Interpreting the SC/ST (Prevention of Atrocities) Act: A missed opportunity?

In a recent judgment, the Punjab & Haryana High Court held that a casteist slur made over a mobile phone, will not be categorised as an offence under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

The reasoning of the Court is grounded in a well-established principle of criminal law that a penal statue should be interpreted strictly. However, the case will also remain as a missed opportunity for the Court to expand the ambit of the Act to ensure that the real intention of the Act is met.

The case in question was filed by the Sarpanch (complainant) of a village on the ground that the accused had abused the Sarpanch based on his caste over the phone. When the Sarpanch passed the phone to another person present (Devi Dayal), the accused abused him again. Further, when Devi Dayal went to meet the accused without the Sarpanch to resolve the matter, the accused abused the Sarpanch on the basis of his caste again.

Based on these facts, the Sessions Judge was prima facie of the opinion that an offence under Section 3(1)(r) and 3(1)(s) was committed, and framed charges against the accused. The accused approached the High Court challenging the framing of charges.

Section 3(1)(r) and 3(1)(s) read as follows:

Punishments for offences atrocities: 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;

(s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view;

The accused had argued that the act of abusing the Sarpanch on the phone was not within the ambit of public view and would not be an offence. Therefore, the task set up for the Court was how to interpret the word “public view”. Taking a well precedented narrow approach of interpretation, the Court held that a telephone call would not be considered as an act within “public view”.

While doing so, the Court failed to recognise that the Act is not merely a penal statue. The Act is a social welfare legislation and has been specifically passed to protect the constitutional rights of members of the Schedule Caste and Schedule Tribe communities as guaranteed under Article 15 and Article 17 of the Constitution. The Statement and Objects of the 2014 amendment of the Act also observes that the atrocities against members of the Schedule Caste and Schedule Tribe communities still continue to be at disturbing levels.

The context of passing of the Act is what differentiates it from any other penal statue. An offence under the said Act is only committed against the members of Schedule Caste and Schedule Tribe because of the community they belong to. As held earlier by the Supreme Court, this is a direct attack on the dignity of the individual and against the idea of fraternity as provided in the Constitution.

Seen in this context, the Act is not merely a penal statue but also a remedial statue. The duty upon the court is to balance the interpretation of the Act in a way that it meets the intended outcome but at the same time does not expand the Act in such a way, that it becomes a monster of its own.

Further, the caveat of “public view” is only a balancing act done by the legislature to ensure that the protection is not misused. “Public view” should be interpreted keeping this in view. An interpretation that reads “public view” as public at large, which the Court did in the present case, defeats the balancing act already done by the legislature and tips the scale against members of Schedule Caste and Schedule Tribe communities. The interpretation should be expanded to mean that if any third party has been present and was aware about a casteist slur being said, it would fall under the purview of “public view”, and the ingredients as laid down in Section 3(1)(r) and 3(1)(s) would be satisfied. This would ensure that any kind act of humiliation does not go unchecked.

Interestingly, while adopting a narrow interpretation of Section 3(1)(r) and 3(1)(s) the Court holds,

“To constitute the offence under the Act, it must be alleged that the accused intentionally insulted or intimidated with intention to humiliate a member of Scheduled Caste or Schedule Tribe in any public place within public view.”

However, Section 3(1)(r) and 3(1)(s) does not provide the condition of “public place within public view” it only provides for “any place within public view”. This distinction is critical. Without the caveat of “any place”, the Act itself provides for a scope of an expansive interpretation. The intention of the legislature is to ensure that the Act covers any kind of act which any third party has been made aware of, irrespective of the setting.

Another aspect that should have been considered is that the case was at the stage of framing of charges, which is only a prima facie view. A perusal of the case record shows that the accused were already on bail and that there was no immediate threat to the life and liberty of the accused. Considering the history of the legislation and the stage of proceedings, the Court should have taken a lenient view and should have allowed the trial to continue allowing more evidence to be brought on record.

An obvious attack to the argument presented is that this would open the flood gates of frivolous litigation and would lead to misuse of the provision. However, this attack fails to consider that a mere possibility of misuse by certain people should not be a ground of taking away protection from a historically marginalised community. The Court should not take away the protections granted but look at more efficient implementation of the procedures in place.

The case in hand provides a glimpse of how in certain situations, the Court should step aside from a conservative legal reasoning and take every opportunity to ensure that constitutional goals are met. A strict interpretation of social welfare legislations would always end up benefitting the ones who already control the power structures.

The author is a practicing advocate based out of Chandigarh.