By Pinky Hota
Criticisms of hate crime laws routinely return to their inability to prevent hate crimes, bemoaning them as invariably implicated in competing majority and minority claims of victimization (Alongi 2016). Critics ask if hate crime laws are rooted in established legal principles or if they merely serve political correctness and identity politics (Hurd 2001, Alongi 2016). However, such a narrow emphasis on efficacy fundamentally overlooks hate crime legislation as contractual performances of paternalistic protection whose limits facilitate political agency for minorities—equal, if not more necessary, functions of such legislation. This essay considers an amendment to Indian legislation in 2018 that provoked minority protests to draw attention to the salience of these overlooked functions under conditions of right-wing populism in which caste and race crimes are on the rise.
On April 2, 2018, members of the two most disenfranchised minority groups in India, known by the juridical monikers Scheduled Castes and Scheduled Tribes, called an all-India national strike to protest against a change to the Scheduled Castes and Tribes (Prevention of Atrocities) Act 1989 by the order of the Supreme Court of India. Widespread protests brought thousands of minority citizens to the streets, blocking trains, damaging property, and clashing with police and other civilians. Arson, vandalism and gunfire quickly spread across these sites of protest.
The Scheduled Castes and Tribes (Prevention of Atrocities) Act was enacted by the Parliament of India to prevent hate crimes or, as the Act calls them, atrocities, against members of Scheduled Castes and Scheduled Tribes groups. The SC/ST Act was instituted when the provisions of existing laws such as the Protection of Civil Rights Act 1955 and the Indian Penal Code were found to be inadequate to check hate crimes against the two most marginalized minority communities in India. The Scheduled Castes, the juridical moniker for groups formerly called Untouchables, are now also known by the political self-referent Dalits. The Scheduled Tribes, also known by the political self-referent adivasis, are groups occupying the de facto indigenous slot. With the recognition that existing legislation was doing little to curb atrocities against these vulnerable minority groups, the Indian Parliament passed the Act in 1989. At the time of its institution, the Act was hailed as historic, unprecedented, and one of India’s most progressive laws. It underscored the Indian government’s paternalistic protection of these communities, aiming to secure their ability to live under a dominant caste Hindu social structure in which they had been marginalized without fear of the threat of violence or suppression. As caste-based crimes have proven exceedingly recalcitrant to legislation, the inefficacy of the SC/ST Act in curbing such crimes has previously only prompted the Indian state to extend the law’s reach.
Debates about the efficacy of hate crime legislation point out that such legislation is fundamentally predicated on a reasonable legal actor who represents a moral ideal in his or her ability to stand outside moral-social schemas of society that entrench racism (Whitlock and Bronski 2015). In India, importing such an idealized moral legal actor has proven virtually impossible in a context in which an entrenched casteism has been shown not just to suffuse society but also the workings of the Indian state, producing a caste-state nexus that has not only persisted but deepened in “the age of the market” (Viswanath 2014, Mosse 2018). Despite advances made by adivasis and Dalits as beneficiaries of affirmative action through their recognition as Scheduled Castes and Scheduled Tribes in the Indian Constitution, beliefs in a casteist hierarchy have accrued new valence: upper casteness as a meritocratic order is seen as threatened and compromised by adivasi and Dalit gains through affirmative action mandates through minority recognition (Subramanian 2015). Though Dalits have achieved greater economic mobility than adivasis (Xaxa 2001), it has not always been correlated with social mobility (Mosse 2018). Caste-based crimes have not only persisted despite minority economic mobility but have, in fact, risen. Studies show that violent crime was most pronounced when income inequality between marginalized groups and dominant groups reduced, making economically ascendant Dalits even more vulnerable to discrimination and routine humiliations (Sharma 2015, Mosse 2018, Green, McFalls and Smith 2001).
Because of the Act’s continuing inability to curb violence, it was substantially amended in 2014 to include new offences such as garlanding minorities with shoes, blackening faces, forcing them to engage in manual scavenging of waste, as well as sexual violence against women. The Amendment also established special courts for the trial and prosecution of such crimes and more close monitoring at regional, district and national levels. Despite these attempts to extend the Act’s reach and buttress its efficacy, violent crimes against minorities have only escalated. In 2017, the National Crime Records Bureau’s data showed that between 2015 and 2016 reported crimes against Dalits increased by 5.5 percent (from 38,670 to 40,801), and those against Scheduled Tribes by 4.5 percent (from 6,276 to 6,568), with rape and assault of women constituting the largest number of cases. Despite the increasing incidence of crimes, conviction rates dropped sharply from 38 percent in 2010 to 16 percent in 2016 for crimes against Dalits, and from 26 percent in 2010 to 8 percent in 2016 for crimes against adivasis. The Act has been shown to be weakly implemented at best and the vast majority of caste-based crimes are underreported (Mustafa 2018).
Despite the alarming increase in caste-based crimes, the 2018 Amendment to the Act did not seek to increase protections for minorities. Rather, the Supreme Court asserted the need to protect upper castes from the Act’s “rampant misuse.” In a judgment on March 20, 2018, the Supreme Court of India insisted that the SC/ST Act has become an instrument to “blackmail” innocent citizens and public servants, issuing new guidelines to protect public servants and private employees from arbitrary arrests. Prior to this judgment, the SC/ST Act deemed crimes against minorities non-compoundable offences using language derived from the Indian Penal Code (IPC) such that the matter cannot be settled out of court nor can the victim drop charges. Instead, the state files charges against the accused through the police. A suspected offender must be immediately arrested upon the receipt of complaint along with denial of anticipatory bail and the filings must culminate in a full trial ending in acquittal or conviction. The Amendment reversed this, stating that public servants could only be arrested with written permission of their appointing authority and the Senior Superintendent of Police must approve of charges for private employees before arrests could be made. The Supreme Court of India ruled that no arrests could be made without prior permission, allowing courts to grant anticipatory bail if they, prima facie, found the complaint to be an abuse of the law.
The Supreme Court justified these changes as responding to the “rampant misuse” of the Act, emphasizing the “frivolity” of accusations and the innocence of those accused. Justices U.U. Lalit and A.K. Goel stated that the Act was being used to blackmail innocent citizens and public servants, thereby perpetuating casteism as public servants were being harassed and prevented from offering even slight criticism to minority employees. The Supreme Court suggested that the Amendment was ultimately beneficial because false accusations using the SC/ST Act was reproducing caste and deepening caste-based fault lines. Such a criticism of the Balkanizing effects of hate crime legislation are mirrored in liberal critiques that insist that it promotes factionalism rather than bringing about social harmony and equality. These divisive effects alongside the conceptual swamp involved in legislating hate crime in which slippery topics such as how to protect victims while still preserving the free speech of others; how to deﬁne hate crimes, and difﬁculties in determining the “true” motivations of others (McPhail 2000) consistently rear their head, motivate the questioning of the efficacy and relevance of hate crime legislation. Yet in this context, hate crime legislation’s purported divisive nature could not be understood merely in terms of a liberal insistence that law should be outside of politics, and in failing to be as such, redacted or diluted. Rather as law’s inextricability from politics became increasingly visible in conditions of right wing populism, hate crime legislation’s role for minorities amidst political contestations became clear. Since Narendra Modi’s election as Prime Minister in 2014, an aggressive Hindu ethnonationalism has escalated into right-wing populism (Rajagopal 2015). Populist rhetoric insists that minorities have become “too empowered” by legislation such that they are now aggressing against upper caste Hindus. The Supreme Court’s insistence on the Act’s misuse to vilify upper caste public servants despite rising crimes against minorities and extremely low rates of conviction make it clear that the Supreme Court is not immune to the perception that minority sociolegal claims threaten upper caste rights.
Minority activists affirmed the absurdity of the Supreme Court’s assertion by pointing out that an overwhelming number from both communities live in rural areas and lack basic literacy, and thus hardly have knowledge of protective legislations safeguarding their interests, let alone misuse them. Some Dalit politicians asserted that Constitutional rights were being snatched from Dalits. Dalit villagers insisted that they were subjected to renewed aggression, denied drinking water, and threatened with slurs and violence, which made them fear for their lives. The Act is particularly consequential for Dalits because it formalizes the practice of untouchability as a criminal and cognizable offence for which arrests could be made without warrant (Naval 2001). Its Amendment, then, almost immediately facilitated an uptick in violence towards Dalits, symbolically confirming a majoritarian reclamation of the nation.
Right-wing populism in India has particularly reinvigorated a perception of Dalits as a threatening Other whose ascendency unravels the fictions of meritocracy and supremacy that have long sustained caste hierarchy as foundational to Hindu civilizational integrity. The protests made it clear that the SC/ST Act was perceived overwhelmingly as securing Dalit rights and that upper caste contestations over the Act were clear retaliations against strengthening Dalit claims and political identity. Yet as legislation appeared to be providing grounds for new forms of violence against minorities, protestors remained resolute that any changes “diluted” the Act’s force, attesting to its power as a performative legal utterance of paternalistic protection (Austin 1962; Fiorito 2006). The Act invokes the rules and conventions of the law to tender a promise or contract to protect minority citizens while also producing them as rights-bearing wards of the state who, when threatened by a perceived loss of the state’s patronage, can demand its fullest restitution (Samek 1965). The Act restricts the state from straying too far from its contractual protection of minorities through such a simultaneous production of its own paternalism and minorities as its wards, even at a time when its apex of judicial authority shows itself to be vulnerable to populist politics that demand, first and foremost, that it represent the interests of an upper caste majority.
Protests as South Asian street politics produce results that legal and political appeals often do not (Lakier 2007; Chowdhury 2019). Barely five months after the Amendment, the National Democratic Alliance government brought new legislation to overturn the Supreme Court order. With rising crimes against minorities, particularly Dalits, leading to growing criticism of its insensitivity to minority welfare, the government passed a bill overturning the Supreme Court order to restore the Act in both Houses of Parliament. Its haste was attributed to assembly elections later in 2018 in states with substantial adivasi and Dalit populations, as well as Lok Sabha elections in 2019.
At first, this hasty restitution promised that the SC/ST Act was indeed a political game changer for adivasis and Dalits. Majoritarian backlash, however, was swift. Several election-bound states delayed the restitution, anticipating a loss of upper caste votes. Upper caste groups accused the government of pandering to Dalit voters in blatant disregard for upper-caste and Other Backward Classes, resulting in counter protests and political coalitions between these groups against Dalits. This back-and-forth between caste minorities, upper castes, the Supreme Court and the ruling NDA government undermines the already tenuous rule of law in India, a context in which legal authority is always somewhat provisional (Jauregui 2016). Minorities protesting violently to demand the restitution of legislation—the simultaneous fetishization of the law even as lawlessness abounds—might appear to be a particular conundrum of postcolonial democracies (Comaroff and Comaroff 2006). And yet, the Global South foreshadows the future of democracy in the Global North (Comaroff and Comaroff 2011). Despite legislation such as the SC/ST Act and the Constitutional abolition of untouchability, minorities cannot unequivocally look to legal safeguards to protect their interests. Laws such as anti-conversion statutes and cow protection laws have been invoked in populist crowd violence, culminating in the lynching of Dalits and Muslims, and increasingly confirming that law in India is far from neutral and liberal, but rather majoritarian Hindu at its core. These developments confirm that the undergirding assumptions of the law and its realization within a social context are not only never neutrally outside of politics, but are also particularly vulnerable to being unmasked as such under conditions of majoritarian populism.
However, the SC/ST Act protests attest to the tenacious yet indeterminate promise of rights discourse amidst a global resurgence in minority violence under right-wing populism. To use legal theorist Patricia Williams’ words, the “magic of rights” cannot be easily dismantled even as populist forces seek to dilute socio-legal protections. Minorities invest a “timeless, formless futurism” into rights discourse with the hope of realizing justice and equity in a deferred future, an investment that defies the historical, political, and economic parameters within which these rights operate (Williams 1992). These developments in India attest to the durability of the emancipatory promise of rights discourse, showing the continued relevance of law and of hate crime legislation for minorities under conditions of contemporary populism—unmasked as far from neutral yet still accountable to idealized commensuration and justice.
Pinky Hota is Assistant Professor of Anthropology at Smith College and is currently completing her book manuscript entitled The Violence of Indigeneity: Religion, Recognition and Capital in India.
Alongi, Briana. 2017. “The Negative Ramifications of Hate Crime Legislation: It’s Time to Reevaluate Whether Hate Crime Laws Are Beneficial to Society.” Pace Law Review 37 (1): 326–51.
Austin, John L. 1962. How To Do With Things With Words. Oxford University Press.
Chowdhury, Nusrat Sabina. 2019. Paradoxes of the Popular: Crowd Politics in Bangladesh. South Asia in Motion. Stanford University Press.
Comaroff, Jean. 2006. Law and Disorder in the Postcolony. University of Chicago Press.
Comaroff, Jean, and John L. Comaroff. 2011. Theory From The South: Or How Euro-America Is Evolving Toward Africa. Routledge.
Fiorito, Lorenzo. 2006. “On Performatives in Legal Discourse.” Metalogicon 19 (2): 101–12.
Green, Donald P., Laurence H. McFalls, and Jennifer K. Smith. 2001. “Hate Crime: An Emergent Research Agenda.” Annual Review of Sociology 27: 479–504.
Hurd, Heidi M. n.d. “Why Liberals Should Hate ‘Hate Crime Legislation’.” Law and Philosophy 20 (2): 215–32.
Jauregui, Beatrice. 2016. Provisional Authority: Police, Order, and Security in India. University of Chicago Press.
Lakier, Genevieve. Ed. Mahendra Lawoti. 2007. “Illiberal Democracy and the Problem of Law: Street Protest and Democratization in Multiparty Nepal.” In Contentious Politics and Democratization in Nepal. Sage Publications.
McPhail, Beverly A. 2000. “Hating Hate: Policy Implications of Hate Crime Legislation.” Social Service Review 74 (4): 635–53.
Mosse, David. 2018. “Caste and Development: Contemporary Perspectives on a Structure of Discrimination and Advantage.” World Development 110: 422–36.
Mustafa, Faizan. 2018. Sending the wrong signal: SC order in SC/ST Act Case. The Hindu. March 29.
Naval, T. R. 2001. Law of Prevention of Atrocities on The Scheduled Castes and The Scheduled Tribes. Concept Publications.
Rajagopal, Arvind. 2015. “Indian Democracy and Hindu Populism: The Modi Regime.” Social Text (Online), February.
Samek, Robert. 1965. “Performative Utterances and The Concept of Contract.” Australasian Journal of Philosophy 43 (2): 196–210.
Sharma, Smriti. 2014. “Caste Based Crimes and Economic Status: Evidence From India.” Journal of Comparative Economics 43 (1): 204–26.
Subramanian, Ajantha. 2015. “Making Merit: The Indian Institutes of Technology and the Social Life of Caste.” Comparative Studies in Society and History 57 (2): 291–322.
Viswanath, Rupa. 2014. The Pariah Problem: Caste, Religion and The Social in Modern India. Columbia University Press.
Whitlock, Kay, and Michael Bronski. 2015. Considering Hate: Violence, Goodness, and Justice in American Culture and Politics. Penguin Random House.
Williams, Patricia J. 1992. The Alchemy of Race and Rights. Harvard University Press.
Xaxa, Virginius. 2001. “Protective Discrimination: Why Scheduled Tribes Lag Behind Scheduled Castes.” Economic and Political Weekly 36 (29).