In recent years, various courts of India's higher judiciary have together produced a confusing jurisprudence on the application of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989, introducing elements not specified by the Act, resulting in its dilution.
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THE Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) (SC/ST) Act of 1989 was intended to be transformative legislation to upend various offences, indignities, humiliations and harassment suffered by the most vulnerable sections of society.
It was intended to undo many historical, social, political, cultural and economic injustices by preventing and penalising atrocities, violence and discrimination against Scheduled Caste and Scheduled Tribe communities.
However, various systemic issues, such as delayed registration of first information reports (FIRs), inadequate police investigation and long-drawn trials, have severely undermined the effectiveness of the Act.
The under-resourced special courts and the inability of the members of the SC/ST communities to access courts and secure quality legal services have led to low conviction rates.
“Various systemic issues, such as delayed registration of first information reports (FIRs), inadequate police investigation and long-drawn trials, have severely undermined the effectiveness of the Act.
Besides, as this article argues, conflicting and often time, confusing judicial rulings have limited the remit of the Act. In particular, the article contends that recent judicial rulings have significantly compromised the efficacy of the legislation, as they needlessly mandate a caste-specific mens rea, narrowly interpret the scope of 'any place within public view', and decriminalise caste-based derogatory remarks.
Each of these arguments has been further developed below, albeit briefly.
The growing judicial insistence on a caste-specific mens rea for the applicability of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 raises significant concerns. This approach, as evidenced in rulings such as Dashrath Sahu versus State of Chhattisgarh (2024) and Bhawana Gupta versus State of Punjab (2024), introduces an additional requirement for caste-specific intent for an act to be punished under the Act.
Such interpretations not only elevate the threshold for proving offences but also risk undermining the Act's foundational purpose by limiting its scope. This shift towards necessitating proof that an offence was committed explicitly because the victim belonged to a Scheduled Caste or Scheduled Tribe community— rather than based on the perpetrator's knowledge and general intent— contravenes the legislative intent. It weakens the protective measures the Act aims to provide.
This judicial trend is particularly concerning when considering the judicial rulings on provisions such as Section 3(1)(xi) of the Act (now amended). The provision read as follows:
“The growing judicial insistence on a caste-specific mens rea for the applicability of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 raises significant concerns.
"3(1): Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,
(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty;
shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine."
As the bare reading of the provision implies, some of the key elements of the offence are as follows:
However, the Supreme Court recently ruled that one other hurdle should be established in addition to these key elements. In Dashrath Sahu versus State of Chhattisgarh (2024), the court concluded that "the offence of outraging the modesty should be committed with the intention that the victim belonged to the scheduled caste category".
There is a stark contrast between the intent of the Parliament, as evident in the wording of Section 3(1)(xi), and the Supreme Court's interpretation of it.
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The provision implies that the offence must be committed with the knowledge that the woman belongs to a Scheduled Caste or Scheduled Tribe category and with an intent to dishonour or outrage her modesty, whereas, for the Supreme Court, there is a need for a caste-specific mens rea, i.e., the accused must use force against a woman with "the intention that the victim belonged to the Scheduled Caste category".
By applying this rationale, the Supreme Court concluded that a man accused of outraging the modesty of his maid while she was doing household chores at his house is not liable under the Act.
The court ruled that "the offending act was not committed by the accused with the intention that he was doing so upon a person belonging to the Schedule Caste".
This means an upper caste man cannot be held liable under the Act for violating the modesty of his maid, as long as he is not violating her modesty solely because she belongs to a Scheduled Caste or Tribe.
The ruling in Dashrath Sahu was drawn on the ratio of Masumsha Hasanasha Musalman versus the State of Maharashtra (2000). In Masumsha, the court examined Section 3(2)(1) of the Act, which explicitly mandated that the alleged offence must be committed with caste-specific mens rea, i.e., "On the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member."
The Amendment Act of 2016 has substituted these words with "knowing that such person is member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member". The amendment clarifies that knowledge of caste is sufficient to constitute an offence under this provision.
However, as discussed above, Section 3(1)(xi) had no such prerequisite. This misapplication led to the court's incorrect conclusion. In other words, in Dashrath Sahu, the Supreme Court mandated the caste-specific mens rea requirement to cases where the knowledge of caste and intent to dishonour or outrage the modesty of a woman were sufficient to constitute an offence under the Act.
The requirement of caste-specific mens rea compels courts to seek evidence that the offence was committed solely on the basis of the victim's caste.
Caste-specific mens rea is difficult to establish as direct evidence of it is rare; specific-intent crimes require proof that the defendant intended to achieve a particular outcome through their conduct. This high standard means that if the court has any reasonable doubts about the defendant's caste-specific intent, it must acquit.
“There is a stark contrast between the intent of the Parliament, as evident in the wording of Section 3(1)(xi), and the Supreme Court's interpretation of it.
A recent ruling of the Punjab and Haryana High Court, Bhawana Gupta versus State of Punjab (2024), underlines the implications of caste-specific intent on the outcome of a case under the SC/ST Act. The prosecution case was that the petitioner abused a victim of a road accident as follows: "Tum neech jaatiwaley chamaar logon ka yahi kaam hai, tum log gaadi walon se paise ainthne ke liye kisi vi had takgirsakte ho" (You low-caste people (chamaars), this is what you do, you can stoop to any extreme to extort money from vehicle owners/drivers).
A first information report (FIR) was registered, inter alia, under Section 3(s) of the SC/ST Act; the petitioner prayed for the quashing of the FIR before the high court.
The high court consulted relevant rulings of the Supreme Court and provisions of the Act, including Section 3(s), which reads as follows:
"Section 3: Punishments for offences atrocities— [(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,
(s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view."
Two key ingredients of provisions are— (a) that the accused knew the victim's caste and, (b), that the accused abused the victim by caste name in any place within public view.
In the instant case, the accused and victim were total strangers before the accident; they must have known each other's identities only during the altercation that ensued.
However, the alleged casteist abuse implies that the accused knew the victim's caste. Her alleged abuse also means that she (the accused) does not belong to a low caste.
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Therefore, a full-fledged criminal trial was necessary to ascertain the truthfulness of the alleged abuse. The FIR, on the face of it, did not appear manifestly frivolous or vexatious or instituted with the ulterior motive of wreaking vengeance.
However, the high court quashed the FIR, ruling that it "is a fit case where the continuation of criminal proceedings shall amount to an abuse of the process of law", without waiting for the police investigation to be completed.
In this case, the court must have refrained from evaluating the evidence to ascertain the existence of a prima facie case against the accused. The responsibility of assessing proof to establish prima facie is on the trial court.
The Supreme Court, in the case of Mohd. Allauddin Khan versus The State of Bihar (2019) has clarified that the high court's authority under Section 482 of the Code of Criminal Procedure is limited, underscoring that it cannot conduct a mini-trial to adjudicate the matters under Section 482.
However, the high court concurred with Hitesh Verma versus The State of Uttarakhand (2020) to rule that the offence under the Act is not established merely on the fact that the informant is a member of a Scheduled Caste unless there is an intention to humiliate a member of a Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste.
There was also reliance on Khuman Singh versus State of Madhya Pradesh (2020), although Hitesh and Khuman Singh do not relate to Section 3(s) of the Act.
“The Supreme Court concluded that a man accused of outraging the modesty of his maid while she was doing household chores at his house is not liable under the Act.
Regrettably, in this instance, the court insisted on evidence to demonstrate that the accused abused the victim only because the victim was a member of a Scheduled Caste. However, the relevant provision Section 3(s) did not mandate such caste-specific mens rea.
Dashrath Sahu (supra) and Bhawana Gupta (supra) demonstrate that the court's insistence on caste-specific mens rea is defeating the purpose of the Act.
The courts must recalibrate their approach and acknowledge that, although the SC/ST Act of 1989 does not overtly differentiate between 'knowledge', 'general intent' and 'caste-specific intent', these notions are inherently integrated within its provisions.
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For example, knowledge of caste is sufficient to constitute an offence under sub-Sections 3(1)(d) and (s), and sub-Sections 3(1)(t) and (u) requires general intent.
In contrast, subsections, for example, 3(1)(r) and (w), require caste-specific intent.
Although the purport of several provisions with respect to intent is less clear, the courts have to resolve this ambiguity by keeping in mind the objectives of the Act and social, economic, political and cultural realities that beseech positive discrimination in favour of the SC/ST categories.
Therefore, mandating caste-specific mens rea by the courts, contrary to the express provisions of the Act, dilutes the protective measures intended by the legislation.
Sub-Section 3(1)(r) of the Act criminalises intentional insult or humiliation of members of a Scheduled Caste or Tribe community. Similarly, sub-Section 3(1)(s) criminalises abuse of any member of a Scheduled Caste or Tribe by caste name. However, to constitute an offence under both the sub-Sections, the offence must be committed in "any place within public view".
What is to be regarded as a "place in public view" has been considered by the Supreme Court and high courts in various cases. In Swaran Singh versus State Through Standing Counsel (2008), the Supreme Court ruled that the place of the crime must be seen by the public.
It also added that even if the crime is committed inside the building, if some members of the public (not including friends and relatives) are there to witness it, such a place can be considered as a "place in public view".
In other words, "[A] place can be a private place but yet within public view" [para 28] if some members of the public are present at the place.
“The alleged casteist abuse implies that the accused knew the victim's caste. Her alleged abuse also means that she (the accused) does not belong to a low caste.
Swaran Singh implies that intentional insult or humiliation of members of a Scheduled Caste or Scheduled Tribe community, or the abuse by caste name, in private places [places that the public cannot view] are beyond the remit of the Act.
This means caste-related abuses in enclosed places, such as houses and private offices, would not constitute an offence under the Act [see, for example, Ramesh Chandra Vaishya versus The State of Uttar Pradesh (2023)].
In one of its notable rulings, Hitesh Verma, the Supreme Court held that insulting or intimidating a person belonging to a Scheduled Caste or Scheduled Tribe community could not be considered an offence under the SC/ST Act if the act did not occur "in any place within public view".
In this case, the complainant, a member of a Schedule Caste, alleged that four upper-caste men entered her house under construction and abused her, her husband and workers on-site. She also reported that she received death threats from these men. She alleged that they also took away the construction material. However, by relying on Swaran Singh, the court reasoned that remarks made within the four walls of a building would not constitute an offence under the Act, as they do not meet the criterion of being "in any place within public view".
The ratio of Hitesh Verma has been echoed in subsequent rulings of the high courts and the Supreme Court. For instance, the Punjab & Haryana High Court, in Rajinder Kaur versus State of Punjab (2023) clarified that an offence under the SC/ST Act would not be constituted if a casteist remark is made within four walls (in Banquet Hall), away from public view.
Although the presence of a stranger at the scene might constitute a place to be placed within public view, it does not go so far as to protect the members of the SC or ST communities from indignities, humiliations or harassment within the four walls.
In Ashutosh Tiwari versus Kamlesh Shukla (2023), the Madhya Pradesh High Court adjudicated on the interpretation of Section 3(1)(x) of the Act, specifically in the context of whether calling the complainant a 'chamar' in a staff room, in the presence of other teachers, constituted intentional humiliation.
The court concluded that the staff room does not qualify as a public place due to its restricted access to the general populace, thereby not meeting the criteria for intentional humiliation in any place within public view.
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This narrow interpretation significantly undermines the Act's overarching objective to protect the dignity and safety of individuals from marginalised communities within all societal spheres, including professional environments such as staff rooms or offices.
“Caste-specific mens rea is difficult to establish as direct evidence of it is rare.
Even worse is the abuse or humiliation of the members of Scheduled Caste or Scheduled Tribe communities in front of their close relatives or friends, which cannot be considered an atrocity (see, for example, Hitesh Verma).
The scheme of selective and conditional cognisance of atrocities against vulnerable communities, as formulated in the Act, can be defended by arguing that the presence of a stranger at the scene of crime prevents the abuse of the special legislation at the instances of members of Scheduled Caste or Scheduled Tribe communities.
However, equally forceful arguments could be that: (a) it abetes atrocities/abuses of vulnerable communities in closed settings, and (b) it abnegates the right to dignity and self-esteem of a member of Scheduled Caste or Scheduled Tribe in front of their close relatives, friends and colleagues.
By limiting the scope of what constitutes a 'place in public view', the courts are inadvertently diminishing the protective measures afforded under the Act, thereby failing to adequately address and deter acts of discrimination and humiliation in settings that, while not publicly accessible, are nonetheless integral to the social and professional lives of the members of Scheduled Caste and Scheduled Tribe communities.
Abusing a member of a Scheduled Caste or Scheduled Tribe community by his/her caste name in any place within public view is an offence under the Act [Section 3(1)(s)].
This means calling a member of A Scheduled Caste community a 'mahar', 'ganda', 'pallan' or 'chamar' with an intent to insult such person would constitute an offence under the Act [see, for example, Swaran Singh [(2008), para 21; Arumugam Servai versus State of Tamil Nadu, (2011), para 5; Rameshwar versus State of Chattisgarh, (2018)].
However, unfortunately, the courts are not unanimous on whether caste name-calling amounts to an offence under the Act, notwithstanding the clearer wordings of Section 3(1)(s).
For instance, in Ajay Pattanaik @ Ajaya Kumar Pattanayak versus State of Odisha (2021), the Orissa High Court ruled that hurling caste-based abuses to a witness of an altercation "on the spur of the moment" would not constitute an offence under Section 3(1)(r) of the Act. The Orissa High Court has arrived at a similar conclusion in Surendra Kumar Mishra versus State of Orrisa (2022).
The Orissa High Court, in Ajay Pattanaik, further added that: "To claim that it was [the casteist abuse] with an intention to insult or humiliate the witness present at the spot and the alleged offences under the special Act are committed would be like stretching things too far and unjustified.
“Caste-related abuses in enclosed places, such as houses and private offices, would not constitute an offence under the Act.
"If someone is abused with the name of his caste or the caste is uttered suddenly in the course of events and during the incident, in the humble view of the court, by itself would not be sufficient to hold that any offence under the SC and ST (PoA) Act is made out unless the intention is to insult or humiliate the victim for the reason that he belongs to Scheduled Caste or Scheduled Tribe is prima facie established."
In this case, the court did not sufficiently explain why humiliating a member of a Scheduled Caste or Scheduled Tribe in the spur of the moment would not attract the relevant provisions of the Act.
This was a significant omission considering that the Act does not recognise any such exception. The court's reasoning implies that the intention to insult or humiliate does not arise in spur-of-the-moment cases, which is, considering the plain meaning of words used in Sections 3(1)(r) and (s), a wholly unsubstantiated inference to draw.
The Supreme Court of India, in Swarn Singh and the Chhattisgarh High Court in Rameshwar offer sensible approaches to caste name-calling. In Swarn Singh, the Supreme Court ruled that: "No people or community should be today insulted or looked down upon, and nobody's feelings should be hurt. This is also the spirit of our Constitution and is part of its basic features.
"Hence, in our opinion, the so-called upper castes and Other Backward Castes (OBCs) should not use the word 'chamar' when addressing a member of the Scheduled Caste, even if that person in fact belongs to the 'chamar' caste, because [the] use of such a word will hurt his feelings."
The Supreme Court draws on the US's moral censure of the use of the N-word to conclude that words such as 'chamar' should not be used in a derogatory sense to insult or humiliate a member of a Scheduled Caste and Scheduled Tribe community (para 30).
Similar conclusions were drawn in Arumugam Servai. By relying on Swarn Singh and Arumugam, the Chhattisgarh High Court in Rameshwar concluded that the words 'murin' and 'muria' attract Section 3(1)(x) (now amended) of the Act, as such words are generally used to insult and abuse.
“Even worse is the abuse or humiliation of the members of Scheduled Caste or Scheduled Tribe communities in front of their close relatives or friends, which cannot be considered an atrocity.
Consequently, the court convicted the accused under Section 3(1)(x) of the Act, inferring that he used 'murin' and 'muria' with the intention to insult or humiliate the victim.
However, rulings such as Ajay Pattanaik @ Ajaya Kumar Pattanayak and Surendra Kumar Mishra versus State of Orrisa (2022), where it was stated that abusing a person by their caste name does not amount to an offence under the SC/ST Act unless an intention to insult or humiliate the victim owing to their caste or tribal identity is "prima facie established" defeat the purpose of the Act.
The requirement of caste-specific mens rea in cases of caste name-calling adds another layer of complexity to prosecuting offences under the Act, as it requires proving the perpetrator's intent, which is often subjective and difficult to ascertain.
The judicial mandate of a caste-specific mens rea, where the provisions do not stipulate such specific intent, undermines the objectives of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989.
This approach risks diluting the Act's deterrent effect and its purpose to protect vulnerable communities from caste-based atrocities.
Additionally, a restrictive interpretation of the phrase 'any place within public view' effectively narrows the Act's scope, potentially excluding a range of offences that occur in private spaces, thereby denying justice to victims of such abuses in private spaces or closed settings.
Furthermore, the decriminalisation of caste-based name-calling emboldens discriminatory practices and abuse, perpetuating the very caste prejudices and injustices the Act seeks to eradicate.
These interpretative shifts by the courts have significantly weakened the Act's efficacy, compromising its role as a bulwark against caste discrimination and violence, and it calls into question the courts' commitment to uphold the constitutional aspiration of an egalitarian society.
The presumptions under Section 8, restriction on anticipatory bail under Section 18 and relative severity of punishment under the Act partly explain the over-cautious approach of the courts.
“Caste atrocities, discrimination and abuse strike at the very heart of the right to live with human dignity.
The strong perception of misuse of this special legislation by the members of Scheduled Caste and Scheduled Tribe communities and difficulty in accessing the high courts for quashing the FIRs under Section 482 of the Criminal Procedure Code of 1973 also weighs on the courts [e.g., Subhash Kashinath Mahajan versus The State of Maharashtra (2018)); Prathvi Raj Chauhan versus Union of India (2020), para 49].
However, it should be noted that caste atrocities, discrimination and abuse strike at the very heart of the right to live with human dignity of the members of the most vulnerable sections of society; caste-based discrimination renders the right to equality "a mere husk of the grand vision of the Constitution" (Justice Ravindra Bhat in Prathvi, para 4).
Caste atrocities inhibit fraternity and social harmony as aspired in the Constitution. More importantly, the notion of law and justice would become a cruel joke for millions of people in this country if caste atrocities are not curbed.
The constitutional aspiration of an egalitarian society cannot be realised by "consigning a large of humanity to the eternal bondage of the most menial avocations" (Justice Bhat) and conditions of life.
Therefore, courts must steadfastly uphold the legislative intent as articulated in the Act of 1989.