The courts in many cases have ruled that hurling of abuse by taking the name of one's caste would not be an offence under Section 3(1)(r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, unless the intention to insult or intimidate the person on account of him being a Scheduled Caste or Scheduled Tribe is made out.
This article contends that the act of abusing by a caste name itself inherently demonstrates an intention to insult or intimidate based on the individual's Scheduled Caste or Scheduled Tribe identity. While calling someone a thief, lunatic or scoundrel may not relate to caste, using a caste name in an insult against a member of a Scheduled Caste or a Scheduled Tribe is distinctively casteist and reflects the offender's intent to demean the victim based on the caste identity. To say precisely, it is a casteist act that satisfies the mens rea of intention on the part of the offender.
Understanding the operation of the caste system is crucial to recognising the differing implications of caste names when used in relation to caste Hindus and the Scheduled Castes/Scheduled Tribes.
For individuals from upper castes, referring to them by their caste name such as ‘Iyer’, ‘Iyengar’, ‘Gounder’, ‘Nadar’, ‘Vanniyar’, ‘Thevar’, ‘Mudaliar’, ‘Naidu’ etc in Tamil Nadu signifies pride in their caste identity. This factual situation exists all across India.
In contrast, using a caste name to refer to someone from the Scheduled Caste or Scheduled Tribe is inherently stigmatising and can be deeply humiliating. Such usage not only perpetuates social stigma, but also serves as a form of caste abuse.
Abusing members of the Scheduled Caste/Scheduled Tribe communities by using their caste names during conflicts or altercations significantly amplifies the humiliation, highlighting the underlying power dynamics of the caste system. Therefore, the context and intent behind the use of caste names are critical, and it is essential to approach the allegation of caste abuse with sensitivity and awareness of its implications.
The usage of the caste name in an insult against a member of a Scheduled Caste/Scheduled Tribe signifies the abuser's awareness of the victim's Scheduled Caste/Scheduled Tribe caste identity, suggesting that the abuser's intent is to specifically humiliate the victim due to his/her caste. The abuse is clearly an expression of the notional defilement the abuser has on the member of the Scheduled Caste/Scheduled Tribe. The abuser could have chosen any manner of insults, but the deliberate use of a caste name indicates a deeper, more insidious motive to insult.
In the context of this discussion, the Supreme Court's observations in Swaran Singh & Ors v. State Through Standing Counsel & Anr (2008) are particularly relevant. The argument presented in this case revolves around the interpretation of the term ‘Chamar’ and its implications in the context of the Section 3(1)(x) as stood before 2015 amendment (presently, it stands as Section 3(1)(r) of the Atrocities Act). The Court examines whether using the term ‘Chamar’ constitutes an intentional insult aimed at humiliating a member of the Scheduled Caste.
The Court acknowledges that ‘Chamar’ is historically a caste associated with leather craftsmanship, but emphasises that its contemporary usage has evolved into a derogatory term employed by upper castes and other groups to insult and demean individuals from the Scheduled Caste. The judgment highlights the socio-economic decline of the Chamars due to British colonial policies that decimated their traditional livelihoods, leading to their marginalisation in society.
The Court observed that the intent behind using the term ‘Chamar’ is crucial in determining whether it constitutes an offence under the Atrocities Act. It asserts that the Act's purpose is to prevent humiliation and indignities faced by members of the Scheduled Caste/Scheduled Tribe community and, thus, the modern derogatory connotation of the term must be considered over its etymological roots. In other words, the Court ruled that the interpretation of the term should align with its contemporary, pejorative usage rather than its historical meaning. The judgment asserted that using the term ‘Chamar’ in a derogatory manner is offensive and should be treated as an offence under the Atrocities Act.
Unfortunately, the above law laid down in Swaran Singh was not followed by various High Courts and the Supreme Court in numerous cases wherein Section 3(1)(x) was invoked. The courts have continuously refused to accept the mens rea of intention despite the caste name forming a component in the abuse. To address this overly technical interpretation, Parliament introduced Section 3(1)(s) in the Atrocities Act through the 2015 amendment, while retaining Section 3(1)(x) as Section 3(1)(r). Under Section 3(1)(s), it is sufficient for the prosecution to prove the abuse by caste name; there is no requirement to prove the ‘intention’ once the caste abuse is established. In other words, Section 3(1)(s) presumes the mens rea of ‘intention’ when abuse is made using caste name.
While the 2015 amendment allows for convictions under Section 3(1)(s) based on the mere proof of caste abuse, the same outcomes could have been achieved by interpreting Section 3(1)(r) in its intended spirit as laid down by the Supreme Court in Swaran Singh. Section 3(1)(r) requires proof of intent when a Scheduled Caste/Scheduled Tribe individual is insulted or humiliated, meaning the victim must demonstrate that the insult was specifically due to their caste status.
The courts, by following the ratio in Swaran Singh, should recognise that using a caste name in an insult itself is a deliberate act intended to demean the victim based on their caste identity.
But the ratio of the Swaran Singh judgment is alarmingly ignored by the constitutional courts. This issue can be further illustrated through a judgment delivered by the Orissa High Court.
In Surendra Kumar Mishra v. State Of Orissa And Another (2022), an FIR was registered against the accused-petitioner under Sections 294, 323, and 506 of the Indian Penal Code (IPC), read with Section 3(1)(x) of the Atrocities Act. Notably, the informant/complainant was not represented before the Orissa High Court.
The following excerpts from paragraph 10 of the judgment are particularly noteworthy:
"10. The petitioner suddenly out of anger abused the informant under the circumstances narrated in Annexure-1. No doubt petitioner took the name of the informant's caste while abusing the latter. By taking the caste name or utterances of abuse by taking the name of one's caste would not be an offence under the Section 3(1)(x) of the SC/ST (PoA) Act unless the intention is to insult, intimidate the person being a SC or ST.
If the law laid down by the Supreme Court in Hitesh Verma (supra) is read, appreciated and understood in its proper perspective and applied to case at hand, there appears no such intention on the part of the petitioner for being in dominant position as a man of forward class to insult and intimidate the informant being a member of SC and ST. If the victim is humiliated within public view for being SC or ST and with that intention, any overt act or mischief is committed, an offence under Section 3(1)(x) of the SC/ST (PoA) Act would be made out otherwise not. Though the informant was abused at a public place or may be within public view by taking his caste name but as it is made to appear from the conduct of the petitioner, it was apparently without any intention to insult, intimidate and to humiliate him. It was pure and simple an abused by the petitioner under the peculiar facts and circumstances and a sudden outburst and on the spur of the moment without carrying the requisite intention to humiliate the informant so to say…”
It is important to note that the alleged incident occurred in 2012, prior to the introduction of Section 3(1)(s) through the 2015 amendment. Effective from January 26, 2016, Parliament in its wisdom introduced Section 3(1)(s), which stipulates that mere abuse of a member of a Scheduled Caste/Scheduled Tribe by invoking their caste name constitutes an offence, without requiring proof of intent.
The Hitesh Verma judgment itself fails to take note of the 2015 amendment wherein Section 3(1)(s) was introduced. It is also worthwhile to note that the incident in Hitesh Verma case occurred in December 2019, much after the 2015 amendment.
Unfortunately, the constitutional courts have not interpreted caste abuse as inherently carrying intent. Rather, in many cases, they have maintained that such abuse does not imply intent. This misinterpretation undermines the very purpose of the Atrocities Act, which aims to protect marginalised communities from humiliation and discrimination.
If the abuser's intention is not to humiliate a member of the Scheduled Caste/Scheduled Tribe community based on their caste, then the critical question remains: why did the abuser choose to use the caste name in their derogatory remarks? Do the courts have an answer to this?
Legislative amendments like the introduction of Section 3(1)(s) aim to simplify the prosecution of caste abuse. But the legal landscape surrounding caste-based abuse remains complex and fraught with challenges.
AB Karl Marx Siddharthar is an anti-caste thinker, researcher and advocate.