The higher judiciary has become the bulwark against hate crime in India.
The last words of Mark Anthony Stroman before his execution in July 2011 were: “Lord Jesus Christ be with me. I am at peace. Hate is going on in this world, and it has to stop. One second of hate will cause a lifetime of pain…” Stroman was executed for the murder of Vasudev Patel, who had migrated to the US in 1983 and become a naturalised citizen in the wake of the 9/11 terrorist attacks. Stroman claimed that he belonged to the Aryan Brotherhood, a white supremacist prison gang, and described his action as patriotic. Stroman sought federal habeas relief which was dismissed and his leave to grant certificate of appealability to the court of appeal was declined. An appeal by Bangladeshi national, Raisuddin Bhuiyan, who was earlier shot at by Stroman on September 21, 2001, was also declined. Bhuiyan’s appeal said: “I am praying to God to spare his life, to give him a chance… If he is given a chance he is able to reach out to others and spread that message to others.”
As India grapples with hate crimes, the approach of the US judicial system is an eye opener. The US Congress passed the Hate Crimes Prevention Act in 2009 (Shepard and-Byrd Act 18 USC). Section 249(a)(1) deals with hate crimes and provides, “(a) In general — (1) offences involving actual or perceived race, colour, religion or national origin — whoever, whether or not acting under colour of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, colour, religion, or national origin of any person.” Second part of that reads as under: “(2) offences involving actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability — (A) in general — whoever, whether or not acting under colour of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person”. For both, identical punishment provided is: “(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and (ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if — (I) death results from the offence; or (II) the offence includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.”
India’s Supreme Court, in its judgment of July 17, provides a refreshing approach towards dealing with hate crimes. It said, “There is no dispute that the act of lynching is unlawful but we are not concerned with any specific case since it has become a sweeping phenomenon with a far-reaching impact… No citizen can assault the human dignity of another, for such an action would comatose the majesty of law. In a civilised society, it is the fear of law that prevents crimes… When the preventive measures face failure, the crime takes place and then there have to be remedial and punitive measures…” The Court, therefore, gave preventive, remedial and punitive measures. One of its directions is: “To set a stern example in cases of mob violence and lynching, upon conviction of the accused person(s), the trial court must ordinarily award maximum sentence as provided for various offences under the provisions of the IPC”.
The Court may also consider the following measures: Direct concerned governments to file appeals forthwith to the superior courts against judgments of acquittals and/or granting of bail in all such cases; hold and declare that bail ought not to be granted in such cases except in the rarest of rare cases and that too for the cogent reasons provided in the order; direct disciplinary action against concerned police and administration officials for their failure to prevent hate crimes within their territorial jurisdiction after holding an enquiry by an independent commission of enquiry; hold registered political parties and other registered entities accountable for the acts of commission or omission by their members involved in hate crimes and direct suitable penal action against them; prohibit those holding constitutional and public offices including as ministers, members of Parliament or state assemblies, panchayat and municipal office bearers from identifying themselves with lynch-mob accused publicly in any manner and in case of any infraction hold them responsible and subject to immediate disqualification from such offices; sensitise subordinate judiciary and higher judiciary dealing with such hate crimes so as to protect the vulnerable sections of the society including those belonging to minority communities as well as women, children and Dalits by holding seminars and workshops at regular intervals involving social activists, psychologists, other activists, lawyers and responsible citizens from all communities.
The BJP’s 2014 election manifesto promised to “ensure a peaceful and secured environment where there is no place for either perpetrators or exploiters of fear”. The manifesto also promised to follow the principles of “samajik nyay (social justice) and samajik samrasata (social harmony)” and stated that the party “will accord highest priority to ensuring their security, especially the prevention of atrocities against SCs & STs”. However, mob killings have risen by 97 per cent since May 2014. Half of the cow vigilantes attacks have been reported from BJP-ruled states.
These do not speak well about the state of the nation. The judiciary is the last hope of a billion plus people. It must continue to wield its strongest weapon, judgments in PILs, more effectively than ever before to ensure justice.
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