“If someone is abused with the name of his caste or the caste is uttered suddenly in course of events and during the incident, then that by itself cannot be an offence under the SC/ST Act.”

If you feel there is something terribly amiss about this quote, then you would be someone who comprehends the predicament of a Dalit or an Adivasi (person from an indigenous tribe). This is a quotation from a recent judgement passed by an Orissa High Court judge, Justice RK Pattanaik on March 1, 2023. The Judge had taken a similar view in December last year in Surendra Kumar Mishra vs State of Orrisa [CRLMC No. 2628/2013; decided on December 19, 2022].

Name calling by using the caste of a person, is an offence under the The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 [referred to as SC/ST Act hereinafter] which states thus:

3. Punishments for offences atrocities – (1) Whoever, not being a members 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.

Now, caste slurs and desire to humiliate are socio-politico-religious phenomena not easy to quantify or even cap under motive or mens rea under criminal law. However, given the emancipatory vision of the SC/ST Prevention of Atrocities Act, 1989 that replaced the 1955 Protection of Civil Rights Act* is such an easy exemption good in law?

The ingredient of mens rea, a concept in broader criminal law has been introduced into the Atrocities Act, to establish the offence of insulting a member of the SC/ST community. Structural, societal  control and bias allows free passage of such slur and abuse, from a position of dominance on those who are marginalized, and hence it is defined as a criminal offence.

However, by introducing a more exacting criterea of mens rea behind such slur and abuse, Courts have been guilty of rendering the offence obsolete. 

The Orissa High Court in its judgement of March 1, Ajay Pattanaik and anr vs State of Odisha [ CRLMC No. 2636/2021; decided on March 1, 2023] observed that the caste name was uttered at the spur of the moment:

“It was on the spur of the moment that the incident happened, in course of which, the alleged abuse was hurled at the witness, whose caste name was uttered by one of the petitioners. To claim that it was 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. If someone is abused with the name of his caste or the caste is uttered suddenly in 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.” [Para 9]

The judgement may be read here:

The apex court has some contrasting views in this regard

In Arumugam Servai v. State of Tamil Nadu (2011) 6 SCC 405 the court recognised that:

“The word `pallan’ no doubt denotes a specific caste, but it is also a word used in a derogatory sense to insult someone (just as in North India the word `chamar’ denotes a specific caste, but it is also used in a derogatory sense to insult someone). Even calling a person a `pallan’, if used with intent to insult a member of the Scheduled Caste, is, in our opinion, an offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989” [Para 8]

In our opinion uses of the words `pallan’, `pallapayal’ `parayan’ or `paraparayan’ with intent to insult is highly objectionable and is also an offence under the SC/ST Act. It is just unacceptable in the modern age, just as the words `Nigger’ or `Negro’ are unacceptable for African-Americans today (even if they were acceptable 50 years ago). [Para 10]

In Swaran Singh & Ors. vs. State thr’ Standing Counsel & Anr. (2008) 12 SCR 132 the Supreme Court had observed thus

“Today the word `Chamar’ is often used by people belonging to the so- called upper castes or even by OBCs as a word of insult, abuse and derision. Calling a person `Chamar’ today is nowadays an abusive language and is highly offensive. In fact, the word `Chamar’ when used today is not normally used to denote a caste but to intentionally insult and humiliate someone.” [Para 21]

“It may be mentioned that when we interpret section 3(1)(x) of the Act we have to see the purpose for which the Act was enacted. It was obviously made to prevent indignities, humiliation and harassment to the members of SC/ST community, as is evident from the Statement of Objects & Reasons of the Act. Hence, while interpreting section 3(1)(x) of the Act, we have to take into account the popular meaning of the word `Chamar’ which it has acquired by usage, and not the etymological meaning. If we go by the etymological meaning, we may frustrate the very object of the Act, and hence that would not be a correct manner of interpretation.” [Para 22]

However, in 2014, the Bombay High Court had granted anticipatory bail to one Ujwala Khomane while observing that if someone from SC/ST community is addressed by her/his caste out of habit or because of their occupation, it would not be an offence under the Act. 

“Sometimes a person is addressed by his caste by way of habit or due to the work being done by him/her. While addressing a person by caste, if it is not uttered with the intention of degrading or humiliating a person on the ground of his/her caste, it does not constitute an offence,” the court said as per a report by DNA.

In Manju Devi v. Onkarjit Singh Ahluwalia @ Omkarjeet Singh, AIR 2017 SC 1583 the complainant had alleged that the accused abused her and her family members of their caste by calling them ‘Harijans and Dhobis’. The court held,

The use of the word ‘Harijan’ ‘Dhobi’ etc. is often used by people belonging to the so-called upper castes as a word of insult, abuse and derision. Calling a person by these names is nowadays an abusive language and is offensive. It is basically used nowadays not to denote a caste but to intentionally insult and humiliate someone. We, as a citizen of this country, should always keep one thing in our mind and heart that no people or community should be today insulted or looked down upon, and nobody’s feelings should be hurt. [Para 14]

In Surendra Kumar Mishra vs State of Orissa [CRLMC No. 2628/2013 ; decided on December 19, 2022] the informant stated that the petitioner abused him while he was engaged in civil labour which was causing noise. The petitioner allegedly abused him by taking the name of his caste and even hit him with a stick. The court inferring from this finally held that all insults or intimidation would not be an offence under the Act unless such insult or intimidation is on account of the victim belonging to SC or ST. The court concluded that “it has to be held that all insults or intimidation do not make out an offence under the Act unless it is directed against the person on account of his caste.” [Para 9]

“No doubt petitioner took the name of the informant’s caste while abusing the latter. By taking the caste name or utterances of abuse by taking the name of one’s caste would not be an offence under the Section 3(1)(x) of the SC&ST (PoA) Act unless the intention is to insult, intimidate the person being a SC or ST.” [Para 10]

“Though the informant was abused at a public place or may be within public view by taking his caste name but as it is made to appear from the conduct of the petitioner, it was apparently without any intention to insult, intimidate and to humiliate him. It was pure and simple an abused by the petitioner under the peculiar facts and circumstances and a sudden outburst and on the spur of the moment without carrying the requisite intention to humiliate the informant so to say.” [Para 10]

It is unclear how these opinions of constitutional courts interpret the “intention of the accused” especially when the latter uses the name of the caste to address the complainant in such cases. They heavily rely upon Hitesh Verma Vrs. State of Uttarakhand and Another 2021 (I) OLR (SC) 85. In the facts of this case, the litigants were involved in a land dispute and the allegation of hurling caste abuses was made against a person who claimed title over the property. The court noted that the incident took place within the four walls of the building; there is no mention that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Thus, this did not qualify as “place within public view” [as interpreted in Swaran Singh & Ors. v. State through Standing Counsel & Ors (2008) 8 SCC 435]. The court held that the property dispute was not on account of the fact that the informant was a Dalit.

“The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste. Still further, the finding that the appellant was aware of the caste of the informant is wholly inconsequential as the knowledge does not bar, any person to protect his rights by way of a procedure established by law.” [Para 22]

However, the FIR in this case clearly stated, “All the above persons used to abuse the applicant her husband and other family members and use to give death threats and use “caste-coloured abuses”. On 10.12.2019 at around 10 am, all these persons entered illegally in to four walls of her building and started hurling abuses on myself and my labourers and gave death threats and used castes’ remarks/abuses and took away the construction material such as Cement, Iron, Rod, Bricks. The Applicant is a Scheduled Caste and all of the above persons use castes’ remarks/abuses (used bad language) and said that you are persons of bad caste and that we will not let you live in this mohalla/vicinity.” [Para 2] Despite such assertions made by the complainant, the court viewed this case as merely a dispute over land. Even if it were a dispute over land, the underlying factor was the caste of the complainant, else the accused would not have abused him and other members by their caste name. 

Statement of Object and Reasons ignored

In many of these judgements, the statement of Objects and Reasons of the SC/ST Act is quoted. However, it is evidently not interpreted the way it ought to be. The Statement inter alia, reads, “Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc., they are trying to assert their rights and this is not being taken very kindly by the others. When the Scheduled Castes and the Scheduled Tribes try to preserve their self respect or honour of their women, they become irritants for the dominant and the mighty.”

These lines highlight the fact that the privileged castes are perturbed by the SC/ST community reclaiming their rights and fighting for their dignity. Their dignity, as protected by Article 21 (Right to life), lies in not being abused by a person from a privileged caste even by calling by the caste name. The feeling of othering that a Dalit person experiences when derogatorily addressed by his/her caste name is one that only comes through lived experience and others can simply empathise with them. But this empathy is lost when the cases come to court presided over by judges belonging to privileged castes who are ignorant towards the mental trauma of the aggrieved Dalit.

Casual use of casteist slurs

A pop culture website Homegrown had listed out a few terms that are casually used in colloquial terms quite ignorantly, but actually denote a caste and are thus derogatory towards Dalits. These terms include ‘Bhangi’, Malech, Dhobi, Chamar, Kameena, Chandaal, Pariah, Mahar, Kanjar, Bhand, Kathodi, Dedhgujari, Junglee, Kasaai, Naai. In the Vanya Lochan writes that such terms “that we repurpose to denote lowliness are words that we have historically learnt to hate and deem inferior.”

Here is a list of casteist slurs listed down by Dalit activist Divya Kandukuri, that people oftenuse in casual conversations but are actually demeaning towards the SC/ST communities

Thread.
Casteist slurs that you use everyday. #EverydayCasteism

— Divya Kandukuri దివ్య కందుకూరి (@anticastecat) November 14, 2018

On the issue of name name-calling by caste, Dalit author Yashica Dutt had written an article for The Print. Old videos of actors Salman Khan and Shilpa Shetty resurfaced, where they casually talk about how a certain awkward dance step or a less than presentable appearance made them look ‘Bhangi’. Explaining why this was not acceptable, Dutt wrote,

“Language and the words we use to describe things almost always represent the ideas of a society. And it’s no secret, that as a society, we are pretty darn casteist. We ridicule Dalit men for growing mustaches, kill a ‘lower’ caste person for marrying someone from a ‘higher’ caste and keep our ‘lower’ caste house workers out of our kitchens because ‘who knows where their hands have been’. So when Khan and Shetty describe looking Bhangi when they are at their worst, they are essentially opening a wormhole to the disgust our societies reserve for ‘lower’ castes, especially Bhangis. Because don’t we already assume that all Bhangis look exactly like Shilpa Shetty’s worst and Salman Khan’s most clumsy.”

Articulating the implications of the use of words in such a manner, she writes, “When they say they look Bhangi when they are less than attractive, they mean they look as bad a Bhangi does every day. Because for them, and the rest of the society, there is no other way for Bhangis to look, appear, or behave.”

Manjula Pradeep speaks to Sabrang India 

Manjula Pradeep, an activist working on the issue of caste exclusion, disagrees with the view taken by courts that calling by caste name in itself is not an insult unless it was intended. “Using caste slur is a humiliation in itself and amounts to discrimination which is protected under Article 15 of the Constitution.” While speaking to Sabrang India, she highlighted how the members of the judiciary, especially the judges at all levels need to be sensitised about the SC/ST Act. She said that in many parts of the country, the Act is referred as the “Harijan Act” even though it is a word declared as derogatory by the Supreme Court and has been rejected by the Community a long time ago as Dr BR Ambedkar had refused the term to denote Dalits. 

When asked about her opinion on such judgments that imply that caste name calling is acceptable if not “intended” as an insult, she said it was a means to dilute the Act and it shows that Dalit and Adivasis are “regarded as lesser humans and it also shows the mindset of the judge”.

Speaking about the obstacles faced by a person from SC/ST community when lodging a complaint under the Act, she said, “Hindrance starts from the Police. They are hesitant to lodge FIR if it is against someone from ‘upper caste’. They will always check of there is some physical injury to the complainant. But the mental trauma of being humiliated by your caste name or threatened for your caste identity is disregarded. Even in cases of violence or rape of members of Dalit community, the SC/ST Act is diluted. The conviction may happen under the penal code. Like in the Hathras case, the person was convicted only under IPC and not the SC/ST Act”.

Related:

Dalit MBBS female intern allegedly died by suicide due to caste discrimination

Dalit Sanitation Worker Dies by Suicide in Gram Panchayat Office in Telangana

How long will Dalits and Adivasis students succumb to violent caste discrimination before effective measures are created?

The post Courts say, calling a person by caste name is not an offence: Explained appeared first on SabrangIndia.

The Odisha High Court has set aside the conviction and sentence of the appellant Habil Sindhu, who spent 18 years in jail, and remitted the matter back to the Sessions Court for a new trial. Justices S. K. Mishra and Savitri Ratho were hearing an appeal against his conviction order under sections 302 and 201 of the Indian Penal Code for murder of three people and evidence tampering.

The court recorded the submission of the amicus curiae that “the appellant was not provided with effective free legal services by the State Defence Counsel (SDC).” His counsel also argued that although the trial court Judge engaged an SDC to defend him, “such counsel was engaged without assessing his ability to defend the accused, who was charged with the murder of three persons.”

At the outset, the court observed that Habil had been denied proper legal assistance. It said, “The appellant had no valid, proper and effective legal representation in the case… We are therefore of the opinion that this is a case where the accused has been denied a fair trial and it is violative of Article 39-A as well as Article 21 of the Constitution.”

The Division Bench noted that the trial Judge had not recorded whether the SDC engaged by him was among the counsels shortlisted by the District Judges’ office. Further, it said that there was no observation by the trial Judge that the SDC engaged by the court to defend Habil was in fact competent in the assessment of the trial Judge to defend him in a complex case of a triple murder.

The High Court also observed that the prosecution witnesses were examined in chief and then cross-examined by the defence on three days in 2004 and that “they were examined in trial of an accused charged committing murder of three persons by a SDC, who was engaged just one day prior to the examination i.e. on 16.08.2004.” On this issue, the court held, “The learned trial Judge should have granted at least seven days’ time to the learned counsel appearing for the appellant to prepare the case.”

Considering the evidence on record and submissions, the Division Bench opined that the case should be sent to the Sessions court for a new trial. “Keeping in view the entire facts of the case and taking a holistic view of the matter at hand, we are of the opinion that the case should be remanded back to the learned trial Judge for de nove trial”, said the Bench.

It has directed the Sessions Judge, Mayurbhanj, Baripada to dispose of the case as early as possible preferably within a period of “three months”.

The order may be read here: 

Related:

Allahabad HC acquits a man jailed for 20 years on rape charges
NHRC questions UP govt on relief and rehabilitation of man acquitted of rape after 20 yrs
Jaipur blast case: Rajasthan HC grants bail to undertrial jailed for 12 years

The post Murder convict spends 18 years in jail, Odisha HC orders new trial appeared first on SabrangIndia.

The Odisha High Court has opined that the law holding that having sexual intercourse on a false promise to marry amounts to rape, “appears to be erroneous”.

Justice SK Panigrahi has denied the bail application filed by a person accused of raping a woman after getting involved in a physical relationship with her on the false pretext of marrying her.

The survivor alleged that the applicant/accused caused her abortion twice, by giving her medicines. Thereafter, the accused denied marrying her even after her parents contacted his family get their consent for marriage. The said proposal was denied and in view of this, the family of the woman fixed her marriage elsewhere.

Further, on April 26, 2020, the accused posted their personal photographs using a fake account on Facebook and used a caption stating that she is of ‘bad character’. As a result of this, her marriage was broken.

Thus, an FIR was registered under sections 376(1) (punishment for rape), 313 (causing miscarriage without woman’s consent), 294 (obscene acts) and 506 (punishment for criminal intimidation) of the Indian Penal Code and section 66(E) (punishment for violation of privacy) and 67(A) (punishment for publishing or transmitting of material containing sexually explicit act, in electronic form) of the Information Technology (Amendment) Act, 2008.

While hearing this matter, the court analysed the relationship between section 90 (Consent known to be given under fear or misconception) and section 375 (rape) of the Indian Penal Code. It observed that even though the judiciary has dealt with the use of such concepts, however, “a certain viewpoint has not been reached and still under the shroud of confusion.”

Justice Panigrahi reportedly said, “There is a need for the amendment in the legislation defining what constitutes ‘sexual intercourse’ with the prosecutrix on the ‘pretext of a false promise of marriage’. As in the present scenario, the law on this matter lacks clarity for the conviction of the accused.”

The Single-judge Bench then referred to Anurag Soni vs. State of Chhattisgarh (2019), wherein the Apex Court had held that if an accused from the very beginning has given a promise of marriage without any intention to fulfil that promise, then consent for a physical relationship would not amount to valid consent.

The High Court also opined, “The rape laws should not be used to regulate intimate relationships, especially in cases where women have agency and are entering a relationship by choice. However, it needs to be brought forward that many of the complaints come from socially disadvantaged and poor segments of the society and rural areas, women from these sections are often lured into sex by men on false promises of marriage and then dumped as soon as they get pregnant. The rape law often fails to capture their plight.”

The court also noted that section 375 of the IPC, fails to address the issue of consent for sexual act on the pretext of marriage. Hence, the court said, “the automatic extension of provisions of Section 90 of IPC to determine the effect of consent under Section 375 of IPC deserves a serious relook. The law holding that false promise to marriage amounts to rape appears to be erroneous, however, the plight of the victim and the probability of the accused tarnishing the dignity of the victim and her family need to be looked at while deliberating on the question of bail.”

Since the FIR showed prima facie specific allegations against the applicant/accused, the Court denied him bail after noting that there is a possibility of the survivor’s family being coerced into withdrawing the case or repetition of similar type of offence.

The judgment may be read here:

Related:

Agra: Couple waylaid, woman gangraped on Holi evening
Uttar Pradesh: Three men sentenced to death for teenage girl’s rape, murder

The post Need amendment in rape laws: Odisha High Court appeared first on SabrangIndia.

The Odisha High Court while hearing two petitions highlighting the various issues concerning the jails, noted the absence of jail visits by the District Magistrates and the medical teams.

This led the Bench of Chief Justice S. Muralidhar and Justice B. P. Routray, to direct the District Magistrates of various districts to make surprise visits to jails within their jurisdiction, in coordination with the Secretary of the concerned District Legal Services Authority (DLSA) or Taluk Legal Services Committee (TLSC) between March 15 and April 16.  

Thereafter, they have been instructed to submit a joint report to the court “on the conditions of the jails, condition of the prisoners, issues of overcrowding, the status of facilities within the jails including provisions for food and shelter, recreation etc.” The Bench emphasised that these visits should be “unannounced.”

The court added, “The State Government will also organize at least one medical inspection of each of the district jails and sub jails in the State of Odisha by a team of medical professionals within the aforementioned period and the reports of such visits will also be placed before the Court on the next date.”

The court said that every District Judge will undertake a visit to the jail within their jurisdiction every month and submit a report to it and a compilation of such reports for the months of January, February, and March, 2021 be placed before the Court next month by the Registrar General of the Court.

Further, the Amicus Curiae Gautam Misra apprised the court that there is rampant use of narcotics as well as mobile phones inside the jails. The court directed the authorities visiting the jails, to keep this aspect in mind and highlight it in their respective reports.

The Bench also asked the State Government and Jail authorities to submit information about the installation of CCTV cameras in jails. The learned AC has also drawn attention to five news items concerning deaths of prison inmates in Odisha over the last five years and the issue of overcrowding of jails.

The High Court referred to the Supreme Court’s decision in In Re: Inhuman Conditions in 1382 Prisons (2016), and held that “it is absolutely essential that the above directions of the Supreme Court are implemented in letter and spirit to improve the conditions of jails in Orissa and this requires to be done in a timebound manner.”

The matter will be heard on April 27, 2021.

The order may be read here:

Related:

Prisoners too have human rights: Allahabad HC
What lies behind the high walls of Indian prisons?
Does India uphold Prisoners’ Right to Health?

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