In the age and time when half of the world is protesting against racial crimes and violation of human rights under what today has become a global movement called the ‘Black Lives Matter’, the Indian Courts of law, much like its own society have continued to be under the vow of silence on its own practices of casteism and casteist bias. In midst of this never-ending social as well as the judicial fight against casteism, the Punjab and Haryana High Court in its recent judgement in the case of Pradeep Kumar v. State of Haryana and another, has held that mere utterance of casteist insults and slurs in the absence of any public view shall not be a crime under the purview of the Prevention of Atrocities Act.
Cases such as Subhash Kashinath Mahajan v. State of Maharashtra in which the Supreme Court diluted the very legislative purpose of the Atrocities Act by challenging its Section 18 or the case of Giresh Kumar v. State of Kerala where the court upheld purification of a place to be a legitimate and rightful practice, or in the case of Bhanwari Devi where the Rajasthan Trial Court maintained that an upper-caste man could not even touch a Dalit woman let alone rape her, make it very evident that it is not newfound for the Indian Judiciary to manifest casteism and uphold caste-biased prejudices by creating a smokescreen of ignorance and caste-blindness.
The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (henceforth the Act) is a piece of legislation which came into being for the want of competent and adequate laws for the purposes of treating and penalizing offences specifically of casteist nature. In addition to being a detailed penal statute, the Act is very much also an ethnographic account of the lives of people belonging to the SC/ST community. The specificity of these provisions, especially of those under Section 3 of the Act is appalling yet surprisingly not unknown to the casteist societal set-up of India. The very precise as well as detailed descriptions of such offences under Section 3 only imply that they were commonly perpetrated and that they are inflicted upon many people even today.
The contemporary Anti-Caste movement much like the Feminist legal jurisprudence also suffers from the predicament of bias and upper-caste male prejudice. Thus, even in statutes such as the Act itself which solely caters to the protection of rights of the SC/ST community, there are engrained fallacies and prevalent problems in the law which indivertibly do more harm than good. One such provision is the ambit of public view in Section 3(i)(x) which was also the primal contention in the recent Pradeep Kumar Case of the Punjab High Court.
‘Public View’ under the Section 3 (i)(x)
The main ingredients of Section 3(i)(x) are—acts of insults or intimation, with the intention to humiliate a person of the SC/ST community, in ‘any place within public view’.
The sole legal contention raised in the Pankaj Kumar case was to determine the meaning and ambit of the term ‘public view’ mentioned in Section 3(i)(x) of the Act. As per the facts of the case, there was an F.I.R filed against the petitioners (namely, Sandeep and Pradeep Kumar) by Rajinder Kumar who alleged that the two petitioners used abusive and casteist language against him on a mobile phone conversation. It was argued that allegations imposed did not constitute the offence as stipulated under Section 3(i)(x) as the provision itself required the act to be done in the ‘public view’. The court held that since the abuses were given on a mobile phone via a call and was not heard by anyone else other the parties involved, there was no ‘public view’ and thus, Section 3(i)(x) of the Act would not be applicable.
Why is there an indispensable need for public view?
As mandated in the provision, acts of humiliation/intimidation would only be offences under the act, if they are committed in any place within public view. It is important to note the differential use of terminology in the impugned provisions. Section 3(i)(x), has rather intentionally refrained from using the expression ‘public place’ and instead has used the phrase ‘in any place within public view’. The ambit of the latter is much wider than that of the former, so much so that ‘any place within public view’ includes not just public places but also private places such as homes, apartments which may be sensibly visible or audible to the public. For instance, if a garden or a courtyard of a house can be reasonably seen or heard by someone on the outside of the house, it would be considered to be ‘a place within the public view’ for the very purpose of this act.
As stated above, fortunately by the way of this provision, not just public places such as malls and parks came within the ambit of the provision, but also non-public places such as walled-private premises and gated housing societies fell within the purview of the Act. While the provision made it possible for acts done in the private sphere to be held as offences or rather, atrocities, it however also sanctioned an unreasonably high standard of proof and evidence which lead the subsequent abrogation of the very purpose of this act which has been to protect and safeguard the rights of people from the SC/ST community.
Test of ‘Public View’
Over the course of many case laws, it has been made clear that the ‘test of public view’ is not just mandatory but also subjective and detrimental to the Act’s object and purpose. According to the test, any incidents or remarks made would be deemed to be offences only if there is clear evidence in the form of testimonies by ‘independent’ witnesses to substantiate the claims. Thus, if no member of the public has either seen the incident or heard the remarks, then even if the place is a ‘public place’ or a place within public view (as required by the act), the acts would still not attract any liability under Section 3(i)(x).
On the application of this rule to the aforementioned case, the Punjab and Haryana High Court, however delinquent it may be, was only right in enforcing the posited law by holding the disputed phone conversation to not be in the required ‘public view’. It is therefore implied by this provision of law and this judgement that it is legally permissible to utter casteist slurs on a mobile phone, as long as you and the victim are alone and not heard or seen by the public.
Looking at this rule from a Criminal Law jurisprudence lens, it is prima facie reasonable for any statute of this specific nature to espouse such a high standard of proof and evidence. However, what seems extremely unreasonable in this ‘reasonable test of public view’ is the latent meaning of the term ‘public’. As held in the case of Daya Bhatnagar, ‘public’ does not necessarily imply large crowds of reasonably like-minded people. Even if one or two members of the public hear and view the incident, it would have satisfied the test of the public for Section 3(i) (x). However, in addition to the aforementioned definition, it is also implied through the language of the provision as well as judicial interpretation of the statute that not everyone can constitute and be a part of ‘public’ under Section 3(i)(x).
The ‘public’ is constituted of those people who happen to not be related to the victim(s) in any capacities (personal or professional), and are, therefore ‘independent’ enough to be able to be witnesses in such cases. Thus, even if the victim’s spouse or any family member for that matter, has witnessed the occurrence of atrocities, their plain sight is not ‘public view’ as per the act and their presence at the crime scene is irrelevant and inconsequential. This meaning which was purported by Honorable Justice B.A. Khan engenders a lot of problems in the adjudication of such cases, the burden of which is unconditionally and unreasonably borne by the victims.
In most of the adjudications, the courts have opined that there is an indispensable need for independent witnesses. As held in most of the cases revolving Section 3(i)(x), independent witnesses are those witnesses who have no link with the complainant through any close relationships and business, commercial or any other vested interest and who are participating members with him in any way. One can only presume that the rationale buttressing his rule is the need for an unbiased and unprejudiced account of pieces of evidence in the form of witnesses. However, this standard of evidence has never been required in any other crimes under the many criminal statutes in Indian law.
On a literal interpretation of this rule, it mandates the offence to take place in front of strangers, implicitly implying that the act of insulting, intimidating and humiliating will not be an offence if done in front of remotely close relatives of the victims. This rule which has now gained judicial legitimacy has made it difficult to satisfy the constituent ingredients of Section 3(i)(x). It wrongfully bestows a lot of power to the judges of the courts to determine and decide upon which witness shall be independent enough to even testify. As far as the case of Pankaj Kumar is concerned, the holding of the court is just a reflection of the laws in place. The question remains— Why do we only need an independent/unbiased gaze to prove an occurrence of an atrocity?
Views are personal.
Image provided by the author.
ABOUT THE AUTHOR
Anmol Ratan is currently pursuing law at National Law School of India University, Bangalore.