Aditya Shaw, a 2nd -Year Student of Heritage Law College, has written this Article on “THE ABOLITION OF UNTOUCHABILITY ACT“
INTRODUCTION
Untouchability has been a deeply ingrained social evil that has plagued societies for centuries, particularly in India. The practice of untouchability has subjected certain marginalized communities to discrimination, exclusion, and denial of basic human rights. The Abolition of Untouchability Act was enacted to combat this heinous practice and foster a more inclusive society. This article aims to introduce this significant legislation and to shed light on its significance in the pursuit of equality and social justice.
HISTORICAL CONTEXT
Untouchability stems from the Indian caste system, a social hierarchy that divides people into distinct groups based on birth. Historically, those considered “untouchables” or “Dalits” have faced severe social, economic, and political discrimination. They were assigned menial and degrading tasks like manual scavenging and cleaning human waste. Untouchables were socially isolated and denied access to public spaces, education, and opportunities for advancement.
ARTICLE 17: ABOLITION OF UNTOUCHABILITY:
Article 17 of the Constitution of India, which was adopted in 1949, holds immense significance in the fight against untouchability and the promotion of social equality. This article unequivocally addresses the issue of untouchability, a deeply entrenched discriminatory practice that had historically marginalized certain communities within the caste-based social structure prevalent in India.
Abolition of Untouchability
The first part of Article 17 states unequivocally that untouchability is abolished. This means that the Constitution condemns untouchability as a heinous and unjust practice that violates the principles of equality, human dignity, and social justice. By declaring its abolition, the article takes a firm stance against all forms of caste discrimination, ensuring that no individual or group is treated as “untouchable” and subjected to humiliation or exclusion.
Prohibition of Untouchability
The second section of the article asserts that not only is untouchability abolished, but its practice in any form is also prohibited. This prohibition applies to all aspects of public and private life, including the social, religious, economic, and educational spheres. This provision emphasizes the government’s commitment to putting an end to the deeply ingrained discriminatory practices that have caused enormous suffering to marginalized communities for generations.
Enforcement and Punishment
The third section of Article 17 emphasizes the importance of eliminating untouchability. It states that enforcing any disability resulting from untouchability is a crime punishable by law. This means that any act or practice that seeks to discriminate against individuals based on caste, thereby perpetuating untouchability, will face legal repercussions. This provision acts as a deterrent to those who might try to violate the spirit of the Constitution by engaging in discriminatory behavior.
Article 17 of the Indian Constitution, in essence, embodies the nation’s commitment to upholding the fundamental principles of equality, justice, and dignity for all its citizens. The Constitution aims to reshape societal norms and attitudes by explicitly addressing untouchability and taking a decisive stance against it, fostering an environment in which every individual can live free from the burdens of caste-based discrimination. This article, along with several other provisions in the Constitution, emphasizes India’s desire to become a nation where diversity is celebrated and every citizen’s rights and dignity are protected.
UNTOUCHABILITY UNVEILED: LEGAL DIMENSIONS AND CONTEMPORARY REALITIES
Untouchability, a heinous social phenomenon, was echoed in the Protection of Civil Rights Act of 1955 and Article 17 of the Indian Constitution. While both legal instruments align with the Constitutional position, it is worth noting that neither explicitly defines the term “Untouchability.” This article delves into a nuanced understanding of untouchability in the Indian context, examining its historical foundations, legal implications, and contemporary implications.
The term “untouchability,” as used in both the Act and Article 17, is not defined in any formal way. When considered within the context of these legal frameworks, this term goes beyond its grammatical meaning. It includes ostracization based on infectious diseases, societal rituals associated with birth or death, and even caste-based disputes. While using inverted commas around the word “Untouchability,” Article 17 aims to address the historical practice that arose within India’s caste-ridden societal fabric.
The case of State of Karnataka v. Appa Balu Ingale[1], in which the Supreme Court characterized untouchability as an indirect form of slavery intricately entwined with the caste system, marked a watershed moment in this debate. The Court emphasized the symbiotic relationship between caste hierarchy and untouchability, claiming that when one falls, the other follows. As a result, it was deemed necessary to abolish the caste system to foster democracy and the rule of law.[2]
Article 17 has been deemed a very significant provision in terms of equality before the law. It ensures social justice and human dignity, two rights that have been denied to a large portion of Indian society for centuries. This Article is similar to the Thirteenth Amendment to the United States Constitution of 1865, which abolished slavery and empowered Congress to enforce the abolition through appropriate means.[3]
While Article 17 seeks to abolish untouchability in all its forms, its implementation remains a difficult process. To combat this scourge, legislative mechanisms such as the Protection of Civil Rights Act of 1955 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 were enacted. Despite its empowering intent, the latter Act necessitated the issuance of Supreme Court guidelines in 2018 to prevent its abuse. The persistence of untouchability, particularly in the form of manual scavenging, prompted the 2013 Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act. The symbiotic relationship between untouchability, fundamental rights, and dignity is reflected in this legislation.
In Safai Karamchari Andolan v. Union of India[4], the petitioners filed the current petition before the Apex Court under Article 32, arguing that the continuation of the practice of manual scavenging as well as dry latrines was illegal and unconstitutional because it violated the Fundamental Rights guaranteed under Articles 14, 17, 21 and 23 of the Constitution. It was also argued that the practice violated the Employment of Manual Scavengers Act.
Accepting the petitioners’ arguments, the Supreme Court ordered the creation of a final list of manual scavengers as well as their rehabilitation. The Court slammed the state governments and union territories for failing to implement the provisions prohibiting manual scavenging.
Finally, as enshrined in Indian law, the term “Untouchability” transcends its grammatical roots to embody a historical legacy of discrimination and oppression. As India moves toward a more equitable society, these legal instruments – Article 17, the Protection of Civil Rights Act of 1955, and subsequent legislation – illuminate the path toward dismantling centuries-old caste prejudices and practices. The difficult journey reflects the country’s commitment to equality, justice, and the inalienable dignity of all its citizens.
LAWS TO END UNTOUCHABILITY:
While the Indian Constitution, which came into effect 70 years ago, guarantees all citizens fundamental rights, including the abolition of untouchability, the practice persists in various parts of the country. Recognizing the need for more specific legislation to combat untouchability and its deep-seated social implications, the Parliament has enacted legislation under the authority granted by Article 35 of the Constitution. These laws are intended to provide a strong legal framework for dealing with and eliminating untouchability, as well as to protect marginalized communities and uphold the principles of equality and social justice.
Legislation enacted to end untouchability is intended to supplement constitutional provisions and provide a comprehensive legal framework for combating this social evil. They are concerned with criminalizing untouchability, establishing mechanisms for enforcing these laws, and instituting punitive measures against offenders.
The Protection of Civil Rights Act of 1955 is one such important piece of legislation. This Act was enacted to prevent and prohibit the enforcement of untouchability, and it provides for harsh punishment for untouchability-related offences. It criminalizes practices such as denying people access to public places, denying them access to public amenities, and imposing social disabilities on people based on their caste or untouchability status.
The Protection of Civil Rights Act made several important changes to the original Untouchability (Offenses) Act, increasing its effectiveness in combating discrimination and advancing civil rights:
- Expanded Definition of Civil Rights: The Act defined “Civil Rights” as any right that an individual gains as a result of the repeal of untouchability. This broad definition sought to encompass all the benefits and privileges that members of marginalized communities are entitled to.
- Non-Compoundable Offences: All offences involving the practice of untouchability were declared non-compoundable, implying that they could not be resolved through a compromise between the parties involved. This emphasized the seriousness of such offences and prevented easy resolutions that could undermine the Act’s objectives.
- Enhanced Punishments: The Act increased the penalties for offences related to untouchability, reflecting the desire to create a strong deterrent to discriminatory practices. The severity of the punishments was intended to deter people from engaging in or promoting untouchability-related activities.
- Duty of Public Servants: Public servants were tasked with investigating untouchability offences. Failure to fulfil this duty was deemed abetting the offence, holding public servants accountable for upholding the Act’s principles.
- Expansion of Scope: The Act was expanded to include privately owned places, ensuring that discrimination based on untouchability was not limited to public spaces. Preaching or justifying untouchability was also made illegal, focusing on ideologies that perpetuate discrimination.
- Empowerment of State Governments: The Act empowered state governments to levy collective fines on residents of areas involved in or supporting the commission of offences. The goal of this measure was to create a shared responsibility for preventing and dealing with untouchability-related offences.
- Administrative Machinery: The Act established mechanisms to ensure that its provisions are effectively administered and enforced. This machinery was created to monitor, investigate, and respond to cases of untouchability and discrimination.
In essence, the Protection of Civil Rights Act, of 1955, emerged as a comprehensive legislative response to the constitutional mandate enshrined in Article 17. By amalgamating various provisions to curb untouchability, the Act sought to foster an inclusive and egalitarian society where every individual’s civil rights are upheld, regardless of their caste or social background. Through its evolution and amendments, this legislation has played a pivotal role in combating discrimination and promoting social justice in India.
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 is another important piece of legislation. While the primary goal of this Act is to prevent atrocities against Scheduled Castes and Tribes, it also addresses cases of untouchability. It recognizes untouchability as a form of discrimination and makes it a violation of the Act. The Act establishes special courts to expedite the trial of offences committed against marginalized communities, including untouchability cases.
Several state governments have also passed laws and regulations to combat untouchability and promote social equality. These laws may address specific issues in their respective regions while also providing additional protection to marginalized communities.
The passage of these laws demonstrates the government’s determination to address the persistence of untouchability and ensure the effective implementation of constitutional provisions. These laws seek to deter untouchability by criminalizing it and establishing specialized courts, as well as to provide victims with legal recourse to seek justice and assert their rights.
However, it is critical to recognize that eliminating untouchability necessitates a multifaceted approach that goes beyond legislation. It requires a concerted effort to raise awareness, promote education, and challenge deeply ingrained social attitudes. Civil society organizations, educational institutions, and government initiatives all play critical roles in fostering social change and inclusivity.
Ultimately, the enactment of laws by the Parliament under the authority of Article 35 of the Indian Constitution demonstrates the Parliament’s commitment to combat untouchability and ensure the protection of marginalized communities. These laws establish a legal framework for dealing with the issue, criminalize untouchability, and set up mechanisms for enforcement and punishment. Their effectiveness, however, is dependent on comprehensive efforts that include education, awareness, and societal transformation. By working together working towards eradicating untouchability, society can strive to create a more equitable and inclusive future for all.
SOME IMPORTANT CASE LAWS
• A pivotal definition of the term “untouchability” emerged in the landmark case of Devarajjah vs. Padmana[5], shedding light on the Constitutional construct that had sought to address this deeply entrenched societal issue. Notably, the case highlighted the inherent ambiguity in the Untouchability Offences Act, 1955, which omitted to define the term “untouchability.”
The Court’s astute observation resonated with profound significance within the crucible of this legal debate. It was clarified that Article 17 of the Constitution should not be interpreted literally, but rather with a broader understanding. The Court deliberated that untouchability, as defined in Article 17, should be viewed as a practice that has historically thrived and matured in India’s distinct sociocultural landscape. This astute interpretation was consistent with the framers’ intent, as they had clearly identified untouchability as a practice that had spread throughout the country over time.
The lack of a formal definition of “untouchability” in Article 17 or elsewhere in the Constitution had created some ambiguity. Nonetheless, the case illuminated a jurisprudential path that led to a more expansive understanding of the term. The Court wisely recognized that the fabric of Indian society had witnessed the persistence of untouchability, requiring its abolition. Over decades, the collective consciousness and painstaking efforts aimed at ridding society of this deeply ingrained practice were recognized as integral to the very fabric of societal evolution.
In essence, the Devarajjah vs. Padmana case established a nuanced paradigm in which “untouchability,” as encapsulated in Article 17, went beyond mere textual interpretation. It solidified as a living embodiment of a societal ailment that required comprehensive redress. The case’s astute interpretation elucidated the philosophical essence underlying the Constitution’s desire to create a more egalitarian and inclusive society.
• The central issue in the legal case of Jagdish Ram v. State of Rajasthan and Others[6], presided over by Justice Y.K. Sabharwal, is an incident that occurred in 1985. The criminal proceedings in this case have not progressed beyond the stage of taking cognizance. An important argument presented in the appeal for quashing these proceedings revolves around a significant 19-year delay.
The appellant, a District Ayurvedic Officer, opposes the complainant, a Class IV employee at Fatehgarh Ayurvedic Aushdhalaya. The complainant claims that several patients were present during the appellant’s visit to the facility on November 7, 1985. According to reports, the appellant directed the complainant to go get some water. However, when he did comply, the appellant allegedly insulted him, saying, “I don’t want to jeopardies my faith by drinking water from your hands. How did you dare to offer water?” As a result, the complainant filed a complaint in the Chief Judicial Magistrate’s court, alleging a violation of Section 7 of the Civil Rights Act of 1955. (“the Act”).
The central legal underpinning here is Article 17 of the Indian Constitution, which prohibits untouchability in any form. This article requires the abolition of untouchability, with the enforcement of any disability resulting from it punishable by law. To uphold this constitutional mandate, the Protection of Civil Rights Act was passed, with the goal of criminalizing the practice and preaching of untouchability and the associated disabilities.
The complaint was investigated by the police under Section 156(3) of the Code of Criminal Procedure, 1973, which resulted in a final report stating its falsity. However, another complaint followed, prompting the Additional Chief Judicial Magistrate to take cognizance and issue process against the appellant. The case’s path includes revisions, remands, and reconsiderations by various judicial bodies, culminating in the High Court’s affirmation of taking cognizance.
The essence of the legal dispute is whether the entire material on record was given due consideration, as required by previous court directives. The Supreme Court emphasized that, while the police are responsible for the investigation, the decision to take cognizance rests solely with the Magistrate, necessitating a preliminary examination of the available evidence. The Court stated that the question is not whether there is sufficient evidence for conviction, but whether there is sufficient evidence for further proceedings.
The appellant’s claim about the delay was also addressed. The Court ruled that the appellant had caused significant delays by repeatedly petitioning higher courts, which had resulted in the criminal case being stalled since 1986. The Court noted that the gravity of the offence, which involves untouchability—as abolished by the Constitution—along with the Act’s enactment decades ago renders delay insufficient grounds for quashing proceedings.
While dismissing the appeal, the Court emphasized the importance of completing the trial process as soon as possible, directing the trial court to complete the case within six months. This case exemplifies how fundamental rights, legal procedures, and the role of courts in upholding constitutional principles interact.
CONCLUSION
In the ongoing struggle for social justice and equality, the Abolition of Untouchability Act serves as a beacon of hope and transformation. This legislation, which is based on the Indian Constitution’s unwavering commitment to the abolition of untouchability, addresses a historical wrong that has perpetuated discrimination and marginalization. The cornerstone of this fight, Article 17, embodies the nation’s aspiration for an inclusive society in which every citizen’s dignity is respected, regardless of caste or social background.
Untouchability’s legal landscape is a complex interplay of constitutional principles, legislative frameworks, and judicial interpretations. The lack of a precise definition of “untouchability” in the Constitution has resulted in a nuanced understanding that extends beyond mere semantics. This comprehensive approach recognizes the practices deeply rooted historical context and its numerous manifestations, ultimately directing efforts toward its abolition.
Case laws such as Devarajjah vs. Padmana and Jagdish Ram highlight the judiciary’s role in interpreting and upholding constitutional provisions. These cases demonstrate the dynamic interplay of constitutional principles, fundamental rights, and the complex realities of societal transformation. By recognizing untouchability as a disease ingrained in Indian society, the courts have emphasized the importance of comprehensive redress to eliminate this discriminatory practice.
The legislative response to untouchability, exemplified by the Civil Rights Act of 1955 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989, demonstrates a commitment to addressing the issue on multiple fronts. These laws emphasize the seriousness of untouchability-related offences, establish mechanisms for enforcement, and impose punitive measures to deter discrimination. While legislation provides a solid foundation, its effectiveness is dependent on additional efforts to change societal attitudes and raise awareness.
In essence, the fight against untouchability is a societal transformation, not just a legal one. The Abolition of Untouchability Act and Article 17 are emblematic of India’s determination to overcome historical prejudices and build a society in which every individual’s rights, dignity, and potential are recognized. As the country moves toward a more equitable future, these legal instruments serve as a reminder of India’s commitment to fostering an inclusive and just society for all its citizens.
[1] AIR 1993 SC 1126
[2] State of U.P v. Ram Sajivan, AIR 2010 SC1738, wherein seven totally innocent persons belonging to Harijan caste were literally butchered by some persons belonging to Thakur caste.
[3] Jai Singh v. Union of India, AIR 1993 Raj 177
[4]Safai Karamchari Andolan vs Union Of India . on 27 March, 2014 (indiankanoon.org)
[5] Devarajiah vs B. Padmanna on 10 September, 1957 (indiankanoon.org)
[6] Jagdish Ram vs State Of Rajasthan & Anr on 9 March, 2004 (indiankanoon.org)
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