CASTE DISCRIMINATION ONLY IN PUBLIC?: A CRITICAL ANALYSIS OF THE SC/ST ACT

The insult contemplated under Section 3(1)(x), SC/ST Act can be caused only “in any place within public view”.

OVERVIEW

While the whole world is adamant on minimizing discrimination faced by certain disadvantaged and oppressed communities all over the world, as evident from the recent #Black Lives Matter running aggressively in the US, Indian policymakers and judiciary seem to have a tolerant attitude towards the age-old issue of caste discrimination in India as evident from the ambiguous legislative intent behind the policy measures adopted to end such discrimination. The Constitution of India creates an onus on policymakers under Article 15 to create special provisions to eradicate various forms of discrimination in the society and maintain inclusivity. Taking a clue from it, a dedicated law titled the Prevention of Atrocities against SC/STs Act was passed to tackle the issue of case-based discrimination.

The Prevention of Atrocities against SC/STs Act aims to prevent the commission of atrocities against SC/STs and to provide for special courts to conduct the trial for ensuring relief & rehabilitation of the sufferers of such atrocities meted out to them, directly or indirectly. However, the dichotomy between the objective and reality is highlighted by the wording of Section 3(1)(x) of the legislation, which has the phrase ‘within public view’ as its fundamental ingredient necessary to be proved to establish an offense under the SC/ST (POA) Act.

INTERPRETING THE LEGISLATION

Section 3(1)(x) of the Prevention of Atrocities Act, 1989 provides relief against anyone who “intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view”. Note that the expression used is not “public place”, but instead “any place within public view” which implies that any humiliation in a public place is not necessary, rather the said offense can be committed even in a private place but the said place should be visible or audible to at least 2 independent persons to ensure that the offense is committed.  Conclusively, a person can only be held liable if the actor intent to humiliate within the “public view” meaning that if no member of the public has either seen or heard the incident occurring, then even if the place is a “public place” or a place “visible to the public”, it would not attract the ingredients of the offense under section 3(1)(x) of the Act.

Therefore, the insult contemplated under sub-section (x) of Section 3, SC/ST Act can be caused only if the person insulted is present in view of the expression “in any place within public view”. This insult can be caused by words directed towards members of Scheduled Castes or Scheduled Tribes within public view which means at the time of the alleged insult the person insulted must be present as the expression “within public view” indicates. This intent envisaged by the legislature is narrow in nature, and it restricts the scope of conviction under the SC/ST Act, it further fails to curb any kind of remarks with potential to cause prejudice against the SC/STs in public places.

In addition to such shortcomings in the legislation, the narrow and problematic interpretations of the SC/ST Act given by the judiciary from time to time have worsened the plight of the oppressed.

Recently, Justice Harnaresh Singh Gill of Punjab and Haryana High Court in a judgment held that “Merely uttering such wrong words in the absence of any public view does not show any intention or means to humiliate the complainant who besides being Sarpanch, belongs to Scheduled Caste community. It would not, thus, ipso-facto, constitute acts of the commission of an offense, which are capable of being taken cognizance under the SC/ST Act, 1989,” Therefore, a casteist remark should be made in the public domain to be comprehended as an offense under Section 3(1)(x) of the Prevention of Atrocities Act, 1989.

The phrase “within public view” also does not cover those acts which are heard or viewed by a group of people who are as good as strangers to the said victim and are not in any way close to the victim through means of friendship, business, relation, etc. If such a group of people comprises anyone of these, it would not satisfy the requirement of “public view” within the meaning of the expression used. This prerequisite being established by the judiciary worsens the condition of those who are intended to be protected with the help of the relevant clause highlighting the callousness of the judiciary to the social realities. With such a high threshold being fixed for the establishment of an offence under the SC/ST Act, the conviction rate under that Act remains abysmally low.

In Gorge Pentaiah v State of Andhra Pradesh, the court called for necessary fulfillment of the basic ingredients of Section 3(1)(x) by the complainant. The court ruled that the complainant ought to have alleged that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view, otherwise the case registered under the SC/ST (POA) Act will fall.

In the case of Sajjan Kumar v The State and Anr, it was ruled that the basic ingredients of the offence including (a) that there must be an “intentional insult” or “intimidation” with intent to humiliate an SC/ST member by a non-SC/ST member, and (b) that insult must have been done in any place within the “public view”. The condition of “intentional insult or intimidation” with “intention to humiliate”, makes it clear that mens rea or criminal intention is a fundamental part of the offence and it must also be established that the accused had the knowledge that the victim belongs to the SC/ST community and that the offence was committed for that reason. Merely calling a person by his ‘caste name’ (often denoted by the surname used by Hindus) would not attract the provisions of this Act. There must be specific Accusation alleged against each of the accused.

The abovesaid clause of the legislation has failed to safeguard the interests of people from historically oppressed communities (SCs and STs) of India, who are the primary stakeholders of that legislation. It is pertinent to note that the law on defamation aims at protecting the reputation of persons generally while the Prevention of Atrocities Act, 1989 is a specific legislation which aims to prevent caste-based societal discrimination. However, according to the current judicial interpretation, an offence under the SC/ST Act is only committed when it occurs in a public domain.

CONCLUSION

The current structure of the Indian Society is inherently biased and casteism is deeply rooted in society. Therefore, a statutory amendment and its interpretation should be stricter to bring a shift in an inherently biased society and protect the potential victim. While it cannot be argued that these stricter laws will bring a change overnight but it will shift the society in a better place in the long run.

According to the prevailing law, it is considered that there is no intention to humiliate a person if the alleged discriminatory statement is not made in the public domain. It is pertinent to note that when a casteist remark is made, it not only humiliates a person but it is also allied with historical experiences, deprivation, sorrow, a discriminatory and oppressive act performed on these communities from time immemorial. Hence, an anti-discriminatory law should encompass a wider spectrum of a discriminatory act which has been a cause of menace for marginalized Indian communities for 1600 years at the very least. In a society as multifariously divided as India, a lenient interpretation of criminal legislations will not improve the social structure and effect the status quo of the society, which is the objective the Act aims to achieve.

Therefore, the anti-discrimination law should not only act as a corrective measure, limited to redress the victim after the act is committed but also create an equitable legal regime, one in which people from the oppressed communities are protected and insulated from any discrimination that could be possibly meted out against them. With that being said, the legislation should be amended so as to achieve not only prohibition of discriminatory criminal acts but also their prevention by striking at the very heart of this socio-legal problem, i.e., the social practices that are the underlying cause of these prohibited acts.

Cover Image Credits: Soumia G.

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