A Tale of Targeted Violence in Hashimpura: the Delhi High Court on Recognition, Relations and Responses

Jindal Global Law Review (2020) 11(1):61–76 https://doi.org/10.1007/s41020-020-00113-6

ARTICLE

A tale of targeted violence in Hashimpura: the Delhi High Court on recognition, relations and responses

Vandita Khanna1

Published online: 19 May 2020 © O.P. Jindal Global University (JGU) 2020

Abstract On 31 October 2018, Justice Dr S Muralidhar (then) at the Delhi High Court convicted 16 members of the Provincial Armed Constabulary (PAC) for, inter alia, the murder of 38 Muslim residents of Hashimpura, a neighbourhood in Meerut, Uttar Pradesh in the summer of 1987. In so doing, he described the events that unfolded in Hashimpura as the ‘targeted killing’ of ‘members of a particular minority community.’ The judicial recognition of targeted violence in contemporary Indian society forms the focus of the present article. The article contends that Muralidhar J’s reference to targeted violence paves way for the recognition of an important juridical concept that warrants further academic and legal engagement. By adopting a relational approach, I argue that the conceptual utility of the category of targeted violence lies in its ability to unmask the social relations that it implicates. Targeted violence is not aimed at individual actors, but social relations between perpetrators, individual victims and those who share the victims’ minority identity. Committed to the legal recognition of social experiences, I demonstrate how the category of targeted violence accurately refects the experiences of and relations between diferent social actors. I further build a case for why and how legal and judicial responses to targeted violence ought to be informed and shaped by a recognition of its relational harms.

Keywords Targeted violence · Minority · Hashimpura · Relational harm · Hate crime

* Vandita Khanna [email protected]

1 Research Fellow, Centre for Public Interest Law, Jindal Global Law School, O.P. Jindal Global University, Sonipat, India

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1 Introduction

On 22 May 1987, 38 Muslim individuals were shot in cold blood near the neighbourhood of Hashimpura in Meerut, Uttar Pradesh.1 Set against a tumultuous back- drop of sectarian violence in the district, the Provincial Armed Constabulary (PAC) had been deployed for ‘riot control and security’ earlier that month.2 On 22 May, a group of 42 to 45 elderly Muslim men and young boys were rounded up and packed into a yellow truck. One and a half hours into the journey, the truck was brought to a halt, the abducted individuals were brought down one after another, and shot with rifes before their bodies were thrown into canals.3 Of them, fve survived and were presented as witnesses in the trial that followed. On 31 October 2018, 31 years after the incident, Justice S Muralidhar, writing for the Delhi High Court, held 16 accused members of the PAC guilty of the ofences of criminal conspiracy, kidnapping, murder and causing evidence to disappear.4 He described the incident as an act of ‘targeted killing by armed forces of the unarmed, innocent and defenseless members of a particular community’.5 It is this description of the Hashimpura killings that forms the focus of this article. The sheer absence of targeted violence from legal vocabulary has previously served as a signifcant barrier to seeing incidents of sectarian violence as such.6 Vio- lence between diferent religious communities has in the past been described variously as communal violence,7 riots,8 or mob violence in public and legal discourse.9 These descriptive markers see violence as a law-and-order concern, and focus on the method and means of violence or the number of people participating in violent acts, all of which detracts attention from being able to capture the nature and intensity of

1 Zulfkar Nasir & Others v State of Uttar Pradesh & Others 2018 SCC Online Del 12153 [1.2]. See also Asghar Ali Engineer, ‘Meerut: The Nation’s Shame’ (1987) 22(25) Economic and Political Weekly 969; AG Noorani, ‘Amnesty Report on Meerut Killings’ (1987) 22(50) Economic and Political Weekly 2139; Asghar Ali Engineer, ‘Gian Prakash Committee Report on Meerut Riots’ (1988) 23(1) Economic and Political Weekly 30; K Balagopal, ‘Meerut 1987: Refections on an Inquiry’ (1988) 23(16) Economic and Political Weekly 768. 2 Zulfkar Nasir & Others v State of Uttar Pradesh & Others (n 1) [1.3]. 3 ibid [1.2]. 4 ibid [1.8]. 5 Ibid. 6 The Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 attempted to introduce ‘targeted violence’ into our legal vocabulary. Section 3(c) of the Bill defned ‘communal and targeted violence’ as ‘any act or series of acts, whether spontaneous or planned, resulting in injury or harm to the person and or property, knowingly directed against any person by virtue of his or her membership of any group, which destroys the secular fabric of the nation’. However, the Bill was not passed by the Parliament. 7 For a critical account of the historiography of violence in India, see Gyanendra Pandey, ‘In Defense of the Fragment: Writing about Hindu-Muslim Riots in India Today’ (1992) 37 Representations 27. 8 Indian Penal Code, 1860, ss 146–148. For a critique of the judicial construction of the ‘communal riot’ see Pratiksha Baxi, ‘Adjudicating the Riot: Communal Violence, Crowds and Public Tranquility in India’ (2007) 3 Domains 70. 9 See M Mohsin Alam Bhat, ‘Mob, Murder, Motivation: The Emergence of Hate Crime Discourse in India (2020) 16(1) Socio-Legal Review (forthcoming) (on the emergence of the category of ‘hate crimes’ in comparison to concepts of ‘vigilantism’, ‘mob violence’, ‘communal violence’ and ‘lynching’). 1 3 Jindal Global Law Review (2020) 11(1):61–76 63 the harm(s) underlying such violence. In this sense, the Delhi High Court judgment marks a watershed moment in seeing the Hashimpura massacre as targeted killing of a minority community and demonstrating that the category of targeted violence is not alien to the Indian judicial and legal discourse.10 The central aim of this article is to unpack the contents and implications of this discernible category and recognise and give name to the harms of targeted violence. By using Muralidhar J’s judgment as a starting point, I contend that the reference to targeted killings is a recognition of a resourceful concept that warrants careful legal attention. Section two of this article draws on the facts of the Hashimpura massacre and the Delhi High Court judgment that followed to frame the conceptual contours of the conversation on targeted violence within the Indian legal and judicial system. Muralidhar J’s judgment is commendable in that it recognises targeted violence as an integral marker of the events that unfolded in Hashimpura. The introduction of the category of targeted violence into the Indian legal vocabulary ofers a valuable opportunity for us to engage with what targeted violence can and should encompass. What are its constituent elements? What are the legal consequences of categorising an act of violence as targeted in nature? This part carefully reads the Delhi High Court judgment to foreground the conceptual signifcance of this nascent area of study. The legal category of targeted violence helps to see, describe and frame a particular social experience. In section three of this article, I use a relational approach to lay the groundwork for the relations implicated in these social experiences. In order for the category of targeted violence to be efective in law, there is a need to engage with the process of and harms underlying targeted violence within a particular framework. The conceptual ambiguities underlying the category of targeted violence in the Delhi High Court judgment may serve as a barrier in appreciating its signifcance. The relational approach in this article draws heavily from David Harvey’s conceptualisation of relational space, as ‘being contained in objects in the sense that an object can be said to exist only insofar as it contains and represents within itself relationships to other objects’.11 In this sense, according to Harvey, ‘there is no such thing as space outside of the processes that defne it’.12 When applied to the theo- rising of hate crimes, Barbara Perry makes a case for thinking about hate crimes as ‘socially situated, dynamic processes, involving context and actors, structure and agency’.13 In adopting the relational approach, this article thus argues that the

10 In her written submissions in the case of Tushar Gandhi v Union of India and Ors., WP (Civ) No. 732 of 2017, Senior Advocate Indira Jaising referred to the lynching of Muslims and Dalits on the false sus- picion of carrying cattle for slaughter or consumption of beef as ‘targeted violence’ (para 2). Notably, she defned ‘targeted violence’ as ‘violence with the motive of targeting a particular category of people based on race, sex, religion or caste’ (para 4). http://theleafet.in/wp-content/uploads/2018/07/Written-submi ssions-by-Indira-Jaising-in-Lynching.pdf. Accessed 25 April 2020. 11 David Harvey, Social Justice and the City (University of Georgia Press, 2009) 13. 12 David Harvey, ‘Space as a Key Word’ in Noel Castree and Derek Gregory (eds) David Harvey: A Critical Reader (Wiley-Blackwell 2006). 13 Barbara Perry (ed), Hate and Bias Crime: A Reader (Routledge 2012) xv; see also Benjamin Bowling, ‘Racial Harassment and the Process of Victimisation’ (1993) 33(2) British Journal of Criminology 231, 238. 1 3 64 Jindal Global Law Review (2020) 11(1):61–76 category of targeted violence drops the veneer of thinking about sectarian violence as operating in social or cultural vacuums. Typically, criminal law tends to individu- alise incidents and isolate diferent ingredients of ofences. In contrast, the category of targeted violence, when understood using a relational approach, captures this violence in a thick social context by uncovering the social relations at play and relational harms at stake. I use the phrase ‘relational harms’ to emphasise that the harms of targeted violence lie in certain social relations of power, domination and subordination. Targeted violence targets not individuals or groups, but the social relations between individual victims, minority communities, and perpetrators. In adopting a relational approach, as defned above, I argue that the conceptual utility of the category of targeted violence is that it helps unmask the relational harms of processes, such as the one in 1987 Hashimpura. Though targeted violence scholarship has greatly benefted from rich empirical insights, there have been few attempts to theorise the working of targeted violence and engage with philosophical accounts to underpin its concrete harms.14 In this section, I locate targeted violence within a triangular framework that implicates relations between perpetrators, individual victims, and the minority community to which the victims belong. The relational approach not only underpins the relations at the core of targeted violence, but also brings to the fore the relation between individual victims and their minority identity as central to the process of targeted violence. In this manner, the relational approach illuminates the distal efects of targeted violence beyond immediate victims and interrogates and complicates the act of targeting and the victims of the target. The Hashimpura judgment serves as a springboard to unpack each of these relational axes and ground the harms of targeted violence in legal values of dignity and autonomy. As noted by the Ofce for Democratic Institu- tions and Human Rights (ODIHR): ‘By recognizing the harm done to victims, they convey to individual victims and to their communities the understanding that the criminal justice system serves to protect them’.15 A recognition of these relational harms not only helps clarify the conceptual import of the judicial reference to targeted violence but also weaves the discursive category within broader public law discourse under the Indian Constitution. Finally, this article relies on the concept of targeted violence, as understood using the relational approach, to further develop the fndings of the Delhi High Court judgment. Here, I fag various, and in no way exhaustive, questions for judges and the legal system to ask and address in the future in order to contribute to the project of recognising and appreciating the normative value of this live concept. The Delhi High Court judgment makes signifcant headway in inter alia repri- manding the investigating agency,16 couching the indiscriminate shootings in the

14 E.g. Barbara Perry, In the Name of Hate: Understanding Hate Crimes (Routledge, New York 2001); Nathan Hall et al (eds) The Routledge International Handbook on Hate Crime (Routledge, London and New York 2015). 15 OSCE ODIHR, Hate Crime Laws: A Practical Guide (9 March 2009). 16 Zulfkar Nasir & Others v State of Uttar Pradesh & Others (n 1) [85–100]. 1 3 Jindal Global Law Review (2020) 11(1):61–76 65 language of custodial killings,17 and furthering the jurisprudence on the right to the truth.18 However, the present article concerns itself solely with its fnding of targeted violence. In using the Hashimpura judgment as a starting point, the article construes the judicial reference as a provocation to explore why and in what form the concept of targeted violence deserves to stay in our legal vocabulary. It further addresses how recognising and contextualising its concrete harms helps see, identify, describe, and subsequently respond to targeted violence in contemporary Indian society.

2 Revisiting the tale of targeted violence in Hashimpura

On the humid summer night of 22 May 1987, Babuddin was rescued from the Hin- don canal in Makanpur village by Vibhuti Narain Rai, the then Superintendent of Police, Ghaziabad district.19 Babuddin was the frst survivor and would go on to be presented as prosecution witness number 11 in what would later be etched in public memory as the Hashimpura massacre. At least 38 Muslim men were thrown out of a truck—with the number plate URU 1493—which belonged to the C-Company of the 41st Battalion of the PAC, by 18 to 20 paramilitary soldiers donning khakhi coloured uniforms using ofcial .303 rifes. Babuddin had fallen between the Hindon canal embankment and some bushes after being injured by two bullets behind his left shoulder and another near his chest. Having immersed his head in the slushy water, while a part of his body was stuck in the ravines, he clutched onto foliage to lay still, held his breath, and played dead. After rounding up around 42 to 45 Muslim men and boys in Hashimpura earlier that evening under the impression that they were being escorted to the Civil Lines Police Station, the driver of the yellow coloured PAC truck, Constable Mokam Singh, suddenly stopped towards the Gang canal near Muradnagar. On the eve of 22 May, rumours of the killing of an army Major’s brother and looting of two PAC rifes had spread like wildfre.20 Simmering in communal tensions, the city of Meerut had been locked down in a curfew after the Congress government had ordered the controversial site of the Babri Masjid to be opened for Hindu prayers in early May. After a one-and-a-half-hour journey from Hashimpura, a predominantly Muslim neighbourhood of weavers and factory workers, the vehicle was brought to a halt and its lights were switched of. The jawans (soldiers) opened the rear of the truck and ordered everyone to jump out and squat with their heads down in the truck, making it impossible to see what was happening around them. Babuddin’s back was turned away from the door of the truck but he heard the footsteps of a few

17 ibid [78–84]. 18 ibid [109–111]. 19 This section draws heavily from Vibhuti Narain Rai’s visceral account of the incident in VN Rai, Hashimpura 22 May: The forgotten story of India’s biggest custodial killing (Penguin 2016); see also Harsh Mander, ‘Hashimpura: 31 years after custodial massacre of Muslims by men in uniform, justice is incomplete’, Scroll (2 Nov 2018). https://scroll.in/article/900594/hashimpura-31-years-after-custodial- massacre-of-muslims-by-men-in-uniform-justice-is-incomplete. Accessed 10 April 2020. 20 ibid. 1 3 66 Jindal Global Law Review (2020) 11(1):61–76 individuals obediently stepping out. Since it was the holy month of Ramzan, most residents had been observing a religious fast. The frst to be shot at was Mohammad Yasim. Babuddin heard cries of men begging for mercy, jawans screaming abuses, and countless gunshots that flled the air. Perhaps in a hurry to complete their task, the PAC jawans began to fre indiscriminately at the more obstinate ones held inside the truck. Babuddin shuddered as he touched his stomach and realised he had been shot at as well. On noticing the headlights of a vehicle approaching the PAC truck, the paramilitary ofcers stopped fring and rushed inside, commanded Mokam Singh to reverse the truck, and continued driving to a more conspicuous location. The truck turned towards Ghaziabad on a long winding road and slowed down near the Hindon river leading to Makanpur village, a lane eerily similar to where the frst massacre had taken place about half an hour ago. The jawans got out, opened the rear portion of the truck and commanded everyone to get out again, however this time in vain. Shifting strategy, they began to hurriedly grip onto whoever they could fnd at the rear of the truck and throw them out: ‘guns blazed and the persons fell into the canal with a splash’.21 Two First Information Reports were registered in Ghaziabad on 22 and 23 May respectively. The truck, which constituted the scene of crime for the most part, was curiously examined only eight months after the incident. The Crime Branch, Crimi- nal Investigation Department of Uttar Pradesh, fled a chargesheet in 1996, that is nine years after the massacre. Of the 38 deceased men, only 11 persons could be identifed by their relatives while the bodies of 22 people were never found. Between 1997 and 2000, the Sessions Judge in Ghaziabad issued 23 non-bailable arrest warrants against the accused but was unsuccessful to get them in custody. The case was fnally transferred to the District and Sessions Judge in Delhi and charges were framed against 19 accused ofcers of the PAC in May 2006. During the pendency of the trial, three of the accused, including Surender Pal Singh, the then Commander of the C-Company of the 41st Battalion, died. On 23 March 2015, 28 years after the Hashimpura killings, the Sessions Court in Delhi gave the beneft of doubt to the remaining 16 accused due to insufcient evidence. In particular, the Additional Ses- sions Judge noted that there were doubts as to the identities of some of the deceased persons,22 no reliable evidence to connect the incident to the PAC truck,23 and no record of arms and ammunition used in the killings.24 In the words of the Sessions Court, ‘[t]he accused persons cannot be convicted on the basis of scanty, unreliable and faulty investigation which has gaps and holes’.25 Subsequently, the National Human Rights Commission fled an application for impleadment before the Delhi High Court alleging that the Criminal Investiga- tion Department of Uttar Pradesh had deliberately suppressed material evidence

21 Rai (n 19) 22. 22 Zulfkar Nasir & Others v State of Uttar Pradesh & Others (n 1) [28]. 23 ibid [29]. 24 ibid [30]. 25 ibid [32]. 1 3 Jindal Global Law Review (2020) 11(1):61–76 67 concerning the accused PAC personnel, including information about the deploy- ment of specifc PAC ofcers on duty in Meerut at the relevant time as well as the general diary that recorded the daily movement of personnel and vehicles. After a series of orders, the state of Uttar Pradesh reluctantly complied with the directions of the Court and additional evidence was fnally introduced into the trial record. The scope of the appeal before the Delhi High Court bench comprising of S Muralid- har and Vinod Goel JJ was confned to ascertaining whether or not the identity of the truck and of the accused persons had now been established beyond reasonable doubt.26 The bench observed that the additional evidence made abundantly clear the use of the specifc truck URU 1493, the identities of the accused, and the use of as many as 17 ofcial rifes.27 All the remaining accused were accordingly convicted for the ofences of criminal conspiracy, abduction, murder and destruction of evidence under Sections 120-B, 364, 302 and 201 of the Indian Penal Code, 1860 respectively.28 Notably, the concept of targeted killings was introduced in the judgment in the context of proof of motive. In particular, the accused ofcers had submitted that the prosecution had not proven motive for the commission of the crime. Here, Muralid- har J notes that the submission made on behalf of the accused ‘overlooks… the fact that all the victims belonged to a minority community. This was a case of a targeted killing revealing an institutional bias within the law enforcement agents in this case’.29 The judgment then refers to a study conducted by the Centre for Study of Developing Societies and Common Cause that found that Muslims comprise of a meagre 2.5% of the police force and that a majority of Indian Muslims are highly or somewhat fearful of the police. The judgment thus seems to suggest that since (a) this was a case of targeted killing of members of a particular minority community by a police force that is (b) wrought with an institutional bias against the minority community, the Court was ‘unable to accept the submission on behalf of the accused that the motive for the commission of the crime was not proved’.30 The judicial description of the Hashimpura killings as targeted violence is commendable for its damning indictment of the state machinery. The concept of targeted violence has profound implications for how courts and other legal actors should engage with and address it. There are however marked silences in the judgment that leave the reader wanting for greater conceptual clarity on what targeted violence means and why and how the Hashimpura massacres can be seen and recognised as such. Furthermore, there is a need to supplement the recognition of targeted violence in the judgment with the discursive and legal signifcance of such recognition in the future. For example, while the Delhi High Court is clear that the mass shooting of members of a particular minority community amounts to targeted killing, it leaves open

26 ibid [42]. 27 ibid [50–52]. 28 ibid [72]. 29 ibid [102]. 30 ibid [104]. 1 3 68 Jindal Global Law Review (2020) 11(1):61–76 the question of who may experience targeted violence as a victim. Is it necessary for targeted violence to be perpetrated against solely minority communities or is it pos- sible to imagine targeted violence as directed against majority communities as well? Relatedly, the Court does not elaborate on the meaning and markers of ‘minority communities’. Important questions on measuring and reporting targeted violence turn on who, normatively speaking, qualifes as a victim. Secondly, Muralidhar J expressly frames targeted killings as violence perpetrated against members of a minority community. However, the lack of clarity on who qualifes as a minority renders it difcult to rely on this otherwise novel fnding in subsequent adjudication. Variously, the judgment gestures towards accounting for the cumulative force of numeric strength,31 socioeconomic positioning,32 and social marginalization33 as appropriate markers of a minority community. However, do any of these factors enjoy lexical priority? Should a legal defnition of ‘minority community’ shift from one geographical space to another? Which protected attributes ought to be covered within the defnition of minorities? While Article 15(1) refers to religion, race, caste, sex and place of birth, the (lapsed) Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 mentions religious and linguistic minorities only. Further, the Supreme Court of India has read attributes not expressly mentioned under Article 15(1) within its text, such as gender identity34 and sexual orientation.35 Furthermore, do racial, religious, sexual and gender-based minorities share qualitatively similar experiences of targeted violence? The question of who should qualify as a ‘minority community’ has signifcant inclu- sionary and exclusionary ramifcations on who is permitted by law to frame their experiences in the language of targeted violence. Another element of targeted violence that is integral to its legal recognition is the role, if any, played by the motivation of perpetrators. In the context of Hashimpura, the Court seemed to indicate that since all the victims shared the minority Muslim identity, the violence was targeted in nature and revealed an institutional bias against the Muslim minority. This led the Court to conclude that the perpetrators had motive to commit the crime. However, this begs the question of whether or not motive is a core characteristic of targeted violence in and of itself. In other words, in estab- lishing motive through the descriptive marker of targeted violence, did the Court’s conceptualisation subsume motive as an element of targeted violence or use the fact of targeted violence, amongst other things, to establish the requirement of motive? In the former case, the legal category of targeted violence would be defned as a motive-based ofence, while in the latter, motive would not necessarily fgure as an essential element within the defnition of targeted violence, though it may be useful to establish it as an additional requirement. These silences are accompanied with a

31 ibid [1.1] (‘Around 36% of the population [of Meerut] are Muslims.’). 32 ibid (‘Many of them [Muslims in Meerut] earn meagre sums as artisans and labourers to keep them- selves and their families going.’). 33 ibid [103]. 34 National Legal Services Authority v Union of India AIR 2014 SC 1863. 35 Navtej Singh Johar & Others v Union of India W. P. (Crl.) No. 76 of 2016. 1 3 Jindal Global Law Review (2020) 11(1):61–76 69 few unaddressed questions on the role, meaning and threshold of motivation. How, if at all, should the Indian legal system craft the causal link between the perpetrator’s thought process and the perpetrator’s criminal conduct? The recognition of targeted violence is but the frst step to crafting responses to it. The decision of the Delhi High Court to sentence the 16 accused to life imprison- ment for the ofence of murder read with criminal conspiracy is ambiguous in that it does not expressly connect the judicial recognition of targeted violence with its sentencing decision. Further, in respect of remedial measures for victims and their families, the Delhi High Court makes three, albeit unsubstantiated, fndings. For one, it recommends the designation of a Nodal Ofcer in each state who is competent to address the needs of victim families in cases of state excesses.36 Two, it introduces the importance of the right of victim families to know the truth and to be able to access legal aid during the course of legal proceedings.37 Finally, it gestures towards some relief that ‘should not be limited to monetary compensation but other range of reliefs respecting the rights to basic survival and dignity of such families’.38 In making no mention of rehabilitation or return and in failing to elucidate the permissible range of reliefs, the Court leaves future victims without concrete remedial measures. In order to efectively address the violence exemplifed in Hashimpura and beyond, the recognition of the juridical concept of ‘targeted violence’ must be sup- plemented with clear remedies for victims and sentencing guidelines with respect to perpetrators. Finally, in grounding the targeted killings at hand within a pattern of institutional bias in the law enforcement agency, the Court underscores the critical need for structural reforms in the criminal justice system. However, its expectation ‘that the State will take the necessary steps to put in place a working mechanism that can… make law enforcement agencies accountable and answerable’ would beneft from further elaboration.39 Despite sympathising with the victim families for their 31-year-long wait for justice and erosion of faith in the state machinery,40 the Court does not go far enough in its eforts for structural transformation. It expressly notes the inability of a ‘law enforcement agency to carry out an impartial and independent investigation when the persons accused of the crimes are members of the agency itself’.41 Its fnding of an active attempt by the police to destroy relevant evidence serves as an indictment of the investigation agency.42 The structural anomalies in the criminal justice system identifed by the Court invite us to further fesh out responses to targeted violence.43 There is a critical need to buttress the signifcance of seeing

36 Zulfkar Nasir & Others v State of Uttar Pradesh & Others (n 1) [114]. 37 ibid [113–114]. 38 ibid [114]. 39 ibid [111]. 40 ibid [1.9]. 41 ibid [105]. 42 ibid. 43 Notably, the judiciary has previously issued comprehensive guidelines for structural reform in cases of sexual violence. See e.g. Vishaka and Others v State of Rajasthan AIR 1997 SC 3011. 1 3 70 Jindal Global Law Review (2020) 11(1):61–76 targeted violence with structural reforms to prevent it from occurring in the future and putting in place working mechanisms to respond to and eliminate it. While the Hashimpura judgment ought to be lauded for its brave eforts of giving name to the violence, there is undeniably much juridical ground yet to be covered. In the next section, I lay the groundwork for a relational approach to targeted violence. This approach helps understand targeted violence as a dynamic process embedded in everyday social relations and not as an individual(ised), exceptional incident. It further helps unmask the social relations that underlie processes of targeted violence in order to understand how it harms social relations between individual victims, minority communities, and perpetrators. Finally, the relational approach helps think more carefully about the core elements of the conceptual category of targeted violence in the Indian legal system.

3 Recognising relational harms

The Delhi High Court described the mass shootings of Muslims by PAC ofcials in 1987 Hashimpura as ‘targeted killings’.44 In the absence of existing legal frame- works to situate this fnding, it is important to highlight the conceptual signifcance of developing the category of targeted violence in law. I will frst set out a relational approach that unpacks targeted violence as afecting relations between (i) individual victims and perpetrators; (ii) victims and the minority community to which they belong; and (iii) perpetrators and the minority community. The relational approach underscores the relation between individual victims and the minority community as integral to the motivation behind and harms of targeted violence. On the one hand, in targeting individuals as members of a minority community, perpetrators of targeted violence undermine individual dignity and integrity. On the other hand, in targeting individuals, perpetrators reinforce the Othering of the minority community to which individual victims belong. While the Delhi High Court judgment may serve as a starting point in that it grasps the relational framework in which targeted violence operates, the juridical concept of targeted violence deserves to be feshed out further. I thus supplement a careful reading of the judgment with academic scholarship to recognise the relational harms of targeted violence. Admittedly, the concept of targeted violence is not as developed as that of hate crimes, which forms the the- matic focus of this issue. While the task of comprehensively distinguishing between the two is beyond the scope of this article, I rely on the family resemblance shared by the concepts of targeted violence and hate crimes and use the rich insights of existing hate crimes scholarship as an interpretive tool to see and theorise targeted violence. At the most immediate level, targeted violence captures the act of perpetrators targeting certain individuals. Muralidhar J’s judgment begins by noting that ‘[o]n 22nd May … [a]round 42 to 45 men, old and young… were rounded up by the Provincial

44 Zulfkar Nasir & Others v State of Uttar Pradesh & Others (n 1) [1.8, 101–102, 108]. 1 3 Jindal Global Law Review (2020) 11(1):61–76 71

Armed Constabulary’.45 This simple recounting of the incident speaks directly of the abduction (and subsequent murder) of 38 individuals by PAC ofcials. This is but one layer that characterises the Hashimpura massacre. The judicial narrative however refuses to paint the incident as individual(ised), discrete or random. Instead, it terms the violence as ‘targeted killings of persons belonging to one minority community’.46 The essence of individuals lies in the compounded-ness, messiness and wholeness of all their identities taken together. The act of singling out an actual or perceived identity based on (minority) community membership fractures and under- mines individual essence and integrity. The judgment captures this fracturing by its constant references to the minority Muslim identity of the victims. As expressed by Muralidhar J, the violence ‘points to the disproportionate reaction by the PAC in targeting the members of the minority community’.47 The relational harm of targeted violence as framed between individual victims and perpetrators is that the targeted nature of the violence fails to recognise and respect people as individuals. In so doing, it fails to respect the dignity of each individual with all identities taken together as an integral whole to comprise one’s individual essence.48 Notably, a submission made on behalf of the accused admits that all the victims were ‘total stran- gers’ to the accused who had ‘no grudge or animosity against them’.49 In tracing the series of events, the Court further describes the fring of shots as ‘indiscriminate’.50 This indiscriminate nature of the violence that was perpetrated not against particular persons but based on their minority Muslim identity drives home a signifcant fea- ture of targeted violence, namely that the individual victims of violence are usually interchangeable with any other member of the minority community.51 The randomness of choosing a particular individual as victim refects how perpetrators conceive of the chosen victim as the ‘Other in generic terms’.52 If targeted violence targets not individuals but members of a minority community, there is something to be said about who is afected by such violence. The wrongful- ness of targeted violence lies not in the use, mode or extent of violence but primarily in the act of targeting itself.53 Who is the target of such violence? Are the efects felt solely by the immediate victims or is there something about the act of targeting that extends the reach of harms to those who share the minority identity? As previously

45 ibid [1.2]. 46 ibid [101]. 47 ibid. 48 The Preamble to the Indian Constitution assures, inter alia, ‘the dignity of the individual’. 49 Zulfkar Nasir & Others v State of Uttar Pradesh & Others (n 1) [101]. 50 ibid [6, 8, 18, 54]. 51 Helen Ahn Lim, ‘Beyond the immediate victim: Understanding hate crimes as message crimes’, in Paul Iganski (ed) Hate Crimes: The Consequences of Hate Crime (Praeger, Westport 2009) 107–122; Jack Levin and Jack McDevitt, Hate Crimes: The Rising Tide of Bigotry and Bloodshed (Plenum, New York 1993); see also ODIHR (n 15) 17. 52 Barbara Perry and Shahid Alvi, ‘“We are all vulnerable”: the in terrorem efects of hate crimes’ (2012) 18(1) International Review of Victimology 57, 65. 53 Iris M Young, ‘Five Faces of Oppression’ (1988) 19(4) Philosophical Forum 270; Elizabeth Stanko, ‘Reconceptualising the Policing of Hatred: Confessions and Worrying Dilemmas of a Consultant’ (2001) 12(3) Law and Critique 309. 1 3 72 Jindal Global Law Review (2020) 11(1):61–76 mentioned, Muralidhar J refers to an empirical study conducted that makes scathing fndings on police brutality against Muslims and a predominant fear amongst Mus- lims of the police, among other conditions.54 Weinstein describes the efects of hate crimes beyond the immediate victim as ‘in terrorem efects’ or the ‘intimidation of the group by the victimization of one or a few members of that group’.55 This allows us to appreciate the relations between not only the perpetrator and the immediate or primary victims but also those between the perpetrator and vicarious or secondary victims, i.e. those who share the victims’ minority identity but who may not have been personally assaulted or otherwise subjected to violence.56 Such in terrorem or ‘ripple efects’ make members of the minority community feel more vulnerable to being targeted through modes of violence in the future.57 Secondary victims, fearing that such incidents would hap- pen to them, feel unwelcome, lose trust in the communities to whom the perpetrators belong, feel a sense of shame, and fear people who share the perpetrators’ identity.58 This has manifested, as Muralidhar J notes, in the form of a fear of the police amongst Muslims because of previous incidents of police brutality against Muslim individuals.59 This fear may compel them to take concrete precautionary measures of negotiating their safety, living together and avoiding social interactions in and visits to spaces where they may feel a heightened sense of vulnerability. Behavioral changes to manage vulnerability have been similarly documented in empirical studies as well.60 Targeted violence thus limits the ability of secondary victims to contribute to or participate in society to their full potential.61 This relational harm further manifests as a fear of being targeted based on minority community membership beyond the actual modes of violence. This may breed in the form of the fear of being stigmatised, stereotyped, and recognised as members of the minority community. These mental and emotional harms mapped along the relation between the minority community and perpetrators are signifcant as they compel members of the minority community to ‘cover’ their minority identity out of fear of such targeting.62 In this manner, targeted violence harms relations between perpetrators and the minority community by undermining the autonomy of the members

54 Common Cause and Centre for the Study of Developing Societies, Status of Policing in India Report 2019: Police Adequacy and Working Conditions (2019). https://www.csds.in/uploads/custom_fles/15669 73059_Status_of_Policing_in_India_Report_2019_by_Common_Cause_and_CSDS.pdf. Accessed 10th April 2020; Zulfkar Nasir & Others v State of Uttar Pradesh & Others (n 1) [103]. 55 James Weinstein, ‘First Amendment challenges to hate crime legislation: Where’s the speech?’ (1992) 11(2) Criminal Justice Ethics 6. 56 E.g. Barbara Perry, ‘Exploring the community impacts of hate crime’, in Nathan Hall et al (eds) The Routledge International Handbook on Hate Crime (Routledge, London and New York 2015). 57 Monique Noelle, ‘The Ripple Efect of the Matthew Shepherd Murder: Impact on the Assumptive Worlds of Members of the Targeted Group’ (2002) 46(1) American Behavioural Scientist 27. 58 Perry and Alvi (n 52) 57. 59 Zulfkar Nasir & Others v State of Uttar Pradesh & Others (n 1) [103]. 60 Perry and Alvi (n 52) 67–68. 61 ibid 63. 62 Kenji Yoshino, Covering: The Hidden Assault on Our Civil Rights (Random House, New York 2006). 1 3 Jindal Global Law Review (2020) 11(1):61–76 73 of the latter to mould and author their everyday lives without a pervasive fear of being targeted based on their minority identity. The importance of the victim’s minority identity suggests that targeted violence does not take place in a social vacuum. This next relational harm thus stems from the social landscape in which such violence is deeply embedded. It is laudable that the Court made sense of the killing of Muslims in the Hashimpura judgment within a social context where Muslims historically faced institutional discrimination and social marginalisation. Perry, in her engagement with the defnition of hate crimes, notes that hate crimes are ‘usually directed toward already stigmatized and mar- ginalized groups…[as a] mechanism of power, intended to reafrm the precarious hierarchies that characterize a given social order’.63 For Perry, such violence operates within and reproduces complex structural relations of power and reinforces the marginalization and oppression of the community to which the immediate victim belongs. On similar lines, Iris Marion Young describes targeted violence as system- atic in that it is not only produced by structures of domination and subordination but also reinforces broader patterns of subjugation and oppression of the minority.64 The Court also attempted to ground the targeted killing in victim experiences of everyday violence.65 This is especially notable because the everydayness of violence can typically be and has previously been invisibilised, ‘not … because they are secreted away and hidden from view, but quite the reverse’.66 By setting the immediate violence in the context of everyday fear of the police amongst Muslims and institutional underrepresentation in the police force, the Court attempts to bring to the fore the ubiquity of the victimization of the minority community. It highlights the relatively disadvantaged position of Muslims in society and at the same time holds the perpetrators (in this case, PAC ofcials) responsible for participating in the Othering of the minority community. In other words, through targeted violence, the perpetrators express and reinforce the Otherness of the minority community.67 Finally, the relations between the individual, perpetrator and minority interact to reveal the expressive harms of targeted violence. Hate crimes and targeted violence have often been referred to as ‘message crimes’,68 where its audiences move beyond

63 Perry (n 14) 10. 64 Iris M Young, Justice and the Politics of Diference (Princeton University Press 1990); see also C Pet- rosino, ‘Connecting the Past to the Future: Hate Crime in America’, in Barbara Perry (ed), Hate and Bias Crime: A Reader (Routledge 2012) 10 (defning hate crimes within a power imbalance between racial and ethnic majorities and minorities). 65 Lu-in Wang, ‘Hate Crime and Everyday Discrimination: Infuences of and on the Social Context’ (2002) 4(1) Rutgers Race & the Law Review 1. 66 Nancy Scheper-Hughes, ‘Small wars and invisible genocides’ (1996) 43(5) Social Science and Medi- cine 889. 67 Ministry of Minority Afairs, Government of India, Social, Economic and Educational Status of the Muslim Community of India: A Report (2006). http://www.minorityaf airs.gov.in/sites/default/fles/sacha r_comm.pdf. Accessed 25 April 2020; Zoya Hasan, ‘Muslims and the Politics of Discrimination in India’ in Zoya Hasan et al (eds), The Empire of Disgust: Prejudice, Discrimination, and Policy in India and the US (OUP 2018). 68 Jack McDevitt, Jack Levin, and Susan Bennett, ‘Hate Crime Ofenders: An Expanded Typology’ (2002) 58(2) Journal of Social Studies 303; Paul Iganski, ‘Hate crimes hurt more’ (2001) 45(4) Ameri- can Behavior Scientist 626. 1 3 74 Jindal Global Law Review (2020) 11(1):61–76 the immediate victims to include the minority community and society at large. The expressive function of targeted violence is that perpetrators convey a certain message to immediate victims who share the minority identity. Given the randomness of choosing individual victims and their interchangeability, targeted violence sends a message that their whole identity, the very essence of their being, does not matter. Beyond immediate victims, perpetrators use targeted violence against an individual to convey a message to other members of the minority community that ‘you could be next’.69 Perry’s comprehensive defnition of hate crimes may be borrowed at this stage to reiterate that in directing attacks towards already stigmatised and marginalised groups, targeted violence intends to ‘reafrm the precarious hierarchies that characterize a given social order’.70 In this manner, targeted violence involves the use of violence by the perpetrator against an individual to express a certain message about the Otherness of the minority community. The performance of targeted violence devalues and demeans the minority identity of victims, but the expressive value of targeted violence performs the function of fagging to the society at large that individual victims and their minority identity ought to be devalued, disre- spected, demeaned and Othered. Unpacking the working of targeted violence within a relational framework enables an appreciation of how the expressive value of targeted violence harms individual victims. The perpetrator reduces the individual to a means of achieving an end, namely that of expressing this message of Otherness of the minority community, and this constitutes the fnal assault on the dignity of the individual. In this section I unpacked targeted violence using a relational approach to show how targeted violence afects relations between individual victims and perpetrators; victims and the minority community to which they belong; and perpetrators and the minority community. On the one hand, perpetrators fail to respect the dignity of individuals by targeting them as members of a minority community. On the other, they use individuals as a means to participate in the Othering of and express the Otherness of the minority community to which they belong. Through targeted violence, perpetrators impede the ability of minority communities to lead their lives autonomously without fear of being targeted, stigmatised, and recognised based on their minority identity. At its core, they use targeted violence to reiterate social relations of domination and subordination. These relational harms have been grounded in the values of dignity and autonomy that have signifcant implications for Indian public law discourse. Article 21 of the Indian Constitution guarantees that ‘[n]o person shall be deprived of their life or personal liberty except according to procedure established by law’.71 The fundamen- tal right to life has been read as the right to live with human dignity and personal

69 Paul Iganski and Jack Levin, Hate Crime: A Global Perspective (Routledge, New York 2015); Paul Iganski and Abe Sweiry, ‘How ‘Hate’ Hurts Globally’, in Jennifer Schweppe and Mark Austin Walters (eds) The globalization of hate: internationalizing hate crime? (2016) 96. 70 Perry (n 14). 71 Constitution of India, 1950, art 21. 1 3 Jindal Global Law Review (2020) 11(1):61–76 75 autonomy.72 Targeted violence aims at the dignity of individual victims and autonomy of vicarious victims who feel unable to participate in society to their full potential and reiterates the Othering of already marginalised communities. Recognising and giving name to the relational harms of targeted violence thus holds potential for framing it as a violation of Article 21 within Indian public law discourse. In so doing, it further ofers an opportunity for judges to continue to add meaning to legal values such as dignity and autonomy in Indian constitutional thought.

4 Conclusion

In this article, I have argued that the judicial fnding of targeted violence against a particular minority community in the Hashimpura massacre of 1987 is signifcant and it is worthwhile for legal scholars to continue framing the boundaries of and feeding meaning to the category of targeted violence. Having underscored the need to recognise targeted violence, this article identifes certain silences in the Delhi High Court judgment which need to be addressed in the future in order to realise the discursive and legal potential of the category. What do we mean by targeted violence? Who is permitted to frame their experiences as targeted violence? What is the meaning of a minority community? Does targeted violence ‘hurt more’?73 How can we cater legal responses to targeted violence in light of an appreciation of who and how it harms? The Delhi High Court judgment paves way for a careful engagement with this nascent category in law. In order to harness the potential of this resourceful concept of targeted violence, this article adopts a relational approach to highlight that targeted violence, as understood, helps veer away from individualised accounts of violence and instead draws attention to the everyday social relations that it implicates. Targeted violence, as understood using a relational approach, helps unmask its relational harms in order to foreground the signifcance of seeing, recognising and responding to it. Additionally, the conceptual utility of targeted violence is that it may help fll some of the silences identifed in the Delhi High Court judgment as well. For instance, targeted violence may now be appreciated as a product of existing power relations between majorities and minorities, which is perpetrated against historically marginalised communities in order to reinforce existing social hierarchies. Targeted violence is not set on targeting mere diference, but diference that stems from marginalisation and existing subordination. Thus, the social environment in which targeted violence operates is integral to contextualising why legal recognition of targeted violence ought to be framed in an asymmetrical manner as perpetrated against minority, as opposed to majority, communities. A critical implication of targeted

72 A spate of Indian judgments echo this. See e.g. Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1 at [107, 157, 168] [Chandrachud J]. 73 e.g. See generally Jack Levin and Jack McDevitt, Hate Crimes Revisited: America’s War on Those who are Diferent (Westview Press 2002); Paul Iganski, Hate crime and the city (Bristol: The Policy Press 2008). 1 3 76 Jindal Global Law Review (2020) 11(1):61–76 violence, as refned through the relational approach, is in answering the question of who constitutes a minority community. Having understood targeted violence as (re) producing relations of domination, subordination and Othering, it is important to accommodate historical marginalization as a marker of minorities. Similarly, given that the purpose of an asymmetrical framing of targeted violence is to protect the most vulnerable identities and appreciate individual essence as an integral whole, it is important to include multiply burdened identities and address intersectionality within the legal meaning of minorities.74 Another conceptual import of the relational approach is that targeted violence harms actors beyond its immediate victims, which is signifcant when crafting legal responses. The relational approach further ofers a strong normative grounding for courts and lawmakers to inform their reasoning on sentencing, remedial measures, and structural reforms. This would possibly weave recognition and response(s) within a holistic judicial and legal approach to targeted violence. There is a critical need for judges and lawmakers to take the legal category of targeted violence seriously. The Delhi High Court judgment has undoubtedly left an indelible imprint in criminal jurisprudence by seeing and calling out targeted violence as it exists in contemporary Indian society, the pervasiveness of which remains otherwise invisible. This article proposes a relational approach in order to recognise and appreciate how targeted violence harms relations between individual victims and perpetrators, immediate victims and the minority community to which they belong, and the minority community and perpetrators. Further research on ‘squar- ing’ this triangular paradigm by studying the implications of targeted violence on other minority communities (and perhaps, society at large) is imperative. My argument in this article is grounded in the legal recognition of social experiences. Muralidhar J ought to be commended for not shying away from framing social experiences in often considered less palatable nomenclature. A recognition of the relational harms of targeted violence is critical to recognising how it is produced by social relations and how it afects social actors. Mapping the relational experiences of targeted violence not only helps gain conceptual clarity about targeted violence, but also resists the repeated and deeply pervasive absorption of targeted violence into the natural order of things. It is this relational grounding of targeted violence in society that should inform our judicial and legal engagement with and responses to the category.

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74 Hannah Mason-Bish, ‘Beyond the Silo: Rethinking hate crime and intersectionality’ in Nathan Hall et al (eds) The Routledge International Handbook on Hate Crime (Routledge, London and New York 2015). 1 3