India's Legal System Should Recognise Lynching as a Hate Crime

What seems to be apparent is that targets of mob lynching generally belong to marginalised groups that have historically faced discrimination.

In the US of 1916, when Jim Crow laws of racial segregation were firmly in place, a black teenager was lynched in Waco, Texas. In what would become known as one of the most notorious and gruesome acts of racial violence, Jesse Washington was castrated, tortured and burned for two hours. In a public spectacle, the act was carried out in front of thousands of onlookers and pictures of his charred corpse were circulated as postcards. Washington was the victim of a discriminatory crime for allegedly raping and murdering his white employer’s wife, Lucy Fryer.

Cut to December 2017 in India.    

On a cold December day in Rajsamand, a district in Rajasthan, a Bengali Muslim migrant labourer, Afrazul Khan, was lynched. In the video of the incident, a man is seen hacking Khan to death with a pickaxe, ignoring his desperate cries for help. The attacker walks up to the camera and proclaims that Khan is guilty of “love jihad”. He then sets Khan on fire. Similar to what happened when Washington was lynched, the killing of Khan became a public spectacle. The act was captured on video and widely circulated. Some individuals reportedly applauded the act.

The cases of Washington and Khan, despite their disparity in time and space, are disturbingly similar. Both men belonged to marginalised groups and were targeted because of their identity. Khan was a Muslim in Hindu-majority India and Washington was a black teenager in the US when laws protecting white supremacy were in place. The murders of both men were made into a chilling spectacle that invited outrage and support (depending on who you asked). In both cases, those responsible for the killings subverted the rule of law, took justice into their own hands and appointed themselves as judge, jury and executioner.

Charred corpse of Jesse Washington among the ashes. Credit: Wikimedia Commons

There are other similarities that go beyond the nature and circumstances of the lynching itself. In both countries, there were no laws that prohibited crimes that are motivated by racial or other discrimination. Over the last century, the US has repeatedly failed to pass such a law. Will India also have to wait for a hundred more years for such a law?

Call it what it is

On July 17, in response to the growing incidents of mob lynching, the Supreme Court advised parliament to come up with a new legislation to address this problem and laid down preventive, remedial and punitive guidelines to combat lynching.

Crimes relating to lynching are commonly known in India by many different names – mob violence, mob lynching, cow vigilantism and others. There is no consensus on what the exact definition of such crimes should be. Anecdotally, however, what seems to be apparent is that this crime disproportionately affects marginalised groups that have historically faced discrimination.

Since September 2015, Amnesty International India’s website ‘Halt the Hate’ has documented more than 600 incidents of such alleged crimes against members of marginalised groups. Many other civil society efforts to document such crimes are reaching similar conclusions: Dalits, Muslims, Adivasis, Christians, LGBTQ+ people and others, remain at increased risk of such crimes. In light of this, it is important that any proposed legislation or amendments to criminal provisions identify these instances of lynching as what they are: hate crimes.

The term ‘hate crime’ is generally applied to criminal acts against people based on their real or perceived connection to or membership in a particular group defined by a protected ground under international law, such as caste, religion, race, ethnicity, sexual orientation or gender identity, among others. Hate crimes, then, are significantly different from ordinary crimes because they are motivated by discrimination. That is, the crime is committed against someone because of their identity or the group they belong to.

Shambhulal’s video of the murder of Afrazul Khan followed by his hate speech, justifying the act, went viral on social media. Credit: Twitter

Hate crimes are crimes which violate the right to equality and non-discrimination. When a hate crime is committed, it is a direct violation of the fundamental rights enshrined in the Indian constitution and a violation of international human rights law. The rights violated include the right to life, physical integrity, to be free from torture and other ill-treatment, and other rights, depending on the facts of the case. As party to several international human rights treaties, India has an obligation to not only respect, but also protect the rights of marginalised groups by guaranteeing, without discrimination, their right to security of person and protection against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution that targets them because of who they are. 

Establishing the “hate” element of the crime

If the essential element of identifying a discriminatory motive behind the crime is neglected, then the lynching is treated like any other crime under existing criminal provisions in India. The importance of recognising and subsequently documenting hate crimes is for identifying and recording the discriminatory motive behind the crimes.

There is significant international precedence for the same. Many European countries have adopted the same approach and courts have reached a similar conclusion. For instance, in 2014, in Abdu vs Bulgaria, the European Court of Human Rights observed:

“When investigating violent incidents triggered by suspected racist attitudes, the State authorities are required to take all reasonable action to ascertain whether there were racist motives and to establish whether feelings of hatred or prejudices based on a person’s ethnic origin played a role in the events. Treating racially 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.(Emphasis added)

The proposed legislation or amendments to criminal provisions that are to be discussed in India should ensure that authorities are required to investigate any potentially discriminatory motives where the victims belong to a marginalised group including on the basis of religion, caste, indigenous status, sexual orientation, gender identity and other characteristics. This data should be recorded by the National Crime Records Bureau, compiling disaggregated data that at least includes the identity of the victim, nature of violence, age and gender. It is important for authorities to collect and report disaggregated data on alleged hate crimes so as to create programmes and better policies for the police and prosecuting authorities to prevent future crimes of this nature.

Further, it is imperative that any new legislation or amendments to criminal provisions adequately prevent and punish erring state officials from committing acts of omission and commission in cases of hate crimes.

Codifying hate crimes in such a way not only helps to ensure justice, but more importantly, it would be a guarantee to marginalised communities in India.

Towards an anti-hate crime approach

There is an urgent need for the government, civil society and representatives of marginalised groups to get together and work on what the specifics of anti-hate crime measures should look like, including an explicit prohibition of these crimes in law as part of broader policies aimed at eradicating discrimination.

The first thing for authorities to ensure is that the law is broad enough to include all different offences that can be committed with a discriminatory motive, and not limit it only to ‘lynching’, as then the law would only address crimes of assault and murder. Narrowing the law in such a way would severely limit the scope of action, as data collected by Amnesty International India shows that killings and assault form only a fraction of these alleged hate crimes. The base offences should therefore also include harassment, property damage and importantly, sexual violence, among others.

Second, due consideration should be given to how hate crimes would be incorporated in criminal codes. One way is to recognise hate crime as a distinct form of crime. Another could be to consider the discriminatory motivation as an aggravating factor to existing crimes.

Dealing with hate crimes requires a comprehensive approach where the criminal justice system – from the police to prosecuting and judicial authorities – is well trained to document these crimes and listen to the victims. To ensure this, a possible legislation should, at the offset, recognise that many of these ‘lynchings’ are hate crimes and should consider them as such.

Likhita Banerji is a researcher with Amnesty International India.