(This is a guest post by Jaiyesh Bhoosreddy)
The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (“SC/ST Act”) is a special legislation enacted for preventing and deterring commission of offences and atrocities against members of the Scheduled Castes and the Scheduled Tribes (“SC/ST”). In State of M.P. & Anr. v. Ram Kishna Balothia & Anr., (1995) 3 SCC 221, the Supreme Court held that offences enumerated under the SC/ST Act falls into a special and separate class of offences. The Constitution of India, under Article 17, expressly deals with abolition of ‘untouchability’ and forbids its practice in any form. It also provides that the enforcement of any disability arising out of ‘untouchability’ shall be an offence punishable in accordance with law. Therefore, offences enumerated under the SC/ST Act, specifically Section 3(1), arise out of the practice of ‘untouchability’.
At the outset, the author would like to clarify that criticism of the judgment under discussion is to be viewed isolated from its particular factual matrix; rather, it should be viewed in context of the precedent that it sets juxtaposed with the social conditions which ail the SC/ST communities in India, and the deeply ingrained disdain of the Indian society that is directed towards the members of the SC/ST.
Offence must be ‘impelled on the consideration that the victim is a member of a SC/ST’
In a recent judgment by the Delhi High Court in the matter of Danish Khan @ Saahil v. State (Govt. of NCT of Delhi) (“Danish Khan”) [Bail Application 3497/2020 (2021)], a Single Judge Bench granted anticipatory bail to the applicant who was accused of commission of an offence under Section 3(2)(v) of the SC/ST Act. The Court held that the offence was only made out when an offence under the Indian Penal Code, 1860 (“IPC”) should have been committed on a member of a SC/ST ‘particularly for the reason’ that such person is a member of a SC/ST. It is not the purpose of Section 3(2)(v) that ‘every offence’ under the IPC attracting imprisonment of 10 years or more would come within the SC/ST Act merely because the IPC offence is committed against a person who 'happens’ to be a member of a SC/ST. The enhanced punishment provided under Section 3(2)(v) is attracted when the ‘reason for the commission of the offence’ under the IPC is the fact that the victim is a member of a SC/ST. It is a necessary element that the "offender’s action is impelled by the consideration that the victim is a member of a Scheduled Caste or a Scheduled Tribe". The Court explained that this rationale conforms with the Preamble of the SC/ST Act and the legislative intent behind the statute, which it viewed as creating a stringent regime to penalise targeting persons by reason of their caste identity.
A similar view was taken in the matter of Dinesh @ Buddha v. State of Rajasthan [(2006) 3 SCC 771], wherein the Supreme Court held that — in connection with Section 3(2)(v) — the offence committed against a person must be ‘on the ground’ that such a person is a member of a SC/ST. This view was also held by the Supreme Court in Khuman Singh v. The State of Madhya Pradesh [(2019) SCC Online SC 1104] wherein the Court held that unless an offence is committed ‘only on the ground’ that the victim was a member of a Scheduled Caste, the offence under Section 3(2)(v) would not be made out.
Critical Analysis of Section 3(2)(v) of the SC/ST Act
The author would argue against the interpretation applied in Danish Khan as erroneous in a three-fold manner.
Firstly, it is against the legislative intent which is clear from a reading of the provision and the preamble, which the court incorrectly read, through a beneficial interpretation of the provision, in favour of the narrowed scope of Section 3(2)(v). Secondly, it would be pertinent to mention that the rationale of the impugned judgment is also in conflict with the earlier decisions of the Supreme Court vis-à-vis the application of Sections 18 and 18A of the SC/ST Act, and the fact that the said provisions impose a bar on the grant of anticipatory bail once a prima facie case for applicability of the provisions of the SC/ST Act has been made out. Lastly, the rationale of Danish Khan, that it is not the purpose of Section 3(2)(v) of the SC/ST Act to punish ‘every offence’ under the IPC attracting imprisonment of 10 years or more with an enhanced punishment simply because the offender committed the offence against a person ‘who happens’ to be a member of a SC/ST and that an offender’s action must be impelled by the consideration that the victim is a member of a SC/ST to invoke the provision of Section 3(2)(v) of the SC/ST Act, does not hold strength in context of Indian society and the social conditioning of the populace vis-à-vis the caste system.
[A] Contrary to the Legislative Intent
The interpretation in Danish Khan with respect to application of Section 3(2)(v) is disjointed from the legislative intent evident from reading the provision and the preamble, and therefore, it is misconceived. It would be apposite to reproduce the wordings of Section 3(2)(v) for the sake of reference:
“3. Punishments for offences of atrocities.— …(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,— …(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;” (Emphasis added)
It is evident that the legislature intended to cover commission of any offence under the IPC, with punishment for a term of ten or more years, to be brought within the scope of Section 3(2)(v) of the SC/ST Act, as long as the offender satisfied the minimum threshold requirement of knowledge that the victim belonged to a SC/ST. This interpretation flows naturally from the reading of the following phrases in the provision, “commits any offence under the Indian Penal Code” and “knowing that such a person is a member of a Scheduled Caste or a Scheduled Tribe”, and it would also be pertinent to note that the latter phrase was specifically inserted by the legislature at a later point of time in order to substitute the original phrase which is as follows, “on the ground that such a person is a member of a Scheduled Caste or a Scheduled Tribe”. The interpretation in Danish Khan is undoubtedly contrary to the legislative intent, as it substitutes “knowing” with “impelled by the consideration”, thereby meaning that there must be a direct nexus between the alleged offence and caste status. A Court while interpreting a law can import/supply meaning to a legislation when the same has not been provided by the legislature and the provision is vague or unclear from a plain reading of the text, as per the standard English dictionary, according to the rule of literal interpretation of statues. However, it cannot interpret a provision contrary to the legislative intent so as to change the meaning of the provision, which was never intended by the legislature in the first place.
It would be apposite to reproduce the preamble of the SC/ST Act at this junction, considering as Danish Khan suggests that its logic is in conformity with the text:
“An Act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for [Special Courts and the Exclusive Special Courts] for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.” (Emphasis added)
The SC/ST Act is a special legislation that intends on deterring all forms of crimes committed against the members of the SC/ST by ensuring prevention of the commission of offences and / or atrocities against such persons. This would include eligible offences under the IPC which could be attracted within Section 3(2)(v) to provide a harsher punishment for deterring all form of offences against members of the SC/ST provided that an accused knew that such person was a member of a SC/ST. This approach is arguably in greater harmony with the preamble of the SC/ST Act as well as the legislative intent than the rationale provided in Danish Khan.
[B] Interpretation in Danish Khan of Section 3(2)(v) is in conflict with Section 18 of SC/ST Act and Prathvi Raj Chauhan
The rationale of Danish Khan is conflicting with earlier decisions of the Supreme Court of India. In the matter of Prathvi Raj Chauhan v. Union of India & Ors. (“Prathvi Raj Chauhan”) [(2020) 4 SCC 727] a three judge Bench of the Supreme Court upheld the constitutionality of the SC/ST Act denying anticipatory bail for certain offences by crafting an approach that requires a court to test whether allegations of offences under the SC/ST Act are prima facie made out. Determining whether the offence was “impelled on the consideration” of one’s caste status would require an inquiry of a kind that travels much beyond the prima facie test which Prathvi Raj Chauhan endorsed. This argument is further buttressed by the decision of the Supreme Court in Vilas Pandurang Pawar & Anr. v. State of Maharashtra and Ors. [(2012) 8 SCC 795] where it was held that, while at the stage of considering an application for anticipatory bail, the scope for appreciation of evidence and other material on record is limited and could not involve an elaborate discussion on evidence. Additionally, in Manju Devi v. Onkarjit Singh Ahluwalia & Ors. [(2017) 13 SCC 439] the Supreme Court observed that a plea that a complaint is false and malicious cannot be looked into at the stage of taking cognizance and issuance of process and can only be taken into consideration at the time of the trial. Thus, the question of whether an eligible offence under the IPC was impelled on the consideration of caste status or not cannot be examined at the stage of considering an application for grant of anticipatory bail.
[C] Misconceived Approach disjointed from the realities of the Indian Society
The approach in Danish Khan is misconceived and flawed in the context of Indian society. It suffers from the infirmity of being disjointed from the realities of the Indian society, which reflects a deeply ingrained disdain towards members of the SC/ST by virtue of a long history of social conditioning through the structures of the caste system. It proceeds on the flawed assumption that an offender’s motive for committing an offence against a member of a SC/ST can easily be ‘identified’ and ‘pinpointed’ on the basis of direct nexus of the ‘motive for the crime’ which is to be for the explicit ‘reason of caste status’ only, and the same can be distinguished from the aspect of ‘mere knowledge’ to segregate the eligible offences into two categories. In the first category of eligible offences, which would be applicable within the meaning of Section 3(2)(v) of the SC/ST Act, the offence must have occurred for the clear motive of hatred or disdain specifically against a member of a SC/ST. The second category of eligible offences, which would be excluded from Section 3(2)(v) of the SC/ST Act, the offence has been committed against a person coupled with the knowledge that such a person is a member of a SC/ST.
It is not possible or feasible, as a method of approach, to segregate each eligible offence on the criteria that it had occurred for the ‘purpose of targeting’ a person by ‘reason of their caste status’ distinguished from an offence that occurred against a person ‘who happened’ to be a member of a SC/ST. The correct approach to dealing with this situation has already been provided by the legislature, that is, if an offender commits any eligible offence under the IPC against a person knowing that such a person is a member of a SC/ST, then it would be trite to say that such an offence has been committed in a wilfully callous and criminally negligent manner against a member of an extremely vulnerable and marginalised section of Indian society, and the same should be prevented at all costs through all possible means of deterrence which is appropriately dealt with by the SC/ST Act. Therefore, the second category of eligible offences under the IPC should also be attracted within the meaning of Section 3(2)(v) of the SC/ST Act.
In light of the above discussion, the author strongly contends that the rationale of the single judge Bench in Danish Khan is patently flawed as it is contrary to the legislative intent evident from the plain reading of the bare provision and the preamble of the SC/ST Act. Additionally, the rationale in Danish Khan is conflicting with the earlier decisions of the Supreme Court of India vis-à-vis the applicability of Sections 18 and 18A of the SC/ST Act. Furthermore, the rationale in Danish Khan is a misconceived approach disjointed from the realities of the Indian society in light of the deep social conditioning that has occurred by virtue of passage of time accompanied with the internalisation of the negative notions propagated by the caste system for generations. The rationale, as a matter of precedent, in Danish Khan would be counter-productive to the intent and purpose of enacting the SC/ST Act in the first place and it would also erode the fine balance of maintaining the peace and tranquillity in the society, especially in the minds of the members of the SC/ST, which the legislature intended to provide by enacting the special legislation.