India is undercounting religious hate crimes by failing to invoke a crucial section of the law

“My son was murdered because he was Muslim,” said Jalaluddin, 50, sitting on a charpoy on the terrace of his house at Khandawali village in Haryana’s Ballabgarh district, 50 km from Delhi.

On June 22, Jalaluddin’s son, Junaid Khan, 16, had travelled to Delhi with his cousins to do some shopping before Eid. The young men were heading back on a Delhi-Mathura train when they got into an argument over seats with another group of passengers. The altercation took a serious turn as the men identified Junaid and his cousins as Muslims, based on their attire. They snatched the skull cap of Junaid’s cousin, trampled it, pulled his beard and shouted communal slurs on the entire group, calling them terrorists and beef eaters.

As the train pulled into Ballabgarh, the men began to beat up the young men, throwing them out at the next station, Asoti. In a video clip recorded on the platform, Junaid could be seen struggling to breathe and his cousins were crying for help. Before he could be taken to a hospital, Junaid succumbed to the multiple stab injuries on his body.

Initially, the police registered a case of murder against unknown persons. It made five arrests between June 26 and 28, and a sixth on July 8. But when the chargesheet was filed in August, it emerged that only one of the accused had been charged with murder and attempt to murder. The others were simply booked for causing grievous injury, wrongful restraint and uttering words that could hurt religious sentiments. Four of the six accused are currently out on bail.

Neither the first information report nor the chargesheet in Junaid’s case included Section 153A of the Indian Penal Code. Commonly used to gauge the prevalence of religion-based hate crimes in India, the section lays down the punishment for promoting enmity between different groups on grounds of religion, race, caste and community, and acting in ways that are prejudicial to the maintenance of harmony. The punishment – up to three years of imprisonment – could extend to five years if the offence is committed in a place of worship. By contrast, the punishment under Section 298 of the Indian Penal Code, which deals with uttering words with deliberate intent to wound a person’s religious feelings, is limited to one year.

This year, the government told the Lok Sabha that cases registered under Section 153A of the Indian Penal Code had risen by 41% in three years. But the data appears to under-represent the scale of religion-based hate crimes in India.

Scroll.in retraced five cases of hate crimes reported prominently in the media in 2017 in which Muslims were targeted using cows and beef as the excuse. In all five cases, including the murder of Junaid, Scroll.in found that the police had failed to register offences under Section 153A of the Indian Penal Code, despite overwhelming evidence that the crimes were not only motivated by religious hate but also deepened communal tensions in the area and disturbed social harmony.

The omission rankles Junaid’s father. “If such incidents are not counted as acts that are harmful to religious harmony, I have no idea what else would,” said Jalaluddin. Nibrash Ahmed, the lawyer for the family, said they have filed an application in the Punjab and Haryana High Court, asking, among other things, for Section 153A of the Indian Penal Code to be added in the charges.

Senior officers of the Haryana Railway Police, who are investigating Junaid’s murder, however, defended their decision not to invoke Section 153A. “It is a case of murder,” said a senior officer, who spoke on the condition of anonymity. “How can you call it an incident prejudicial to maintenance of religious harmony?”

But several lawyers maintained that cases like Junaid’s murder, in which the victims had been targeted for their religious identity, were fitting cases for the use of Section 153A of the Indian Penal Code.

While the police were visibly reluctant in invoking this section in identity-related hate crimes, it was used in several absurd cases this year. For instance, Muslim men arrested in Rajasthan, Madhya Pradesh and Karnataka for allegedly celebrating Pakistan’s victory in a cricket match in June were charged under the section. In September, writer Kancha Ilaiah was booked under the section for his book Komatollu Samajika Smagglarlu.

Spiral of violence

“These attacks are not against any individual, they are meant to act as threat to an entire community by targeting certain individuals belonging to the community,” said senior advocate V Suresh, national general secretary of People’s Union of Civil Liberties. “The idea is to intimidate and cause fear in the minds of minority, with an aim to instigate the community to react and thereby create a spiral of violence in which the control is with the hate-mongering groups of the majority community.”

Senior advocate Prashant Bhushan attributed the failure of the police to invoke Section 153A to the communalisation of the police force under the rule of the Bharatiya Janata Party.

BJP is in power both at the Centre and in 19 of the 29 states of India.

Violence over beef

Since 2014, when the BJP won the national elections under Prime Minister Narendra Modi, Hindutva groups have raised the pitch over the trade and slaughter of cattle. In many states, existing laws against the sale and consumption of beef have been made more stringent. In May 2017, a nationwide law was amended to prohibit the sale of cattle for slaughter in animal markets. In July, the Supreme Court put a stay on the amendment.

But the government’s moves have emboldened cow vigilantes, hurting livestock farmers and traders, but most of all, Muslim communities that depend on the meat industry for both their livelihoods and nutrition.

The worst fallout of the beef hysteria, however, has been the violence directed at Muslims. Despite the violence being predicated on religious grounds, across states, the police chose to ignore Section 153A of the Indian Penal Code while registering cases.

Rajasthan: Hotel attacked

On March 19, members of a cow vigilante group gathered outside Hotel Hayat Rabbani near Jaipur’s Sindhi Camp area. The hotel owner, Naeem Rabbani, said he was accused of organising beef parties, but since he was not in the establishment, the members of the mob proceeded to assault two workers. In a video clip, the mob could be heard chanting slogans like “Bharat Mata Ki Jai” and “Narendra Modi Zindabad”.

The police filed a first information report under charges of unlawful assembly, causing hurt and house trespass against unidentified suspects on March 22, on the basis of Rabbani’s complaint. All the charges were bailable – unlike Section 153A, which was not invoked in the case.

Instead of arresting Kamal Didi, the activist who led the protest, or any other member of the mob, the police arrested two Muslim workers of Rabbani hotel fearing a breach of peace.

One month later, the police closed the case. The final report, reviewed by Scroll.in, said that members of the crowd approached the receptionist to inquire about the hotel owner but no case of physical assault or house trespass could be established.

Faaroq Ahmed, the lawyer representing Rabbani, said he has filed a petition in the court, which is scheduled to be heard on February 7. “We want the case against the gau rakshaks to be reopened and charges under Section 153A to be added in the case,” he said. “Rabbani was attacked not because he owns a hotel but because of his Muslim identity. Such incidents can instill fear in the minds of Muslims and lead to disharmony.”

Rajasthan: Dairy farmer killed

On April 1, Pehlu Khan, a 55-year-old dairy farmer, purchased five sets of cows and calves from a trader in Jaipur, Rajasthan. On the way back to his village in Haryana’s Mewat district, a group of cow vigilantes in Rajasthan’s Alwar district stopped the pickup trucks in which Khan, his sons and a neighbour were travelling. The men were pulled out of the vehicle and thrashed by the mob, who allowed one of the drivers to go, after identifying him as a Hindu. Two days later, Khan died of his injuries.

Khan had specifically mentioned six names in his statement, who were later given a clean chit by the police and an FIR was filed against “unidentified men” instead, charging them with attempt to commit culpable homicide not amounting to murder. After Khan died, this was amended to a charge of murder. The other charges included unlawful assembly, causing grievous injuries and theft – since the cows had been taken away from Khan’s trucks after he was beaten. Section 153A was not invoked either in the case diary or in the chargesheet that was filed two months later.

To press charges under Section 153A of the Indian Penal Code, the police needs the sanction of the state government. In the Pehlu Khan case, neither the Alwar district police nor the Crime Branch and Crime Investigation Department, to which the case was transferred, has sought permission for this. While Inspector General (Jaipur Range) Hemant Priyadarshy refused to comment on the matter and asked this correspondent to talk to a senior police official in charge of Alwar district, Superintendent of Police (Alwar) Rahul Prakash did not respond to phone calls and text messages.

Pankaj Kumar Singh, the chief of the Crime Branch and Crime Investigation Department, which finalised the supplementary chargesheet in the case, said the police could not find any evidence that could justify pressing charges under Section 153A of Indian Penal Code.

But civil right activists who had led protests in Rajasthan after Khan’s murder have written to the police and district administration asking them to add all relevant sections in the case against the cow vigilantes, which could include Section 153A of the Indian Penal Code. “The investigative agencies must take into consideration that such acts in the name of cow protection and Hindutva can lead to religious disharmony and create a spiral of fear,” said Kavita Srivastava of the People’s Union of Civil Liberties.

Jammu and Kashmir: Nomads attacked

On April 21, a nomadic family of Muslim Gujjars was attacked by a mob while they were travelling with their cows and goats in Jammu and Kashmir’s Reasi district. Chanting slogans such as “Bharat Mata Ki Jai” and “Jai Sri Ram”, the group beat up the men of the family, accusing them of participating in the illegal cow trade. Sabir Ali, the head of the family, dislocated his shoulder and had to be hospitalised. The incident led to protests in Reasi, with the protesters, who claimed to be members of the Rashtriya Swayamsevak Sangh, demanding the release of the 11 men arrested after the incident.

The police registered a case of unlawful assembly, rioting, wrongful restraint and causing hurt, which was later amended to causing grievous hurt. Section 153A of the Indian Penal Code was not invoked in the case. While all charges invoked by the police in this case are bailable offences, Section 153A of IPC is non-bailable.

“We left Reasi after the incident and returned in November only to realise that all 11 persons arrested after the attack were released on bail,” said Sikander Ali, son of Sabir Ali.

Tahir Bhatt, senior superintendent of police in Reasi, said the attack was not an act that could be considered prejudicial to the maintenance of harmony. He added that the police was investigating all possible angles, including personal enmity between Sabir Ali’s family and some of the members of the mob, who were suspected to have used the cause of cow protection as an excuse for the attack.

Jharkhand: Meat trader attacked

On June 29, Asgar Ansari, a Muslim meat trader, who was travelling in his van, was stopped by a mob on the highway near Bajartan village in Jharkhand’s Ramgarh district. He was thrashed, his vehicle was set on fire, as members of the mob accused him of carrying beef in the van. Ansari died while being taken to the hospital by the police. His wife alleged that the mob was led by members of Hindutva outfit Bajrang Dal, the youth wing of the Vishva Hindu Parishad, a part of the network of organisations called Sangh Parivar to which the ruling Bharatiya Janata Party belongs.

The police filed a case under charges of rioting, unlawful assembly and murder. Later, five people were arrested in connection with the incident. They are currently in judicial custody.

The victim’s son, Shahzad Akhtar, told Scroll.in that the family has been trying to get the police to add charges under Sections 120B (criminal conspiracy) and Section 153A of the Indian Penal Code, but have not succeeded so far.

Ramgarh’s superintendent of police, Kishore Kaushal, did not respond to phone calls.

A law largely misused

Lawyers are divided over the legal value of pressing charges under Section 153A in cases that involve murder. On a practical level, it might not make a substantive difference, said senior advocate Sanjay Hegde. “But it can make a lot of difference in cases which do not lead to murder and the investigative agency ends up pressing charges that are less severe,” he added.

Senior advocate Prashant Bhushan, however, maintained that Section 153A can make a significant difference even in cases which involve severe offences “by complementing the other charges when it comes to the sentencing.”

But most lawyers agree that the law is a crucial political bellwether.

“The law defines the offence but the state defines the offender,” said senior advocate V Suresh. “All the five aforementioned cases qualify as acts prejudicial to the maintenance of harmony. But when it comes to Section 153A of the IPC, the state invariably uses the law as a political weapon to suppress and repress anybody challenging the political elite and policies and actions of the state.”

The lawyers pointed out that Section 153A is often used by investigative agencies against free speech.

Said Bhushan: “Today we are witnessing a curious spectacle of rampant abuse of Section 153A of the IPC. On one hand, the section is not being invoked against people and organisations affiliated to or inclined towards the Hindutva ideology, who promote hatred and violence, often by spreading fake news, against Muslims and other minorities. On the other hand, it is often used against free speech.”