Abstract
This article responds to scholarly critiques, which highlight the failures of hate crime legislation in delivering justice to historically oppressed groups. Drawing on ethnographic data on the mobilisation of India's only hate crime law – the Prevention of Atrocities (PoA) Act– among Dalit (untouchable) communities, the article proposes that the potential of hate crime law to create a restitution must be analysed in conversation with other social justice frameworks. In India, Dalit legal aid advocates interweave hate crime cases with a culturally specific discourse of Dalit human rights. By strategically bringing “failed” PoA investigations before India's National Human Rights Commission (NHRC), Dalit advocates hold the police accountable for negligent investigations, while also creating collective affects of hope for survivors of casteist crimes. This process, which I call symbiotic justice, engenders a form of legal consciousness, which regards hate crime law as a creative tool that can offer new avenues of agency.
Hate crime laws, which punish acts of violence against historically oppressed groups and criminalise violent expressions of prejudice, have faced growing scholarly criticism. These critiques can broadly be divided into three categories: first, legal analyses that demonstrate that the boundary between hate crimes and ‘ordinary’ criminal offences is blurry (Mason, 2014), and that categorisations of offences as hate crimes rely on slippery evidentiary attempts to ascertain perpetrators’ motives (Brax, 2016). Second, literature in critical race, gender, and discrimination studies, which argues that hate crime laws rely on the collaboration of institutions like police and courts that are themselves shaped by histories of prejudice against minorities (Swiffen, 2018; Atak, 2022). These critiques became heightened in the aftermath of the murder of George Floyd by an US police officer in 2020, which raised concerns that hate crime laws could expose marginalised groups to more violence (Levin et al., 2022). And third, work in the social sciences that highlights the problematic interaction between experiential realities of hate crime and ‘the structure of criminal law’ (Bell, 2022, 695). The case format of hate crime law, which focuses on punishing individual perpetrators, often fails to capture, and prove, cumulative (Bowling, 1993), socially normalised, and deeply contextual (Macia, 2016) experiences of discrimination. Together these criticisms suggest that despite their value as symbolic rejections of identity-based oppression, hate crime laws grant marginalised groups little hope for justice (Perry and Alvi, 2012).
However, these analyses have two limitations. First, they tend to portray hate crime law as a legal tool that operates in isolation from other legal, social justice frameworks. Second, they presume that justice is a uniform concept that all members of marginalised communities define in the same way: Justice means the successful punishment of the perpetrators in a court of law.
This paper challenges both these assumptions by drawing on long-term ethnographic work on caste-based hate crimes against Dalits (former untouchable castes) in India. India is a potent site to analyse the contradictory promises, interpretations, and experiences of hate crime laws for three reasons. First, India is a postcolonial nation where legal institutions and procedures remain continuous with colonial codes that were set up to control indigenous populations and, especially, poor, low-caste and lost class communities (Jauregui, 2016). Hence, institutions like the police that are central in registering hate crime complaints are barely monitored, while courts often display interpretive patterns that favour the claims of upper-caste and upper-class communities (Singha, 1998). Second, the extent to which India's legal institutions have been shaped by the prism of casteism and classism, has engendered a strong history of self-mobilisation and legal activism among historically oppressed communities like Dalits. Dalit resistance to casteism not only shaped the Indian constitution of 1950, which was centrally drafted by Dalit scholar and activist B.R. Ambedkar and upholds the principle of non-discrimination as a major tenant of Indian democracy (Kannabiran, 2012), but also the wider landscape of antidiscrimination and hate crime legislation in the country (Fuchs, 2024). Third, this history of legal activism, has resulted in a competition over control of the state legal machinery between minorities like Dalits and historically powerful Hindu upper-caste, upper-class, groups which has created parallel, intersecting and radically creative traditions of legal mobilisation and interpretation (Hansen, 2017).
Here, I introduce the notion of symbiotic justice to describe a process whereby legal aid advocates, belonging to India's Dalit community, embed the pursuit of justice in hate crime cases within a particular vision of Dalit human rights, which emerged in the 1990s. This process unleashes new socially and emotionally transformative possibilities within hate crime law, while also strengthening the reputation of human rights as a legal regime of solidarity. The Dalit movement has often defined human rights as a global mode of legality for a socio-politically ‘weak’ collective (Bob, 2007). Hence, Dalit advocates in North India position human rights as a meta-legal regime, which can help overcome the procedural, institutional and restorative limitations of national hate crime laws. They argue that human rights and hate crime law should be viewed as an interdependent legislative complex that allows marginalised communities to fight discrimination by putting pressure on the Indian state internationally from above, and locally from below (Tsutsui and Smith, 2018). Symbiotic justice, thus, denotes a toolkit of everyday techniques, through which Dalit advocates discursively, performatively, and affectively integrate hate crime complaints into human rights work, and create felt experiences of justice for Dalit hate crime survivors, and their communities. This cultivates a mode of agency-focused legal consciousness (Chua and Engel, 2019, 340), which emphasises hate crime law as an instrument for the transformation of oppressive conditions that can be creatively layered into other legal frameworks (Hernández, 2010).
The production of symbiotic justice has a dual goal. First, it aims to create accountability and change within Indian legal institutions. By drawing human rights bodies into hate crime cases Dalit advocates want to overcome the institutional – and especially the police – biases (Baxi, 2014) that regularly undermine hate crime complaints filed by Dalits. Second, symbiotic justice tries to reconcile competing visions of justice that circulate after Dalit hate crimes: a future-oriented vision of justice-as-structural-institutional reform that could socially and politically uplift an abstracted Dalit collective (Teltumbde, 2018), and a restorative (Hydle, 2003) type of affective justice (Bens, 2022), which Dalit hate crime survivors deeply desire.
By exploring the concept of symbiotic justice, this paper brings in conversation three theoretical debates: first, a critical, socio-legal literature that analyses hate crime law as a punitive approach to addressing structural violence, whose socially and emotionally transformative power is limited by the strictures of criminal law (Meyer, 2014; Bhat, 2020; Walters, 2022). Second, anthropological scholarship that underlines the evolution of human rights into a global language of hope (Moyn, 2012) and a performance of solidarity (Slyomovics, 2005) for marginalised groups. And third, a literature on legal consciousness, which highlights how law can create experiences of agency for oppressed communities even in the face of hegemonic power structures (Hull, 2003; Hernández, 2010; Chua and Engels, 2019). Dalit advocates in North India were convinced that as a criminal law the PoA was profoundly restrictive. However, this did not warrant its abandonment but required creative ways of combining different legal languages and regimes to produce justice. 1
This article builds on extensive multi-sited fieldwork in the North Indian state of Rajasthan, which explored how incidents of casteist violence are translated into legal cases under India's only hate crime law: the 1989 Scheduled Castes/Scheduled Tribes Prevention of Atrocities Act (PoA). The PoA specifies over 20 offences, which, to be prosecuted under the act, must be committed by anyone who is not a member of the Dalit (Scheduled Caste) or indigenous Adivasi community (Scheduled Tribes) against these groups (Rao, 2009). It also enhances punishments for crimes under the Indian Penal Code. However, the PoA has faced serious challenges (Pal, 2023). On an institutional level, the Indian police, who must register and investigate PoA complaints, regularly turn Dalits and Adivasis away due to upper caste pressure (Berg, 2020), personal caste prejudice (Teltumbde, 2018), and an absence of the right legal aesthetics among Dalits (Fuchs, 2020). Hence, most PoA complaints never go to court (Nathan and Thorat, 2020). On a community-level the survivors of caste atrocities often desire immediate ‘felt’ justice, which is best achieved through out-of-court ‘compromises’. However, compromises undermine the idea of formal, public justice through law, which Dalit advocates consider the only route to social change.
To counter these issues Dalit legal aid advocates in Rajasthan argued that the institutional conditions for PoA cases – and the community-level controversies surrounding them – must be changed through strategic engagement with the human rights regime – a ‘law above other laws’ that empowers ‘the weak’ (Mr Nairoth, 2 Director Centre for Dalit Rights, 2018). Therefore, they reported PoA complaints that had been dismissed by the police to the National Human Rights Commission (NHRC), which aims to hold state officials accountable for negligent behaviour towards marginalised claimants.
This article ethnographically analyses a public NHRC hearing in Jaipur, Rajasthan's capital, to illustrate how Dalit advocates create institutional accountability and a resonant sense of post-hate-crime justice among Dalit communities through a symbiotic mobilisation of hate crime and human rights law. First, they discursively construct human rights as a meta-law of collective marginalised solidarity (Dean and Levi, 2003), and a counter-hegemonic tool for the powerless (Dembour, 2010), which can change the institutional conditions, within which hate crime laws operate. Second, they engage in affective, legal performativity, which generates feelings of relief for hate crime survivors and a public circulation of hopeful, legal sentiment (Bens, 2022). Third, activists engineered reverse (police) humiliation. The NHRC hearing ritually upturned (Turner, 1969) structures of ordinary courtroom hearings by putting the police on trial and publicly shaming officers. This inverted institutional hierarchies of legal recognition, in which Dalit had to ‘beg’ police to take their stories seriously.
However, the legal and social impact of symbiotic justice production must be considered carefully. Drawing hate crime cases into the realm of human rights shifts the responsibility from the perpetrators to the state actors who fail to classify and investigate offences as hate crimes. While this often succeeds in giving survivors a sense of restitution and holding Indian state actors accountable for negligent treatment of hate crime complaints, it also bypasses the conviction of hate crime perpetrators, and thus, creates a new form of impunity.
Data Collection: Fieldwork in Rajasthan
The data in this article is based on 18 months of multi-sited ethnographic fieldwork in Rajasthan between 2016 and 2018, and on follow-up visits in 2022 and 2023. I identified forty incidents of violence against Dalits by upper castes and employed a method I call ‘atrocity tracing’: I tracked how these moments of aggression were discussed by victims and within Dalit communities, how they were shaped into narratives that could be translated into official PoA complaints at police stations, and, sometimes, forwarded to the special sessions court for PoA cases (district-level criminal court in India).
To gain insight into the social, legal and political dynamics around PoA cases I set up two fieldwork bases. I conducted participant observation with Dalit legal aid NGOs in the state capital of Jaipur by accompanying advocates and activists on fact-finding missions, as well as to the sessions court and the Rajasthan High Court. I alternately lived with two Dalit families (one urban, one village-based) in Rajasthan's North-eastern sub district of Jhunjhunu to understand how Dalit survivors of caste atrocities experienced, interpreted, and navigated the PoA and the criminal legal system. I also conducted semi-structured interviews with high-ranking police administrators, with constables in Rajasthan field police force, and with sessions and high court judges, and judicial magistrates in different districts of Rajasthan (Jhunjhunu, Sikar, Jaipur, Nagaur).
Policing and Justice in North India
The year prior to my fieldwork, in 2015, Rajasthan had registered the second highest number of caste-based atrocities out of all Indian states (Press Trust India, 19th Dec., 2016). As data from India's National Crime Records Bureau from 2020 indicate, this trend has continued in recent years (Rupavath, 2020). The reason for the high rate of atrocities against Dalits in Rajasthan largely lies in the state's feudal history, which has prevented large-scale scale, horizontal political mobilisation against caste oppression (Rawat, 2017).
Therefore, Dalit communities in the state initially saw the PoA as a tool of empowerment. However, they quickly became disillusioned due to two factors: first, the disproportionate influence of the police in categorising, and investigating PoA complaints. Second, the nature of PoA proceedings, which focused on individual disputes, and appeared to disregard collective histories of community oppression and the need for social restoration.
Police Verdicts
Globally, hate crime legislation imbues the police with an additional classificatory and investigative burden (Boyd et al., 1996, 831; Atak, 2022) of determining whether a crime was motivated by bias or prejudice. In India all criminal complaints are registered by the police. Per section 154 of the Code of Criminal Procedure (CrPC), if a cognisable offence (an offence where the police may arrest someone without a warrant) is reported, the police are duty bound to file a so-called First Information Report (FIR). The FIR must include the complainant's personal details, the facts of the reported incident and the appropriate sections of the Indian Penal Code (IPC). The FIR lays the foundation for the subsequent police investigation. Following the investigation, the superior investigating officer has two options: under section 173 of the CrPC he can either submit a ‘charge sheet’ to the district court, or issue an alternative form called a Final Report (FR). While the submission of a charge sheet means that the police investigation has found enough evidence for the matter to be prosecuted in court, a Final Report signals that the claims in the FIR are unsubstantiated through other evidence. Hence, a Final Report implies the invalidation of a complainant's account (Khora, 2014, 17).
While police file FIRs in all criminal complaints, they have an additional responsibility in PoA allegations: they must determine if the complaint is an offence against Dalits and Adivasis committed by someone outside these groups because of the victim's identity. If they conclude that this is the case, they must then register the claim under the corresponding PoA sections, as well as under the IPC. Investigations into PoA complaints must be completed within 30 days and must be overseen by an officer who holds the rank of Deputy Superintendent of Police or higher. However, PoA investigations are habitually delayed and usually not conducted according to the guidelines (Teltumbde, 2018). Police regularly refuse to apply the PoA because they argue that the reported offences were not motivated by casteism (Khan, 2021).
Dalit activists claimed that the predominantly upper caste police officers in Rajasthan were often either themselves biased against Dalits or embedded in complex networks of caste power (see Jauregui, 2016), which led them to ‘unsee’ caste discrimination. These claims are corroborated by the ‘Status of Policing in India Report 2019’, which found that over 50% of Indian police officers believed that complaints filed under the PoA were false (Rao, 2019). These attitudes were directly correlated with neglectful investigations of Dalit and Adivasi complaints.
Therefore, India's police station becomes a space that can further marginalise Dalits and Adivasis just as they seek protection under the PoA. The problem is exacerbated by the fact that current procedures and hierarchies of policing in India remain continuous with the police ranks and policing ethos of the British Raj (Jauregui, 2016, 20–21). The British colonial police, which was established at the cusp of the 20th century, was modelled on Irish paramilitary police, which was designed to coerce the local subject population (Arnold, 1986). As the police system was hardly reformed after Indian independence in 1947, Indian police culture today remains marked by an emphasis on force and control and suffers from a lack of monitoring in the ground (Subramanian, 2017). There exists a communicative disconnect between (less educated) field police forces at the district level, who register and investigate PoA complaints, and the higher echelons of the police administration recruited from elite English-medium schools. Most high-level police administrators have little knowledge about the negotiations that take place at local police stations (thanas) and barely set foot in them (Jauregui, 2016).
Dalit legal aid advocates in Rajasthan were deeply concerned by this situation. They argued that the lack of on-the-ground knowledge among police bureaucrats, and the negligent behaviour field police forces, who refused to acknowledge casteism and dismissed PoA complaints with Final Reports, negatively impacted judicial perceptions of Dalit claims.
Justice
The other controversy around the PoA focused on the type of justice it could engender. Hate crime legislation differentiates and specialises general criminal law (Hussain, 2007) in order to protect certain collective, marginalised identities – in this case Dalits – that have been historically stigmatised (Bowling, 1993). However, to operate within the structure of criminal law, hate crime laws must turn this collective history of oppression into individual criminal disputes ‘between named parties’ (MacDermott, 2018, 22). This can create a sense of cognitive dissonance among hate crime complainants (Swiffen, 2018).
In Rajasthan, many Dalit atrocity survivors felt that the dispute format of criminal and hate crime law, in which perpetrator and victim are pitted against one another in a quest where punishment of the guilty party is the ultimate goal (Meyer, 2014), temporally and socially decontextualised experiences of hate and discrimination (Fuchs, 2024). They lamented that police and judges tended to view caste-motivated violence as a conflict that occurred between a specific accused upper-caste party and the Dalit complainant in question in one particular moment (Chowdhury, 2017), and could be proved through linear narratives captured in the right legal documents (Suresh, 2023). Therefore, Dalit advocates argued that in everyday legal practice, hate crime laws like the PoA, privilege a snapshot of events and social relations, which obscures the normalised, historical, and collective character of casteism.
The dissatisfaction with the structure and temporality of hate crime law produced stark contestations about the meaning of post-hate crime justice among Dalit advocates and Dalit survivors of caste atrocities in North India. Dalit legal aid advocates argued that even though the PoA was imperfect, it remained a necessary tool to increase the Dalit footprint within legal institutions. They viewed post-hate-crime-justice as something that was defined by its potential for long-term social and institutional transformation, which would enhance parity of participation (Fraser, 1998) for Dalits. Therefore, Dalit advocates trained survivors of caste crimes to construct linear narratives (Tate, 2007), which focused on single incidents of discrimination and would resonate as consistent and credible with judicial actors.
However, this pursuit of official justice-as-long-term-structural-change left survivors feeling isolated. It failed to address the fear and emotional trauma, which experiencing and witnessing caste-based hate crimes, and the legal process itself, produced for their families, and communities. Dalit survivors were deeply aware that what had happened to them was part of a common experience of discrimination and humiliation that had been historically woven into the social, and legal life of their caste (Guru, 2009). They knew that most PoA cases took decades to make their way through the legal system and only 8% resulted in conviction (CDR, 2016).
Survivors desired a form of restorative and retributive justice (Villa-Vicencio et al., 2005, 387), which would bring catharsis, generate positive affect (Bens, 2022), for their families, and acknowledge the historical depth of the hate crime experience among Dalits. Above all, they wished to see, both, perpetrators of caste crimes, and police officers, who failed to take Dalit stories of caste violence seriously, accept responsibility (Hydle, 2003) and right their wrongs by apologising to their families and local Dalit communities. This desire typically led Dalit hate crime survivors to informally compromise with perpetrators out of court in exchange for public apologies and financial compensation, even though caste atrocities are non-compoundable offences 3 under the Indian Code of Criminal Procedure (Baxi, 2014). While anthropologists have criticised PoA compromises for sacrificing sustainable legal change at the altar of short-lived relief (Teltumbde, 2018), such compromises often restored survivors’ sense of agency (Oza, 2023).
From Constitutional Morality to Dalit Human Rights
Despite these challenges, legal aid advocates in Rajasthan were not ready to abandon the PoA as a symbolically powerful tool of Dalit resistance. Dalit advocates proposed that two types of transformation had to occur for the act to deliver on its promise of challenging structural casteism. On the one hand the conditions of police interpretation, which undermined successful PoA convictions, had to be altered. On the other hand, the antagonistic case format of hate crime law, which facilitated a socially and temporally decontextualised view of caste violence within legal institutions, had to be infused with a spirit of solidarity and affective justice that resonated with Dalit survivors and their communities.
Therefore, they proposed, PoA cases had to be strategically layered into, and combined with, the language and methods of a higher-level, or meta-level legal regime, which could change the structural conditions, within which the act had to operate. For Dalit activists in Rajasthan there were two meta-legal legal frameworks, which fulfilled the second condition of inspiring a sense of collective solidarity. The first was the Indian Constitution. The Indian Constitution of 1950 had been drafted by B.R. Ambedkar, a ground-breaking Dalit lawyer, theorist, and activist, who remains the single most influential figure in Dalit politics to date. Ambedkar aimed to imbue India's foundational legal framework with the spirit of equality and non-discrimination (Linkenbach, 2021) and, thus, introduced a comprehensive, constitutional affirmative action programme for Dalits and indigenous groups. Ambedkar's hope was that these constitutional safeguards would slowly eradicate the casteism at the heart of Indian social and legal institutions.
However, while Dalit advocates in Rajasthan expressed deep respect for the constitution and were staunch followers of Ambedkar, they also felt that the constitution had not fully succeeded in addressing India's systemic casteism. They saw the main reason for this in the clash between the spirit of the constitution and ‘the spirit of the people’, who inhabited legal institutions. This resonates with what legal scholar Kalpana Kannabiran has referred to as the clash between Indian constitutional and Indian social morality. According to Kannabiran (2012) constitutional morality refers to the societal values enshrined in, and communicated through, a nation's constitution, while social morality refers to the un-reflected (discriminatory) attitudes and habits that permeate a given society. She argues that in India constitutional morality, which is rooted in the principle of non-discrimination, has been held captive by a deeply casteist social morality that has shaped the interpretive patterns of India's police and judiciary in such a way that they (sub-) consciously ignore caste violence in practice.
Hence, Dalit advocates in Rajasthan argued that Indian hate crime law needed the support of a legal regime, which also had the power to interfere with, and transform, the casteist social morality among state legal actors. They decided to turn to human rights as a global legal regime that had been at the centre of Dalit mobilisation for three decades, and which they associated with solidarity, protest and state-level accountability. Many Dalit legal aid advocates viewed human rights as ‘law above laws’, which represented a legalised moral horizon that enabled historically ‘weak’ groups to change social and institutional power structures by combining local collective action with international pressure on Indian government institutions. This vision was partially inspired by indigenous rights movements in the Americas, which saw human rights as a platform for the creation of collective marginalised solidarity (Dean and Levi, 2003). It also reflects elements of what Marie Dembour has called the ‘protest’ school of human rights (2010, 3). The protest school positions the redressal of injustice and the voices of the poor at the centre of the human rights framework and argues that continued struggle is necessary to create better social conditions for oppressed communities (2010, 3).
The Dalit view on human rights emerged through two simultaneous developments in India in the 1990s. First, the growth of global anti-untouchability activism (Bob, 2007), which lobbied to have caste discrimination recognised as a human rights violation under the International Convention for the Elimination of all Forms of Racial Discrimination (ICERD). Second, the foundation of India's National Human Rights Commission in 1993, whose mandate emphasised the rights of marginalised groups and highlighted the importance of restorative justice.
Dalit Rights are Human Rights
Until the late 20th Century, the issue of caste discrimination and untouchability had failed to attract the support of major ‘gatekeeper’ NGOs in the human rights field like Amnesty International and Human Rights Watch (HRW) (Bob, 2007, 176). This negatively impacted the global recognition of Dalits as a historically oppressed community. However, the situation began to change when the UN Committee on the Elimination of Racial Discrimination (CERD) acknowledged caste-based discrimination as a form of racism in 1996. The CERD's decennial report stated that ‘the situation of the Scheduled Castes and Scheduled Tribes’ is covered under the treaty's ‘descent’ term, which doesn’t only refer to race. Following this declaration, the condition of Dalits in contemporary India finally caught international attention and in 1997 Human Rights Watch approached the Ford Foundation to undertake a ‘major report on caste-based discrimination’ (Bob, 2007, 179).
A year later, the National Campaign on Dalit Human Rights (NCDHR) was born on World Human Rights Day, 1998. Launching the ‘Black Paper Campaign’ NCDHR activists sought to draw attention to the on-going plight of Dalits in India and to the Indian government's failure to successfully implement the PoA (often also referred to as the SC/ST Act). Under the leadership of the NCDHR, 160 Dalit representatives presented the issue of caste discrimination at the World Conference on Racism in Durban in 2001.
Dalit participation in the Durban conference had a two-fold intention: First, it represented, what Dalit activist Martin Macwan (2001) has called, a ‘search for solidarity’. This also resulted in the foundation of the International Dalit Solidarity network in 2000. Second, Durban's spotlight of casteism-as-racism was meant to give additional weight to Article 17 of the Indian constitution, which abolished untouchability, as well as to the aims of India's only hate crime law: the PoA. The NCDHR argued that if violence against Dalits became a global human rights matter, with which other oppressed groups in the global North could intuitively sympathise, all eyes would be on the Indian government to address caste discrimination. The NCDHR also stated that practices of untouchability were in direct violation of the notion of inherent human dignity in the International Declaration of Human Rights. If India wished to live up to international human rights standards, the government had to actively eliminate casteism from all areas of life.
The push for a new caste-based human rights agenda represented a conceptual and practical move beyond the traditional boomerang model in transnational advocacy research. This model proposes that local advocacy groups mobilise international allies to put pressure on their own governments, when they feel like domestic avenues are closed to them (Keck and Sikkink, 1998). However, the Dalit Rights are Human Rights campaign was not built on the assumption that domestic legal avenues against caste activism were closed off. Instead, they were inspired by the notion that the international pressure and attention generated by human rights campaigns could be leveraged by Dalit advocates to transform local political processes to implement policies in line with Dalit goals. The Dalit human rights movement, thus aimed to create, what Tsutsui and Smith (2018) have called the sandwich effect, a mechanism whereby locally advocacy groups force the hands of their state governments by putting pressure on them, both, from above at the global level, and from below, at the local level.
The Indian government saw the attempt to make the struggle against caste discrimination part of a global anti-racism agenda as an attack on its sovereignty, while some scholars resisted the case-as-race framing due to its biological implications (Gupta, 2001). However, what remained in the aftermath of the Durban conference was the idea that the human rights was a language of global solidarity for Dalits that could gradually overcome the prevailing casteist social morality.
My fieldwork revealed that human rights were seen less as an instance of procedurally-bound case law, but as a transformative sphere of meta-legality by Dalit legal aid advocates in Rajasthan. Therefore, they systematically brought PoA complaints, which the police had been closed with a Final Report (FR), before India's National Human Rights Commission (NHRC): an institution that had turned human rights from conceptual social justice discourse into a restorative spectacle of marginalised protection in India.
The NHRC: Conditions for the Possibility of Justice
In 2017 and 2018 when I conducted my research, India's National Human Rights Commission occupied a special place in the imaginations of many legal professionals in the Indian anti hate-crime space. In 1993, the Protection of Human Rights Act set up the NHRC as a ‘independent governmental body charged with ensuring that every individual's rights are statutorily protected by the state’ (Krishnan, 2004, 542). However, the NHRC's mandate also includes the protection of ‘group’ rights for marginalised communities and charges the Indian state with the responsibility to give marginalised groups a voice (Inam, 2010).
The NHRC can evaluate evidence of human rights violations, conduct suo motu investigations, depose witnesses, and issue recommendations to the government. It can also request the Central Indian Government to enforce its recommendations. The Commission's Chairperson must be a former Supreme Court Justice of India. Across North India legal aid advocates regularly argued that the NHRC was ‘better than the criminal courts’ (Ramesh Nathan, Director National Dalit Movement for Justice, pers. comm. September 20, 2016) since it could challenge the conditions of upper-caste power that shape official justice delivery in India (Berg, 2020).
One of the main mechanisms through which the NHRC addresses human rights breaches is the so-called ‘public open hearing’. These hearings are organised in specific states, or a group of states, where an NHRC delegation hears a batch of complaints that often relate to a specific type of human rights violation. Anyone – a victim or any other person on a victim's behalf – can file a complaint and demand a hearing if their fundamental rights under Part III of the Indian constitution, or any of the international human rights covenants, which India has ratified, have been violated. This includes instances where police, government or administrative authorities have acted unlawfully, or denied care. The NHRC specifically mentions caste atrocities against Dalits and Adivasis as the possible basis for a complaint. A NHRC committee then independently decides which cases it wants to probe.
The most remarkable aspect of NHRC hearings is their restorative element: the NHRC requires agents of the state who are accused of having behaved inappropriately or neglectfully to be physically present at NHRC hearings, along with the victims. This is meant to achieve two things. On the one hand the NHRC wants to ensure that appropriate relief can be recommended to ‘victims of human rights violation on the spot’ (Singh, 2021). On the other hand, forcing government functionaries to interact with the people they have harmed is meant to sensitise them towards human rights matters. This structure inherently acknowledges that negligence of protective duties by state authorities is a violation of people and relationships’ (Zehr, 1990, 181).
Dalit activists across North India argued that NHRC's public open hearings captured, what they considered, the central aim of human rights: to change how Indian institutions viewed and engaged with the needs and demands of historically oppressed groups. Therefore, many Dalit legal aid advocates in Rajasthan admired the NHRC as a counter-hegemonic legal body, which had a bigger goal than the courts: rather than implementing a particular mode of law (criminal or civil), they regarded the NHRC as creating the overall conditions for the possibility of official justice, which corresponded to marginalised needs. They thought NHRC open hearings could help overcome the challenges, which the PoA faced.
At this juncture, I must note that the reputation of the NHRC has recently suffered due to accusations that it has been infiltrated by Hindu nationalist sympathisers. Dalits and religious minorities in India are increasingly worried about government interference in the appointment of NHRC judges and argue that the growing onslaught of Hindu majoritarian politics since 2015, has gradually turned the NHRC from an organisation with teeth into a mere symbolic player (Bhattacharya, 2023). However, in January 2018, when the events in this paper transpired, the myth of the NHRC as an organisation that could ‘change the legal landscape from the ground up’ (Mr Nairoth, pers. comm. Jan. 31st 2018) was alive and well in Rajasthan.
Symbiotic Justice
In January of 2018, the NHRC held a public open hearing in Rajasthan's capital of Jaipur, which focused on neglectful police investigations in PoA complaints. Advocates for prominent Dalit legal aid NGOs like the Centre for Dalit Rights and the Dalit Human Rights Law Network had systematically submitted complaints about compromised police investigations in PoA cases to the NHRC for three years. Hence, the NHRC summoned police officers across Rajasthan to testify and prove that they had properly filed and probed PoA complaints. The three NHRC benches, headed by former Chief Justice of India, H.L. Dattu and two former Supreme Court Justices, heard 169 cases. They called for further reports in 108 cases. In 61 cases, they instructed the police to issue compensatory payments to families.
Below I describe a case from the 2018 hearing to highlight how Dalit advocates strategically layer the hate crime cases into the human rights regime to allow for the creation of a new mode of justice. This form of justice symbiotically combines the punitive force of hate crime law with the affective power, and the potential for state accountability inherent in human rights law.
The Hearing: ‘I Have Seen Justice!’
On the first day of the NHRC hearing, Sonali, a female Dalit activist presented a case before Justice Dattu's bench. The case involved a Dalit woman, who had committed suicide after being gang-raped by two upper caste men. Her father-in-law had travelled from Rajasthan's faraway district of Barmer to attend the hearing.
The make-shift court room in Jaipur's State Institute for Public Administration was packed. Partially, this was due to Sonali's reputation as a fiery presenter. Partially, it was because of the intersectional nature of the case as a matter of caste and gender violence. As Sonali approached the bench, the victim's father-in-law hesitantly followed her. The three police officers from Barmer district, who had registered the complaint, positioned themselves to Sonali's right to face the bench. Justice Dattu seemed relaxed, yet alert. Sonali began her presentation in a thundering voice: The deceased victim, she told Justice Dattu, had been at home by herself in, 2017, when two men of the high-ranking Rajput caste had forcibly entered her house and raped her. Afterwards, they threatened her: If she reported the attack, they would hurt her children. However, the woman told her father-in-law, who went to the local police station to file a First Information Report (FIR) under the PoA on her behalf. Unfortunately, the bravery was not rewarded.
Sonali now turned to point at the police officers next to her. She asked Justice Dattu to recognise that the police had neither investigated the incident, nor provided police protection, as required under section 15A of the PoA. As threats from the perpetrators escalated, the survivor grew desperate: Three months after the attack she took her own life. Determined to not let her fate be forgotten, the victim's father-in-law filed a second FIR against the perpetrators, citing ‘abetment of suicide’ under section 306 of the Indian Penal Code. Once again, the police did not investigate.
Sonali concluded her presentation by telling Justice Dattu that the deceased woman's family had not received any financial compensation. Raising her hands to the sky in a praying gesture, she concluded: ‘Human Rights exist to hold our institutions accountable to the needs of the weak. We ask the bench to do so. Without the help of human rights, laws like the PoA are lost. But with its help the police and courts that turn Dalits away will slowly change. PoA cases show the discrimination that happens […] and we activists can fight for them but human rights can change how the law treats these cases. If human rights and the PoA work together caste atrocity survivors and their communities will finally “feel justice”’.
The DGP arrived an hour later flanked by six police officers. While Justice Dattu did not scold him like his inferior officers, he gave firm instructions. The DGP was told to act against the negligent police officers and submit a follow-up report to the commission. ‘India is a country where everyone's human rights are respected’, Dattu stated waving his finger in the air, ‘we must never forget this’.
A palpable sense of relief hung in the air after Sonali's presentation. The performance integrated structural, affective and restorative visions of justice to produce a sense of a symbiotically functioning human-rights-hate crime complex that offered the possibility for transformation at different scales: from individual survivors to a wider Dalit collective.
Discursive Constructions of Symbiotic Legality
Globally, human rights law has transformed from a mere normative set of principles into a language of humanist values (Goodale, 2006). Though scholars have also emphasised the dark side of human rights (Ortner, 2016), arguing that its bureaucratic processes are incapable of remedying deeper socio-economic inequalities (Mora, 2023), the human rights regime continues to capture the public imagination as system of rules and performances (Wilson, 2006) that holds ‘dark political forces at bay’ (Greenberg, 2020, 421).
During the NHRC hearing Sonali mobilises aspects of this utopian discourse by positioning human rights as a tool of solidarity and protest (Dembour, 2010) for the ‘weak’. She discursively constructs a symbiotic relationship between human rights and hate crime law.
Before Justice Dattu's bench Sonali first argues that the PoA is needed to unveil the violence marginalised groups face. Then she posits that the human rights is a meta-legal regime, which can force state legal actors to interrogate their own interpretive habits (Kannabiran, 2012) in cases involving claims of discrimination. Human rights regimes can systematically transform legal institutions from within and, thus, create the conditions for the possibility of justice delivery through hate crime legislation.
By emphasising that hate crime law and human rights need each other to generate post-hate crime justice for the marginalised communities, Sonali evokes a new mode of legal consciousness in relation to the PoA and hate crime law more widely. Here hate crime law becomes a resource of local mobilisation and creative agency from below (Hernández, 2010), which must be actively combined with global legal languages and frameworks to produce experiences of justice for marginalised groups. This resonates with what Chua and Engel (2019) have called the agency theory of legal consciousness, which stresses that state law is both a source of hegemonic power (see Hull, 2003), and a tool of resistance for marginalised groups.
Affective Legal Performativity
At the NHRC hearing, Sonali also mobilised what I term affective, legal performativity to generate a sense of symbiotic justice among all stake-holders in PoA cases. Her presentation was deeply emotive and punctuated by embodied gestures like folding her hands in prayer when she outlined how human rights and hate crime law could work together to create experiences of justice. This expressive performance was mirrored in the dramatic and improvisational way, in which Justice Dattu conducted the hearing —raising his arms to heaven and interrupting the hearing to summon a prominent police official.
This expressive approach differed starkly from the way judges in Rajasthan's special PoA courts and trial courts usually conducted hearings. Because of heavy caseloads judges in Indian sessions courts frequently conduct several hearings simultaneously (comp. Suresh, 2023, 8), which can produce confusion and leave complainants feeling unheard. Moreover, most PoA hearings are focused on establishing the possibility of casteism as a motivating factor in PoA cases (Fuchs, 2022). Judges often send Dalit complainants away asking for certificates that confirm their caste status or demand that they produce witnesses who can verify that the accused attacked them because they are Dalit. While the PoA stipulates that judges should presume that structural casteism plays part in upper caste attacks against Dalits if the perpetrator can reasonably be assumed to know the victim's caste status, my fieldwork showed that district-level criminal judges rarely applied the presumption clause. Hence, Dalit PoA complainants left court hearings deflated, feeling that judges made no effort to engage with the dynamics of exclusion that marked their lives.
Against this backdrop, the spectacular nature of the NHRC hearing — the emotive manner in which Dalit legal aid advocates invoked human rights, and the focused way in which NHRC judges listened — generated a unique moment of emotional catharsis. Some scholars have argued that courtroom trials reinforce hegemonic power structures by creating an aura of mystery around official law (Carlen, 1976), However, others highlight that legal performance can also act as a catalyst for healing (Destrooper, 2018). Performative court hearings can push abstract principles of formal justice into the affective realm of personal healing (Zoettl, 2016), by allowing for the externalisation of conflict. This is especially true for victims of violence, for whom performative court hearings can become a meaningful way of witnessing and validating their own pain (Duggan, 2012).
As a formal body, which aims to sensitise state officials to the suffering of marginalised groups (Singh, 2021), the NHRC offered a space for healing theatre that ordinary PoA hearings did not. During the hearing, both Sonali and Justice Dattu drew the police's and the audience's attention to the deceased victim's surviving family. Justice Dattu insisted on interrupting the usual hearing process to summon the highest-ranking police official in Rajasthan—the DGP—to discuss the case of a poor, rural Dalit woman, whose life would otherwise have faded into obscurity. He didn’t analyse the motivation of the negligent police officers. Instead, he condemned police negligence and affirmed that human rights should protect the ‘weak’.
By highlighting the victim's humanity, engaging with her family, and embodying emotions like anger towards the police, Sonali and Justice Dattu turned the NHRC hearing from a bureaucratic exercise into a space of pulsating public sentiment (Bens, 2022). These emotions were cathartically resolved through Dattu's exchange with the DGP, which allowed the audience and the survivor's family to ‘feel’ justice.
Reverse (Police) Humiliation
Symbiotic justice was also produced through reverse (police) humiliation at the hands of the NHRC judges. NHRC hearings involve a power reversal between hate crime survivors and the police. The NHRC essentially puts the police, who usually hold the power to dismiss claims of discrimination, on trial before a human rights court staffed with some of the most powerful judicial actors in India. This power reversal represents a structural rupture, a ritualistic moment out of time, which can bring a rare sense of institutional accountability (see Turner, 1969).
Throughout my fieldwork Dalit activists and survivors of caste-based violence emphasised that the PoA was special. As a hate crime law, it represented a promise for a better, more equal world for Dalits. Therefore, they considered the frequent dismissal of PoA complaints by district judges (Mangubhai and Singh, 2014), and the scepticism and neglect, with which police habitually treated Dalit narratives of discrimination, as a deep betrayal of these promises.
In this context, the NHRC hearing, which put the spotlight on the failure of the police, became a space that resolved a dual trauma. On the one hand, experiences of caste violence could be safely ‘testified about’ (Duggan, 2012, 93). On the other hand, the additional trauma that marginalised groups experience at the hand of legal institutions was addressed.
In her presentation Sonali repeatedly drew the attention of the bench to the failures of the police in caste atrocity cases. In response, Justice Dattu reprimanded police officers ‘like schoolboys’, to use the words of another legal aid advocate. The father-in-law of the deceased victim later insisted that the police had been humiliated by the NHRC. This choice of words is significant. Experiences of casteism are deeply humiliating for Dalit communities who are dismissed as impure, and treated with condescension and disgust by higher castes. Paradoxically, this humiliation is exacerbated by hate crime laws like the PoA, which require Dalits to publicly narrate stories of discrimination to upper caste state officials, whose reactions often compound the original feeling of humiliation (Guru, 2009). However, at the NHRC hearing Sonali and Justice Dattu turned humiliation on its head and shamed the police. This process further strengthened the idea of human rights as a meta-legal regime, which could correct institutional failures in the criminal system, to make like the PoA a potent mechanism for post-hate-crime justice.
Yet, it is noteworthy that Sonali and Justice Dattu's engineering of reverse police humiliation is disproportionately directed at low-ranking field police officers, while senior officers like the DGP are treated more respectfully. This is intentional. Constables, and other field police officers, were usually the ones in charge of registering PoA complaints and thus represented the face of the police for Dalit complainants. Even though many constables in Rajasthan faced extreme pressure from their superiors to conduct investigations and classify complaints in particular ways, they easily became the scapegoats for Dalit hate crime survivors, whose cases were not registered or investigated with care.
These dynamics explain why the NHRC hearing was so potent at producing symbiotic justice through effective police humiliation. However, they also show that this process raises new and urgent questions around the attribution of responsibility within legal institutions that have been shaped by biased (in this case casteist) social moralities. Anthropologists of law have shown that responsibility for violence or injustice can rarely be assigned in unilinear and singular ways, but tends to be layered, multiple and shared by multiple actors (Eckert and Knöpfel, 2020). However, legal frameworks are rarely equipped to address these multiplicities. The production of symbiotic justice in Indian hate crime cases is successful in fulfilling its dual aims of chipping away at institutional bias and generating cathartic, felt experiences of justice for hate crime survivors and their communities. However, in the process Dalit legal aid activists and NHRC judges displace the entire burden of punishment from the shoulders of direct perpetrators to those of low-ranking police officials. Rather than generating more accountability and more hate crime justice, they simply generate a different kind: one that combines affect with structural transformation but fails to engender retribution for perpetrators.
Conclusion
The most striking aspect of the NHRC hearing was the effect it had on Dalit survivors of casteist crimes. The father-in-law of the deceased victim in Sonali's case repeatedly told me that he could finally breathe again: he had seen and felt justice. Another Dalit woman whose case was heard at a different NHRC bench, and also resulted in a public reprimand of the investigating police officer, confided in me that she had changed her mind on the PoA: before the hearing she had given up hope that laws like the PoA could help Dalits but now she knew that they could bring justice for her community with the help of human rights. Meanwhile, advocates from the Centre for Dalit Rights openly celebrated the hearing as a step towards decasting legal institutions. Sonali told me that she felt she finally had strength (dham) to fight again.
Together these statements reveal how the production of a hate-crime-cum-human-rights complex can engender a shift in local legal consciousness around hate crime law. If before the hearing, the discourse around the PoA was largely defined by a sense of failure, obstacle and isolation, it was now characterised by ideas of legislative interdependence, creative agency, and the possibility of Dalit-led post-hate crime justice through law.
This highlights that the potential of formal post-hate-crime-justice can only be fully understood if hate crime legislation is studied in relation to other legal regimes. Existing scholarship on hate crime has brought the unique challenges that face hate crime legislation globally into sharp focus. Scholars studying hate crime law in Western contexts like Canada and Sweden have also highlighted the disproportionate influence of the police on the outcomes of hate crime cases (Swiffen, 2018, Atak, 2022). Similarly, scholars of hate crime legislation in the UK (Walters, 2022) have critically analysed the problematic social and cultural effects, which decontextualised readings of hate crime complaints have on survivors.
However, scholars have largely neglected to explore how historically marginalised groups mobilise hate crime laws in conjunction with other legal frameworks. The data in this paper reveals that oppressed groups often see hate crime law as one tool in their legal kit, which must be brought into strategic conversation with other legal regimes, legal languages, and legal forms to unfold its protective, as well as its restorative potential.
This also highlights that contemporary hate crime scholarship would benefit from more extensive engagement with hate crime laws, or related modes of legislation, in the global South. The production of symbiotic justice in India draws on culturally and historically specific understandings of different types of law. This highlights that marginalised groups in post-colonial nations with unique histories of mobilisation engage in the creation of socially and politically specific iterations of post-hate-crime justice that deserve further attention.
Footnotes
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The author disclosed receipt of the following financial support for the research, authorship and/or publication of this article: This work was supported by the Swiss National Fund, Wenner-Gren Foundation, Leverhulme Trust (grant numbers 9367, ECF-2021-618).
