By Sanjay Raman Sinha
In a setback to the Pinarayi Vijayan government of Kerala, the Supreme Court overturned the order of the Kerala High Court to arrest the editor of Malayalam news portal and YouTube channel Marunadan Malayalee, Shajan Skaria, in a criminal case. The apex court granted interim protection from arrest to Skaria in a criminal case under the SC/ST Act over making alleged derogatory remarks against CPI (M) MLA PV Sreenijin. The Court heard the special leave petition filed by Skaria challenging the High Court’s dismissal of his appeal against rejection of anticipatory bail by Special Court in the matter. Skaria had telecast a news item regarding alleged maladministration of a sports hostel by Sreenijin in his capacity as the Chairman, District Sports Council.
The Special Judge for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Honey M Varghese, had found the allegations levelled by Skaria against Sreenijin insulting and defamatory. The judge found that Skaria had knowledge that Sreenijin belongs to the Scheduled Castes community and the publication of the news item containing derogatory comments through his YouTube channel was enough to attract the offence alleged under the SC/ST (Prevention of Atrocities) Act, 1989.
The High Court order stated: “The Act was brought into force for preventing the commission of atrocities against members of the Scheduled Castes and Scheduled Tribes. Going by the wording of Section 3(1)(r), reference to the caste name of the victim is not necessary for attracting the offence. This is clear from the distinction between the wording of Section 3(1) (r) and 3(1)(s). As such, it is not possible to hold that there are no prima facie materials to attract the offence under Section 3(1)(r). For the aforementioned reasons, the impugned order of the Special Court is upheld. In the result, the Criminal Appeal is dismissed.”
Section 3(1)(r) of the ST/SC Act states that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, “intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view” is liable to be punished.
The High Court further clarified: “the basic ingredients of the offence under Section 3(1)(r) of the Act can be classified as ‘(1) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and (2) in any place within public view.’ The offence under Section 3(1) (r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim.”
The High Court also criticised the state police for seizing the cellphone of a senior journalist of a newspaper in connection with the searches conducted for Skaria. Underlining that the media is the fourth pillar of democracy, the High Court asked the police to hand over the cellphone back to the journalist. Since the concerned journalist is not an accused in the case, his phone should not have been seized, the Court observed. Referring to another case (State of Kerala vs Hassan 2002) the High Court held: “It is submitted that provisions of the Act cannot be utilised for curtailing the journalistic freedom of the appellant.”
It was argued in the Supreme Court that Skaria is a repeat offender who has made insulting statements against several persons. It was also alleged that Skaria used insulting statements against Sreenijin, calling him a “mafia don”, “black money dealer”, “murderer”, etc.
While hearing the matter, Chief Justice of India (CJI) DY Chandrachud said: “Such comments may be defamatory, but not offences under SC/ST Act. We totally agree with you that these statements are in bad taste, we disapprove of his statements. But, in criminal law, you have to see the matter strictly because someone’s liberty is at stake.”
The Supreme Court bench, also comprising Justice PS Narasimha, passed the order in response to a special leave petition filed by Skaria against the Kerala High Court order dismissing his appeal against the rejection of anticipatory bail petition by a Special Court. The CJI used a hypothetical example. He said: “Suppose, a member of Scheduled Caste has a contract with B. He does not return the money to B. B calls him a cheater. Does that amount to offence under the provision?”
The High Court in its verdict had referred to the object behind the enactment of the ST/SC Act and the reason for amending the Act in 2019. The Court said the Act was brought into force for preventing the commission of atrocities against members of the Scheduled Castes and Scheduled Tribes.
One shortcoming of the Act is that Section 3(1)(r) of the Act punishes any insult or intimidation with the intent to humiliate a member of SC/ST in any place within the public view. This Section has been interpreted in a very narrow sense. As per various verdicts, the Act does not cover incidents where the victim is abused in a private place or in the presence of friends or relatives.
In Pardeep Kumar vs the State of Haryana, the Punjab and Haryana High Court refused to register charges where caste-based remarks were made over a mobile phone call. In Pramod Suryabhan Pawar vs the State of Maharashtra, the victim was subjected to caste slur over a Whatsapp message.
Equal status for all citizens is mentioned in the preamble of the Constitution. Article 17 abolished the practice of untouchability in 1950. As per Article 17: “enforcement of any disability arising out of untouchability” is a punishable offence.
Despite constitutional provisions and laws, crimes against the Scheduled Castes have increased. The atrocities/crimes against the Scheduled Castes have increased by 1.2% in 2021 (50,900) over 2020 (50,291 cases). Furthermore, a total of 70,818 cases of atrocities against the Scheduled Castes was pending for investigation at the end of 2021, including backlog of cases.
Despite the stringency of the provisions, atrocities against the Scheduled Castes have not abated. The enactment and amendments in the Act have witnessed a battle between the judiciary and the government. It has also been a tug of war between issues of personal liberty and stringent law provisions to prevent atrocities. The safeguards installed by the judiciary for protecting personal liberties and for promotion of fair play were shot down by government in legislative fiats. After a protracted legal war, the government had its say as the Supreme Court concurred with the amendments brought in by the government. The present laws are very stringent, but in parts amenable to divergent interpretations. The Act despite being strong is unable to stem caste-based atrocities. Clearly, the social dimensions of oppression are more powerful than the law.
Box
ST/SC Act: How has it evolved over the years
- 1989: Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 was enacted.
- 2015: The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 was introduced to make the Act more stringent.
- 2018: The Supreme Court in its Kashinath Mahajan judgment introduced safeguards to the accused under the SC/ST Act. These include preliminary inquiry prior to the registration of an FIR; the mandatory requirement for an Investigation Officer to receive further approval prior to the arrest; and grant of anticipatory bail to the accused.
Parliament introduced Section 18A to overturn safeguards introduced by the Supreme Court in its Kashinath Mahajan verdict. The State passed the 2018 Amendment, not waiting for the Supreme Court to hear the review petition.
The constitutional validity of Section 18A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 was challenged in the Supreme Court. In March 2018, the Supreme Court struck down immediate arrest provision of the accused. The Court also allowed the accused persons to apply for anticipatory bail. The top court further directed that public servants could be arrested only with the written permission of their appointing authority. It also ruled that private employees’ arrest must be allowed by the Senior Superintendent of Police. Preliminary inquiry should be conducted before the FIR is registered.
In September 2018, the Supreme Court issued a notice to the centre to file its response to the petition challenging the amendment. In October the same year, the central government filed an affidavit stating that Parliament is competent to bring about the amendment to the Act.
- 2019: In May 2019, the Supreme Court reserved its judgment in the review petition. In September, Justices Arun Mishra and UU Lalit referred the review petition to a three-judge bench. In October, the same year, the Court recalled its directions in Kashinath Mahajan, endorsing the 2018 Amendment and rejecting the prayers in the writ petitions.
- 2020: In February, the Court formally upheld the constitutionality of the 2018 Amendment.