Should a casteist insult not amount to one just because the witness(s) share any close relationship with either of the parties?
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THE Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 has, once again, come into the limelight due to a recent Karnataka High Court order on the interpretation of the term "in any place within public view" under Section 3(1)(r) of the Act. This article aims to analyse the various precedents on the said provision.
The objective of bringing in separate legislation for Scheduled Castes ('SCs') and Scheduled Tribes ('STs') has been clearly elaborated in the Statement of Objects and Reasons of the 1989 Act as under:
"Despite various measures to improve the socio-economic conditions of the Scheduled Castes and Scheduled Tribes, they remain vulnerable… Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes. Under these circumstances, the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the Indian Penal Code have found to be inadequate to check these crimes. A special Legislation to check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes has, therefore, become necessary."
(emphasis added)
“The 'place' could be a private place belonging to a private individual or a public place owned/leased by the government or any of its instruments.
The same has also been reiterated in several judgements by the Supreme Court, such as State of M.P. & Anr. versus Ram Krishna Balothia & Anr. (1995) and Prathvi Raj Chauhan versus Union of India (2020). A reading of the objectives clearly shows that the Act is a social welfare legislation aimed at the protection of the constitutional rights of the SC and ST communities. The Act punishes offences that are committed against a person on account of the person belonging to the said communities.
The question is whether the Act successfully achieved the above objective. This can be analysed in light of the specific provision of section 3(1)(r). It reads as under:
"Section 3(1): Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,–
…
(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
…
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.".
The essential ingredients can be broken down as below:
The third ingredient has been a subject of intense debate and discussion over various judgements. It consists of two parts- "in any place" and "within public view".
“The Delhi High Court held that the number of public persons does not matter, but they should be independent, impartial and not interested in any of the parties. These persons must be distinct and strangers to the parties, not sharing any close relationship or any business, commercial or any other vested interests. If the persons have any close relationship or connection, they will get excluded from this ambit.
The first part of the provision was clarified by the Supreme Court in Swaran Singh & Ors. versus State Through Standing Counsel & Anr. (2008) that a place can be either a private place or a public place, but yet within public view. For instance, in this case, the offence had occurred outside the gate of a house. This was said to be a place within public view. In another situation, say, an offence occurs inside one's apartment, and there are persons from the public present; still, it would constitute an offence under the 1989 Act as the general public can view it. If the alleged incident occurs in an open lawn outside the house, which is visible to the public, this would also constitute an offence under the Act. The Supreme Court also reiterated this principle in Hitesh Verma versus The State of Uttarakhand & Anr. (2020).
Therefore, the 'place' could be a private place belonging to a private individual or a public place owned/leased by the government or any of its instruments. A common element is that the alleged offence must occur "within public view".
The nature of "public view" or the "public persons" viewing the incident came under scrutiny in the Delhi High Court's judgment in Daya Bhatnagar & Ors. versus State (2004). The high court held that the number of public persons does not matter, but they should be independent, impartial and not interested in any of the parties. These persons must be distinct and strangers to the parties, not sharing any close relationship or any business, commercial or any other vested interests. If the persons have any close relationship or connection, they will get excluded from this ambit.
In this case, the complainant was sitting in an adjoining flat with five other people, in front of whom a group of people started abusing the complainant, targeting his caste. The court held that the mere fact that the witnesses were present at the complainant's house is not enough to conclude they were his close associates or not independent. The same could be decided during further investigation and trial.
In the case of Manimegalai versus State of Tamil Nadu & Ors. (2021), a married couple were walking near a school, and three people abused the wife in foul language, targeting her caste. Reportedly, no public persons were present, and only her husband witnessed this. The Madras High Court held that the same would not constitute an offence under the 1989 Act as the husband cannot be said to be independent and constitute a member of the public.
This proposition is problematic: should a casteist insult not amount to one just because the witness(s) share any close relationship with either of the parties?
In fact, in Hitesh Verma, the Supreme Court clearly laid down that a place which is not visible to members of the public, but with the presence of any member of the public (not merely relatives or friends), turns into a place within public view.
This principle was also applied in the recent Karnataka High Court decision in Sri Rithesh Pais versus State of Karnataka & Anr. that we started the discussion with. Here, the complainant, belonging to an SC, was working in a construction building, and the accused asked the complainant to stop the work. The former refused, due to which the latter started hurling abuses at him, taking the name of his caste, threatening his life and obstructing the construction activity. Reportedly, there were around five co-employees of the complainant present at the time of this incident.
“Drawing a parallel with the tort of defamation, the proposition should be such that if the casteist slur comes to the knowledge of any third party, irrespective of their relationship, it should constitute an offence under the said provision of the 1989 Act.
In a shocking judgement, the high court held that all the witnesses are either co-employees or friends of the complainant. The incident also occurred in the building's basement and was thus decided not to be in a place within public view.
This is a very disturbing principle as, on the one hand, anyone could be brought under the broad ambit of "friends" or any other "close relationship". Drawing a parallel with the tort of defamation, the proposition should be such that if the casteist slur comes to the knowledge of any third party, irrespective of their relationship, it should constitute an offence under the said provision of the 1989 Act. If not, the party cannot get any relief under the Act, and must proceed under Section 499 of the Indian Penal Code for criminal defamation or other statutes to seek relief. This essentially defeats the very purpose and intention of passing the 1989 Act.
On the other hand, the justification for interpreting the provisions very stringently could be due to the alleged misuse of the Act. There have been cases where members of the SC/ST community have threatened to accuse others under 1989 Act and lodge fake cases. In fact, the Supreme Court in 2018, taking note of this misuse, laid down a set of guidelines to be followed for arrest under the law. But the Parliament brought in an amendments later that year, diluting the Supreme Court's ruling.
Also read: Supreme Court upholds the constitutional validity of Section 18 A of the amended SC/ST Act
It is pertinent to note that just because the Act is open to misuse, the safeguards accorded to the SC and ST communities cannot be snatched. In the end, the tricky work of balancing the interpretation of the provision lies on courts so that the intention of the Act is achieved while at the same time not broadening the proposition to the extent that it becomes counter-productive.