Lost in Translation? Applying the Hate Crime Concept to an Indian Context.
Free full text in Europe PMC
Abstract
Free full text
Lost in Translation? Applying the Hate Crime Concept to an Indian Context
Abstract
Hate crime is increasingly a familiar term within the domains of scholarship, policy, and activism as the harms associated with acts of targeted hostility continue to pose complex, global challenges. However, an exclusively Western-centric focus has done little to foster transnational conversations or to shape conceptual or legal frameworks in parts of the world where the challenges posed by hate and prejudice remain underexplored despite their devastating consequences. This article considers how the complexities and specificities of the Indian context disrupt the dominant assumptions of conventional hate crime frameworks. In doing so, it highlights the value of extending conventional Westernized models of thinking to different environments with different sets of challenges. Through its analysis of caste crimes and the factors that reinforce a prevailing institutional and cultural backdrop of political indifference, bureaucratic resistance, and public skepticism, the article illustrates why and how key elements of the Western framework remain ill-suited to the Indian context. The authors call instead for a creative translation of the hate crime concept, which accommodates the nature of violence within specific social contexts, and which emphasizes the institutional features that can mitigate the limitations of state capacity and intent. The process of translation has value in harnessing the benefits of the hate crime concept within countries, which lack a common framework to foster shared understanding and prioritization in relation to tackling contemporary expressions of hate. At the same time, this process enriches prevailing thinking, dismantles stereotypes, and challenges scholars of targeted violence to familiarize themselves with the unfamiliar.
Introduction
Recent years have been characterized by a catalog of crisis points, which have resulted in escalating levels of violence, hostility, and conflict across the world. Warfare, terrorism, famine, poverty, and pandemics continue to bring global challenges to the forefront of local environments as communities seek to respond to the implications of such challenges in a climate of political and economic instability. Within Western nations, one common response has been to demonize the “other,” as evidenced by alarming surges in hate crime within the United Kingdom, the United States, Canada, Australia, and across Europe (see, inter alia, Centre for the Study of Hate and Extremism, 2021; European Union Agency for Fundamental Rights, 2021; Home Office, 2022; Moreau, 2022; United States Department of Justice, 2022). Increased levels of hate crime have exposed faultlines and fragilities across Western nations and are rooted within a wider set of structural processes, whereby expressions of prejudice and hostility are used to marginalize “difference,” to sustain hegemonic boundaries and to fuel the scapegoating of minoritized groups (Chakraborti & Clarke, 2022). In this context, attacks against the “other” can feed off economic volatility, political populism, and media stereotyping to the point where violence becomes a mechanism used to reinforce power dynamics between dominant and subordinate groups and to create cultures of fear toward “alien” communities (see, inter alia, Chakraborti & Garland, 2012; B. Perry, 2001).
India has not been immune to problems of this nature. The continent-sized country is the world’s largest democracy with significant religious, ethnic, and linguistic diversity. But it has historically struggled with intense sectarian violence, especially along religious and caste lines. Commentators have noted a perceptible rise in anti-minority violence over the last decade (Hansen & Roy, 2022). In a similar vein to the West, violence in India is entangled with political polarization, specifically the consolidation of majoritarian Hindu right wing populism (Chatterji et al., 2019). Other social processes, not least the hateful instrumentalization of social media (Banaji & Bhat, 2022), have also constituted and facilitated acts of religious targeting. These factors have sharpened old cultural divides and generated new forms of violence and exclusion.
The concept of hate crime has an established place within contemporary theoretical and policy frameworks as a way of understanding and addressing the nature, prevalence, and impacts of violence directed toward the “other.” However, an exclusively Western-centric focus has done little to foster transnational conversations or to shape frameworks in parts of the world where the challenges posed by targeted violence remain unexplored or underexplored despite their devastating consequences. This is especially relevant to the Indian context where the merits or otherwise of the hate crime concept have rarely been considered in relation to the specificities of that country’s prevailing political and cultural backdrop (Bhat, 2020a; J. Perry, 2020). As such, this article evaluates the limitations and potential of the Western-centric hate crime framework through its analysis of the institutional and social contexts in India. In doing so, it embraces the value of translating Westernized models of thinking to different environments, which lack a common framework to foster shared understanding and prioritization in relation to tackling contemporary expressions of targeted violence. India is as much a possible destination for the hate crime concept as it is a source of fresh alternatives to and perspectives on the Western-centric model. This article examines these themes in the spirit of enriching the familiar repertoire of tools to address hostility.
This article begins by examining the conceptual underpinnings of hate crime as developed within a Western context, noting a number of profound alignments between the Western and Indian contexts of hate crime. However, there are compelling deviations too, including the historical purpose of anti-caste violence policy, the role of social stratification and intersectionality, and the weaknesses of institutions, all of which are considered within this article. While violence within online spaces is an emergent concern within India, it is an unexplored and underdeveloped area of study. Instead, through its comparative focus on the Western and Indian framing of offline violence, this article makes a case for a creative translation of the hate crime concept. This creative translation builds upon the alignments among the experiences of Western and Indian, or for that matter other non-Western contexts. But it also recognizes the divergences by reframing the dominant Western model of hate crime. As will be seen, this process of creative translation facilitates meaningful change, not only in generating an enhanced understanding within countries which lack effective frameworks for monitoring and responding to hate crime, but also by enriching the narrow scope of Western-centric frameworks in ways which capture diverse expressions of interpersonal violence in other global environments.
Conceptualizing Hate Crime
The term “hate crime” is a familiar one to policy makers, practitioners, activists, and academics in many countries around the world. However, “hate” remains an emotive and conceptually elastic label, which can mean different things to different people in different contexts, and this has significant implications for the types of behaviors that are recognized as hate crime and for the groups and communities who are recognized as hate crime victims (Chakraborti & Garland, 2015). Indeed, a common criticism directed toward the hate crime concept is its potential to create and reinforce hierarchies of identity, where some victims of interpersonal violence are deemed worthy of inclusion within hate crime frameworks whereas others invariably miss out (see, inter alia, Jacobs & Potter, 1998; Mason-Bish, 2010). To some extent, this is an unavoidable outcome of embracing a concept which makes a qualitative distinction between “hate”-fueled victimization and “ordinary” victimization, where the needs and experiences of certain groups are prioritized over those of others. In recent years, however, scholars, law makers, and activists have sought to engage with these conceptual ambiguities in ways that seek to offer greater clarity and consistency to the application of hate crime policies.
Many alternative definitions of hate crime can be found within the wider body of academic and policy literature but all refer to a broader range of factors than hate alone to describe the motivation that lies behind the commission of a hate crime (see, inter alia, Chakraborti et al., 2014; Gerstenfeld, 2013; N. Hall, 2013; Jacobs & Potter, 1998; B. Perry, 2001; Petrosino, 2003).This is evident, for example, within the framework developed by the Office for Democratic Institutions and Human Rights (ODIHR), 2022, p. 15), whose guidance for Organization for Security and Co-operation in Europe (OSCE) member states describes hate crimes as “criminal offence committed with a bias motive.” For Office for Democratic Institutions and Human Rights, as for many other non-governmental organizations (NGOs) and professional bodies, this bias does not have to manifest itself as “hate” for the offense to be thought of as a hate crime, nor does “hate” have to be the primary motive. Indeed, terms such as “targeted hostility,” “prejudice,” and “bias” have all been used interchangeably by scholars and law enforcement agencies as a way of highlighting that the presence of “hate” itself is not central to the commission of a hate crime (see, inter alia, College of Policing, 2020; United States Department of Justice, 2022).
From an academic perspective, one of the most influential and enduring conceptual frameworks has been provided by B. Perry (2001) who describes hate crime as a mechanism for asserting dominance and power over those who transgress majority society’s perceived “norms.” According to B. Perry (2001, p. 47), symbolic but widely accepted “social hierarchies” allow individuals and groups to position themselves in a way that “implies dominance, normativity, and privilege on the one hand, and subordination, marginality and disadvantage on the other.” Consequently, those who are labeled “other” are often the target of prejudice, hostility, and victimizing behaviors. Importantly though, Perry argues that hate crimes are acts of violence directed not simply toward the individual victim, but toward the collective wider community to whom the victim is perceived to belong. As such they are designed to transmit a message of hatred, which reaches into the victim’s actual or perceived shared community to create a sense of fear. Within this framework, the victims themselves are interchangeable and, almost invariably, strangers with whom the perpetrator has had little or no contact, as they are chosen on the basis of their generic subordinate identity rather than any individual characteristics (B. Perry, 2001, p. 29).
This definition helps to highlight the role of power and inequality in the commission of hate offenses, and to centralize the concept of difference. However, it does not fully acknowledge the more everyday experiences of targeted hostility faced by victims which are not necessarily motivated by deep-seated prejudice or hate. In an attempt to capture these more “mundane” experiences, Chakraborti et al. (2014) describe hate crimes as acts of violence, hostility, and intimidation directed toward people because of their identity or perceived “difference.” Other scholars too have sought to finesse the ways in which we utilize the hate crime concept. E. Hall et al. (2022), for example, locate hate within a wider framework of social, cultural, and political landscapes in order to shift our gaze beyond just the immediate incident of hate and onto the spaces and relations through which hate incidents are experienced and responded to. For these scholars, and in a similar vein to the earlier work of Bowling (1999) and Ray et al. (2004), to fully understand hate requires us to focus not just on the experiences of individual victims, but upon their communities, locations, and the broader contexts and spaces within which those experiences occur. As such, their framing of landscapes reminds us to scrutinize what they describe (E. Hall et al., 2022, p. 14) as “the stretched fabrics—social, political, cultural, institutional—of the spaces we inhabit” and how they shape the lives of individuals and communities. Similar points are made by Collard (2023) whose call for an academic agenda of re-humanization underlines the value of the hate crime concept as a unifying tool to challenge the ongoing process of de-humanization that has taken shape during an age of COVID-19, economic austerity, political instability, and other points of crises.
Contributions such as these have shown the important role that the hate crime concept can play in acknowledging the individual and in terrorem harms of targeted violence; in addressing the historical disadvantage and systemic injustice suffered by victims; in highlighting the differences within and intersections between a range of identity characteristics targeted by perpetrators; in symbolizing societal condemnation of hateful actions; and in challenging the social structures that enable toxic environments and attitudes to prosper. The latter point in particular forms the basis of the social justice liberalism paradigm proposed by Walters (2022), which calls on societies to explicitly recognize the potential for minoritized groups to be perceived as economic and cultural threats and to counter those perceptions in ways that protect communities from the harms of targeted violence. Typically, these ambitions have been given meaning at an international level through what J. Perry (2016, p. 612) refers to as a “triangle” to describe the three dimensions to the hate crime concept: namely, policy, activism, and scholarship. This notion of a triangle captures the interplay between the drafting of hate crime law and policy at one level; the monitoring and advocacy work of the activist perspective at another level; and the theoretical and evidential contributions of the research world at a third level. Each dimension interacts with challenges and potentially transforms the others in a way that can facilitate agile responses to the challenges posed by hate crime.
In principle therefore, there appears to be strong justification for advancing the hate crime concept in areas of the world where the fragility exposed by multiple points of contemporary crises is felt especially acutely (Chakraborti & Clarke, 2022). However, despite the maturation of hate crime theorizing and policy making within many states, transnational conversations remain limited by their Western-centric focus. The application of the hate crime concept within different geographical, social, and political contexts continues to be underexplored, and this has implications for whether and how the potential value of the concept can “travel” to environments unfamiliar with the notion of hate crime. One such environment is India, where the justifications used to underpin the development of hate crime frameworks elsewhere have not been explicitly recognized, and where the crucial interplay of policy, activism, and scholarship described above is challenged by a variety of factors.
Translating the Hate Crime Concept to an Indian Context
Challenging Conceptual Assumptions
Historically, hate crime policy in India emerged out of the need to address violence in the context of caste inequality among Hindu communities (Mendelsohn & Vicziany, 1998). Caste hierarchies are sanctified by Hindu ritual norms. They also have an economic character, with socially stigmatized roles traditionally associated with stigmatized caste groups. Subordinated caste communities like the Dalits or the “Scheduled Castes,” and the indigenous adivasis or the “Scheduled Tribes” are particularly vulnerable, having been treated traditionally as pariahs and excluded from public spaces and resources (Viswanath, 2014). After independence from colonial rule in 1947, India introduced several legal reforms to ameliorate the condition of these subordinated castes, including the prohibition of practices such as “untouchability” (Galanter, 1984). The category of “caste atrocities” came to be used increasingly to designate caste violence in policy and public discourse, and led eventually to the enactment of the Prevention of Atrocities Act in 1989 (the Atrocities Act). 1
The paradigm of structural subordination associated with conceptual approaches to hate crime in the Western context resonates with India. Caste atrocities and caste hierarchy share a constitutive relationship since, as Dalit scholar Teltumbde (2010, p. 79) notes, “caste relations are defined by violence, both incidental and systematic.” In their influential study on the subject, Mendelsohn and Vicziany (1998, p. 47) argue that caste atrocities often take the form of “caste Hindu backlash” that is “directly provoked” by claims of inclusion by the subordinated castes. There continues to be a “trend” in contemporary India “in which the upward mobility of Dalits coexists with enduring atrocities against their community” (Berg, 2020, p. 14). For instance, Sharma (2015) analyses district level official data to show that the incidence of caste crimes is positively correlated with the improvement in the material standards of living among the subordinated communities compared to the upper castes. Sharma argues that these findings suggest that caste crimes aim at “extracting . . . economic surplus or property from the victims” (Sharma, 2015, p. 4) and result from the “threat perception” of the economic mobility among subordinated groups (Sharma, 2015, p. 20).
At the same time, the “politics of difference” perspective on hate crime (Perry, 2001) misses some important dimensions of caste violence. This perspective imagines hate crime as inherently stranger violence (Ray & Smith, 2001), where victims are interchangeable and where the wider community is the real intended target of these message crimes (Lim, 2009). The social character of caste crimes diverts from this interpretation of hate violence. Caste stratification is based on the religious sanction and social enforcement of hierarchically differentiated roles and occupations. Members of subordinated castes are expected to perform their specified economic roles in localized settings. Accounts of caste atrocities show that they are seldom instances among strangers but often target the members of subordinated castes who refuse these roles, and where dominant castes perceive this refusal to be social and religious transgressions (Mitta, 2023; Narula, 1999). Thus, caste crimes are “a spectacle of demonstrative justice” (Teltumbde, 2010, p. 31). They are message crimes and entrench social subordination. But they are equally targeted toward those individuals in subordinated communities who are seen to violate the social and economic rules of the caste system applicable to them. Therefore, caste atrocity is better understood as violence within thick social contexts of unfair and unequal arrangements.
The laws against caste violence also diverge from the normative assumptions in Western contexts. One of the most significant ethical purposes of recognizing hate crime from the perspective of the “politics of difference” approach is the protection of social diversity. The laws against caste crimes emerged from an “anti-caste” perspective (Omvedt, 1991) that sought to annihilate caste difference. In this sense it has not been the imperatives of respecting diversity and difference, but the social and institutional vulnerability of the subordinated castes which forms the normative justification for caste crime legislation.
Caste atrocities are profoundly intersectional. Caste encodes class relations, and caste-based violence often enforces economic hierarchies. It is common for caste atrocities in rural India to occur in contexts of conflict over land and ownership (Fuchs, 2020; Ramakumar & Kamble, 2012). Caste and gender marginalization are also profoundly interconnected, particularly since Dalit women suffer from overlapping caste, class, and gender subordination (Deshpande, 2011). Dalit women often face sexualized violence to discipline their subordinated communities (Teltumbde, 2017). Caste atrocities are also associated with the caste system’s gendered division of labor (Pal, 2018).
Thus, while caste violence is structural, it is also compellingly individualized and intersectional. Members of subordinated castes, based on their intersectional class and group identity, are vulnerable to particular kinds of caste violence in specific contexts of social transgressions. Gender and economic marginalization not only make it difficult for victims to access justice, but expose the victims to specific forms of violence that other individuals, even among other subordinated castes, would not be subjected to. In this context there are clear parallels with more recent conceptual frameworks which refer to the targeting of perceived “difference” and vulnerability as key drivers behind hate crime, and not exclusively the structural subordination of recognized groups of minoritized communities (Chakraborti & Garland, 2012; Chakraborti et al., 2014).
Indian law has come to recognize this specificity of violence by tailoring hate crime definitions. The Atrocities Act is sensitive to the intersectional vulnerability of victims by explicitly mentioning specific actions that are historically and socially emblematic of caste violence. These include acts of humiliation committed by upper caste members against members of the subordinated castes, including the forced consumption of “inedible or obnoxious substances,” “tonsoring of head,” “removing mustaches,” compelling victims to “dispose or carry human or animal carcasses,” or occupying or dispossessing them of their properties (Section 3). The law also includes violence seeking to enforce caste apartheid and economic domination, where victims suffer violence on the grounds of their intersectional caste and class vulnerability. These forms of violence include upper castes compelling members of subordinated castes into bonded labor, obstructing their access to common properties or religious places, or imposing social or economic boycott (Sections 3(1)(h), 3(1)(za), 3(1)(zc)). The law also recognizes sexual violence against women from subordinated castes (Section 3(1)(w)). In enlisting these contexts, the legislation is sensitive to how caste atrocities express and entrench structural domination of the subordinated castes, and how individual members of the subordinated castes are vulnerable to forms of violence because of their caste, class, and gender identities.
The patterns of violence outside the specific historical context of caste also reflect this interweaving of subordination, vulnerability, and intersectionality. For instance, an increasing number of academic and non-academic sources have documented recent cases of lynching and vigilantism directed toward Muslims (Bhat, 2020a; J. Perry, 2020). Most of these incidents have occurred in specific trigger situations of protecting cows that are considered sacred by many Hindus. There is evidence to show that this violence is directed toward specific occupational groups among Muslims, especially those who either trade in meat or in cattle transportation (Human Rights Watch, 2019). As in the case of caste atrocities, these forms of violence also reflect the contextual convergence of religious, occupational, and class vulnerability to hate crime.
To summarize, for caste atrocities, which is the paradigmatic case of hate crime in India, violence is the result of the structural and intersectional vulnerability of the subordinated castes. The need to recognize caste crimes is based on the imperative of addressing caste vulnerability, as well as dismantling the structure of caste difference. Many other important instances of hate crime, especially against religious minorities like Muslims, also reflect an analogous connection between structural and intersectional vulnerability. In both these aspects of victim selection and ethical rationale, the Indian context remains distinct from the dominant understanding of hate crime in the Western context.
Challenging Institutional and Social Context
Aside from the differences in the nature of violence and the ethical imperatives for hate crime legislation, the Indian context also has contrasting institutional and social backgrounds that are expected to support a well-functioning hate crime policy. These backgrounds are key to understanding why the Indian state may not prioritize hate crime policy and how elements of the Western hate crime framework remain ill-suited for India.
One significant implication of the contrasting institutional context is that conventional, Western-centric definitions of hate crime are ill-suited, and potentially counter-productive when applied to an Indian context. The definitions typically see hate crimes as expressions of majority versus minority violence and incorporate protected characteristics as the grounds for establishing hate crime policy. While hate crime policy ostensibly is based on the need to address anti-minority violence, members of both the majority and the minority can be victims and perpetrators. This makes Western hate crime laws “symmetrical” because they do “not limit the scope of persons who are protected on the basis of a given trait, nor . . . limit the direction of discrimination prohibited” (Schoenbaum, 2017).
The Western model also legally incorporates motivation—of hostility, animus or hate—as a constitutive element of hate crime. Establishing motivation has become a notorious judicial and prosecutorial challenge (Mason, 2015). The very fact that this category has generated such extensive doctrinal debate (Bell, 2002; Mason, 2010; Walters, 2014) shows that its interpretation is compellingly open to official discretion. Irrespective of where scholars and policy makers may stand on the most legally sound test for hostile motive, it remains the case that hate crime legislation places a high degree of trust in the capacity and integrity of investigating and prosecuting agencies to interpret existing laws, to apply the law fairly and to protect members of subordinated groups.
This assumption sits uneasily at best in the case of India. Indian institutions, especially the police, are known to suffer from a high degree of institutional bias (Jha & Mudgal, 2022). Civil society organizations studying the implementation of the Atrocities Act have had to consistently recommend training and sensitization for investigating agencies due to widespread evidence of bias and apathy (National Dalit Movement for Justice, 2020, p. 70; NCSSCSTA, 2010, p. 13). A particularly problematic consequence has been the extent which the police have abused their discretion to interpret the law in ways that obscure the caste dimensions of the crime (Fuchs, 2022). This has been the case where the law adopts categories that are open to official interpretation. One example is the Indian Supreme Court’s decision in 2018, which mandated firmer police and prosecutorial action against religious hate crime. The Court’s order recognized the rise in violence against Muslims and laid down detailed guidelines in instances of religiously targeted mob lynching. However, Bhat et al. (2020) have illustrated significant failings in the interpretation of these guidelines, noting that the police have not operated with any meaningful institutional understanding of “lynching,” leaving out numerous cases of potential religious hate crime despite the Court’s guidelines.
This background has lessons for hate crime policies that incorporate discretionary definitions, especially a symmetrical design. Bias and a lack of institutional support in India make laws prone to official abuse and laxity. This indicates that hate crime laws with discretionary and symmetric definitions have a limited potential of succeeding. Anti-caste activists have historically advocated reducing the discretionary legal categories in caste violence legislation. For instance, before the enactment of the Atrocities Act in 1989, the Protection of Civil Rights Act 1955 that covered caste crimes sought to incorporate hostile motivation by only covering crimes that were committed on the ground of “untouchability.” But as noted by Galanter (1969), one of the most influential chronicler of the Indian law on caste, the law suffered from dismal prosecutorial performance because of the ambiguity of this phrase and the inability or unwillingness of institutions to formulate its viable legal understanding (see also Berg, 2020, p. 88). Similar concerns have existed with other groups. For instance, prominent legal expert and activist Agnes (2002) has noted how the women rights movement in India has consistently objected to neutrally or symmetrically defined legislation on gender or sexual violence for the fear that the police would use the law unfairly against women.
Other institutional features in India pose additional challenges for a meaningful prioritization of hate crime policy. Indian police and prosecutorial agencies have poor, even arguably non-existent institutional independence from the political executive (Subramanian, 2007). Proposals for police reforms in this regard have notoriously failed, despite numerous false dawns. The police, especially in local contexts, operate with what Jauregui (2016) refers to as “provisional authority,” which requires the continual and precarious negotiation of their authority with provincial and national politics. This is particularly the case with hate incidents, which are often more prone to being politicized and result in protracted public disorder. The policing practices continue to be influenced by the colonial history of violence, unaccountability, and systematic use of informality (Waseem, 2023). As a consequence, the police are often less likely to enforce the letter of the law and to accommodate the demands of locally or nationally influential groups at the expense of professional investigation. The consistent theme in India’s long and unhappy history of sectarian violence is the politicization of the police during violence, and the resulting police apathy and even complicity (Bhat, 2020b). The implication of these realities is that the institutional background of reasonably independent and fair policing, investigation, and prosecution—factors that are central to the spirit, enforcement, and operational effectiveness of any hate crime policy—cannot be assumed in the Indian case.
Ironically, this institutional picture may have also had a rather limiting consequence for civil society advocacy and local scholarship. Civil society and scholarship form two important prongs to an effective hate crime policy by generating improved evidencing, transparency, and accountability of institutions. As a result of the prominence of politicization, civil society advocacy has primarily directed its attention to political representation, structural police reforms, and improving the management of law and order (see e.g., CHRI, 2011). This has marginalized the important complementary area of hate crime policy, which continues to be underdeveloped and undervalued in India. This is particularly the case with the scholarship and advocacy in relation to anti-Muslim sectarian violence, which has mostly been inattentive toward formulating a case for a suitable hate crime policy. In the case of anti-Muslim violence and beyond, policy mobilization and research has failed to provide any sustained or systematic analysis of the impact of hate crime upon individuals and groups, nor has it afforded sufficient recognition to state and non-state models of reparations and victim support and to the potential of reforms outside the existing legal mechanisms.
For anti-hate advocacy and scholarship, the attitude toward the state is increasingly one of disenchantment and mistrust. Although the relationship between the state and civil society has a long history of friction in India, the state has increasingly come to be seen as the aggressor at a time when right-wing populism is on the rise. Numerous provincial governments have enacted legislation that has legitimized hate crime. Mob vigilantes have used the expansive cow protection and anti-religious conversion legislation as the legal umbrella to target religious minorities. New government regulations on NGO funding, and the perceived threat from the state, have further reduced the autonomy of anti-hate advocates. Collectively, these factors have contributed to the alienation of civil society from the state and the ensuing lack of attention on hate crime research and policy advocacy.
Harnessing the Potential of the Hate Crime Concept
The differences between the Indian and Western contexts do not mean that the principles underpinning the hate crime concept have no purchase in India. Indeed, Bhat (2020) has shown that India’s activists and policy makers have started to adopt hate crime as a frame of documentation and public advocacy in the context of violence against Muslims. More recently still, Perry-Kessaris et al. (2023) have experimented in pedagogical settings with the “migration” of the hate crime concept to India, using their engagement with Indian researchers, lawyers, and activists to evidence support for what they describe as “provincialized conceptual migration.” The provincialization of hate crime, they suggest, would adapt the concept to “local circumstances” and surface and address any “foreign” values and interests embedded within it (Perry-Kessaris et al., 2023). This complements J. Perry’s (2020) proposal that a hate crime approach can be migrated and integrated into India by using partner concepts like vigilantism and lynching—concepts that already have resonance within Indian policy circles—as conceptual bridges.
These developments show a desire among scholars and grassroots actors to harness the potential of the hate crime framework, even if it may need to be remodeled and adapted for local efficacy. Specifically, migrating the hate crime framework requires a creative translation of the hate crime concept, which accommodates the nature of violence in the social context, and which emphasizes the institutional features that can mitigate the limitations of state capacity and intent. Suitable modifications will need to focus on three areas in particular: the legal conceptualization of hate crime, institutional prioritization and monitoring, and the interface between institutions, advocacy, and research.
One of the most significant areas of translation is the legal definition of hate crime. As noted previously, defining hate crime in symmetric and discretionary terms can be self-defeating in the Indian context. Incorporating tailored and streamlined definitions can overcome these limitations. First, hate crime law can incorporate knowledge-based rather than motive-based definitions. The Atrocities Act, for example, provides heightened punishment if the perpetrator commits any specified offense against persons or their property, “knowing that such person is a member” of the subordinated castes. Compared to motivation, establishing knowledge is less demanding and discretionary, and thus less susceptible to institutional laxity and incapacity. Second, institutional challenges arising from a symmetric approach can be minimized by tailoring definitions on contextual and intersectional vulnerabilities. Recent anti-lynching legislation in some Indian states (Bhat, 2020; J. Perry, 2020) provides a model for this by covering violence on the ground of “dietary practices” in addition to symmetrical ones of religion. This symmetrically framed ground of “dietary practices” seeks to address the recent spike in violence against Muslims in the context of cow vigilantism and is able to address the context and intersectional character of hate violence. Some grounds like disability have an inbuilt asymmetry and thus are inherently tailored to address violence against vulnerable social groups. Legislation can blend such inbuilt asymmetry by incorporating violence on tailored grounds, for instance of alternate or non-normative sexual or gender identity, occupation, and trade. The incorporation of in-built asymmetries in symmetrically framed definitions can minimize official discretion without necessarily leading to political backlash from majority groups.
Third, Indian legislation can adopt tailored and streamlined definitions by incorporating the contexts of violence in hate crime definitions. The Atrocities Act provides a model for this by incorporating detailed instantiation of violence commonly associated with caste exclusion. In these contexts, the law does not require fulfillment of the knowledge test to establish caste atrocity. Instantiation of this kind can serve as “bias indicators” (ODIHR, 2022) that relieve evidentiary requirements to establish hate crime. Another version of this, albeit in a limited manner, is incorporated in the recent anti-lynching legislation that covers violence by mobs of two or more persons on various grounds of identity and vulnerability. The explicit recognition of mob violence seeks to cover recent surges of vigilantism associated with religious hate crime. Finally, if not in hate crime definitions, hate crime law can incorporate bias indicators as contexts of violence under the explanations in the legislative text or in policy guidance to enforcement agencies.
The hate crime framework has important potential for institutional reform. A conscious policy incorporating the framework will need to give adequate emphasis to the three aspects of training, sensitization, and monitoring. In terms of training for investigating and prosecuting agencies, even when official discretion is minimized, hate crime policy will need to train officials and give them adequate guidance. The same applies to sensitization, especially in the context of the high degree of institutional bias. Finally, for a hate crime framework to succeed, there must be a complete change in the way in which hate crime data are collected and maintained by the state. At present, India’s crime data are collated by the police based on the penal provisions that they use to file cases against alleged perpetrators. This method of data collection is dependent on the existence of relevant criminal law and the police’s commitment to good prosecutorial practices, neither of which are necessarily present (Bhat, 2018). A viable alternative model is the United Kingdom, where the police are obliged to record not just hate crimes but also non-criminal hate incidents which pose a risk of causing significant harm to individuals or groups with a particular characteristic or characteristics or where there is a risk of a future criminal offense being committed against those individuals or groups (College of Policing, 2023).
Hate crime policy also has important potential to serve as a bridge for civil society, both “vertically” with the state, and “horizontally” across advocacy groups and researchers. Civil society interventions and academic research have remained highly variegated across identities. Social groups tend to consider their vulnerabilities as arising from distinct and unique histories of violence and have not adequately appreciated their shared institutional and social vulnerabilities. This is further aggravated by the existence of separate institutional routes of claim making for different groups. For instance, the subordinated communities covered under the Atrocities Act have a dedicated institution, created under the Indian Constitution, which is tasked with monitoring caste violence and legal enforcement. Religious minorities have a separate statutory commission that is assigned with the responsibility of monitoring anti-minority violence. The silo-like policy pathways reduce the incentives and opportunities for collective action. This variegation is one of the main reasons why advocacy groups have not created a collective umbrella that can develop a consistent definition of hate crime. This has also excluded several social groups and vulnerabilities that do not enjoy political capital or visibility. For instance, while there have been several efforts to introduce legislation for protecting religious minorities, comparable efforts for sexual minorities or persons with disabilities are missing.
A shared hate crime framework can alleviate some of these problems at the intersection of the state and civil society. It can increase the incentives for collective action, which in turn can aggregate advocacy and civil society pressure for better state enforcement. This aggregation has the capacity to strengthen the effectiveness of demands for transparency and accountability for the various components of the hate crime framework, including monitoring, prosecution, and victim support. A shared hate crime framework need not be limited to a common legalized hate crime concept, but may also include shared institutional spaces, monitoring systems and victim support policies.
A common hate crime framework, even if only endorsed by civil society actors, can also serve as an effective bridge across groups. It can provide a shared research framework for studying the nature and impact of violence, developing shared understandings of vulnerability and subordination, and mobilizing around common policy outcomes. This includes evolving civil society-led hate crime data and monitoring efforts, which have remained underdeveloped and underresourced until now. Better research and pooling of resources can also strengthen public interest legal mobilization through courts, which has been an important strategy for marginalized groups in India.
Conclusions
The preceding sections have illustrated why and how key elements of the Western-centric hate crime framework remain ill-suited to the Indian context. However, rather than dismissing its relevance or potential to effect change on behalf of those subjected to targeted violence, we call instead for a creative translation of the hate crime concept, which accommodates the nature of violence within specific social contexts, and which emphasizes the institutional features that can mitigate the limitations of state capacity and intent. The process of translation has multiple benefits. In an age of multiple points of crises where entrenched prejudice is politically weaponized and used as motivation to target those who are labeled as “different,” there is immediate and long-term value in harnessing the benefits of the hate crime concept within countries that lack a common framework to foster a shared understanding and prioritization of contemporary expressions of hate. A common hate crime framework, which includes violence faced by a cross-section of vulnerable groups, can provide advocates a shared set of tools and possibilities of alliance-building. The process can generate new knowledge and fresh ideas within those countries that shape collective understandings of what hate crimes are, whom they affect, and why they are committed. The resulting growth of empirical enquiry and mobilization of civil society actors may in turn shape improved outcomes for victims of targeted violence in parts of the world where stigmatization on the basis of identity, difference, and inequalities is both escalating and structurally embedded.
As J. Perry (2020) observes, the hate crime concept has shown its capacity to evolve within specific national contexts and to migrate meaningfully to different countries with diverse challenges, including India. It is also a transformative concept, which demands state agencies to re-cast marginalized groups as being in need of protection, as opposed to being “the problem.” The following description of the prevailing Indian context highlight why these qualities of the hate crime concept feel especially relevant within such an environment:
As in all countries, targeted violence in India manifests a particular character and is rooted in its unique history. However, also as in all countries, its impact on victims is universal, causing fear, loss of life, and physical, emotional and psychological harm that ripples well beyond the original victim(s). Many of these crimes are being committed on the pretext of “cow protection,” “love Jihad” and allegations of forced conversions. They are committed in a context of increased hate speech and political and institutional complicity. Their contours are often of vigilante violence, where its Hindu-nationalist perpetrators are self-styled and lethal protectors of an excluding and unconstitutional model of “nationhood.” Evidence shows a lack of police action, police perpetrators and tacit to full-throated political support for their actions. J. Perry (2020, p. 23)
In the face of these challenges, and the kinds of localized challenges within other parts of the global South where forms of targeted violence can be tacitly and explicitly legitimized, the process of translation is far from straightforward. We would argue, however, that it is a vital process, not simply in relation to generating change within countries which lack effective frameworks to recognize and address the harms of targeted violence, but crucially in relation to nuancing the concept of hate crime itself. The elasticity of the hate crime concept is well documented, as is its capacity to evolve in response to the legacies of colonialism, ethnic conflict, religious mistrust, and other historical and contemporary expressions of “othering” (see, inter alia, Chakraborti et al., 2014; Gerstenfeld, 2013; N. Hall, 2013; B. Perry, 2001). This evolution continues to be as necessary as ever for the hate crime concept to remain alive to changes over time and to the specificities of particular contexts and spaces.
As such, it is appropriate to conceive of the process of translation as one which can benefit both the environment to which the concept migrates to and the enrichment of the concept in ways which capture diverse expressions of hate that lie beyond the narrow scope of Western-centric frameworks. This, in turn, will prompt researchers to familiarize themselves with the unfamiliar by extending their conceptual and empirical gaze toward unexplored and underexplored forms of violence in new environments and is likely to generate fresh synergies and collective action within the domains of policy, activism, and scholarship. In so doing, this process of translation can create a more hopeful and less hateful vision in times of increasing fragility, complexity, and uncertainty.
Author Biographies
M. Mohsin Alam Bhat, JSD is a lecturer in law (assistant professor) at Queen Mary University of London. He specializes in constitutional law and human rights. He is particularly interested in the study of minority rights, religious regulation, and the law of democracy, from comparative, sociolegal, and cross-disciplinary perspectives.
Neil Chakraborti, PhD has extensively researched hate crime, targeted hostility, and violence against minorities. He has authored 7 books and has more than 50 peer reviewed publications. His numerous research projects over the past two decades have led to a better understanding of hate crime victims, perpetrators, and criminal justice policy.
Notes
1.The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, No. 33 of 1989. https://socialjustice.gov.in/writereaddata/UploadFile/The%20Scheduled%20Castes%20and%20Scheduled%20Tribes.pdf
Footnotes
The author(s) declared no potential conflicts of interests with respect to the authorship and/or publication of this article.
Funding: The author(s) received no financial support for the research and/or authorship of this article.
ORCID iD: M. Mohsin Alam Bhat 
https://orcid.org/0000-0001-8256-0367
References
Similar Articles
To arrive at the top five similar articles we use a word-weighted algorithm to compare words from the Title and Abstract of each citation.
Re-thinking hate crime: fresh challenges for policy and practice.
J Interpers Violence, 30(10):1738-1754, 05 Sep 2014
Cited by: 1 article | PMID: 25192703
Hidden Hate, Hidden Violence: Dismantling Myths and Identifying Fresh Challenges for Research and Policy.
J Interpers Violence, 39(17-18):3821-3828, 01 Sep 2024
Cited by: 0 articles | PMID: 39119649 | PMCID: PMC11318212
Hate Crimes Against Trans People: Assessing Emotions, Behaviors, and Attitudes Toward Criminal Justice Agencies.
J Interpers Violence, 35(21-22):4583-4613, 27 Jun 2017
Cited by: 10 articles | PMID: 29294810
Hate Crimes and Race-Based Trauma on Latinx Populations: A Critical Review of the Current Research.
Trauma Violence Abuse, 23(3):854-867, 16 Dec 2020
Cited by: 3 articles | PMID: 33325321
Review
Mapping the scientific knowledge and approaches to defining and measuring hate crime, hate speech, and hate incidents: A systematic review.
Campbell Syst Rev, 20(2):e1397, 28 Apr 2024
Cited by: 0 articles | PMID: 38686101 | PMCID: PMC11056620
Review
Free full text in Europe PMC
