Anti-Atrocities Act's provision is vague, overbroad, can be "ripe for abuse", change it: PEN International

Ashis Nandy

By A Representative
In a development which is likely to please those who have long argued against giving special treatment to dalits and adivasis, but may lead to some angry reactions among senior dalit activists, a top world body which has been involved in campaign for freedom of expression since 1921 has asked the Government of India to drop certain provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which have been willfully "abused".
In a report, “Imposing Silence” (click HERE to read story), PEN International, which holds special consultative status at the UN and associate status at UNESCO, has said that Anti-Atrocities Act bans expression that “intentionally insults or intimidates with intent to humiliate” a member of a scheduled caste or tribe, but this has been misused.
"Violation of the Anti-Atrocities Act results in a minimum of six months imprisonment and up to a maximum of three years, as well as a fine. Notably, the provisions apply to expression that does not necessarily rise to the level of inciting hatred, but simply requires the intention to humiliate", PEN says, raising the objection.
"Moreover", PEN underlines, "There is an overlap between the Anti-Atrocities Act and Sections 153A and 153B of the Indian Penal Code (IPC). A major issue surrounding freedom of expression and hate speech in India is the fact that there are multiple other pieces of legislation that potentially capture the same expressive content, facilitating overcharging."
While conceding that "majority of cases under the Atrocities Act are entirely appropriate and involve prosecution of violent actions against members of protected groups", PEN says, "However, the Act is occasionally used against individuals for expression that arguably does not rise to the level of hate speech." It adds, "Again, the vague and overbroad language of the Act, which targets humiliating rather than hateful speech, makes it ripe for abuse."
Giving examples, PEN says, "In late 2014, Secretary of the Lok Janshakti Party, Vishnu Paswan, filed a case against Janata Dal (United) president Sharad Yadav. Paswan alleged that Yadav’s comments about the educational and political qualification of chief minister Jitan Ram Manjhi hurt the sentiments of Dalits and people of musahar castes. The statement wasn't offensive -- "How can he become the CM as he has not seen books and school?”
In another instance, in 2009, the Hindi film "Delhi-6" was "accused of containing language deemed to be insulting to the entire Balmiki Samaj, a Scheduled Caste" and "it took until 2013 for the case to be resolved and for the Court to situate the comments within the broader purpose of the film which was actually to curb offensive practices."
In a third incident, in 2013, "academic Ashis Nandy, was charged under the Act for comments he made at the Jaipur Literature Festival. He was alleged to have stated that people from the scheduled tribes and scheduled castes were the 'most corrupt'. Nandy clarified his comments and noted that he had meant to draw attention to the fact that “most of the people getting caught in corruption charges belong to marginalised sections, as they don’t have the means to save themselves unlike people from upper castes.“
Comments PEN, "The charges filed against Nandy required him to report to the police for questioning. Since he had the means to retain a lawyer to challenge the allegations, Nandy made an urgent appeal to the Supreme Court arguing that there was no mala fide intent or purpose on his part to make a comment in order to insult or humiliate a member of a scheduled caste or scheduled tribe.The Supreme Court stayed the arrest."