The notion of prejudice-motivated violence is not new to India and perhaps it was an acknowledgement of this reality that the Constitution of India not only expressly addressed the historical wrong of untouchability since its very inception by declaring all practices of discrimination based on untouchability as constitutionally illegitimate but in a remarkable feat, for the first time in the history of constitutional moments around the world, enacted a “constitutional criminal law”.

The nature and quality of intolerance- based violence has changed over the years and today it has become so pervasive and ubiquitous that it seems too routine to require consideration. In the past few years, there has been reporting of an alarming increase in the incidences of violent crimes motivated by deep seated religious or ideological hatred against the members of certain communities.

Even though the State is enjoined by the Constitution to “foster a secular, pluralistic and multi-culturalistic social order so as to allow free play of ideas and beliefs and co-existence of mutually contradictory perspectives”, its response to these issues of critical concern have been woefully inadequate. From active patronization by some members to withholding the publication of official statistics on frivolous pretexts, the denial of specific recognition of for these pernicious offences results in a culture of impunity for the perpetrators.

Even in the midst of a pandemic, bigotry and hatred continue to manifest themselves unabated and it is not too early to make an educated guess as to its ugly consequences in the wake of this unprecedented crisis. By all estimates, the pandemic will have its toll on the economy resulting in a climate conducive for scapegoating.

According to the Bureau of Justice Assistance, U.S. Department of Justice: “During these periods, minorities find themselves regarded as the cause of the negative conditions that others are experiencing” and are likely to be blamed for the “misfortunes of the society as a whole”. The enactment of a comprehensive hate crimes law has been long overdue but its necessity is particularly dire in the current circumstances.

Hate crimes are intolerance or prejudice-motivated crimes committed against the person or property of the members (actual or perceived) of particular social groups. The actual or perceived social identity of the victim may be linked to an immutable characteristic such as race, sex, ethnicity, sexual orientation or disability or may even derive from non-immutable features such as religion, language or nationality. By making ‘motive’ a determinative factor in establishing the guilt of the perpetrator, hate crimes constitute an anomaly in the field of criminal law.

It is the element of bias that distinguishes a hate crime from other criminal offences. It is also significant to note that the bias on the part of the part of the perpetrator may be as a result of prejudice, resentment, jealousy, bigotry, hostility, intolerance and the like and a specific showing of an emotional state corresponding to hate is not a necessary criterion for proving a hate crime.

Conversely, there may be offences motivated by hate but may still not be fit to be classified as hate crimes unless the victim was chosen based on his actual or perceived social identity/ protected characteristic. According to a study conducted by social scientists Jack McDevitt and Jack Levin, there were mainly four different categories of hate crimes: thrill-seeking, defensive, retaliatory and mission offences.

Since penal statutes are subject to strict construction, the statute providing for the punishment for hate crimes must explicitly enumerate the characteristics in respect of which such a crime may be perpetrated. Hate crimes are designed to signal to the victim as well as all the members of his community who share similar characteristics that they are not the rightful members of society and could be a target in the future for what they represent. Besides the victim may suffer lasting psychological and emotional harm accompanied by a decreased sense of self-worth which is an affront to the ideal of ‘equality’.

According to the Organization for Security and Co-operation in Europe, “Codifying the social condemnation of hate crimes into law is important to affected communities, can help build trust in the criminal justice system, and thus can repair social fissures”. Distinguishing hate crimes from ordinary crimes and designing comprehensive legal initiatives involving all the relevant stakeholders so as to ensure proper collection of evidence, prevent secondary victimization and proper conduct of trial and appreciation of evidence will add to the robustness and fairness of the criminal justice system.

Despite significant breakthroughs on the part of certain state governments particularly with respect to the offence of lynching, the need for a comprehensive hate crime legislation applicable across the country cannot be overstated. Drafting a penal statute recognising crimes motivated by bias and providing for punishment thereof requires careful consideration of a multitude of factors. Comparative law and practice is crucial to designing a law influenced by global standards but rooted in local realities.

For example, US and UK have both enacted specific laws that provide for bias as an integral part of the legal definition of certain offences. It is suggested that the categories of offences must not be limited to lynching alone but must also include any other criminal offence that is otherwise motivated by bias against protected characteristics and are committed against the person or property of the victim.

Further, the law must recognise solitary as well as group offences. Additionally, there should be room for mixed motives as constitutive elements of the offence so that even if the crime was partially motivated by bias, the conviction shall not fail. Finally, in line with the practice in UK, online hate crimes shall be treated with the same level of seriousness as those committed in person.

As rightly acknowledged by the Apex Court of India, “Hate crimes as a product of intolerance, ideological dominance and prejudice ought not to be tolerated; lest it results in a reign of terror.” Taking cognisance of the ongoing incidences of hate crimes, it is expected that Parliament wakes up to this pressing reality sooner rather than later.

(The writers are, respectively, a lawyer pursuing his Ph. D from Delhi University and a lawyer who runs a non-profit organisation named BDLAAAW)