The sharp critique of the anti-atrocities Act comes in HRW’s new 121-page report, "Stifling Dissent: The Criminalization of Peaceful Expression in India", which largely focuses on India’s “criminal defamation laws”, which, it insists, “should be abolished, as criminal penalties infringe on peaceful expression and are always disproportionate punishments for reputational harm”.
Pointing out that the amended anti-atrocities Act raises “concerns over potential misuse of the law”, the HRW says, “The new law amends some existing categories of actions and adds some new categories of actions to be treated as offences. Some of these amendments are problematic from the perspective of freedom of expression.”
Thus, it says, under Section 3 (1), the amended law bans any expression that “promotes or attempts to promote feelings of enmity, hatred or ill-will against members of the Scheduled Castes or the Scheduled Tribes” and also any expression that “disrespects any late person held in high esteem by members of the Scheduled Castes or the Scheduled Tribes.”
HRW comments, “Disrespectful speech, or expression that promotes negative feelings, however offensive, is not the same as incitement to acts of hostility, discrimination, or violence, and as such should not be subject to criminal penalty.”
At the same time, HRW says, it “welcomes” efforts to strengthen the law to end caste-based discrimination and hatred, “especially in the light of the high pendency and low conviction rates in cases filed under the Act.”
“According to the latest government data, in 2013, 84.1 percent of the cases filed under the Prevention of Atrocities Act were pending while only 22.8 percent resulted in conviction, compared to a 30 percent conviction rate in 2011”, it points out.
Calling the original 1989 anti-atrocities Act seeking to ban expression that “intentionally insults or intimidates with intent to humiliate” a member of a scheduled caste or tribe “one of the most important pieces of legislation for the protection of Dalits”, HRW regrets, “In reality, as research conducted by Human Rights Watch and others has repeatedly shown, discrimination against socially marginalized communities such as Scheduled Castes and Scheduled Tribes continues.”
Upholding many of the important sections of the anti-atrocities Act as “entirely appropriate” by allowing “prosecution of violent actions against members of protected groups”, HRW believes, “The law has been occasionally used against individuals for expression.”
HRW cites a 2015 report by PEN International, an international free expression watchdog based in Canada, giving the example of how sociologist Ashis Nandy in January 2013 was booked under the anti-atrocities Act for his alleged comment about Dalits being among the “most corrupt” at the Jaipur Literature Festival (click HERE).
“Nandy clarified that he had said that the corruption of the poor was more visible and, in fact, this corruption was an equalizer because it allowed them to access the entitlements that should be theirs by right. Nandy also apologized for his comments", HRW says.
"Nonetheless, it drew the ire of some members of the scheduled castes and a politician from Rajasthan filed FIR against him under Section 3(1)(x) of the anti-atrocities Act”, HRW points out, adding, “Criminal cases were also filed against him in Maharashtra, Bihar, and Chhattisgarh.”
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Download full HRW report HERE
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