Impact Over Intention – Abuse By Caste Name

Within a month, the Rajasthan High Court, in two different cases, quashed the charges, inter alia, under section 3(1)(r), of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“SC/ST Act”) and the similarly worded section 3(1)(x) of the erstwhile SC/ST Act. On 12 November 2024, the court, in Achal Singh and others v. State of Rajasthan (“first case”), held that bhangi, neech, bhikahri, and mangani are not caste names. Further, the court held that the petitioners did not have the intention to humiliate or insult and they were unaware of the caste of the aggrieved members of the Scheduled Caste and Scheduled Tribe (“SCs and STs”).

On 18 October 2024, the court, in Shilpa Raj Kundra v. State of Rajasthan (“second case”), quashed charges against the famous Bollywood actress Shilpa Shetty under the SC/ST Act. Again, the court held that the accused's statement was made unintentionally and the meaning of bhangi must be interpreted contextually. The common threads in the two orders were the meaning of the word bhangi and the emphasis on the intention to constitute an offence under the SC/ST Act.

In this article, the authors argue that section 3(1)(s), unlike 3(1)(r), could have been proven a better remedy against the accused to constitute an offence under the SC/ST Act. Further, the courts were misplaced in interpreting bhangi for the purpose of the SC/ST Act. Section 3 of the SC/ST Act enlists the offences and limits its applicability to the members who do not belong to the Scheduled Caste and Scheduled Tribe. Section 3(1)(r) criminalises intentional insults or intentional intimidation to humiliate SCs and STs within the public view. 3(1)(s) criminalises abuses to SCs and STs by caste name within public view. Section 3(1)(s) was added subsequently through the 2016 amendment.

There are two differences between the above two sub-clauses. First, section 3(1)(s) does not require intention to constitute an offence. While the intention or the mens rea is a cardinal principle to constitute criminal liability, offences pertaining to public welfare dilute this requirement. Second, section 3(1)(r) criminalises insult, intimidation, and humiliation whereas section 3(1)(s) deals with specific forms of abuse by caste name. Therefore, the four ingredients to constitute an offence under section 3(1)(s) are – first, committed by non-SCs and STs; second, against SCs and STs; third, in the public view; and fourth, abuse by caste name.

In the above two cases, the first two ingredients are undisputed. Proceeding with the public view, the first case, the court held that the statement was not made in the public view since only the complainant and officials were present. However, the place of incident was a public land and merely because no witness has come up till now when the trial is still ongoing does not cease the possibility of the presence of unrelated individuals in a public land. In the second case, Shilpa Shetty hurled the statement in an interview that can be accessed by the public at large.

Coming to the abuse by caste name, in the first case, the court explicitly held words such as bhangi, neech, bhikhari and mangani are not caste names. In the second case, the court admitted that bhangi can be offensive in certain context, however, “it can also be used in an unintended or alternatively colloquial manner.” Further, the court went into the etymology of the bhangi and held that it has different meanings such as broken or fragmented. Furthermore, the court referred to the Oxford Hindi-to-English Dictionary, which defines bhangi as either a person who consumes bhang or someone involved in fraud or deceit. Accordingly, the court held that the meaning of bhangi must be interpreted according to the narrative. Here, the court held that Shilpa Shetty hurled bhangi unintentionally in an interview without any malice to SCs and STs.

As demonstrated, both the courts refused to consider bhangi as an abuse with caste name because of the possible alternative meanings. The Supreme Court in Swaran Singh v. State dealt with a similar defence of alternative meanings of another caste slur - chamar. The court held that the SC/ST Act is beneficial legislation to protect SCs and STs, therefore, “we must take popular meaning of the word “chamar” which it has acquired by usage, and not the etymological meaning. If we go by the etymological meaning, we may frustrate the very object of the Act, and hence that would not be a correct manner of interpretation.” In the present two cases, the usage of bhangi ought to have been interpreted under the SC/ST Act as a commonly used slur to denigrate the SCs and STs. Hence, all the four ingredients of section 3(1)(s) are fulfilled.

Apart from the usage of the word, the courts have relied on lack of the intent of the accused to quash charges, however, section 3(1)(s) does not require the fulfilment of this inquiry. The Punjab and Haryana High Court in Yuvraj Singh v. State of Haryana dealt with an incident where the famous cricketer Yuvraj Singh hurled bhangi on a live chat and held that the intention of the accused is immaterial in constituting offences under section 3(1)(s) of the SC/ST Act. Accordingly, the court quashed the charges under section 153A of the Indian Penal Code, 1860 citing the absence of intention to create any disharmony. However, charges under the SC/ST were not interfered with. Interestingly, here, the charge under section 3(1)(s) was added subsequently by the Investigating Officer. In conclusion, the above two cases constitute an offence under section 3(1)(s) and the courts were misplaced in interpretating caste slur under the SC/ST Act. Taking a cue from the Yuvraj Singh case, the authorities must file charges under section 3(1)(s) wherever any incident pertains specifically to an abuse by the caste name.

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