Feminist questions in Danish Khan v. State (Govt. of NCT of Delhi) – Part I

On 5th January 2021, in Danish Khan v. State (Govt. of NCT of Delhi) (‘Danish Khan’), the Delhi High Court granted anticipatory bail to the Applicant, who was accused of raping a woman belonging to a Scheduled Caste. Beyond the factual matrix of the case, Danish Khan raises several issues in our caste jurisprudence. In this article I first argue that the High Court erred in granting anticipatory bail, and second, discuss the need to revisit Section 3(1)(r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST Act or the Act’). At the outset, it is important to point out that the High Court was approached only for the grant of anticipatory bail, and not to decide the matter substantively. The critique provided in this article is of the legacy the case creates rather than focusing on its particular facts.

Brief facts

In Danish Khan, the Complainant alleged that the Applicant had assaulted her, and subsequently induced her to have sexual intercourse with him on the promise of marriage. It is contended that on the basis of this promise, which was allegedly false from the inception, the Applicant and the Complainant were physically intimate. However, eventually the Applicant refused to marry the Complainant, citing her caste status as the reason for his refusal. According to the Complainant’s statement recorded under Section 164 of the Code of Criminal Procedure, 1973 (‘CRPC’), he also hurled casteist abuses, and stated that he would only accept her as a ‘second wife’, as a favour to her.

The Court decided in favour of the Applicant, holding that no offence was committed under the SC/ST Act, since the Applicant’s actions were (a) not ‘impelled by the consideration that the victim was a member of a Scheduled Caste or Scheduled Tribe’ and (b) the caste slurs were not hurled ‘within public view’.

Caste, identity and the SC/ST Act

The SC/ST Act is a special legislation aimed at tackling caste-based violence in India. It has been amended periodically, and the 2015 Amendment specifically strengthened its provisions to make them more effective against caste atrocities. The 2015 Amendment altered the wording of Section 3(2)(v) which provided for criminal liability in case of an offence committed under the Indian Penal Code, 1860 (‘IPC’), against a person belonging to a Scheduled Caste or Scheduled Tribe, which was punishable with imprisonment up to ten years or more. With the 2015 Amendment, the wording of Section 3(2)(v) changed from “on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe…” to “knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe…”. In other words, since 2016, it does not matter if the motive for the offence was not solely the caste status of the victim. It does not matter if the victim happens to belong to a Scheduled Caste or Scheduled Tribe. What is crucial, is that the offender knew the victim’s caste status, and proceeded to commit an offence punishable for ten years or more, under the IPC.

In fact, the intent of the legislature was further clarified in the 2018 Amendment which was passed after the Supreme Court’s decision in Dr. Subhash Kashinath Mahajan v. State of Maharashtra (‘Dr. Subhash’). In Dr. Subhash, the Court diluted Section 18 of the SC/ST Act (which effectively prohibited the grant of anticipatory bail) while observing that where no prima facie case existed against the accused and where the allegation was mala fide, Section 18 would not apply. The Court reasoned that the purpose of prohibiting anticipatory bail is to ensure victims of the crime are not terrorized by the accused, however, innocent persons against whom there is no prima facie case could not be subjected to the same treatment. However, the 2018 Amendment passed after the decision in Dr. Subhash, quite plainly provided that anticipatory bail could not be granted for offences committed under the SC/ST Act, “notwithstanding any judgment or order or direction of any Court”. In 2019, the Supreme Court itself recalled its order in Dr. Subhash, observing that historically disadvantaged groups must be given special protections, and that Dr. Subhash encroached upon the field reserved for the legislature.

However, in 2020, the Supreme Court decided Prathvi Raj Chauhan v. Union of India & Ors., where Justice Arun Mishra created an exception to Section 18 of the SC/ST Act, observing that anticipatory bail would not be granted, save for situations where the complainant is unable to make out a prima facie case for applicability of the Act. The Court observed that the court has to ensure that the power to grant bail is not used to convert the jurisdiction into that under Section 438, but is used sparingly. In a concurring judgment, Justice Ravindra Bhat was quick to caution the bench that orders granting anticipatory bail are to be passed only in ‘very exceptional cases’.

At this point it is also useful to look at anticipatory bail as a remedy in general. According to one commentator, bail has been necessarily linked with the gravity of the offence in question, and is not merely about a person facing trial. Therefore, anticipatory bail must be granted as a remedy only against ‘baseless accusations’, as otherwise, arrests are often critical to the criminal process, especially in the initial period. In a discussion around anticipatory bail outside the context of caste, the 48th Law Commission Report submitted that it must be granted only in ‘very exceptional cases’. Although the jurisprudence around anticipatory bail has been expanded by the Supreme Court, in the context of the SC/ST Act, the potential of dominating/intimidating the complainant, the ability to destroy evidence, and finally, the possession of caste power especially in a case involving a rape allegation, all serve as arguments against the grant of anticipatory bail.

Moreover, even if the High Court in Danish Khan were to follow the reasoning in Prathvi Raj Chauhan, it merely needed to ascertain on a prima facie basis that the Applicant knew of the Complainant’s caste status, while committing the offense. On a prima facie basis, it is evident from the Complainant’s statement under Section 164 of the CRPC, that the Applicant knew her caste status. Therefore, an offence under Section 3(2)(v) of the SC/ST Act was squarely made out.

In a different vein, the logic of the High Court leads to murky waters. In granting anticipatory bail to the Applicant, the High Court cited Khuman Singh v. State of Madhya Pradesh (‘Khuman Singh’), a 2019 decision of the Supreme Court which too fails to apply the standard required by the SC/ST Act.  Khuman Singh worsens the standard of proof by providing that the offence must be committed only on the ground that the victim is a member of a Scheduled Caste or a Scheduled Tribe.

If offences under the SC/ST Act must be on the ground (and only on the ground) that such person is a member of a Scheduled Caste or a Scheduled Tribe, a range of offences which the Act was meant to target, would be left outside its purview. In this case, the rape of a Scheduled Caste woman might not count as an offence under the SC/ST Act – simply because the offence was committed on the basis of her status as a woman and a member of a Scheduled Caste, and not merely her status as a member of a Scheduled Caste. In other situations it may not be clearly identifiable that the offense was committed only on the ground that the victim belongs to a Scheduled Caste/Scheduled Tribe. A range of crimes would go unregulated by the Act, because the victims possess intersecting identities and are targeted as a result of them. The SC/ST Act would effectively be rendered useless.

In the next part, I explore the need to revisit Section 3(1)(r) of the SC/ST Act.

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.

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