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Sunday, December 05, 2021

Figuring out hate speech

And whether Rita Bahuguna-Joshi broke the law...

Written by S. Japhet |
July 25, 2009 4:11:16 am

Rita Bahuguna-Joshi’s recent statement,targeted at UP CM Mayawati,has polarised opinion on whether it amounts to an

offence under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act,1989 (“POA”). Section 3(1)(x) of the act,under which a case has been registered against Joshi,says: “Whoever not being a member of a Scheduled Caste or 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…” (Emphasis supplied). The section requires the insult to be intentional,and to be made with the intent to humiliate,and in public view is also crucial.

Why? Before analysing the present case,it is best to examine the purpose of the POA Act.

The act is an anti-hate crime legislation that tries to deter crimes against members of the Scheduled Castes and Tribes by others. Thus the prosecution has to prove that the act was committed with an intention to humiliate someone because s/he belongs to a Scheduled Caste or Tribe.

Consider a similar case in the past. In 1996,E.K. Nayanar,who was then CM of Kerala,allegedly said in a public meeting,“There is an MLA — Kuttapan,that Harijan MLA,he climbed over the table and was dancing…” Kuttapan filed a case against Nayanar,alleging that an offence punishable under Section 3(1)(x) of the POA Act had been committed. The sessions judge began proceedings which were then quashed by the Kerala high court; the HC said that Section 3(1)(x) uses the term “in public view”,and not “in a public place”,which means that the public must actually view the person being insulted. Since Kuttapan was not present at the meeting,it ruled that it does not amount to an offence. On appeal,the SC ruled that the act’s procedures had not been properly complied with by the sessions judge,and that that was sufficient ground to quash the prosecution. It,however,did not rule on the merits of the case.

Though the Kerala HC decision would not be binding outside of Kerala,the facts of the present case are similar to the Nayanar scenario,since Mayawati was not present at the meeting. This argument could be made by Joshi in her defence.

The other important issue in this case is whether Joshi intentionally insulted Mayawati with the intent to humiliate her because she belongs to the Scheduled Castes. One argument could be that she was aware that Mayawati belongs to the Scheduled Castes,and that together with the context in which she was speaking is sufficient. After all,the statement was as regards compensation required to be paid if a woman of a Scheduled Caste or Tribe is raped. Her statement spoke of compensating Mayawati — which can be understood as compensation under the POA Act,by virtue of her belonging to a SC. Hence Mayawati’s status as a member of a Scheduled Caste could be considered to be central to the statement. Joshi however,can always argue that her intention was not to insult Mayawati by virtue of her belonging to the Scheduled Caste,but was merely a criticism of the policy of the government of Uttar Pradesh.

If one were to interpret the law keeping its spirit and purpose in mind,the conclusion ought to be that the remark amounts to an offence under the POA Act. Such an interpretation would signal to society that the norm is that such disparaging statements against a person belonging to an SC/ ST is not acceptable; and,further,if a person does insult or intimidate such a person,s/he is taking a risk of being prosecuted and found guilty under the POA Act. This is the principle on which criminal statutes dealing with hate crime are interpreted worldwide. Such a purposive interpretation — one regularly adopted in India in cases involving narcotics,food adulteration and terrorism — ought to be adopted in cases involving atrocities against Scheduled Castes and Tribes.

Draw an analogy with how one feels about the present situation in Australia,where Indian students are being attacked. If a white Australian attacks and stabs an Indian student and argues that the attack was not intended for racial reasons,what interpretation would we want Australian prosecutors and courts to take? Would we want Australia to have a policy that any attack on an Indian student would risk prosecution under their hate crime statute or would we want to provide leeway for arguments that the intention did not exist? Our objective response to this question ought to determine our views on the application of the POA Act to the Mayawati-Rita Joshi incident.

The writer heads the Centre for the Study of Social Exclusion. This article was co-written by Mrinal Satish,who is visiting NLSIU in Bangalore

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