Image: Jan Arendtsz (CC BY-ND 2.0)
The Supreme Court, while dealing with a case of rape committed on a girl belonging to Scheduled Caste and being visually disabled, held that application of section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act should not be shunned for the reason that the offence was not committed “only on the ground” that the victim was a member of the scheduled caste/tribe.
While the bench of Justice DY Chandrachud and Justice MR Shah set out guidelines for dealing with cases where the complainant is disabled, it pointed out how courts tend to render the witness of such prosecutrix to be of less importance. The bench also raised questions about previous judgements of the apex court where Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act was given limited meaning. In some precedents the court interpreted Section 3(2)(v) to mean that the offence should have been committed “only on the ground that the victim was a member of the Scheduled Caste.” The bench held this exposition to be debatable.
Background of case
The bench was dealing with a case where a visually impaired girl belonging to Scheduled caste was raped by a friend of her brothers, who came into the house after confirming that no one was at home and committed the offence of rape on March 3, 2011.
The Andhra Pradesh High Court had affirmed the conviction of the appellant, Patan Jamal Vali, for offences under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 and section 376(1) of the Indian Penal Code. He was sentenced to suffer imprisonment for life for both offences, to run concurrently.
Before the High Court, it was contended by the appellant that the offence under Section 3(2)(v) of the SC/ST Act is not established as the offence was not committed on the ground that the survivor belonged to a Scheduled Caste. However, the High Court declined to accept this submission while observing that the section provides that the offence gets attracted if it is committed against a person knowing that such person is a member of a Scheduled Caste.
At the outset, the apex court held that offence of rape was made out and was proved beyond doubt basis the consistent evidence of the witnesses and the medical evidence. The court then went on to analyse whether offence under the SC/ST Act was made out.
The caste factor
“When the identity of a woman intersects with, inter alia, her caste, class, religion, disability and sexual orientation, she may face violence and discrimination due to two or more grounds,” the court stated.
The court observed that caste, religion, class, disability and sexual orientation are not merely “add ons” to the oppression that women may face and that gender oppression is oppressive in the same way for all women, only more so for women suffering marginalisation on other grounds. The bench referred to a socio-legal book by Shreya Atrey whereby it is stated that “a failure to consider violence perpetrated based on multiple identities results in an inaccurate portrayal of the violence at issue which may impact the ability to obtain relief”.
“While the Statement of Objects and Reasons of the Act specifically mentions commission of rapes against SC & ST women as a form of atrocity committed against the SC & ST communities, it does not specifically articulate the distinct disadvantage women of these communities face on account of casteism, patriarchy and poverty at the same time,” the court held. The court stated that in this case, a distinct individualised experience was created for the survivor on account of her gender, caste and disability.
Under Section 3(2)(v), an enhanced punishment of imprisonment for life with fine is provided where
(i) The offence is committed by a person who is not a member of a Scheduled Caste or Scheduled Tribe;
(ii) The offence arises under the Penal Code and is against a person or property and is punishable with imprisonment for a term of ten years or more; and
(iii) The offence is committed “on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe” or such property belongs to such a person.
The court observed that the use of the phrase “on the ground” means “for the reason” or “on the basis of” and is an example of a statute recognising only a single axis model of oppression. The court held that such models ignore that “when oppression operates in an intersectional fashion, it becomes difficult to identify, in a disjunctive fashion, which ground was the basis of oppression because often multiple grounds operate in tandem.”
Precedents of the apex court
The court then considered the precedents where it was held that since there was no evidence to show that the offence was committed only on the ground that the victim belonged to scheduled caste, the offence under the SC/ST Act is not established. The court pointed out Khuman Singh v. State of MP (Criminal Appeal 1283 of 2019 decided on August, 27 2019) and Ashrafi v. State of Uttar Pradesh (2018) 1 SCC 742 where the court interpreted Section 3(2)(v) to mean that the offence should have been committed “only on the ground that the victim was a member of the Scheduled Caste.”
The court stated that the “correctness of this exposition is debatable”.
“The statutory provision does not utilize the expression “only on the ground”. Reading the expression “only” would be to add a restriction which is not found in the statute. The statute undoubtedly uses the words “on the ground’ but the juxtaposition of “the” before “ground” does not invariably mean that the offence ought to have been committed only on that ground. To read the provision in that manner will dilute a statutory provision which is meant to safeguard the Scheduled Castes and Scheduled Tribes against acts of violence which pose a threat to their dignity,” the court observed.
The court held that denying the protection of Section 3 (2) (v) on the premise that the crime was not committed against an SC & ST person solely on the ground of their caste identity is to deny how social inequalities function in a cumulative fashion and also renders the experiences of the most marginalized invisible. “A true reading of Section 3(2)(v) would entail that conviction under this provision can be sustained as long as caste identity is one of the grounds for the occurrence of the offence,” the court said. The court, however refrained from referring the matter to a larger bench and kept the point open for debate for a later date and case, as the outcome of this appeal does not confirm conviction under the SC/ST Act.
The court observed that at the trial stage, the prosecution did not lead any separate evidence to show that the accused committed the offence on the basis of caste identity. It said,
“As we have discussed above, due to the intersectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of offence – whether it was her caste, gender or disability. This highlights the limitation of a provision where causation of a wrongful act arises from a single ground or what we refer to as the single axis model.”
The 2016 amendment
The amendment to the SC/ST Act in 2016 substituted the words “on the ground of” with “knowing that such person is a member of a Scheduled Caste or Scheduled Tribe”, thus decreasing the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction.
However, the incident in this case took place before the 2016 amendment and hence, the same is not applicable in this case. The court took the view that the evidence does not establish that the offence in the present case was committed on the ground that such person is a member of a SC or ST and hence, set aside the conviction under the SC/ST Act.
The court also refused to interfere with the life sentence awarded under section 376(1) of the IPC while taking into consideration that the offence is serious and is compounded by the position of the prosecutrix who was visually disabled and belonged to Scheduled Caste.
The disability factor
The court then looked at this case through the lens of ‘disability and gender’ and observed that women with disabilities, who inhabit a world designed for the able-bodied, are often perceived as “soft targets” and “easy victims” for the commission of sexual violence. It is for this reason that our legal response to such violence, in the instant case as well as at a systemic level, must exhibit attentiveness to this salient fact. The survivor in this case is a girl blind from birth and hence, the court delved deep into the social standing of a person with disabilities. The court cautioned, “we do not mean to subscribe to the stereotype that persons with disabilities are weak and helpless, incapable of charting the course of their lives…Such a negative presumption of disability translating into incapacity would be inconsistent with the forward-thinking conceptualization of disabled lives embodied in our law and, increasingly, albeit slowly, in our social consciousness.”
The court held that her personality cannot be reduced to her visual disability alone but the court has to exhibit sensitivity to the heightened risk of violence and abuse that she was rendered susceptible to, by reason of her disability. The court analysed the difficulties faced by women with disabilities to have access to the criminal justice system as well as the judicial system. The court, after referring to certain studies and reports including the Justice JS Verma Committee report of 2013, set out some guidelines to make criminal justice system more disabled-friendly:
(i) The National Judicial Academy and state judicial academies are requested to sensitize trial and appellate judges to deal with cases involving survivors of sexual abuse. This training should acquaint judges with the special provisions, concerning such survivors, such as those outlined above. It should also cover guidance on the legal weight to be attached to the testimony of such witnesses/survivors, consistent with our holding above. Public prosecutors and standing counsel should also undergo similar training in this regard. The Bar Council of India can consider introducing courses in the LL.B program that cover these topics and the intersectional nature of violence more generally;
(ii) Trained special educators and interpreters must be appointed to ensure the effective realization of the reasonable accommodations embodied in the Criminal Law Amendment Act, 2013. All police stations should maintain a database of such educators, interpreters and legal aid providers, in order to facilitate easy access and coordination;
(iii) The National Crimes Record Bureau should seriously consider the possibility of maintaining disaggregated data on gender-based violence. Disability must be one of the variables on the basis of which such data must be maintained so that the scale of the problem can be mapped out and tailored remedial action can be taken;
(iv) Police officers should be provided sensitization, on a regular basis, to deal with cases of sexual violence against women with disabilities, in an appropriate way. The training should cover the full life cycle of a case involving a disabled survivor, from enabling them to register complaints, obtain necessary accommodations, medical attention and suitable legal representation. This training should emphasize the importance of interacting directly with the disabled person concerned, as opposed to their care-taker or helper, in recognition of their agency; and
(v) Awareness-raising campaigns must be conducted, in accessible formats, to inform women and girls with disabilities, about their rights when they are at the receiving end of any form of sexual abuse.
The court also examined instances where testimony of a disabled prosecutrix is not given much consideration or at times not even recorded with adherence to legal procedure. It said,
“Testimony of a prosecutrix with a disability, or of a disabled witness for that matter, cannot be considered weak or inferior, only because such an individual interacts with the world in a different manner, vis-a-vis their able-bodied counterparts. As long as the testimony of such a witness otherwise meets the criteria for inspiring judicial confidence, it is entitled to full legal weight.”
The complete judgment may be read here: