prominence in India since 2014 after the BJP formed the central government with an outright majority.Footnote 12 The key leaders of the BJP have mostly stayed away from advocating against love jihad; however, grass-roots campaigns persist in spreading rumours about Muslims.Footnote 13
To propagate the discourse of love jihad, Hindu nationalists advocate hatred to target Muslim men to prevent interfaith interpersonal relationships with non-Muslim women in the country.Footnote 14 The goal of this campaign is to construct a homogenous Hindu identity and a Hindu Rashtra (Hindu Nation) in a society that is already sharply divided on religious lines.Footnote 15 The underlying reason stated for the discourse on love jihad is to ensure that the Muslim minority in India does not become a religious majority.Footnote 16 It has been argued that the discourse on love jihad is an ‘emotive mythical campaign’ for seeking political gain in elections which attempts to invoke fears of a declining Hindu population in the country.Footnote 17
In 2017, the Kerala government was widely targeted by Hindu nationalists for a case alleged to be one of love jihad.Footnote 18 It was a case concerning a Hindu woman, Akhila, who renamed herself Hadiya, converted willingly to Islam, and married a Muslim man against her parents’ wishes. When Hadiya did not return home fearing her parents’ disapproval and ill-treatment, her father filed a writ of habeas corpus in the Kerala High Court. Hindu nationalists took advantage of this case as well as of Kerala’s discourse on anti-conversion and Muslims as threats. They extended their support to Hadiya’s father and sought the aid of the National Investigative Authority alleging evidence of forced marriage and terrorist links of the husband. Hadiya’s father then sought Hadiya’s custody and annulment of her marriage, which the Kerala High Court granted. Hadiya’s husband, subsequently, challenged this judgment in the Supreme Court citing various irregularities. The Supreme Court overturned the Kerala High Court’s judgment after hearing the petition as well as Hadiya’s re-affirmation of a voluntary relationship.Footnote 19 The Supreme Court upheld Hadiya’s autonomy, agency and freedom to marry whomever she wants as guaranteed under the Indian Constitution.Footnote 20 The discourse on love jihad, therefore, questions the autonomy, agency, individual rights and mobility of young women identified as subjects of the Hindu Rashtra. It eludes the applicability and understanding of liberal conceptions of citizenship in contemporary India. Such narratives that surround love jihad completely avoid addressing interfaith interpersonal relationships as a voluntary matter.
This campaign has thrived so far by painting a picture of protecting Hindu women of varied backgrounds from the dangers of Muslim men. Suresh Bhayyaji Joshi, from the Rashtriya Swayamsevak Sangh (RSS)—an organisation that is the BJP’s ideological mothership—stated in a press conference that ‘Hindu samaj (Hindu society)’ has been facing love jihad and ‘there is no doubt that it hurts the women’s dignity’, and that the government in Uttar Pradesh should take a ‘serious view’ of it.Footnote 21 Reinforcing the idea of a passively victimised woman needing to be saved from Muslim men, Laxmikant Bajpai, BJP’s Uttar Pradesh President made allegations and declared: ‘Have they [Muslims] got a certificate to rape girls because they belong to a particular religion?’Footnote 22 He has also incorrectly alleged that Muslims commit 90% of all rapes, without attributing any source to substantiate this claim.Footnote 23 Moreover, slogans such as ‘Beti Bachao, Bahu lao’ (save daughter, bring daughter-in-law), ‘Beti Bachao Andolan’ (Save daughters movement), ‘Bahu Betiyo Ki Izzat Bachao Andolan’ (Movement to save the dignity of daughters and daughters-in-law), ‘Ghar vapasi’ (Return home), ‘Hindu Auraton ki loot’ (Hindu women’s loot), are some concoctions of love jihad discourse which continue to operate throughout India appealing to Hindu men to protect their daughters and sisters from becoming victims.Footnote 24
Another aspect of love jihad discourse is the creation of anti-Romeo dals (or squads) in 2017 by the BJP government. These squads, formed under the Uttar Pradesh Control of Goondas Act, 1970, were to ‘ensure the safety of college-going girls’ and ‘check eve-teasing’ in public spaces.Footnote 25 BJP’s national co-convenor Sunil Bharala reportedly said, ‘In love jihad, innocent girls are targeted and lured. To ensure their safety, anti-Romeo squads will be formed.’Footnote 26 This policy in Uttar Pradesh encouraged squads to patrol in rural and urban areas, undertake surveillance of suspects, check random vehicles, and discourage couples covering their faces in public spaces. However, despite its apparent purpose of curbing sexual harassment, it has led to unwarranted intrusion, insult and humiliation by the police and vigilante groups against couples and other citizens.Footnote 27 Thus, in almost all cases, it is Hindu women’s purity and safety, with occasional incidents of women of other religious identities, that are highlighted by invoking Hindu male prowess and Hindu supremacy.Footnote 28
A characteristic feature of the discourse of love jihad reveals dichotomies of the imagined ‘Hindu self’ and the danger of the ‘Muslim other’. Here, the imagined ‘Hindu self’ is in danger and thus has to be secured. It is ideal and desired that relationships will be permitted only within one’s religious group. Whereas the ‘other’ is a dangerous Muslim man who is an undesirable mate. This argument also has roots in an old cultural debate of ‘us versus them’ in the discourse of the nation-self (Hindus are sons of the soil) and the ‘colonial-other’ (Muslims are invaders).Footnote 29 The ‘self’ or ‘us’ endeavours to keep Hindu women and the Hindu nation safe. It demands that Hindu women remain ideal, dutiful, obedient and docile, and when a masculine Hindu man dictates her to disengage from the enemy or stranger (Muslim man) her conduct will be to invisibilise herself before him. This ‘self’, based on patriarchal notions of how women should behave as per the dictates of men, is not concerned about the safety of the women. Instead, it is a tool to regulate their bodies, autonomy and agency, whereas Muslim men, the ‘other’ or ‘them’ are hidden enemies or strangers who could potentially lead to a decline in the Hindu population and take away the dream of creating a Hindu nation.Footnote 30 It is, as if there is a race between the two religious communities where Hindus have to defeat the Muslims from becoming the majority and taking over the nation.
Such ‘othering’ of Muslims uses language as a vehicle of hostility and discrimination conveying that Muslim men are not welcome and safe. This ‘othering’ has drastic consequences on the lived experiences of Muslims and those mistaken as Muslims. Consequences range from stereotyping, verbal abuse to extreme forms of physical violence. In the love jihad-hate discourse, a common trend is insults furnished with false Islamophobic narratives and figures, which publicly humiliate and condemn Muslim men. Muslim men in this context are repeatedly described as a menace, lustful, rapists, wife-beaters, abductors, anti-national, religious fanatics, traitors, invaders, and terrorists creating a global Islamist conspiracy.Footnote 31 Thus, a Muslim man engaging in an interfaith interpersonal relationship is described in a gendered sense—as perpetuating patriarchy, taking part aggressively in inter-religious exclusions, and as a threat to the nation.Footnote 32
Such tropes or epithets directed at Muslim men further escalate identity-prejudicial abuse and harassment to express the idea that Muslim men as a social group warrant hate or contempt.Footnote 33 The discourse of love jihad has also occasioned a systematic rise in communal stereotyping, threats of violence to inter-religious couples, police investigations (for crimes ranging from abduction, rape, forced marriage, elopement, luring, and forced conversions), violent crimes, and restrictions on women, such as detentions.Footnote 34 The discourse of love jihad has become yet another medium which normalises hate towards Muslims as part of a political agenda that recruits a heterogeneous populace to reproduce and sustain bias against them.
Bias crime a result of the love jihad discourse
In India, the gravity and the extent of the problem of crimes committed with religious or identity-based bias or prejudice, similar to that of Afrazul’s killing, have been recognised mainly by activists, non-governmental organisations, progressive media outlets, and researchers.Footnote 35 There is, however, an absolute lack of data specifically on such crimes from official sources.Footnote 36 Amnesty International recorded 600 incidents of alleged bias or prejudice crimes against Muslims, Christians, Adivasis, and transgender persons from 2015 to 2018, and 181 cases in the first six months of 2019, nearly double the previous three years’ half-yearly count.Footnote 37 Many other civil society organizations which document such crimes are reaching similar conclusions.Footnote 38 It is undeniable that there is a significant growth in such hate-motivated crimes in recent years in India. The increase of such crimes poses urgent questions of whether there are adequate social, political and legal responses available. My discussion here is restricted to the criminal law – whether it effectively identifies, recognises and appropriately punishes such forms of violence and expressions towards Muslim men.
In contemporary legal debates in India, many argue that Afrazul’s brutal killing by Raigher is a ‘hate crime’, a term coined in the 1980s in the United States (US).Footnote 39 Hate crimes are also known as bias crimes, prejudice crimes or bias-motivated crimes.Footnote 40 Although hate crime is an unfamiliar term in Indian law, it is often used by the media and human rights defenders. Hence, it requires some elucidation for our purposes. In India, it is sometimes used interchangeably with communal or targeted violence. Globally, hate crimes are mainly defined in connection with racial and religious motivated attacks. However, today hate crimes take on diverse forms of identity prejudicial or bias-motivated violence such as caste, religion, race, gender, and/ or disability.
Globally, some of the commonly cited influential conceptualisations of hate crimes come from the guidelines of the Organisation for Security and Cooperation in Europe (OSCE). These guidelines explain the concept to be ‘an act which is prohibited under the criminal law and motivated by bias based on specific characteristics of the victim’.Footnote 41 Another popular academic explanation is given by Barbara Perry,
Hate crime… involves acts of violence and intimidation, usually directed toward already stigmatized and marginalized groups. As such, it is a mechanism of power and oppression, intended to reaffirm the precarious hierarchies that characterise a given social order. It attempts to re-create simultaneously the threatened (real or imagined) hegemony of the perpetrator’s group and the ‘appropriate’ subordinate identity of the victim’s group. It is a means of marking both the Self and the Other in such a way as to re-establish their ‘proper’ relative positions, as given and reproduced by broader ideologies and patterns of social and political inequality.Footnote 42
Others explain hate crimes as ‘crimes, most commonly violence, motivated by prejudice, bias, or hatred towards a particular group of which the victim is presumed to be a member. As such hate crime is generally directed towards a class of people’.Footnote 43 A hate crime is also understood as a ‘message crime—it communicates to the targeted community that they are regarded as objects and that consequently, they are vulnerable to attack.’Footnote 44
In Afrazul’s case, various indicators cumulatively show that it is a hate crime. The first indicator is the circumstances connected with the victim and the accused, namely their characteristics.Footnote 45 Afrazul was a Muslim man. Thus, his religious identity as a Muslim man makes him a potential target for such killing as he belongs to the subordinate group or the imagined ‘other’. Shambhu Lal Raigher is a Hindu man. Thus, his religious identity as a Hindu man makes him a part of the religious majority in India, thus belonging from the perpetrator’s group or the imagined ‘self’. These characteristics, however, do not by themselves become critical indicators.Footnote 46
Raigher’s conduct will, however, be a vital indicator of the hate crime.Footnote 47 His conduct can be inferred from the speech and expressions as captured in the video and his monologue circulated on digital platforms. In his speech, he explicitly directs his address to ‘jihadi[s]’ which is an epithet globally used to describe Muslims pejoratively.Footnote 48 Raigher uses this term to humiliate and vilify Muslims. Further, he uses an explicit expression of hatred and anger, mainly calling for a higher number of killings of Muslim men if inter-religious relationships do not stop. When he says, ‘Jihadis, this is what your condition is going to be…’ while pointing towards Afrazul’s dead body, his emotions are directed at Muslims. Moreover, Raigher uses a language of ‘othering’ as an appeal to Hindus to restore family and community honour, thus representing himself on behalf of the nation while portraying ‘jihadis’ or Muslim men as enemies who threaten the safety of his ‘Hindu sisters’ and nation. He targets Muslims as a religious-shared group when he says, ‘if you do this in our country, this will be the fate of each of you.’ By targeting them based on their religious identity, he asserts that the future of Muslim men is under threat.
Raigher suggests that if love jihad is not stopped there will be no alternative to a violent action. In doing so, he spreads hate and incites further violence. It is important to note that by love jihad, he means interfaith relationships between a Muslim man with a Hindu woman. However, such inter-faith relationships are inevitable in India as the idea of an ideal woman as endorsed by patriarchy is a myth and inter-religious relationships have protection in law.Footnote 49 Raigher’s expressions of contempt, along with murder and immolation in the video, carry enough intensity to generate fear amongst the viewers who are Muslim. Raigher positions himself as a knowledgeable protagonist who must act on the cause of eradicating inter-religious relationships with Muslim men. He situates himself as the protector of his ‘Hindu sisters’. He diffuses responsibility for his claims and takes a stance of warning in apparent self-defence. He justifies his desire for a violent retribution against the objects of his hatred.
Based on the discussion above, it is imperative to introduce two models of hate crimes which are adopted by various countries who choose to legislate such crimes—the discriminatory model and the hostility model. In the discriminatory model, it is essential to prove that the offender deliberately targeted the victim because of a protected characteristic.Footnote 50 It is a broader model in comparison to the hostility model. In the hostility model, evidencing actual hatred, enmity or hostility becomes necessary for proving the offence, in addition to proving a deliberate attempt to target the victim because of a protected characteristic.Footnote 51 Moreover, in the hostility model, evidence of hostile motive is required as proving hate is a subjective question.Footnote 52
Raigher’s expressions of hatred directly demonstrate his negative emotions and hostility towards Afrazul because he belonged to the ‘jihadi’, or Muslim community. His speech demonstrates that he selected Afrazul because of his religious group identity and not because he merely hated the target group. Hence, his crime passes the higher evidentiary threshold of proving hate crimes by invoking the hostility model. Raigher’s usage of the term ‘jihadi’ indicates his mental process and this choice of words perpetuates the already existing long-term targeted victimisation of Muslims. Raigher demonstrates that his crime was not in the ‘heat of the moment’ as he shows no remorse when killing Afrazul, immolating the dead body and directly addressing his spectators in the camera with his minor nephew recording his video. His conduct shows that he is fully aware that he was targeting the deceased victim’s identity and generating fear in the targeted community. His speech indicated that he intentionally or knowingly expressed animosity against his victim’s identity characteristics. In the process of showing his hate, Raigher builds an environment which normalises violence against the target Muslim group and justifies it in the name of love jihad. He, therefore, causes a heightened emotional and social trauma in the minds of Muslims.Footnote 53 Another consequence of his actions is the damage it causes to the cohesiveness of a multicultural society.
Harm and severity
The brutal killing of Afrazul Khan and the immolation of his already dead body is enough to attract the charge of the ordinary criminal offence of murder under the IPC.Footnote 54 However, the intended consequence of Afrazul’s killing is to threaten and invoke a greater sense of fear and insecurity in the target group. This inference can be drawn from the link that Raigher draws between the target religious group ‘jihadis’ and the justification of violence against them.Footnote 55 But unlike ordinary crimes, such crimes can largely be ascribed to intuitive feelings of seeking retribution and an awareness of the consequences of such an offence on the victim and the targeted group as a whole. Additionally, apart from being a target of the killing, a sense of injustice remains for Afrazul for having been discriminated against based on the membership of his religious group.
Raigher’s targeting of Muslims goes beyond the killing to affect the whole Muslim community as well. His role could prove essential in mobilising Hindus against Muslims through his influence on the social media. His chosen mediums such as WhatsApp and YouTube are widely accessible means of communication in India. This indicates that his selected audience was the general public and not a selected few. This intentional posting of the video on public forums can constitute as incitement of further violence which can lead to public hostility. Such incidents occasion a threat to the general public and if normalisation of such harm continues to exist, greater harm will be done if not adequately addressed.
Various scholars have captured the risk of harms of hate crimes. Many scholars have often relied on the 1992 ruling of the Oregon Supreme Court in State v. Plowman that hate crimes invite ‘… imitation, retaliation and insecurity on the part of the persons in the group to which the victim was perceived by the assailants…’.Footnote 56 Some state that if a hate crime is not prevented, the risk of escalation increases, especially in conflicts where tactics of increasing harshness against each other are higher—from consultation to threats and eventually to violence.Footnote 57 Moreover, they attribute to widespread hostile attitudes and negative perceptions of others, unlike ordinary crimes which may be individual specific.Footnote 58 Cumulatively, these studies suggest that hate crimes may have severe psychological effects and thus ‘hurt more’ than other forms of violence.Footnote 59
Thus, consequences of hate crimes have a potential of harming the victim as well as creating a climate of intimidation over a long period. Moreover, members of the targeted community do more than ‘sympathizing or even empathizing with the immediate hate-crime victim and perceive such crime as if it was an attack on them’.Footnote 60 Hence it is often argued that these considerations are sufficient for the criminal law to step in and take cognisance of the effect of hate crimes to convey a strong message of support to groups traditionally victimised by identity prejudiced-motivated violence, and to deter such violence. In doing so, the criminal law will acknowledge and address the potential of greater harm in law from further alienation of the community, civil unrest, and respond to the overall hate which is offensive to the common constitutional values of a sovereign, democratic, socialist, secular nation based on the principles of justice, dignity, equality, fraternity, and violates citizenship rights.
Many European countries have adopted the approach of distinguishing ordinary crimes from hate crimes and racially motivated violence. They state that ‘treating motivated violence and brutality on an equal footing with cases lacking any racist overtones would be tantamount to turning a blind eye to the specific nature of acts which are particularly destructive of fundamental human rights’.Footnote 61 To protect against such harm, many jurisdictions around the world have put in place specific hate crime provisions or legislation designed to protect targeted groups and employ specialised police and prosecution units to enforce such laws. In Australia, to prevent such hate crimes, the Australian Capital Territory, Queensland and South Australia respectively have a standalone offence of acts of ‘serious vilification’, with no enhancement of penalty.Footnote 62 Whereas, in New South Wales, Northern Territory and Victoria, in addition to having specific standalone vilification offences, violation of such offence is considered to be an aggravating factor while sentencing.Footnote 63 In Western Australia, along with specific prejudice motivated offences, there exists other penalty enhancement provisions for a range of offences when committed in circumstances of such offences.Footnote 64 Moreover, in Canada and England there are sentence aggravation provisions, penalty enhancement provisions and standalone offences relating to the stirring up of hatred.Footnote 65 In Canada, there is a specific standalone offence of incitement to hatred. However, a mandatory sentence aggravation in provision exists for promotion of hatred in the code dealing with general sentencing principles which require that the offence must be motivated by ‘bias, prejudice or hate’. Footnote 66
The most recent attempt in India to enact specific provisions on the issue was the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011. This Bill intended to prevent acts of violence and incitement to violence directed at people under their membership to any ‘group’.Footnote 67 The Bill was heavily contested but dropped because of lack of consensus in the Parliament.Footnote 68 The central government in 2008 had however issued ‘Guidelines on Communal Harmony’ to prevent communal disturbances and riots.Footnote 69 These guidelines contain preventive and remedial measures, and to impose responsibilities on the administration for enforcing them. These guidelines, although relevant, do not address the issue of punishing the perpetrators of hate crimes directly.
Evaluating Afrazul’s case under the existing law
In India, hate crimes fall under the umbrella of ordinary crimes, as there is no distinct hate crime legislation.Footnote 70 The closest to a hate crime legislation which seeks to prevent and punish atrocities based on their unique history and socio-political context is the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities Act), 1989. This Act prescribes for an increased quantum of punishments and allows for the victim to claim civil damages. Therefore, under the existing law in India, one way of dealing with Afrazul’s case is to try Raigher under the ordinary crime of murder in the IPC. Ordinary crimes, however, do not recognise the distinct nature of hate crimes.
An ordinary crime is distinct from a hate crime as the former only requires proof of the accused’s intent while the latter requires an additional requirement of identity-prejudicial motivation.Footnote 71 The intent is distinguished from motive in a criminal case as intent requires showing of mens rea or ‘guilty mind’.Footnote 72 The intent is the ‘operation of the will directing an overt act’, whereas motive is the ‘feeling which prompts the action of the will—the ulterior object of the person willing’.Footnote 73 One’s intent is the desire or a state of mind that directs the action. One’s motive, however, explains why that action was desired.Footnote 74 For example, Raigher’s actions imply that he had an intent to murder because he repeatedly attacks Afrazul with an axe, and as a consequence, when he dies, Raigher does not stop his violence. He immolates Afrazul’s already dead body. Here, he depicts awareness that his actions will culminate in Afrazul’s death. Whereas showing Raigher’s hatred behind that intent to kill, specifically that the criminal act was committed ‘by reason of’ Afrazul’s shared religious identity as Muslim that will constitute the motive. Such motive is a psychological fact.Footnote 75
Here, a motive should be distinguished from an individual’s purpose and reason for committing that criminal act. A purpose is defined as an ‘explicitly aimed at, rational goal’.Footnote 76 Whereas, the reason is the ‘cause which impels action for a definite result’.Footnote 77 Thus, the purpose is the accused’s aim for the criminal conduct and the reason is the justification for that conduct. For example, Raigher’s purpose of killing Afrazul was to prevent Muslim men marrying Hindu women. In contrast, his reason for killing Afrazul was to send a message to the general Muslim community and to warn his ‘Hindu sisters’ about such alleged practices of love jihad. Any purpose or reason is irrelevant for proving motive. Even though the ordinary law requires only the elements of the act (actus reus) and intention (mens rea) of the crime, these facts concerning the motive, purpose and reason remain essential to show compelling circumstances in the story. Hence, these facts will constitute circumstantial evidence crucial for proving the crime of murder.Footnote 78
Another method of dealing with Afrazul’s case under the existing ordinary laws would be an additional charge invoking applicable provisions relating to hate speech. Unlike hate crimes, specific provisions in some legislations in India prohibit select forms of hate speech. Even though hate speech and hate crimes are separate categories, in many hate crimes hate speech forms an element of the base criminal offence. In Afrazul’s case, the speech and monologue uttered during and after the commission of the crime is a reliable indicator of a bias motivation, where Raigher would not be allowed to raise a defence of his constitutional right to freedom of speech and expression. In such a circumstance, appropriate provisions relating to hate speech will become relevant, and particularly Sections 153-A, 298 and 505(1) and (2) under the IPC. Section 153-A penalises ‘promotion of enmity between different groups on the grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony’; Section 298 penalises ‘uttering, words, etc., with deliberate intent to wound the religious feelings of any person’; and Section 505(1) and (2) penalises publication or circulation of any statement, rumour or report causing public mischief and enmity, hatred or ill-will between classes.
The Supreme Court in Pravasi Bhalai Sangathan v Union of India has tried to conceptualise the rationale for hate speech in the protection of marginalised people, rather than public order or morality,
Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.Footnote 79
Moreover, in Bilal Ahmed Kaloo v State of AP, the Court while interpreting Section 153-A and 505(2) of the IPC held that the common feature in both sections is that they make the promotion of the feeling of enmity, hatred and ill-will between different identity-based groups and communities and doing acts prejudicial to maintenance of harmony, an offence.Footnote 80 The Court held that it is necessary that at least two such groups or communities should be involved to attract this provision, and merely hurting the feelings of one community or group without any reference to another community or group cannot attract either of the sections.
Hence, it is clear that hate speech offences could form an additional charge in the religiously motivated attacks. Raigher could be charged for the language he uses after the commission of the base offence as it is likely to marginalise and cause distress to the Muslims. Such a charge could aid the prosecution’s case for enhancing the period of imprisonment, which could run consecutively after the sentence for the primary offence of murder. This approach would be adequate in cases where hate speech can be easily proven. However, the difficulty with the use of this offence as a substitute for specific provisions on hate crime is that such provisions are directed only at words or expressions intended to likely stir up religious hatred and not as a response to bias-motivated attacks. India’s Law Commission in 2017 has also realised this vacuum in the law and has recommended that ‘several factors need to be considered before restricting a speech, like, the context of the speech, status of the victim, the status of the maker of the speech and the potential of the speech to create discriminatory and disruptive circumstances’.Footnote 81 It has further recommended new amendments to the IPC ‘prohibiting incitement to hatred’ and ‘causing fear, alarm, or provocation of violence’ in certain cases.Footnote 82
One may argue that an adequate response to hate crime already exists in the sentencing discretion of the judges under the CrPC as opposed to having distinct provisions for hate crimes separately.Footnote 83 This is because, for ordinary crimes, judges consider the doctrine of proportionality, deterrence and rehabilitation to arrive at the sentence while exercising discretion.Footnote 84 Specifically, the application of the doctrine of proportionality to sentencing entails drawing up of a list of aggravating and mitigating factors and balancing them having regard to nature of the crime, the gravity of the offence, the motive of the crime and all other attendant circumstances.Footnote 85 Thus, essentially making the argument that judges could take into account Raigher’s prejudiced motivation towards Muslims as an ‘aggravating factor’ in committing Afrazul’s murder, and reflect such motivation in the severity of the punishment imposed.
However, this is a flawed argument, mainly because in India there is an absence of structured sentencing guidelines for ordinary crimes, which leaves the issue of aggravation and its extent to the discretion of the judges with the possibility of uncertainty and inconsistency in sentencing those convicted of hate crime.Footnote 86 Hence, judges are more likely to have differing opinions on the view of aggravating circumstances where some might not even consider prejudiced religious motive to be a crucial aggravating circumstance. The Supreme Court has itself acknowledged that there is a lack of uniformity in the application of the approach of balancing aggravating and mitigating circumstances.Footnote 87 The sentencing process, especially in cases relating to the ordinary crime of murder, has become judge-centric rather than principled sentencing.Footnote 88 Therefore, the use of unstructured sentencing discretion and the lack of defined aggravating circumstances make the argument of already having an adequate response in law seem unsatisfactory.
The fake claim by the Hindu right-wing that love jihad forces Hindu women to love and marry a Muslim man and convert to Islam is perpetuating an already existing anti-Muslim narrative in the country. The love jihad phenomenon has thus become a tool of hate and anger towards Muslims. Afrazul’s killing by Raigher is an extreme demonstration of this form of hate and anger towards Muslims. It is through Raigher’s speech and monologue that we find familiarity with the hateful traditional descriptions and generalised social imagination of Muslim men in the country. Through his vigilantism, we see how this hatred converts to anger resulting in violence, ensuring grave anxieties for Muslims being unsafe. Hate crime involves attacking the victim not only physically but also the very core of the victim’s identity, amplifying the sense of vulnerability when compared with ordinary crimes. In this regard, the current law on ordinary crimes in the penal code is unsatisfactory and inadequate. Hate-motivated violence carries with it a clear message that the target and his group are not welcome and safe in society.
To break this cycle of hatred is a challenging task and calls for a collective effort of the society in the form of adjudication, reparations, a human rights framework and truth-telling.Footnote 89 Within the legal realm in India, there is an increasing pressure on the lawmakers to incorporate the concept of hate crimes even though hate crimes are not a new phenomenon. Afrazul’s brutal killing has emphasised the need for such recognition. Moreover, a move in that direction pushes for an approach of looking at hate crimes distinctly from ordinary crimes, which could serve as a guide to granting greater protections to citizens and promoting religious harmony. Such an approach would also acknowledge the impact on immediate victims, the targeted group, and broader harms to the society. In such a situation the state should consider taking the cognisance of the effect of hate crimes as a distinct category so that hate and anger affecting targeted vulnerable groups may be tackled differently and more effectively—under the law and otherwise. Whether the law against hate crime will prove useful or not in India is subject to further inquiries for lawmakers and civil society. Meanwhile, distinct lines of inquiry suspecting political bias or a lack of political will feature in this debate as the discourse of love jihad benefits those lawmakers advocating a Hindu nation for political gains. Alternatively, even if hate crimes are distinguished from ordinary law, the concerns of enforcing a hate crime law persist for reasons such as severe institutional biases against India’s marginalized citizens. That is the case because victims of such crimes usually belong to a vulnerable identity group, whereas the perpetrators of such crimes belong to the majority group who garner more institutional support, and this situation can influence how the police investigate such cases.
Shruti Menon, ‘Behind Rajasthan Killing, Mistaken Identity, Love Jihad Lie, Hate Clips’ (NDTV News, 26 December 2017). https://www.ndtv.com/india-news/behind-rajasthan-killing-mistaken-identity-love-jihad-lie-hate-videos-1792369. Accessed 29 March 2020.
Pooja Chaudhuri, ‘When Religious Politics Fuels Murder: The Myth of Love Jihad’ (The Logical Indian, 8 December 2017). https://thelogicalindian.com/opinion/myth-of-love-jihad-rajasthan-murder/?infinitescroll=1. Accessed 29 March 2020.
Mohammed Iqbal, ‘Udaipur Peaceful After Two Days of Trouble’ (The Hindu, 16 December 2017). https://www.thehindu.com/news/national/other-states/udaipur-peaceful-after-two-days-of-trouble/article21823376.ece. Accessed 29 March 2020.
Maaz Bin Bilal, ‘The Afrazul Killing Video as a Perfect Anti-Muslim Crime’ (2017) 52(50) Economic and Political Weekly 13.
Paul Iganski, ‘Hate Crimes Hurt More’ (2001) 45(4) American Behavioral Scientist 626; Doug Meyer, ‘Evaluating the Severity of Hate-motivated Violence: Intersectional Difference Among LGBT Hate Crimes Victims’ (2010) 44(5) Sociology 980.
Harsh Mander, ‘In Hate Crime Fight, a Voice Still Feeble’ (The Hindu, 1 August 2019). https://www.thehindu.com/opinion/lead/in-hate-crime-fight-a-voice-still-feeble/article28775760.ece. Accessed 30 March 2020; Likhita Banerjee, ‘Lynching a Hate Crime, India Must Enact Law to End it’ (Khaleej Times, 21 September 2018). https://www.khaleejtimes.com/editorials-columns/lynching-a-hate-crime-india-must-enact-law-to-end-it. Accessed 30 March 2020; Law Commission of India, Hate Speech (Law Com No 267, 2017).
Shahan Sha v State of Kerala (2009) SCC Online Ker 6623. (In this case, the argument of ‘love jihad’ was raised, when Shahan Sha of Kerala was charged with forcibly abducting and converting Methula, a Hindu girl.).
Priya Chacko, ‘Gender and Authoritarian Populism: Empowerment, Protection, and the Politics of Resentful Aspiration in India’ (2020) 52(2) Critical Asian Studies 204.
ibid; TNN, ‘Re-activate Anti-Romeo Squads: UP Chief Minister Yogi Adityanath’ (Times of India, 11 June 2019). https://timesofindia.indiatimes.com/city/lucknow/re-activate-anti-romeo-squads-yogi/articleshow/69732536.cms. Accessed 29 March 2020 (In Uttar Pradesh, a campaign was launched in 2017 to deploy ‘anti-Romeo squads’ to prevent sexual harassment in public spaces as was promised during the state election.).
Aastha Tyagi and Atreyee Sen, ‘Love Jihad (Muslim Sexual Seduction) and Ched-chad (Sexual Harassment): Hindu Nationalist Discourses and the Ideal/ Deviant Urban Citizen in India’ (2019) 27(1) Gender, Place and Culture 104.
Mohammad Ali, ‘The Rise of a Hindu Vigilante in the Age of WhatsApp and Modi’ (Wired, 14 April 2020). https://www.wired.com/story/indias-frightening-descent-social-media-terror/. Accessed 16 April 2020.
Chacko (n 10).
ibid; Special Correspondent, ‘Love Jihad’ a Growing Threat to Christian Community, Says National Commission for Minorities Vice-Chairman’ (The Hindu, 26 September 2019). https://www.thehindu.com/news/national/ncm-vice-chief-says-love-jihad-on-the-rise/article29511941.ece. Accessed 14 April 2020 (There are reports stating that Christian women are also allegedly ‘targeted’ by Muslim men. Although such claims are made by the powerful churches in Kerala or a Christian BJP’s minister, who is the Vice-Chairman of the National Commission for Minorities. However, such narratives about Muslim men are only strengthening the Hindutva narrative.); Nadira Khatun, ‘‘Love-Jihad’ and Bollywood: Constructing Muslims as ‘Other’’ (2018) 22(3) Journal of Religion & Film.
Charu Gupta, ‘Allegories of ‘Love Jihad’ and Ghar Wapsi: Interlocking the Socio-religious with the Political’ in Mujibur Rehman (ed), Rise of Saffron Power: Reflections on Indian Politics (1st edn, Routledge India 2018).
India Today Web Desk, ‘Beyond Hindu, Yogi Talking About Love Jihad May Help Expand Base in Kerala’ (India Today, 5 October 2017). https://www.indiatoday.in/india/story/why-yogi-adityanath-talked-about-love-jihad-in-kerala-1058326-2017-10-05. Accessed 5 April 2020.
Shafin Jahan v Asokan K.M. (2018) 16 SCC 368.
ibid; PTI, ‘Hadiya’s Father Joins BJP’ (Deccan Herald, 18 December 2018). https://www.deccanherald.com/national/hadiyas-father-joins-bjp-708766.html. Accessed 12 April 2020 (Hadiya’s father officially became a member of the BJP after the judgment was delivered by the Supreme Court.).
Atiq Khan, ‘‘Love Jihad’ Hurts Dignity of Women: RSS’ (The Hindu, 20 October 2014). https://www.thehindu.com/news/national/‘Love-Jihad’-hurts-dignity-of-women-RSS/article11077954.ece. Accessed 12 April 2020.
Lalmani Verma, ‘BJP Puts Uttar Pradesh Campaign into Gear, Asks, ‘Does Religion Give Them Licence to Rape?’ (The Indian Express, 24 August 2014). https://indianexpress.com/article/india/politics/bjp-puts-up-campaign-into-gear-asks-does-religion-give-them-licence-to-rape/. Accessed 12 April 2020.
Sagarika Ghose, ‘Ishq Ishq Ishq: Love Can Build a New Social Contract’ (The Times of India, 7 September 2014). https://timesofindia.indiatimes.com/blogs/bloody-mary/ishq-ishq-ishq-love-can-build-a-new-social-contract/. Accessed 12 April 2020; Niha Masih and Sreenivasan Jain, ‘How Crime Data Contradicts Communal Spin to UP Rape Cases’ (NDTV, 26 August 2014). https://www.ndtv.com/india-news/how-crime-data-contradicts-communal-spin-to-up-rape-cases-654343. Accessed 12 April 2020.
Lalmani Verma, ‘‘Beti Bachao, Bahu Lao’: RSS Group to Help Muslim Women Marry Hindu Men’ (The Indian Express, 1 December 2017). https://indianexpress.com/article/india/beti-bachao-bahu-lao-rss-group-to-help-muslim-women-marry-hindu-men-uttar-pradesh-4962516/. Accessed 12 April 2020; Gupta (n 17); Manjari Katju, ‘The Politics of Ghar Wapsi’ (2015) 50(1) Economic and Political Weekly 21; Charu Gupta, ‘Hindu Women, Muslim Men: Love Jihad and Conversions’ (2009) 44 (51) Economic and Political Weekly 13.
India Today Web Desk, ‘Romeos Must Die: On Yogi Adityanath’s Orders, UP Police Forms Squads to Crack Down on Eve-teasers’ (India Today, 22 March 2017). https://www.indiatoday.in/india/story/yogi-adityanath-orders-up-police-to-form-anti-romeo-squads-966933-2017-03-22. Accessed 1 April 2020.
‘Moral Policing to Extortion: Yogi Adityanath Must Disband Anti-Romeo Squads’ (Hindustan Times, 6 June 2017). https://www.hindustantimes.com/editorials/moral-policing-to-extortion-yogi-adityanath-must-disband-anti-romeo-squads/story-JQFxHCA0LSYp108XfTVjMN.html. Accessed 1 April 2020.
Gupta (n 17).
Tyagi and Sen (n 12).
Gupta (n 24); Tyagi and Sen (n 12); Tushar Dhara, ‘In Rajasthan, a Case of “Love Jihad” Cuts Stereotypes of Caste and Party Allegiances’ (The Caravan, 26 July 2019). https://caravanmagazine.in/politics/love-jihad-rajasthan-bhadarna. Accessed 29 March 2020.
Onaiza Drabu, ‘Who is a Muslim? Discursive Representations of the Muslims and Islam in Prime-Time News’ (2018) 9(9) Religion 283.
Catarina Kinnvall, ‘Populism, Ontological Insecurity and Hindutva: Modi and the Masculinization of Indian Politics’ (2019) 32(3) Cambridge Review of International Affairs 283.
Gupta (n 24).
Alison Saldanha, ‘2017, A Year of Hate Crimes in India: Number of Violent Incidents Related to Cows, Religion is Rising’ (Firstpost, 25 February 2020). https://www.firstpost.com/india/2017-a-year-of-hate-crimes-in-india-number-of-violent-incidents-related-to-cows-religion-is-rising-4278751.html. Accessed 28 March 2020; Deepankar Basu, ‘Dominance of Majoritarian Politics and Hate Crimes Against Religious Minorities in India, 2009–2018’ (2019) UMass Amherst Economics Working Papers 272.
Although India’s Ministry of Home Affairs issues reports on crime through the National Crime Records Bureau, the reported data does not recognise bias or hate crimes as a separate category of crimes; Kai Schultz and others, ‘In India, Release of Hate Crime Data Depends on Who the Haters Are’ (New York Times, 24 October 2019). https://www.nytimes.com/2019/10/24/world/asia/india-modi-hindu-violence.html. Accessed 28 March 2020.
Nazia Erum, ‘Hate Crime Reports on an Alarming Rise -Reveals Amnesty International India’s ‘Halt the Hate’’ (Amnesty International India, 4 October 2019). https://amnesty.org.in/news-update/hate-crime-reports-on-an-alarming-rise-reveals-amnesty-international-indias-halt-the-hate/. Accessed May 6 2020; PTI, ‘India Reported 218 Hate Crimes in 2018, UP Tops the Charts, Says Amnesty; Cow Violence, Honour Killings Most Common’ (Firstpost, 6 March 2019). https://www.firstpost.com/india/india-reported-218-hate-crimes-in-2018-up-tops-chart-says-amnesty-cow-violence-honour-killings-most-common-6204431.html. Accessed 28 March 2020.
Fact Checker Team, ‘2018 Saw Most Religious Hate Crime, Most Deaths in Decade’ (The Wire, 27 December 2018). https://thewire.in/communalism/2018-saw-most-religious-hate-crimes-against-religions. Accessed 28 March 2020.
The term hate crime came into widespread use in the 1980s to describe a wide range of intimidating and often violent acts committed against groups frequently seen as deviant or stigmatised. Such acts of persecution have a long history, and in the United States, hate crime is identified particularly with the persecution of African Americans and the civil rights movement; See Rafaela M. Dancygier and Donald P. Green, ‘Hate Crime’ in John F. Dovidio and others (eds), The SAGE Handbook of Prejudice, Stereotyping and Discrimination (SAGE Publications 2010).
ibid. The most extreme cases of hate crimes involve genocide, ethnic cleansing, and serial killing. Their lesser yet insidious forms involve assaults, rape or incidents of name-calling, harassment or vandalism which threaten or degrade the quality of life of victims.
OSCE ODIHR, Prosecuting Hate Crimes: A Practical Guide (2014).
Neil Chakraborti and John Garland, Hate Crime – Impact, Causes & Responses (2nd edn, SAGE Publications 2015) 4.
Katherine Gelber, ‘Hate Crimes: Public Policy Implications of Inclusion of Gender’ (2000) 35(2) Australian Journal of Political Science 275, 276.
James Carr, Amanda Haynes, Jennifer Schweppe, ‘Hate crime: An Overview of Significance to Irish Sociology’, (2017) 25(1) Irish Journal of Sociology 73, 74.
Section 7 of the Indian Evidence Act, 1872.
Other potential indicators for hate crime could be circumstances connected with the place of crime such as facts relating to Raigher procuring the axe or accused’s prior conduct reflecting his bias-prejudiced nature, or how the witness to the crime perceives it as motivated by bias. However, in the limited nature of facts available, these indicators are not discussed in detail. See Section 8 of the Indian Evidence Act, 1872, which makes a fact relevant that the accused had made preparation to do a particular act, to show that he did it; see Vepa Sarathi and Abhinandan Malik, Law of Evidence (Eastern Book Co. 2017).
Sarathi and Malik (n 46) (Section 8 of the Indian Evidence Act, 1872, which makes conduct or behaviour closely connected with the crime of certain persons relevant, including statements which accompany and explain acts other than statements).
Noor Mohammad, ‘The Doctrine of Jihad: An Introduction’ (1985) 3(2) Journal of Law and Religion 381 (The term ‘jihadi’ is derived from ‘jihad’, a spiritual war as per the Quran, one which has become a pejorative term for Muslim.).
In India, interfaith couples can marry under the Special Marriage Act, 1872.
Countries such as Bulgaria, Denmark and France have adopted the discriminatory model of hate crime. The provisions of hate crimes in these countries do not specify hostility. In Bulgaria, Article 162(2) of the Criminal Code penalises those who apply violence against another or damages another’s property ‘because of’ his nationality, race, religion, or political conviction with imprisonment of up to four years. In Denmark, Section 81(vii) of the Criminal Code provides for a penalty enhancement if it is shown that the offence is ‘rooted in’ the others’ ethnic, origin, religion, sexual orientation or the like. Moreover, in France, Article 132-76(1) of the Penal Code provides for penalties incurred for a felony or a misdemeanour when the offence is committed ‘because of’ the victims actual or supposed membership or non-membership of a given ethnic group, nation, or origin.
Countries such as the United Kingdom, Belgium, Canada, and Ukraine have adopted the hostility model of hate crime. They require evidence of hatred, hostility, or enmity to be shown towards the victims. See Art 377bis of the Belgium Penal Code which provides increased sentence for showing ‘hatred, contempt, or hostility’ towards a person of a protected characteristic. Section 718.2(a) of Canada’s Criminal Code which imposes sentence if the offence was motivated by ‘bias, prejudice or hate’ based on a protected characteristic and Article 67(3) of Ukraine’s Criminal Code which provides that if the offence is ‘based on racial, national, or religious enmity and hostility’ it shall constitute as an aggravating circumstance.
Bilal (n 6).
Section 300 of the Indian Penal Code, 1860.
Gelber (n 43).
James B Jacobs and Kimberly Potter, Hate Crimes: Criminal Law & Identity Politics (Oxford University Press 1998) 86.
Antoine Buyse, ‘Words of Violence: “Free Speech” or How Violent Conflict Escalation Relates to the Freedom of Expression’ (2014) 36(4) Human Rights Quarterly 779.
Meyer (n 7).
Girjesh Shukla, ‘Hate Crime: Politico Legal Dimension of Hate Speech’ (2011) Journal of Parliamentary and Constitutional Studies.
Abdu v Bulgaria App no. 26827/08 (ECtHR, 6 May 2003) para 44.
In Australian Capital Territory, Section 750(1) in Chapter 7A of the Criminal Code, 2002, provides for ‘serious vilification’ offence which was created in 2016 after the Discrimination Amendment Act, 2016, which protects characteristics of disability, gender identity, HIV/ AIDs status, intersex status, race, religious conviction, sexuality. This provision however does not provide for a penalty enhancement or a sentence aggravation for the offence committed. In Queensland, Section 131A(1) of the Anti-Discrimination Act, 1991 provides for ‘serious vilification’ offence which protects characteristics of race, religion, sexuality, and gender identity. In South Australia, Section 4 of the Racial vilification Act, 1996 provides for ‘racial vilification’ offence.
In New South Wales, there are a several number of standalone vilification offences in (amended) Anti-Discrimination Act, 1977 such as serious race vilification, serious transgender vilification, serious homosexual vilification and serious HIV/ AIDs vilification. Moreover, Section 21-A in the Crimes (Sentencing Procedure) Act, 1999 makes bias or prejudiced motivated crime an aggravating factor for enhancing the punishment across all offending categories. In Victoria, there are two standalone vilification offences in Sections 24 and 25 of Racial and Religious Tolerance Act, 2001, such as race and religion. Moreover, Section 5(2) of the Sentencing Act, 1991, as introduced in 2009 makes motivated crime (wholly or partially) by hatred an aggravating factor for enhancing the punishment.
In Western Australia, the specific offences relating to racial harassment and incitement are conduct intended to incite animosity or racist harassment, conduct likely to incite racial animosity or racist harassment, possession of material for dissemination with intent to incite racial animosity or racist harassment, etc. The maximum penalty for these offences is increased if they are committed in ‘circumstances of racial aggravation’ such as assault, criminal damage, threat found in Criminal Code Compilation Act, 1913.
Section 718.2(a) of the Canadian Criminal Code. The list of protected characteristics includes race, ethnic origin, language, colour, religion, disability, age, sex and sexual orientation.
Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011. https://www.prsindia.org/uploads/media/draft/NAC%20Draft%20Communal%20Violence%20Bill%202011.pdf. Accessed 28 March 2020.
Sunil Prabhu, ‘After Fierce Debate, Anti-Communal Bill is Dropped’ (NDTV, 5 February 2014). https://www.ndtv.com/cheat-sheet/after-fierce-debate-anti-communal-violence-bill-is-dropped-heres-why-549881. Accessed 28 March 2020.
Ministry of Home Affairs, Guidelines on Communal Harmony (2008).
Ordinary crimes are specific criminal acts prohibited under the Indian Penal Code, 1860, such as murder, assault, grievous hurt, and others.
Frederick M. Lawrence, Punishing Hate: Bias Crimes Under American Law (Harvard University Press 1999) 9.
Om Prakash v State of Uttaranchal (2003) 1 SCC 648.
Glanville L. Williams, The Mental Element in Crime (The Magnes Press 1965); Section 39 of the Indian Penal Code, 1860, defines ‘voluntarily’ to designate ‘intentional’ acts.
Basdev v State of Pepsu AIR 1956 SC 488.
Section 8 of the Indian Evidence Act, 1872; Sarathi and Malik (n 46).
Williams (n 73).
Section 8 of the Indian Evidence Act, 1872; Sarathi and Malik (n 46).
Pravasi Bhalai Sangathan v Union of India (2014) 11 SCC 477 .
Bilal Ahmed Kaloo v State of AP (2014) 11 SCC 477 (The petition, in this case, sought the relief of declaring individual speeches as hate speech delivered by elected representatives, political and religious leaders who hold power to influence the society.).
Hate Speech (n 8) [4.25].
ibid [6.33, Annexure- A].
Sentencing is an exercise that follows conviction in criminal law. In India, the CrPC divides a trial into two distinct phases – guilt determination and sentencing. Post-conviction, the sentencing judge in line with Section 235, which mandates that a sentencing judge hear the accused separately on the sentence before imposing one, hears arguments on sentence and imposes a sentence on the offender exercising such discretion in the matter as the statute may permit. The Supreme Court in the case of Soman v State of Kerala (2013) 11 SCC 382 has held that as part of the proportionality analysis, mitigating and aggravating factors will be taken into account by the judges in exercising their discretion in sentencing. Moreover, in several other judgments such as State of Madhya Pradesh v Bablu Natt (2013) 11 SCC 382 the Court has acknowledged that there is no ‘straitjacket formula for sentencing an accused on proof of the crime and each sentencing has to be on the facts and circumstances of each case.’ Sentencing also has considerable social significance. As Andrew Ashworth puts it, ‘the sentencing decision can often be seen as the core of the labelling or censuring process by giving a judgment of ‘how bad’ the offence was, and by translating that judgment into the particular penal currency of this country at this time.’ Andrew Ashworth, Sentencing and Criminal Justice 74 (4th edn, Cambridge University Press 2005).
Hazara Singh v Raj Kumar (2013) 9 SCC 516 [6 - 8]; Soman v State of Kerala (n 83).
State of Himachal Pradesh v Nirmala Devi (2017) SCC Online SC 374; Alister Anthony Pareira v State of Maharashtra (2012) 2 SCC 648 .
In March 2003, the Committee of Reforms of Criminal Justice System Report, issued by the Ministry of Home Affairs, Government of India, suggested the need to introduce sentencing guidelines to minimize uncertainly in awarding sentences. The report acknowledged that ‘[t]here is no uniformity. Some Judges are lenient, and some Judges are harsh. Exercise of unguided discretion is not good even if it is the Judge that exercises discretion.’ [14.4.1].
Sangeet & Anr. v State of Haryana (2013) 2 SCC 452 [29, 52 – 54].
Martha Minow, Breaking the Cycles of Hatred: Memory, Law and Repair (Princeton University Press 2002).
The author thanks Pinki Mathur and the editors of this issue for their very useful comments.
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Sharma, A. Afrazul’s murder: Law and love jihad. Jindal Global Law Review (2020). https://doi.org/10.1007/s41020-020-00114-5
- Love jihad
- Hate crimes
- Hate speech