Friday, November 27, 2009

Can calling someone 'Mahar' not punishmenable: HC

NAGPUR: Can calling someone `Mahar' attract punishment? No, said the Nagpur bench of Bombay High Court on Thursday. In a ruling that is sure to be debated, Justice SS Shinde said, "mere utterance of any word on the caste is not sufficient and something more is necessary to attract the provisions of Section 7(1)(d) of the Protection of Civil Rights Act, 1955 (Removal of Untouchability Act)". The court observed that though the applicants had uttered the word `Mahar', this utterance by itself would not attract provisions of the said Act. Mohit Khajanchi was counsel for the petitioners Dr Narendra Patil and Dr Asmita Tadaskar.

Prakash Bansod, president of Bharatiya Dalit Panther, was apparently disappointed with the verdict. He said using word `Mahar' was abusive and users should be punished as it is always intended to show the other person in a poor light. "Since ages the name Mahar was given to the human beings hailing from lowest strata of the society who used to do works like cleaning and washing. The constitution has made provision to save them from embarrassment from upper caste people. In modern times, the word is more or less used as an abuse with an intention to malign someone," he said adding that these were his personal views.

President of Jan Manch Ashok Lanjewar, however, hailed the verdict stating that just using `Mahar' did not amount to offence. "Just like Brahmins, Teli and Kalar, Mahar is a caste. What's wrong if someone is called by caste name? There is a Mahar Regiment in the Indian Army renowned for its valour and sacrifices. Only if the word was uttered with abusive language should it attract punishment," he said.

Khajanchi said that the petitioners, an Armori (Gadchiroli)-based couple, were serving as livestock development officers at village Inzewari hospital. On October 11, 2005, one Devidas Barsagade accompanied by three others forcibly entered the hospital, manhandled the staff and ransacked the premises. They used abusive language and doled out threats.

Dr Tadaskar then lodged a complaint at Armori police station against Barsagade and accomplices. Even a case was registered against the trio at Judicial Magistrate First Class court. However, to counter that, the accused lodged a complaint against doctor couple under Sections 5 and 7(1)(d) of the Protection of Civil Rights Act, 1955 and Section 506 read with Section 34 of IPC on October 17, 2006. Subsequently, the police filed a chargesheet which was challenged by the couple before Nagpur bench with a prayer to quash the complaint.

Khajanchi contended that the FIR did not mention the caste of Barsagade as well as of that couple and therefore crime itself could not have been registered under the said Act. He cited a 1980 HC judgment in the case of Laxman Shant versus state of Maharashtra that held that "mere abuses in its very nature, may insult or may attempt to insult the person, but unless the said insult or attempt to insult is someway or other connected with the preaching or practice or untouchability, it cannot be said that accused had committed an offence under clause (d) of sub-section (1) of section 7 of the Act".

The same verdict also observed that "it was necessary to read those words used in the context and the background and one cannot take those words out of context and say that they deal with Mahar caste, and therefore they are on the ground of "untouchability".

The applicants also cited a verdict of the Supreme Court in MA Kuttappan versus EK Nayanar case reported in 2004 which observed that, "to attract provisions of Section 7(1)(d) of the Protection of Civil Rights Act, the words uttered should encourage audience to practice untouchability".

The judge observed that the alleged offence had taken place inside the house and not in public view. Moreover, there was an inordinate delay in filing the police report. He then disposed of the case citing that old HC and SC verdicts further strengthened the case of applicants. 

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