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Afrazul’s murder: Law and love jihad

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Abstract

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.

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Notes

  1. 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.

  2. 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.

  3. ibid.

  4. 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.

  5. ibid.

  6. Maaz Bin Bilal, ‘The Afrazul Killing Video as a Perfect Anti-Muslim Crime’ (2017) 52(50) Economic and Political Weekly 13.

  7. 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.

  8. 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).

  9. 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.).

  10. Priya Chacko, ‘Gender and Authoritarian Populism: Empowerment, Protection, and the Politics of Resentful Aspiration in India’ (2020) 52(2) Critical Asian Studies 204.

  11. 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.).

  12. 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.

  13. 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.

  14. Chacko (n 10).

  15. 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.

  16. ibid.

  17. 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).

  18. 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.

  19. Shafin Jahan v Asokan K.M. (2018) 16 SCC 368.

  20. 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.).

  21. 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.

  22. 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.

  23. 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.

  24. 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.

  25. 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.

  26. ibid.

  27. ‘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.

  28. Gupta (n 17).

  29. Tyagi and Sen (n 12).

  30. ibid.

  31. 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.

  32. Onaiza Drabu, ‘Who is a Muslim? Discursive Representations of the Muslims and Islam in Prime-Time News’ (2018) 9(9) Religion 283.

  33. Catarina Kinnvall, ‘Populism, Ontological Insecurity and Hindutva: Modi and the Masculinization of Indian Politics’ (2019) 32(3) Cambridge Review of International Affairs 283.

  34. Gupta (n 24).

  35. 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.

  36. 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.

  37. 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.

  38. 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.

  39. 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).

  40. 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.

  41. OSCE ODIHR, Prosecuting Hate Crimes: A Practical Guide (2014).

  42. Neil Chakraborti and John Garland, Hate Crime – Impact, Causes & Responses (2nd edn, SAGE Publications 2015) 4.

  43. Katherine Gelber, ‘Hate Crimes: Public Policy Implications of Inclusion of Gender’ (2000) 35(2) Australian Journal of Political Science 275, 276.

  44. James Carr, Amanda Haynes, Jennifer Schweppe, ‘Hate crime: An Overview of Significance to Irish Sociology’, (2017) 25(1) Irish Journal of Sociology 73, 74.

  45. Section 7 of the Indian Evidence Act, 1872.

  46. 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).

  47. 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).

  48. 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.).

  49. In India, interfaith couples can marry under the Special Marriage Act, 1872.

  50. 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.

  51. 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.

  52. ibid.

  53. Bilal (n 6).

  54. Section 300 of the Indian Penal Code, 1860.

  55. Gelber (n 43).

  56. James B Jacobs and Kimberly Potter, Hate Crimes: Criminal Law & Identity Politics (Oxford University Press 1998) 86.

  57. 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.

  58. ibid.

  59. Meyer (n 7).

  60. Girjesh Shukla, ‘Hate Crime: Politico Legal Dimension of Hate Speech’ (2011) Journal of Parliamentary and Constitutional Studies.

  61. Abdu v Bulgaria App no. 26827/08 (ECtHR, 6 May 2003) para 44.

  62. 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.

  63. 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.

  64. 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.

  65. 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.

  66. ibid.

  67. 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.

  68. 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.

  69. Ministry of Home Affairs, Guidelines on Communal Harmony (2008).

  70. Ordinary crimes are specific criminal acts prohibited under the Indian Penal Code, 1860, such as murder, assault, grievous hurt, and others.

  71. Frederick M. Lawrence, Punishing Hate: Bias Crimes Under American Law (Harvard University Press 1999) 9.

  72. Om Prakash v State of Uttaranchal (2003) 1 SCC 648.

  73. 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.

  74. Basdev v State of Pepsu AIR 1956 SC 488.

  75. Section 8 of the Indian Evidence Act, 1872; Sarathi and Malik (n 46).

  76. Williams (n 73).

  77. ibid.

  78. Section 8 of the Indian Evidence Act, 1872; Sarathi and Malik (n 46).

  79. Pravasi Bhalai Sangathan v Union of India (2014) 11 SCC 477 [7].

  80. 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.).

  81. Hate Speech (n 8) [4.25].

  82. ibid [6.33, Annexure- A].

  83. 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).

  84. Hazara Singh v Raj Kumar (2013) 9 SCC 516 [6 - 8]; Soman v State of Kerala (n 83).

  85. State of Himachal Pradesh v Nirmala Devi (2017) SCC Online SC 374; Alister Anthony Pareira v State of Maharashtra (2012) 2 SCC 648 [69].

  86. 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].

  87. Sangeet & Anr. v State of Haryana (2013) 2 SCC 452 [29, 52 – 54].

  88. ibid.

  89. Martha Minow, Breaking the Cycles of Hatred: Memory, Law and Repair (Princeton University Press 2002).

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The author thanks Pinki Mathur and the editors of this issue for their very useful comments.

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    Ajita Sharma

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Sharma, A. Afrazul’s murder: Law and love jihad. Jindal Global Law Review 11, 77–95 (2020). https://doi.org/10.1007/s41020-020-00114-5

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