India: Hate crimes against out-of-state migrants (Devesh Kapur & Ananth Padmanabhan)

Business Standard - October 24, 2014

Dealing with regional bigotry

Hate crimes against out-of-state migrants strike at the heart of the basic structure of the Constitution

Devesh Kapur & Ananth Padmanabhan

Recent assaults on people from Northeast India threaten the core idea of a common Indian citizenship. Last week, Bangalore and Gurgaon saw the latest such attacks. While a Manipuri student was brutally attacked in Bangalore and warned that he either speak Kannada or leave the state, the perpetrators of the Gurgaon attack allegedly went to the extent of threatening to assault anyone from Manipur or Nagaland who landed in "their" part of the country.

The problem is hardly new. From the attacks in the late 1960s against migrants from south India in what was then Bombay - led by a fledgling political outfit (the Shiv Sena) with the slogan pungi bajao, lungi ghagao - to those targeting Bihari labourers, whether in Maharashtra or the Northeast, economic competition has been a prime driver. Resentments against "visible outsiders" perceived to be taking away jobs from locals have been fuelled by opportunistic political entrepreneurs.

The tensions arising from internal migration and the rights of common Indian citizenship on the one hand, and preferential policies for "sons of the soil" in jobs and admission to educational institutions on the other, go back to the framing of the Constitution. Unlike the case of affirmative action for Scheduled Castes and Tribes, the justification for "sons of the soil" preferences was based neither upon minority status nor upon past discrimination. Indeed the demand for preferences for "sons of the soil" was made on behalf of the majority in relation to a minority on the grounds that the group's unequal status (be it education, employment or income) in relation to other "outside" groups migrating into the state. At the time, B R Ambedkar argued that residential requirements "subtract[ed] from the value of a common citizenship". Nonetheless he felt compelled to concede that "it must be realised that you cannot allow people who are flying from one province to another, from one state to another as mere birds of passage without any roots ... just to come, apply for posts and so to say take the plums and walk away".

The Constitution eventually tried to strike a balance between the principle of a common citizenship and the need to respond to "local" concerns. However, it also left a loophole in Article 16(3), giving Parliament the exclusive right to set residential requirements in state services as and when the need arose. The need to "balance" between these principles was periodically emphasised, as epitomised by former prime minister Indira Gandhi's statement in Parliament: "While we stand for the principle that any Indian should be able to work in any part of India, at the same time, it is true that if a large number of people come from outside to seek employment ... that is bound to create tension in that area. Therefore, while I do not like the idea of having any such rule, one has to have some balance and see that the local people are not deprived of employment."

Battles over affirmative action rules in favour of "sons of the soil" focused largely on the public sector. However, in recent years the locus of economic opportunities has shifted to the private sector whose incentives are different. Front-line service sector jobs - whether call centres, hotels or in-flight airline staff - today require a knowledge of English, patience and courtesy. This is a mix of cultural and human capital that many young people from the Northeast seem to have to a greater degree than many "locals". They have been a boon for private firms in these sectors, but their distinct physical appearance makes them easy targets for resentful locals and political opportunism. All around the world these resentments are directed at international migrants - but in India they are directed against the country's own citizens. Given the tenuous relationship that India has with its Northeast, the negative externalities for the country are severe and require a rethink on laws needed to address this pernicious challenge.

Attacks against out-of-state migrants can be viewed as "hate crimes" that exhibit an important feature - the absence of any prior relationship between the perpetrators and the victims. Most crimes directed against the person that are currently punishable under the Indian Penal Code are generally the outcome of some prior relationship, leading to the formation of criminal intent in the mind of the perpetrator. Though that may not always be the case, the law certainly makes no distinction between intent borne out of prior transactions and intent borne out of hatred for a person's identity. Thus, hate crimes have a distinct element of bias based solely on some ascriptive identity of the victim.

In 2012, amidst attacks on migrants from the Northeast, the Union government advised all states and Union Territories to invoke the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. Quite apart from the fact that this Act has largely failed in its implementation, the hate crimes under consideration here are not motivated by caste or tribal identities, but rather regional identities.

The consequences of hate crimes against out-of-state migrants strike at the heart of the basic structure of the Constitution - the federalism principle. This guarantees two critical fundamental freedoms to the citizens of India: the right to move freely, and the right to reside and settle, in any part of the country. While the traditional discourse on these freedoms has been built on the edifice of negative rights, one where the state is seen as a passive actor that does not violate these rights except where expressly authorised to do so, the Supreme Court paved the way for a novel positive rights discourse when framing the Vishaka guidelines. The court there premised its guidelines on the idea that the state had to actively ensure that the various fundamental freedoms guaranteed under Article 19 must be positively guaranteed, rather than merely refrain itself from infringing the same through its actions. In like fashion, the state has a positive obligation to guarantee that the rights of free movement and residence do not merely exist on paper.

Consequently, it might be worth considering a special law to protect the constitutionally mandated fundamental freedoms of movement. Such a law would need to both tightly define what constitutes a "hate crime", as well as mandate an appropriate redressal mechanism. This could include (i) criminalisation of specific acts; (ii) sentence enhancement of ordinary crimes; (iii) civil remedies such as monetary compensation and temporary restraint orders or injunctions; and (iv) mandatory collection of data on such crimes.

Given the weak record of implementation of existing laws, one might be sceptical of the need of another special law - especially since police officials belonging to the same locality as the perpetrator may display callousness or even outright animosity to the victim, as has often been the case in incidents of communal violence. This in turn can result in severe under-reporting of hate crimes and non-registration of First Information Reports. One possibility, apart from sensitising the police, could be to set up a special wing either under the home ministry or the law ministry, which could suo moto oversee such investigations.

Long-term, however, there has to be a much clearer recognition that the challenges that India faces in Kashmir or the Northeast can only be reined in if people from those parts of the country are treated as full citizens - wherever they might want to live or work in India.

Devesh Kapur is director of the Center for the Advanced Study of India at the University of Pennsylvania. Ananth Padmanabhan is an SJD candidate at the University of Pennsylvania Law School