Guest Post: The SC Judgment in Patan Vali - Progressive Obiter, Regressive Ratio?

(This is a guest post by Vrishank Singhania)

On April 27, 2021, a two-judge bench headed by Chandrachud J., in the matter of Patan Jamal Vali v. State of Andhra Pradesh [‘Patan Vali’], rendered an important judgement on the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [‘SC/ST Act’]. The case pertained to the rape of a visually challenged woman belonging to the Scheduled Caste. The Sessions Court had convicted the accused under Section 376(1) of the Indian Penal Code, 1860 [‘IPC’] for rape, and under Section 3(2)(v) of the SC/ST Act. Section 3(2)(v) enhances the punishment to life imprisonment, for any offence under the IPC punishable with imprisonment for ten years or more, against a member of the SC/ST. Based on these two offences, the Sessions Court sentenced the accused to life imprisonment. 

An appeal was filed against this judgement in the the Andhra Pradesh High Court, which upheld the conviction. The orders of the High Court and the Sessions Court were then appealed to in the Supreme Court. The Supreme Court was satisfied that the conviction under Section 376(1) was proved beyond reasonable doubt and confined itself to the question of whether the offence under Section 3(2)(v) had been proved. 

In its judgement, the Supreme Court used the framework of intersectionality to critique and question the correctness of past interpretations of Section 3(2)(v). However, it stopped short of referring the matter to a larger bench, because in its opinion, the Section 3(2)(v) charge anyway failed on evidentiary grounds [paras 55-56]. Given the Court’s foray into intersectionality and critique of past precedent, the Court clearly sought to embody a spirit of caste-consciousness. However, I argue, that its application of the law to the present case belies this spirit. 

In the first section of this post, I look at some recent judgements of the Supreme Court on Section 3(2)(v) to contextualise the problems with the existing jurisprudence. While this issue has been discussed on this blog (here), I seek to go into greater detail – and in particular, examine the significance of the 2015 amendment to section 3(2)(v). In the second section, I analyse the Court’s critique of this jurisprudence in Patan Vali. In the third section, I critique the Court’s decision on the facts of the present case.

Judicial interpretation of Section 3(2)(v) of the SC/ST Act 

As mentioned above, Section 3(2)(v) provides for enhanced punishment of life imprisonment for certain offences under the IPC. While this provision was amended in 2015, earlier it provided that – 

"(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, on the ground 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 supplied)

The judiciary, in its interpretation of this section, read-in a mens rea requirement: it required proof that the caste of the victim was the motive behind the accused having committed the offence. At the level of the Supreme Court, the first instance of the reading-in of such a requirement was seen in Masumsha Hasanasha Musalman v. State of Maharashtra. This interpretation of Section 3(2)(v) was then carried forward in the other cases, such as Dinesh v. State of Rajasthan and Ramdas v State of Maharashtra. None of these judgements, however, provided any reasoning as to why Section 3(2)(v) required proof of caste as motive – there is no attempt to source such a mens rea requirement to either the text or legislative history of the Act, nor to any past precedent. 

The National Coalition for Strengthening SCs & STs (Prevention of Atrocities) Act in its report noted that a mens rearequirement contradicts parliamentary intent, and a Ministry of Home Affairs note made clear that motive ought to be irrelevant. Further, in State of Karnataka v. Appa Balu Ingale, Ramaswamy J. observed that motive is irrelevant when it comes to untouchability and atrocities against SC/ST, and that social necessity requires dispending with evidence of mens rea. Despite these, courts continued to use mens rea as a ground to acquit persons accused under the SC/ST Act. 

Given the abysmally low conviction rates, various Dalit rights organisations issued a clarion call in 2010 to strengthen the SC/ST Act through necessary amendments (for more on why it is difficult to prove caste-based motive, see here). One of the recommendations was to remove the phrase “on the ground” in Section 3(2)(v) given its misinterpretation by the judiciary. In responding to these demands, Parliament amended the SC/ST Act in 2015. Section 3(2)(v) now provides that – 

“(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 Scheduled Tribe, or such property belongs to such member shall be punishable with imprisonment for life and with fine.” (Emphasis supplied)

The phrase “on the ground” was replaced by “knowing”, to reduce the burden that courts had (incorrectly) placed on the prosecution under this Act.

The Supreme Court in Ashrafi v. State of Uttar Pradesh held that there was a distinction between the standard, pre- and post-amendment. It held that after the amendment “mere knowledge” of the victim’s caste was sufficient to establish an offence under Section 3(2)(v). However, this lower standard would apply only in cases after the amendment came into force. In Ashrafi, the offence pre-dated the amendment. However, it was held that – 

"In the absence of evidence proving intention of the Appellant in committing the offence upon PW-3-Phoola Devi only because she belongs to Scheduled Caste community, the conviction of the Appellant Under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained." (Emphasis supplied)

The Court thus increased the threshold under the erstwhile provision, by reading in “only”: It would have to be shown that the “only” motive of the accused was the victim’s caste – the presence of any other motive would mean that Section 3(2)(v) was not attracted. Given that other motives such as enmity, jealousy or lust could also be traced to the commission of an offence, this increased threshold then became a ground to acquit accused under the Act. 

At the very least, this judgement had recognized a lower standard under the amended section, even though it had increased the standard under the original section. However, even this distinction between the original and amended section has now been conflated by the Supreme Court. 

In Khuman Singh v. State of Madhya Pradesh, the Court was dealing with an offence committed in 2005 i.e., prior to the amendment. However, the Court reproduced the amended section and then held that “There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste.” (Emphasis supplied)

There is no mention of the amendment in this judgement nor of the holding in Ashrafi. Given the offence was in 2005 (before the amendment), it is likely that the Court intended to apply the pre-amendment clause, but erroneously reproduced the amended section instead. While there is some room for ambiguity here, the conflation is clear in Hitesh Verma v. State of Uttarakhand [for a criticism of the interpretation of s.482 CrPC in this judgement, see here]. This case pertained to an offence committed in 2019 i.e. post amendment. The judgement mentions the amendments to the SC/ST Act and even goes into the details of the social context and purposes of the Act. Nevertheless, it goes on to hold that "… [facts] would not disclose an offence under the Act unless the victim is abused, intimated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe." (Emphasis supplied)

This conflation has also crept into some High Court judgements. For instance, consider the Delhi High Court’s decision in Danish Khan v. State (Govt. of NCT of Delhi), which has been criticised on this blog (here). As the author notes, the High Court applied the ‘only’ standard by relying on Dinesh and Khuman Singh. Interestingly, in Danish Khan, the offence took place in 2019 i.e. post amendment. The Court should have applied the new standard. Nevertheless, like the Supreme Court, the High Court conflated standards and applied the ‘only’ standard to the amended clause. A similar conflation is seen by the Chhatisgarh High Court in Pavas Sharma v State of Chhatisgarh.

Thus, after the 2015 amendment, enacted to strengthen the SC/ST Act, the Supreme Court in Asharfi first increased the standard under the pre-amendment section. It then in Khuman Singh and Hitesh Verma applied the higher standard even to the amended section, thereby destroying the purpose of the amendment itself. 

Critique of Existing Jurisprudence Based on Intersectionality

Intersectionality claims that “oppression arises out of the combination of various oppressions which, together, produce something unique and distinct from any one form of discrimination standing alone...” [para 14, Patan Vali]. In other words, the experiences of a SC/ST woman are different from the experiences of a savarna woman. Multiple sources of oppression (such as caste, gender and disability) operate together, and they cannot be isolated in silos. In contrast to the intersectional approach, a single axis approach to discrimination homogenizes the experience of a group of persons based on a single marker such as gender, caste or disability. It does not account for the differences in experiences of persons within these groups. Patan Vali uses the lens of intersectionality to make two critiques – first, of the original section 3(2)(v); and second, of the holding in Ashrafi.

In terms of the original section, the Court states that the phrase “on the ground” is an instance of a statute only recognizing a single-axis model of oppression which requires that a person prove a discrete experience of oppression suffered on account of their caste. However, the problem with such statutory formulations according to the Court is that when the oppression is intersectional, it is difficult to separate out various grounds for oppression because they operate together. When a disabled, Schedule Caste woman experiences sexual assault she does not know whether it was because she was a woman or disabled or Schedule Caste. Her experiences are not disjunctive, but a combination of all her identity markers. According to the Court, the amended section on the other hand, by doing away with “on the ground”, enables an intersectional approach. [para 50].

The Court then critiques Asharfi, which read-in the requirement – “only on the ground” into Section 3(2)(v). This the Court observes is an incorrect reading of the clause and amounts to introducing a restriction that the Act did not contemplate. Further, from an intersectional lens, such an interpretation fails to account for how oppression functions in a cumulative fashion, and a separation of the grounds of oppression is impossible. The Court states that the correct interpretation of the original section would be that an offence under the section is established, so long as it can be shown that caste was merely one of the grounds for the offence. [para 55].

This critique marks an important discontinuity from other Supreme Court judgements which have sought to validate the Asharfi interpretation and have even extended it to the amended SC/ST Act. However, in my opinion, its first criticism of the original section 3(2)(v), incorrectly identifies the problem as the wording of the section - in particular, the phrase “on the ground”. This phrase, according to the Court, indicates that a person needs to “prove a discrete experience of oppression suffered on account of” their caste [para 50]. This however is not possible because grounds of oppression operate together – thus according to the Court the amendment rectified a flaw in the statute by replacing “on the ground” with “knowing that”. But the Court provides no explanation for why it believes that the wording of the original section required a single-axis approach. In fact, it seems to contradict itself on this point later in the judgement. While critiquing Asharfi, it states that reading in “only” was incorrect because an offence under the original section is established, so long as caste is merely one of the grounds of the offence – i.e., an intersectional approach was possible [para 55]. On one place the Court holds that the original section embodies a single-axis approach, whereas in another, it holds that the section embodies an intersectional approach. 

Apart from this inconsistency, Patan Vali failed to identify a more fundamental problem with previous interpretations of section 3(2)(v) – the introduction of a mens rea (or motive) requirement. As mentioned earlier, this was without any textual or historical basis. The failure to recognize the problem of the judicial introduction of mens rea has two consequences. First, it led the Court to hold that the 2015 amendment was necessary because of a lacuna in the statute, and not because of judicial misinterpretation of the original section. Given that there are pending cases from before the amendment, Patan Vali only serves to fortify the judicial misinterpretation by characterising it as a legislative error. Second, as I argue below, the Court ends up requiring proof of mens rea – which is ultimately the reason why it finds that the charge under Section 3(2)(v) has not been satisfied.

Supreme Court’s Decision on The Facts of Patan Vali 

While the Court doubts the correctness of the ruling in Asharfi, it refrains from referring the matter to a larger bench. This is because the Court says that the case anyway fails on evidentiary grounds, and thus, it need not go into an interpretation of the section itself [paras 55-56].

The Court holds that the prosecution failed to establish that the offence was committed on the basis of caste, and in this regard, disagrees with the ruling of lower courts. The Sessions Court had inferred that the offence was committed on the grounds of caste on the basis of the circumstances surrounding the offence –the accused knew the victim’s caste, and he committed the offence in her own house, in broad daylight, with her mother around – highlighting the impunity he believed he had on account of his caste [para 7]. However, according to the Supreme Court, for a conviction under the section the prosecution must lead “separate evidence” that specifically establishes the intent or motive of the accused [para 58]. When the Court introduced a motive requirement in the past, it left room for lower courts to infer motive based on surrounding circumstances – as the Sessions Court did here. However, Patan Vali adds further restrictions by requiring prosecution to furnish “separate evidence” as to the accused’s intent. 

The Court holds that since the original section adopts a single-axis approach, but oppression is intersectional, it would be difficult to establish what led to the offence – “whether it was her caste, gender or disability” [para 58]. Intersectionality thus becomes a reason for why an offence under section 3(2)(v) cannot be established. 

Far from being progressive, the Supreme Court’s reasoning on facts ultimately creates two additional hurdles for a successful prosecution under section 3(2)(v) – first, that motive cannot be inferred from circumstances, but requires separate evidence; and second, intersectionality makes it harder to separate grounds for oppression, making it difficult to show that an offence was on the basis of caste. While the criticisms of the Act and past precedent constitute obiter and do not change the position of law (since the matter is not referred to a larger bench), the additional restrictions it introduces are part of the ratio, as they constitute the core of Court’s decision. Nevertheless, it is an important judgement in that it recognizes the challenges that plague the enforcement of the SC/ST Act. Only time will tell which aspects of this judgement are fortified in further rulings by courts across the country.