Section 18 of the anti-atrocities law prohibits grant of anticipatory bail to an accused who has been booked under the Act.
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The crime of a casteist slur or intimidation under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has to be in public view of a public witness, said the Bombay High Court while granting pre-arrest bail to an accused.
The Act, under section (3)(1)(x) provides that the offense of abusing the person on the basis of his/her caste must have taken place ‘in any place within public view.’
In a case put forth by a Kalyan court last year, Justice A M Badar had rejected the anticipatory bail plea of the accused. The case was taken up by the Bombay HC this year and it said, "is clear that the word 'public' not only relates to the location, but also to the subjects witnessing the incidence of insult or intimidation to the member of scheduled caste or scheduled tribe.” It also said, “Presence of both ingredients is necessary for making out the offence of atrocity.” The Court added that it was “clear that abuses, insult or humiliation must take place in presence of or in the proximity of at least one independent public witness.”
The court said the expression “in any place within public view” has a specific meaning. “The act of insult or intimidation must be visible and audible to the public in order to constitute such act to be an offence under Section 3(1)(x) of the Act...The word ‘public’ not only relates to the location defined by the word ‘place’, but also to the subjects witnessing the incidence of insult or intimidation...” said the order.
In this case, the FIR stated that, "accused caught hold of her hand and threatened her.” Here the Court did not take into account Section (3)(1)(xii) “being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed”, which does not mention ‘within public view’ to be a deciding factor for a slur / intimidation to be considered an offense.
The other sections of the The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, apart from Section (3)(i)(x), do not anywhere mention of atrocities to be considered offenses only under ‘public view’.
In March 2018 last year, a division bench of Justices Satyaranjan Dharmadhikari and PrakashNaik granted a man interim protection from arrest saying, “Prima facie, on reading of the complaint, the abuses which have been hurled at the complainant by the accused are not within public view.”
The case against the man was filed by his neighbour with whom he had a prior dispute. According to the FIR, he had allegedly accosted the woman and threatened her to withdraw the case registered against him. The woman who belongs to the Hindu Mahar community, was then allegedly abused by him in the name of her caste.
The court ignored the Section (3)(i)(xii) in this case too.
In 2017, the Delhi High Court ruled that any offensive post on social media that targets an individual of the Scheduled Caste or Scheduled Tribe communities, even if made in a closed group, is punishable. Justice VipinSinghi noted, "When a member registered with Facebook changes the privacy settings to 'public' from 'private', it makes his/her writings on the 'wall' accessible not only to the other members who are befriended by the author of the writings on the "wall", but also by any other member registered with Facebook. However, even if privacy settings are retained by a Facebook member as "private", making of an offending post by the member - which falls foul of Section under Section 3(1)(x) of the SC/ST Act—may still be punishable."
In the same year, a bench of Justices J Chelameshwar and S Abdul Nazeer ruled that using casteist remarks over phone in a public place against the Scheduled Caste and Scheduled Tribe category amount to criminal offence warranting a jail of a maximum five years.
How You Can Take Action
In 2008, a bench comprising Justice AltamasKabir and Justice MarkandeyKatju said that in the age of democracy and equality, no people or community should be insulted or looked down upon, and nobody’s feelings should be hurt. This is also the spirit of our Constitution and is part of its basic features.
Why then, in some of the cases mentioned above, is the Court taking such a myopic view of the Act instead of taking a wholesome view to cease such atrocities?
The Constitution of India and its hate speech laws aim to prevent discord among its many ethnic and religious communities. If you have been a victim of such an offense or have witnessed someone being subjected to such slurs, we request you to be a crusader of unity with us and take action by:
- Reporting a Hate Crime on our website - https://cjp.org.in/report-crime/
- Help fight hate on the new Hate Hatao app - https://play.google.com/store/apps/details?id=com.hatehatao.hatehatao