On November 5, a three-judge bench of the Supreme Court held that not all cases of intimidation and harassment of people belonging to the Scheduled Castes and Scheduled Tribes would attract the provisions of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The Court quashed a complaint about a member of a Scheduled Caste community being intimidated because the incident occurred within the “four walls of her building” and could not be said to have taken place within public view.

The case drew attention yet again to a flaw in the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act that helps maintain the status quo in favour of members of the upper castes. It highlighted how the Act does not attempt to stamp out caste discrimination, violence and oppression entirely, emphasising the urgent need to amend the legislation.

Hurling abuse

The case related to a complaint by a woman belonging to a Scheduled Caste that a member of an upper-caste community, with whom she had a property dispute, entered the “four walls of her building”, hurled casteist abuses, threatened her labourers and her with death and took away the construction material from her property.

Among other provisions of law, a case was filed under section 3(1)(x) of the SC/ST Act, which punishes any non-SC/ST person who, “intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view”.

Based on this provision, the Supreme Court quashed the complaint because the incident had not taken place within public view.

This followed a long line of similar decisions. Early this year, the Punjab and Haryana High Court held that casteist remarks made to a Schedule Caste sarpanch during a phone call did not constitute an offence under the Act, since the abuse occurred in a private conversation and not in a place within public view.

Based on similar reasoning, the Bombay High Court in Alka A Misra v JP Shoke in 2002 had held that intentional insult or intimidation of a Scheduled Caste person that occurred inside an office did not constitute the offence under the Act.

There really seems to be no rationale for the law punishing caste-based intimidation and humiliation when it is “within public view” but tolerating it in private.

It is clear that these rulings are at odds with the intent of the SC/ST (Prevention of Atrocities) Act, 1989, which was moved because the earlier Protection of Civil Rights Act, 1955, was found to be inadequate.

Members of a Dalit family in Gujarat's Una were brutally beaten up in 2016 as they were skinning a dead cow.

A special legislation was thought necessary “to check and deter crimes against SC/STs committed by non-SC/ST” because, as the Statement of Objects of the Act notes, members of the Scheduled Castes and Scheduled Tribes continue to be “subjected to various offences, indignities, humiliations and harassment”.

The Act acknowledges that when they try to assert their civil rights, they are subjected to brutal caste violence by vested interests who try to “cow them down and terrorise them”.

How does the provision that casteist insults matter only if they are in public view advance this legislative objective? One answer could be that the Parliament wanted to prevent misuse of the Act as it would be difficult to prove an offence that occurred in private.

However, such an explanation is untenable, both in theory and in practice. First, just because an offence is difficult to prosecute or prove does not mean that it isn’t an offence. Take for instance, sexual harassment. Most instances occur in private spaces and are extremely difficult to prove. Nonetheless, it is (as it should be) a punishable offence. The burden of proof is always on the complainant, which effectively acts as a check against frivolous complaints.

Secondly, the bogeyman that such a provision would result in a barrage of false cases has been shown to be just that – a bogeyman. This perception of rampant misuse comes from the exceeding high acquittal rate, over 70%, of cases filed under the Act. The conviction rate under the SC/ST Act is less than half of the conviction rate of offences under the Indian Penal Code.Conviction rates remain low in spite of an increase in the number of caste atrocities.

Rather than reflecting misuse, the high acquittal rate reflects deep systemic caste prejudices of the state machinery. Cases most often fail due to technical lapses, the police failing to register cases, witnesses turning hostile, lack of evidence, the filing of counter-cases and false cases by perpetrators, the collusion of police with the perpetrators, deliberately lax investigations, political pressures on victims and witness, and delays in trials and judicial attitudes (See here and here).

Much like the post-Independence land reforms laws, ambiguities, exceptions and restrictions built into the Act, dilute its effectiveness as a tool of social engineering and transformation.

It imposes criminal penalties only when acts of humiliation are committed in “public view” and not in the “private” domain – which is where such indignities live, thrive and multiply. By recreating this public-private divide, the law helps members of the upper castes maintain their privileges.

Strengthening the divide

As it turns out, the SC/ST Act does not actually define what “any place within public view” actually means. This standard has been evolved by courts by interpreting the “place” and the “view” within which the alleged offence takes place.

In Swaran Singh & Ors. v. State through Standing Counsel & Ors, the Supreme court held that “any place within public view” is different from a “public place” and hence, “even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) (emphasis mine) then also it would be an offence since it is in the public view”.

Therefore, the court said that the wording of the Act covered not only “public places” which are usually understood as places owned by governments and municipalities, but also places like the outside of a building or a lawn outside a house, as long as it can be seen or heard by the public.

In other words, one test is that of geography – where the offence is committed. In the Hitesh Kumar case decided last fornight, this was one the tests the court applied. It held that, as the FIR stated that the offence took place within the “four walls of her building”, it was not within “public view”.

A protest in 2016 against a Dalit family being assaulted in Gujarat's Una. Credit: Aarefa Johari

There is a second leg of determination in deciding what constitutes “in any place within public view” and that is, who can see or hear it? Who is the “public” who should have viewed the offence?

The court said that “public” are those persons who are “not merely relatives or friends” and who were present to see or hear the alleged offensive words/threats. In 2004, the Delhi High Court in Daya Batnagar v. State held that “looking to the aims and objects of the Act, the expression ‘public view’ in Section 3(1)(x) of the Act has to be interpreted to mean that the public persons present, (howsoever small number it may be), should be independent and impartial and not interested in any of the parties”.

It clarified, “In other words, persons having any kind of close relationship or association with the complainant would necessarily get excluded.”

The courts have justified these principles as being in furtherance of the objectives of the Act. They have also held that since it is a penalising statute, it cannot be too widely construed. However, in interpreting public as ‘strangers’ and not just the presence of any one or more persons, the courts have insulated caste-based humiliation from being punished in private spaces.

Asserting caste power

Humiliation is a form of caste dominance and oppression that seeks to assert caste power. That is why members of the upper castes go to great lengths to correct even minor forms of what they consider assertion, such as members of marginal castes riding horses or using shoes in upper-caste localities.

This humiliation traverses public and private spheres. It is public in the sense that is a form of social and political domination against a particular community or an individual for being from a particular community or identity.

But it is also deeply private. It is an affront to an individual’s basic human dignity, which is the bedrock of an equal society. Humiliation as a form of dominance and violence is especially reserved for those whom society considers beneath them, and it is meant to demean and deny a person their basic humanity and personhood by showing them their worth or their place in society.

It plays the same role whether in public or in private. Victims suffer its damaging effects in equal measure, whether they are humiliated in front of their peers or before strangers. Caste dictates the public sphere in India, because it penetrates and thrives in all aspects of private life.

The SC/ST Act, no doubt imposes criminal sanctions, but it is primarily a welfare and protective legislation. Hence, it should to be interpreted in a manner that best protects its beneficiaries.

No matter how widely the judiciary interprets the provisions of the Act, the real legal change has to come through a change in law. If the law has to meet its stated objectives, this provision such as this needs to be amended in a manner that does not create these false distinctions between public and private sphere.

Rashmi Venkatesan is an Assistant Professor of Law at the National Law School of India University, Bangalore. Views expressed are personal.