15, Mar 2023 | Sanchita Kadam
“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:
- 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 marginalised, and hence it is defined as a criminal offence.
However, by introducing a more exacting criteria 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 ArumugamServai 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 often use in casual conversations but are actually demeaning towards the SC/ST communities
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 moustaches, 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”.