I ended my earlier post questioning the order of the High Court in Danish Khan, granting anticipatory bail. In this post I explore the need to revisit Section 3(1)(r) of the SC/ST Act.
Public standards, private harms
Although the prosecution did not contend this in Danish Khan, the High Court also briefly discussed whether the Applicant’s action (of hurling casteist abuses) could count as an offence under Section 3(1)(r) of the SC/ST Act, i.e. when some one intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. The High Court held that based on the Complainant’s statement under Section 164 of the CRPC, this incident occurred at the Complainant’s residence, and therefore, she was not humiliated or intimidated at a place within public view.
This observation of the High Court is buttressed by the Supreme Court’s decision in November 2020, in Hitesh Verma v. State of Uttarakhand & Anr. In this case too, the Supreme Court held that because the alleged intimidation/humiliation happened within the confines of the Complainant’s home, it would not count as an offence under the SC/ST Act. This position has been reiterated in Alka A Misra v. JP Shoke, Suhail Fasih v. State of Uttar Pradesh, and Gorkhi Ram v. State of Haryana, amongst others.
At this stage, it is necessary to probe deeper into the reasons for the distinction between the public and private sphere by the legislature. Why is it required for humiliation or intimidation under the SC/ST Act to happen within public view? There could be three arguments in support of this position – (a) because humiliation (like defamation) affects reputation and therefore requires an audience, (b) there is a need to prevent false complaints under the SC/ST Act, and/or (c) the State does not wish to enter the private realm.
The first reason is flawed and has been criticised heavily, for it disregards life experiences where humiliation is felt internally and affects self-esteem. Humiliation and shame are not merely reputational harms, and as forms of caste dominance, violence and oppression, they have a ‘deeply private’ impact, and irretrievably lower self-worth. Intimidation as caste violence is in fact more real, and more threatening when one is by themselves. For instance, in Hitesh Verma, an upper caste man walked into the Complainant’s house, hurled abuses, took away her construction material, and threatened her with death. If this is not unnervingly intimidating, what is?
The second reason is problematic on several counts. Strangers as witnesses may be required at the stage of evidence, to corroborate the complainant’s claim in some cases. However, it is not clear why such a standard is an ingredient of the offence of humiliation/intimidation. By this standard, even sexual harassment (which can take the form of humiliation or intimidation) must be required to happen at a place within public view. But it is understood that patriarchal power dynamics at work often play out in private, and it is the private nature of some of these acts, which make them more threatening. In the IPC too, the offence of criminal intimidation under Section 503, does not require that the intimidation happen within public view. Why then should it be required under the SC/ST Act? A provision such as this effectively reflects the state’s suspicion in listening to certain voices, which do not count if they are singular or uncorroborated, even on a prima facie basis.
Further, a preoccupation with ensuring that there are no ‘false complaints’ obstructs the very purpose of the SC/ST Act, and is based on myths. It has been pointed out that this myth of registration of false cases is based on the high acquittal rate (around 70%) in offences under the SC/ST Act. However, the acquittal rate is also caused by procedural lapses, institutional prejudices, hostile witnesses, corruption, amongst a host of other barriers.
Finally, the public/private dichotomy has been criticised by feminists arguing that the dichotomy has been manufactured to maintain the oppression of women in the private sphere. Often, acts which disturb or offend the public are conveniently relegated to the private, and therefore considered beyond state interference/regulation. But the problem, according to Catherine MacKinnon “is getting anything private to be perceived as coercive”. The benefits of an impermeable private realm are most enjoyed by those in power – to the powerless, the private realm is regularly a space of uncertainty, unfreedom and disenfranchisement. In the context of caste, and more particularly caste intimidation/humiliation, this divide allows brutality to flourish with little interference from the state. By not recognising that intimidation and violence happens at places not within ‘public view’, the legislature as well as courts remain apathetic to caste violence.
Shardha Rajam is a Research Associate at King’s College London/IWWAGE, working on the Laws of Social Reproduction project. She is an alumnus of NUJS, Kolkata.