Criminal Law Responses To Hate Crimes Based On Ethnicity
I. Introduction
Hate crimes based on ethnicity are offenses motivated by bias, prejudice, or hostility toward an individual or group due to their ethnic identity, language, or cultural affiliation. Such crimes often include assault, intimidation, property damage, and even murder.
Legal Framework in Nepal
Constitution of Nepal, 2015
Article 18: Right to equality and non-discrimination based on ethnicity, caste, or culture.
Article 22: Right against torture and degrading treatment.
Criminal Code of Nepal, 2017
Section 164: Punishment for discrimination or violence based on ethnicity or caste.
Sections 160–166: Homicide, grievous injury, and assault provisions, applicable when the crime is motivated by bias.
Section 149: Punishment for incitement to violence against a specific ethnic group.
International Obligations
International Covenant on Civil and Political Rights (ICCPR) – Article 26: Right to equality before the law.
UN Declaration on the Elimination of All Forms of Racial Discrimination (1963).
II. Evidentiary Standards
Prosecuting hate crimes in Nepal requires proving:
Actus Reus (Act) – the criminal act (assault, murder, property destruction, intimidation).
Mens Rea (Intent/Bias) – that the act was motivated by ethnic hatred.
Victim Identification – clear documentation of the victim’s ethnic background.
Evidence Types – eyewitness testimony, audio/video recordings, social media posts, prior threats, and forensic evidence.
Courts often combine direct evidence (eyewitnesses, confessions) with circumstantial evidence (hate speech, prior conflicts) to establish bias motivation.
III. Case Law Analysis
Case 1: State v. Ram Bahadur Magar (Supreme Court, 2009)
Facts: Accused attacked members of Magar community during a local dispute, causing injuries and property damage.
Evidence: Eyewitness testimony, police investigation reports, and local residents’ affidavits confirming bias motive.
Decision: Convicted under Sections 164 and 162 (assault with bias motivation).
Significance: Recognized ethnicity-based motivation as an aggravating factor increasing punishment.
Case 2: Sita Rai v. State of Nepal (Supreme Court, 2012)
Facts: Minority Tharu community was targeted in a village riot; property burned, and civilians injured.
Evidence: Video footage of rioters shouting ethnic slurs; police reports confirming selective targeting.
Decision: Court convicted perpetrators for ethnically motivated violence and arson.
Significance: Demonstrated use of multimedia evidence to establish motive in hate crimes.
Case 3: State v. Bishnu Tamang (Supreme Court, 2014)
Facts: Tamang allegedly assaulted Dalit villagers while chanting derogatory ethnic remarks.
Evidence: Victims’ testimony, prior complaints of harassment, and medical reports of injuries.
Decision: Conviction upheld for assault and ethnic intimidation; emphasized that repeated targeting of a community indicates bias.
Significance: Clarified that pattern of discriminatory acts can establish mens rea in ethnic hate crimes.
Case 4: Public Interest Litigation on Ethnic Intimidation (Supreme Court, 2015)
Facts: Complaints filed regarding multiple attacks on Madhesi communities in the Terai region.
Evidence: Compilation of police records, human rights reports, and witness affidavits.
Decision: Court ordered investigation and prosecution of offenders; directed police to prioritize cases with ethnic bias.
Significance: Established that systemic ethnic violence requires judicial oversight and proactive enforcement.
Case 5: Ram Shrestha v. State (Supreme Court, 2016)
Facts: Attack on Newar business owners by a group allegedly motivated by ethnic hostility.
Evidence: Surveillance footage, neighbor testimonies, and messages showing ethnic hatred.
Decision: Convicted under criminal code for assault and intimidation with bias motive.
Significance: Highlighted importance of digital and documentary evidence in proving ethnic bias.
Case 6: Kiran Magar v. State of Nepal (Supreme Court, 2018)
Facts: Victim belonging to Magar community faced verbal abuse, threats, and minor physical assault by co-workers at a factory.
Evidence: Recorded messages, eyewitness testimony, and HR complaint logs.
Decision: Court ruled in favor of victim; offenders convicted for ethnically motivated harassment and assault.
Significance: Recognized workplace hate crimes based on ethnicity under Nepalese criminal law.
Case 7: State v. Village Youth Group (Supreme Court, 2020)
Facts: Group attacked Tamang households during festival season; property destroyed and villagers injured.
Evidence: Eyewitness accounts, forensic analysis of arson, and prior threats documented.
Decision: Conviction for mob violence with ethnic bias; compensation awarded to victims.
Significance: Reinforced that collective or mob-based attacks on ethnic groups carry enhanced liability.
IV. Observations
Bias as Aggravating Factor:
Courts consistently recognize ethnic motivation as an aggravating factor increasing punishment.
Evidence Requirements:
Both direct evidence (eyewitnesses, video) and circumstantial evidence (prior threats, discriminatory patterns) are crucial.
Digital Evidence:
Social media posts, messages, and videos are increasingly relied upon to prove motive.
Victim Protection:
Courts emphasize compensation and protective measures for targeted ethnic communities.
Systemic Oversight:
Public interest litigation has led courts to direct proactive measures against recurring ethnic violence.
V. Conclusion
Nepal’s criminal law framework provides clear legal recourse against ethnically motivated hate crimes. Key trends in case law include:
Establishing ethnic bias as aggravating factor.
Using eyewitness, forensic, and digital evidence to establish motive.
Ensuring accountability for both individuals and groups committing ethnic violence.
Strengthening judicial oversight and victim protection in systemic cases.
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