Success or Failure! A Critical Evaluation
Ajay, Assistant Professor, Law Centre-1, Faculty of Law, University of Delhi
Social exclusion in India has traveled through a long span of time which covers centuries and involves the relegating of a large portion of the Indian population called dalits to a position where not only the human rights were made a distant dream for them but even the right to be human was denied to them with impunity. Dalits who constitute a major portion of the Indian population have a history of continuing prejudices and oppression that lasted for centuries and which is still haunting this discrete group of the Indian society. The caste based social exclusion and oppression in India has always remained a haunting experience for dalits. The Hindu social order provided dalits the status of untouchables and due to their untouchable status in the Hindu social order; they were denied their due share in the social, economic, political and cultural life of the community. The social exclusion and oppression of this social group was the result of the caste system which stratified the populace into discrete social groups based on the superiority and inferiority of human beings which hindered the social, economic, cultural and intellectual growth of dalits. The caste system relegated dalits to the lowest ladder of the Hindu social order and made them vulnerable to discrimination and oppression on the basis of their membership of the untouchable social group. They have been excluded for centuries to have what they deserve being an inseparable part of the human species- the human rights. The denial of human rights to dalits or untouchables was premised on the notion of purity and pollution and was sanctioned by the religious text of Hindus. The Constitution of India provided an elaborative legal framework for the social inclusion of dalits and protective legislations. The Constitution of India, under Article 17, abolishes the practice of untouchability and made the enforcement of any disability arising out of untouchability an offence punishable in accordance with law. Article 35 of the Constitution of India as an enabling provision gives to the Parliament the exclusive power to enact laws for prescribing punishment for those acts which are declared to be an offence under Part III of the Constitution. To give effect to Article 17 of the Constitution of India, the Parliament enacted the Untouchability (Offences) Act, 1955, which was amended and renamed as the Protection of Civil Rights Act in 1976 ((The Untouchability (Offences) Act, 1955 was amended by The Untouchability (Offences) Amendment and Miscellaneous Provisions Act, 1976 which came into force on Nov. 19, 1976.)). This Act was a part of the continuing efforts to ensure that the aims of Article 17 are fully realized.
What is Untouchability?- The Concept
The Protection of Civil Rights Act (hereinafter referred as PCR Act) prescribes punishment for the preaching and practice of untouchability and for the enforcement of any disability arising out of practice of untouchability ((Preamble of the Protection of Civil Rights Act, 1955.)). Neither the Constitution of India nor the PCR Act defines what untouchability is? It only abolishes the practice of untouchability and makes its practice an offence. The reason may be that it is very difficult to define precisely what untouchability is because untouchability encompasses acts and practices committed against the untouchable social groups in diverse forms ((See Supra note 14.)).
As the Constitution or the PCR Act do not define what untouchability is, it is of immense importance to trace out what untouchability, in the Indian context, actually means and what the Constitution or the PCR Act forbids? In its broadest sense, the term ‘untouchability’ may include all instances in which one person is treated as ritually unclean and polluting. In this sense, women at child birth, persons with contagious diseases, mourners, etc. might be considered untouchables. But Article 17 or the PCR Act do not seek to prohibit observance of such temporary untouchability ((Marc Galanter, “Law and Caste in Modern India”, 3 Asian Survey 551 (1963).)). Meaning thereby that the Constitution or the Act do not seek to prohibit the untouchability in broder sense of the term. Rather the law seeks to prohibit the practice of untouchability which has been historically practiced against the particular social groups in the Indian society considered ‘untouchables’ under the caste system. The law seeks to prohibit the discrimination which has been meted by the untouchables because of their position in the caste system. The practice of untouchability has various dimensions and it is not only confined to avoidance of pollution by touch but also includes any invidious treatment of a person associated with his membership or origin in an untouchable group ((Id. at 552)).
To know the meaning of the untouchability in Indian context, one must necessarily have the insights into the historically emerged form of treatment of the untouchable groups by the caste Hindus on the basis of their birth in that group. One can find the institutionalized form of untouchability, based on the notion of purity and pollution, in the Hindu scriptures. Ambedkar compared the slavery experienced by the black people at the hands of the Europeans, with that of untouchability in India. According to him one of the major differences between the two is that the former is not sanctioned by the religious scriptures, but the latter is an inherent part of the Hindu religion. Because of the religious sanction behind untouchability, it disabled the thinking power of the untouchables, and their sense of self-respect was suppressed ((Shailendra Kharat, “Dalits and Human Rights”, 9 (2) Journal of Institute of Human Rights 57 (2006).)).
The untouchability was practiced in varied forms over the untouchable groups. The untouchables were mandated to live outside the village. They were not allowed to draw water from the village well, enter the village temple, and wear the sacred thread ((See National Human Rights Commission, Report on Prevention of Atrocities on Scheduled Castes 3 (2004).)). They were considered inferior human beings and were not allowed to enter the homes of the caste Hindus (dwijas). The menial jobs were reserved for the untouchables like scavenging, tanning, removing caracass etc. The religious texts sanctified the ill- treatment to untouchables. Even the look of the untouchable by the brahmin was considered pollution for the Brahmin ((Parasar Smriti, ch. VI-V: verse 24 as cited in Dr. T.R. Naval, Law of Prevention of Atrocities on the Scheduled Castes and Scheduled Tribes 7 (2001).)). What can be graver thing than the consideration of a human being’s look as pollution?
During the Peshwa’s rule, the untouchables were not allowed to use the public way because if a caste Hindu was coming along lest he should pollute the Hindu by his shadow. In Poona, the capital of Peshwa, an untouchable was required to carry, strung from his waist, a broom to sweep away from behind the dust he treaded on lest a Hindu walking on the same should be polluted. In Poona, the untouchable was required to carry an earthen pot, hung in his neck wherever he went, for holding his spit lest his spit falling on earth should pollute a Hindu who might unknowingly happen to tread on it ((Dr. B. R. Ambedkar, Annihilation of caste available at: http://drambedkarbooks.wordpress.com/dr-b-r-ambedkar-books/ (visited on Jan 13, 2010). Also See Water Aid Report (2009), Burden of Inheritance: Can We Stop Manual Scavenging? Yes, But First We Need to Accept that it Exist, available at: http://www.wateraid.org/documents/plugin_documents/burden_of_inheritance.pdf.)).
So untouchability in the Indian context, can be understood to mean as the enforcement of certain forms of disabilities on the members of the social groups considered ritually impure. Such practice of untouchability does not restricted to the notion of pollution by touch or sight but also includes the offensive treatment of a person on the basis of his birth in a particular untouchable caste group. Historically the practice of untouchability in India has resulted into various religious, social and economic disabilities like ban on temple entry, prohibition on social intercourse among castes, excommunication or boycott of those violating the norm of untouchability, restriction on access to secular amenities like schools, public roads, wells etc.
Thus untouchability includes the enforcement of certain religious and social disabilities on certain social groups whereby such groups are excluded from using the resources of the community on the ground of being member of an untouchable caste group. Basically, the notion of untouchability was actually used as a tool to perpetuate the caste based discrimination and to maintain the upper caste hegemony over the resources of the society. So it was used as a means to socially exclude the untouchables which resulted in the over all backwardness.
Amendment in the Untouchability (Offences) Act, 1955
The Elayaperumal Committee was appointed to study the working of the Untouchability (Offences) Act, 1955. The committee brought out on surface certain flaws and recommended the removal of lacunae by amending the Act. The committee found the phrase in section 3 “or belonging to the same religious denominations” problematic because it does not allow any person to enter into a temple of a religious denomination to say of Palse Brahmins, if the temple is not open for the religious denomination to which such person belongs though both the denominations belongs to the same religion thus preserving the distinction between the religion as well as the different religious denominations of the same religion ((Centre for the Study of Casteism, Communalism and The Law, National Law School of India University, Bangalore, Evaluation of the Protection of Civil Rights Act, 1955 and its Impact on Eradication of Untouchability, available at: http://www.nls.ac.in/csse/ cssedocs/Material_ for_ uploading /Material %20 for %20uploading/PCRA_report_II_from_intro%5B1%5D.pdf.)). The committee was of the view that the scheduled castes often confronted with social and economic boycott whenever they want to quit the customary practices enforced on them e.g. degrading jobs like scavenging. The committee further found the compoundable nature of offences under the Act as problematic because in many cases of untouchability the cases were compounded by the complainant with the accused due to threat, coercion or bribes which frustrates the very objects of the legislation ((Ibid.)). The committee found the long delay in the disposal of cases, lower rate of conviction, purposely delaying cases to harass the complainant and witnesses, support of the magistrates and police enjoyed by the upper caste as the reasons for making the Act ineffective ((Ibid. The Committee found that the social and economic backwardness of the complainant and apathy of the caste Hindus were the reason that made the victim of untouchability to adduce cogent evidence before the court. The Committee observed that the court often disbelieve the testimony of the scheduled castes witnesses believing them to be interested witnesses however evidence of the caste Hindus were not disbelieved on the same ground.)).
The committee recommended that it should be an offence to prevent any Hindu of any class from any Hindu temple without any distinction of religious denominations. The committee recommended making social and economic boycott of a scheduled caste by the upper castes offence under the Act and the offences under the Act should be non-compoundable. The committee recommended the enhancement of punishments which, in its opinion, under the Act were too light and without any minimum requirement. The committee stressed on raising the awareness of the existence of the Act as it found that there was little awareness of the legislation.
On the recommendation of the committee substantive and institutional changes were made in it. The title of the Act was changed to the Protection of Civil Rights Act, 1955 in order to convey the message that the Act does not focus only on the punishing of offenders under the Act but also stresses on the protection of the rights of the victims of untouchability. The amended Act made the “preaching and practice of untouchability” and enforcement of any disability arising out of untouchability an offence ((Preamble of the Act amended by the Untouchability (Offences) Amendment and Miscellaneous Provisions Act, 1976, s. 2)). In the original Act only the practice of untouchability was an offence not the preaching of untouchability.
Accepting the recommendation of the Elayaperumal Committee, the offences under the Act made non-compoundable. The phrase “or belonging to the same religious denominations” were removed from the Act with the effect that now a person cannot be prevented to enter a temple belonging to any particular religious denomination on the ground that such person belong to a different religious denomination to which the entry in the temple is prohibited. Further the punishments were enhanced for the subsequent offences under the Act and minimum and maximum limits of punishment and fines were also prescribed by the amending Act. The amending Act included within the practice of untouchability, the insulting or attempting to insult a member of the scheduled caste on ground of untouchability, preaching and justifying untouchability on philosophical, religious, historical or on grounds of tradition of the caste system. The amending Act made the unlawful compulsory labour like forcing someone to do scavenging or sweeping etc., an offence under the Act treating threat of social and economic boycott within the purview of such compulsion. Criminal liability was introduced for a public servant who wilfully neglected the investigation of an offence under the Act and such public servant is deemed to be an abettor under the Act. The State government was made empowered to impose collective fines on the inhabitants of the any area if it was satisfied that such inhabitants were engaged in or abetting the commission of any offence under this Act or harbouring the offenders under this Act or failing in providing assistance in their power to apprehend the offenders or suppressing any material evidence of the commission of the offence.
Salient Features of the Protection of Civil Rights Act, 1955
The Protection of Civil Rights Act, having its genesis in Article 17 of the Constitution of India, makes the preaching and practice of untouchability and any disability arising out of untouchability an offence punishable under the Act. It seeks to protect the civil rights of a person accruing by reason of the abolition of untouchability (()). The Act does not define what untouchability is but it seeks to prevent certain types of disabilities that arise due to the practice of untouchability like the religious, social and other disabilities which may arise in the due course of such practice. The Act points out towards certain disabilities which are historically attached to the practice of untouchability in this country. But the Act does not restrict itself to such particular disabilities rather it seeks to prevent each and every disability which may arise on grounds of untouchability. Section 3 of the Act seeks to prevent the religious disabilities like preventing a person from entering any place of public worship ((Place of Worship defined in the Act as -place of public worship” means a place, by whatever name known, which is used as a place of public religious worship or which is dedicated generally to, or is used generally by, persons professing any religion or belonging to any religious denomination or any section thereof, for the performance of any religious service, or for offering prayers therein; and includes- (i) all lands subsidiary shrines appurtenant or attached to any such place, (ii) a privately owned place of worship which is in fact, allowed by the owner thereof to be used as a place of public worship, and (iii) such land or subsidiary shrine appurtenant to such privately owned place of worship as is allowed by the owner thereof to be used as a place of public religious worship, supra note 39, s.2 (d).))or preventing from worshipping or offering prayers or performing any religious service at any such place of public worship or bathing or using any waters of any sacred tank, well spring etc. the Act makes the enforcement of any disability punishable with imprisonment and fine ((Imprisonment for a term of not less than one month and not more than six months and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees, supra note 39, s.3)). After the amendment in the Act in 1976, the phrase or belonging to the same religious denominations have been removed from the Act which suggest that every Hindu ((All the persons professing Buddhism, Sikkhism or Jainism or persons professing Hindu religion in any of its form or development including Virashaivas, Lingayats, Adivasis, followers of Brahmo Samaj, Arya Samaj or Prarthana Samaj etc. shall be deemed to be Hindus for the purposes of this section 3 and section 4. Supra note 39, s. 3.))is now entitled to enter into any Hindu temple.
Section 4 of the PCR Act prevents and punishes the enforcement of any social disability enforced on any person on grounds of untouchability like preventing, inter alia, any person to access shops, public restaurants, hotel or place of public entertainment, any disability with regard to the practice of any profession or carrying on of any occupation, trade or business or the observance of any social or religious custom, usage or ceremony. Such enforcement of disability is punishable with both imprisonment and fine ((Imprisonment for a term of not less than one month and not more than six months and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees. Supra note 39, s. 4.)). Section 5 provides for the punishment for refusing, on grounds of untouchability, to admit any person to any hospital, dispensary, educational institution or hostel where such institutions are established or maintained for the benefit of the general public or any section of the general public and also the discrimination against any person after the admission in any of the institutions.
Section 6 prescribes punishment for the refusal by any person to sell goods or render service to any person on grounds of untouchability e.g. refusal to cut the hairs on ground of untouchability is an act punishable under this section. The Act empowers the court trying the offence under this Act, to cancel or suspend the license of any person, holding it in respect of any trade, profession, calling or employment, found guilty under section 6 of the Act ((Supra note 39, s. 8.)). Section 7, in more general terms, makes punishable any offence which may arise out of practice of untouchability like preventing a person from exercising any right to which he is entitled due to the abolition of the practice of untouchability ((Supra note 39, s. 7(a).)). So the Act provides for the abolition of each and every disability which is enforced on any person on the ground of the untouchability. This section further protects the exercise of any right so accruing and makes punishable- any obstruction, injury, annoyance in the exercise of such right or any attempt to such obstruction or the boycott of a person exercising such right due to the reason of his exercising such right ((Supra note 39, s. 7(b).)). This section further prohibits the incitement ((Incitement or encouragement of untouchability under the Act shall include directly or indirectly preaching untouchability or its practice in any form or justifying untouchability on philosophical, religious, historical or on grounds of tradition of the caste system or on any other ground, supra note 39, Expl. II to 7(1) inserted by the Untouchability (Offences) Amendment and Miscellaneous Provisions Act, 1976, s.9.))of the practice of untouchability by words spoken or written or by visible representations ((Supra note 39, s. 7(c).))Section 7 (d) makes punishable the insult or attempt to insult of a member of a scheduled caste on grounds of untouchability ((Supra note 38, s. 9.)).
One notable feature of the Act is that it makes the persons criminally liable who takes part in the ex-communication of any person who has refused to practice the untouchability or has done anything in the furtherance of the objectives of this Act. The Act makes it a criminal offence to compel any person, on the ground of untouchability, to do any forced labour like scavenging or sweeping or to remove any carcass etc. or job of a similar nature and such unlawful compulsory labour shall be deemed to be a disability arising out of untouchability. Such compulsion includes the threat of social and economic boycott ((Supra note 39, Expl. 1 to s. 7(1): A person shall be deemed to boycott another person who – (a) refuses to let such other person or refuses to permit such other person, to use or occupy any house or land or refuses to deal with, work for hire for, or do business with, such other person or to render to him or receive from him any customary service, or refuses to do any of the said things on the terms on which such things would be commonly done in the ordinary course of business; or (b) abstains from such social, professional or business relations as he would ordinarily maintain with such other person.)). The State government has been empowered to impose collective fines on the inhabitants of any area where such inhabitants are concerned in or abetting the commission of offences under this Act ((Id., s. 10-A inserted by the Untouchability (Offences) Amendment and Miscellaneous Provisions Act, 1976, s.13.)). Further the Act makes the public servant criminally liable, for abetting an offence under this Act, who wilfully neglects the investigation of any offence under this Act ((Id., Expl. to s. 10 inserted by the Untouchability (Offences) Amendment and Miscellaneous Provisions Act, 1976, s.12.)). But no court shall take cognizance of such abetment by a public servant unless the previous sanction of the Central or State government have been obtained.
The Act provides for enhanced penalty for the subsequent conviction of a person who has previously been convicted for any offence under this Act or of the abetment of such offence. In case of a subsequent conviction for the same offence for which he was previously convicted, he shall be liable for the second offence with an imprisonment which shall not be less than six months and not more than one year and also with fine which shall not be less than two hundred rupees and not more than five hundred rupees ((Id., s. 11(a).)). For the third conviction or subsequent to the third conviction, the person so convicted shall be liable to an imprisonment for a term which shall not be less than one year and not more than two years and also with a fine which shall not be less than five hundred rupees and not more than one thousand rupees ((Id., s. 11(b).)).
The Act makes a rebuttable presumption in case of any offence committed against a scheduled caste that such offence was committed on grounds of untouchability ((Id., s. 12.)). Under section 13 (2), the courts trying offences under the Act are debarred to recognise any custom or usage imposing any disability on any person on the ground of untouchability. The Act makes it incumbent on the part of the State government to take measures necessary to ensure that the rights accruing by reason of abolition of untouchability are availed of by the victims of untouchability ((Id., s. 15A.)). Such measures may include providing legal aid to the victim, appointment of officers for supervision over prosecutions, setting up of special courts for trying offences under the Act, setting up of committees to assist the State government in formulating and implementing measures, provision for periodic survey of the working of the legislation, the identification of untouchability prone areas etc ((Id., s. 15A(2).)). It is made obligatory for the Central government to place a report annually on the measures taken by the Central government or State government in this behalf before each house of Parliament ((Id., s. 15A (4).)).
To remove the effect of any custom usage or instrument having effect by virtue of any law or any decree or order of the court or other authority which is inconsistent with the Act, the Act has been given an overriding effect over such laws etc ((Id., s. 16.)). To make the law more stringent, Section 16 A provides that the provisions of the Probation of Offenders Act, 1958 shall not apply to any person above the age of 14 years who is found guilty of any offence under this Act ((Id., s. 16A.)).
Critical Appraisal of the Protection of Civil Rights Act, 1955
The Act aims to achieve the objective enshrined in Article 17 of the Constitution of India and seeks to curb the practice of untouchability by preventing and penalising the enforcement of disabilities arising from practice of untouchability. One notable feature of the Act is that it makes the practice as well as preaching of the untouchability an offence under the Act e.g. justifying untouchability on philosophical or religious grounds etc. which is a salutary provision because many times caste leaders incite caste hatred and untouchability by their hate speeches thereby propagating and justify it on the religious or customary grounds. This provision aims at preventing such propagation and preaching of untouchability.
Further it also makes the threat of social and economic boycott of the victim an offence under the Act. It not only protects the victim of untouchability but also the person, who refuses to practice untouchability or work in furtherance of the objectives of the Act, by making any boycott or excommunication of such person an offence under the Act and makes the person, who takes part in such excommunication, an offender under the Act. To make the Act more deterrent the Act empowers the court to cancel or suspend the license of a person who is found guilty under section 6 of the Act.
Further the Act makes the insulting or attempt to insult a member of a scheduled caste a criminal offence if such insult is done on ground of untouchability. The Act creates a rebuttable presumption in case of any offence committed against a member of scheduled castes and shifts the burden on the accused to prove that the alleged offence was not committed on grounds of untouchability which indicates towards the intention of the legislature regarding the sensitivity of the issue because in case of members of scheduled castes due to the socio-economic backwardness it becomes very tough for them to get evidence and witnesses to prove that the offence was committed on ground of untouchability. Questions have come before the courts in India regarding whether calling a scheduled caste member by his caste name is an ‘insult’ on ground of untouchability?
In Laxman Jayaram v. State of Maharastra ((1981 Cri.LJ. 387)), the accused addressed the complainant by calling his caste name who was a co-employee in the same office. The alleged words were:
Come on Maharsaheb. Have you finished the leave? Are you joining? Rs. 900 has been spent and so now you remember about your service. God has given bread to your Mahar caste and you do not deserve it. Your caste is such.
The question before the court was whether the insult of the complainant was on the ground of untouchability. The accused’s contention was that the accused just want to tell the complainant to be honest to his duties. The court held the insult not on ground of untouchability and observed that the accused just told the complainant to be honest and hardworking in the discharge of his duties and it was just the resentment of the superior officer on the attitude of a person towards his job. Court said that there must be specific intention to insult or attempt to insult and there should be mens rea to that effect ((Ibid., para 12.)). The Court denied from raising any presumption under section 12 of the PCR Act.
It is submitted that the court was erroneous in its reasoning because it is a known fact that caste names are frequently used to abuse the scheduled caste people by the upper caste people. Here the language used by the accused was clearly filthy and abusive and was directed towards the caste characteristic of the complainant which is sufficient to constitute an offence of untouchability. There was a clear intention on part of the accused to insult the complainant by referring to his caste characteristics. The resentment could be shown even without referring to the caste name of the complainant. Further, once the alleged abusive language is proved to have been uttered against a member of a scheduled caste, the court necessarily have to presume that the insult was on the ground of untouchability and thus the burden shifts on the accused to prove that the alleged words were not addressed to the complainant on ground of untouchability. But the court shifted the burden on to the prosecution to prove that the insult was on ground of untouchability. The language alleged was such as to indicate towards degrading characterstics of the caste of the complainant.
There is a common perception regarding the Act even among the judiciary that the PCR Act is only applicable to the members of the scheduled castes which is not the case and the Act equally applies to others who are discriminated on the ground of untouchability even if they do not fall within the legal category of the scheduled castes ((Supra note 27)). Even the Act specifically makes the insult or attempt to insult of any member of a scheduled caste an offence and only in case of any offence committed under this Act against a member of a scheduled castes, the presumption as to the commission of offence on ground of untouchability is raised which suggests that the Act is not applicable to the scheduled castes only but also to others as well. The practice of untouchability is a social phenomenon which can be practiced even against persons who do not fall into the legal category of scheduled castes. Because it is possible that some sub-castes of a scheduled caste whose name is not mentioned specifically in the list of scheduled castes may face indignation and disability on ground of untouchability. Even the untouchability is practiced among dalits itself for example manual scavengers are considered untouchables among untouchables.
It is submitted that the term untouchability cannot be confined to scheduled castes only and the PCR Act is also applicable to others who are not members of the scheduled castes. Though the scheduled castes are the main beneficiary of this legislation due to the fact that they are the castes which are historically considered untouchables but there may be other castes also who are not within the legal definition of scheduled castes but against whom untouchability might still be practiced. To this end, it is important to take note of the proposed definition of the term ‘untouchable’ given in the Untouchability (Offences) Bill, 1954 ((S. 2 (f), The Untouchability (Offences) Bill, 1954.)):
Untouchable means a member of the Scheduled Castes as defined in Article 366 (24) of the Constitution and includes any other person who by custom or usage is regarded as untouchable by any community or section thereof:
A member of the Scheduled Castes shall not cease to be a member if he resides in any locality other than the locality specified in relation to him in any public notification issued or any law made by Parliament under Article 341 of the Constitution.
A member of the Scheduled Castes who has been converted from the Hindu religion to any other religion shall, notwithstanding such conversion, be deemed to be an untouchable for the purposes of this Act.
This definion of the term ‘untouchable’ is wide enough to include the persons who are not members of the scheduled castes but against whom untouchability might still be practiced. In their case the practice of untouchability against them can be proved by proving any custom or tradition due to which their caste is considered as untouchable. It also covers the members of the scheduled castes who converted to any religion other than Hinduism say Christianity but who may face untouchability even after conversion e.g. dalit christians.
There is a urgent need to make it clear that the PCR Act is applicable to all castes against whom the untouchability might be practised even though such caste do not form part of the list of the scheduled castes. From a plain reading of the PCR Act it is very much clear that the Act applies to all on whom any disability is enforced on ground of untouchability. Making the application of the Act clear is of massive importance for those castes who are outside the purview of the legal category of scheduled castes but who face untouchability.
Practical problems may arise while restricting the application of the Act to the members the Scheduled castes only. It is the President of India who specifies any caste, races or tribes or any parts or groups within the caste to be deemed as scheduled castes in relation to a State or union territory. There may be a situation where a caste is notified as scheduled caste in one State but not in the other State. In that case the member of the caste which is notified as scheduled caste in one State but not so notified in the other State may face humiliation or disability on ground of untouchability. Restricting the application of the Act to the scheduled castes only will not help in that situation and the person so discriminated on ground of untouchability will not have any remedy and thus affecting the broader mandate of the Constitution and the objectives of the Act.
The case of Charls Raj v. State of Maharastra ((MANU/MH/0859/2004.)), is an example of the situation mentioned above where the complainant, a member of a scheduled caste notified in the State of Tamil Nadu but not so notified in the State of Maharastra, filed a case under the PCR Act against the accused alleging ill-treatment on ground of untouchability. The court held while referring to the Article 341 of the Constitution, which says that a caste would be deemed to be a Scheduled Caste only in relation to that State as notified in the list, that because the caste of the complainant is not notified in the State of Maharastra, he cannot avail the protection of the PCR Act thus restricting the application of the Act not only to scheduled castes but also to scheduled castes of a particular State.
It is submitted that it is a gross mistake on part of the courts to restrict the practice of untouchability to the members of the scheduled castes only keeping in mind the fact that the PCR Act nowhere restrict its application only to scheduled castes. The court not only frustrated the objectives of the Act but also frustrated the broader mandate of Article 17 of the Constitution of India i.e. to abolish the practice of untouchability. The denial of relief on technical grounds is not justified on part of the court and a gross injustice done to the victim and to the Constitutional aspiration to abolish untouchability.
Further the Act has been made ineffective where the courts deny relief under the Act on the technical grounds e.g. non-mentioning the caste name of the complainant and the accused in the FIR. Essential substantial facts need to be given in the FIR for registering a cognizable offence ((Supra note 27)). Due to lack of awareness on part of the complainant about such procedural requirements, the non-mentioning of caste name in the complaint results in dismissal of the case on that procedural ground but without any fault of the victim/complainant. Such denial of relief on such procedural grounds also affects the effectiveness of the Act. So it should be the duty of the police to inform the complainant about the procedural requirements as to the filing of FIR. It is submitted that while the PCR Act does not make any difference between the accused belonging to different castes then what is the need to read in such a requirement as to the information about the caste of the accused?
In the case of Bibhishan v. State of Maharastra ((2006 INDLAW MUM 353)), the respondents while chatting on the roadside were stopped by the accused and abused by calling their caste name Mangtya and manhandled them. When the wife of one of the respondent tried to intervene, she was also beaten by the accused. A case was registered under IPC, s. 3(1) (x) of the POA and s. 7 (1) (d) of the PCR Act. The court quashed the case of the complainant on the ground that the main body of the FIR did not contain the caste of the complainant though the format of the FIR showed the caste of the complainant to be Hindu Mang (belonging to Mahar Caste) and of the accused to be Hindu Mali. It is submitted that the quashing of the FIR on such a technical ground is not justified and thus the court was failed to further the broad objective enshrined in the Act and the Constitution of India.
So the dismissal of cases on technical grounds and the judicial attitude towards the application of the Act only to the scheduled castes where such a restriction is nowhere mentioned in the Act itself is not in tune with the broader mandate of the constitution i.e. to abolish untouchability. Such hindrances come into the way of the effective implementation of the Act and make the Act redundant. Such judicial attitude points out towards the lack of awareness of the authorities towards the substantive and procedural aspects of the law ((Supra note 27.)).
Data on Practice of Untouchability- Present Scenario!
Despite the existence of the Protection of Civil Rights Act, the practice of untouchability is still prevalent in different parts of the country. The studies made by the national as well as international NGOs endorsed to the same. The scheduled caste bridegrooms are not permitted to ride mare in the villages, they could not sit on charpoy when persons of upper castes passed by, they are not permitted to draw water from the common wells and in many tea shops and dhabas, separate utensils are used for serving the scheduled castes ((Human Rights Watch, Broken People: Caste Violence against India’s “Untouchables” 25-26 (1999).)). Dalits receive discriminatory treatment in, private businesses, including tea shops, food stalls, barber shops, and cinemas. Because of strictly enforced prohibitions on inter-dining, Dalits are made to use separate crockery and cutlery, and drink from separate tea glasses which they are then required to wash ((Human Rights Watch, India’s Hidden Apartheid: Caste Discrimination against India’s Untouchables 14 (2007). )).
The study found the residential segregation of the scheduled castes as the most taken for granted aspect of untouchability especially in the rural area. The study found the explicit customs prevailing in the villages regarding the particular direction in which the scheduled caste must have their residence. Dalits have to face discriminatory treatment in case of public services like services of the barber, washer man, carpenter etc. Out of 491 villages surveyed in 46.6% villages dalits were denied barber services. Out of 424 villages surveyed in 45.8% villages dalits were denied services of the washerman ((Ibid.)).
The practice of untouchability is also reflected in the discriminatory restrictions on public behaviour of dalits. They are not allowed to take out their marriage processions on roads, forced to stand in front of the upper caste people, restriction on wearing bright clothes, and ban on festival processions on public roads. The Action Aid study revealed that in 47. 4% villages out of 483 villlages surveyed, dalits were not allowed to take out marriage processions on roads. Out of 532 villages surveyed, in 25.6% village dalits were forced to stand in front of the upper caste people. Out of 478 villages surveyed in 23.8% villages dalits were not allowed to take out festival procession on the public roads ((Id. at 137.)).
This data shows the prevalence of the practice of untouchability in different parts of the country. The constitutionally abolished crime of “untouchability” still continues to profoundly affect the lives and psyches of millions of Dalits ((Supra note 70 at 7.)). The de jure abolition of the practice of untouchability is not able to fully counter the de facto prevalence of untouchability in the country.
There are varied reasons for the continued practice of untouchability. There is a slow pace change in the castiest mindset of the people in the society and the practice of untouchability is still remained intact in some spheres of social life particularly in rural areas. Further the inherent vested interests in the practice of untouchability are also coming into the way of its complete abolition. The under-implementation of law and the apathy of the law enforcement machinery in securing the rights of dalits is a big reason for the continuing practice of untouchability. The low conviction and high acquittal under the Act, the delay in investigation by police and delay in disposal of cases by the courts is a reason due to which people have lost their faith in the legal system. In the year 2006, 405 cases were registered under the PCR Act as compared to 291 cases in the year 2005 showing an increase of 39.2% in 2006 over 2005. Uttar Pradesh reported the highest 133 number of cases followed by Andhra Pradesh 93 and Tamil Nadu 84 cases. Of the total number of 517 (including cases pending from last year) cases in 2006, in 392 (75.8%) cases investigation was completed and 122 (23.6%) cases were pending with police and only 320 (61.9%) have been charge-sheeted under the PCR Act. The position in respect of pendency in courts is even worse. In 2006, 2433 cases out of 2996 cases were pending with courts. Trial was completed in 560 cases out of which 473(15.8%) cases ended in acquittal and only 87(2.9%) cases resulted in conviction. The conviction rate was only 15.5 which is abysmally low ((National Crime Record Bureau, Ministry of Home Affairs, Crimes in India 426-432 (2006).)). In the year 2007, 328 cases were registered under the PCR Act showing a decline in registration of cases under the PCR Act ((National Crime Record Bureau, Ministry of Home Affairs, 55 Crimes in India 426-432 (2007).)).
Huge pendency of cases with police and courts affects the effectiveness of the Act because it originates disbelief in the system. It results in low registration of cases of untouchability, witnesses won over by the accused and turning hostile and thus resultant acquittal. Long delay in disposal of cases is harassment for both the parties and the witnesses ((See Supra note 27.)). It is also believed that the reason for the low registration of cases under PCR Act is that the victims of untouchability register cases under the SC/ST (Prevention of Atrocities) Act (POA) because it being a more stringent legislation prescribing deterrent punishment. But such belief is a farce because NHRC in its report revealed that even in case of heinous crimes of atrocities, the police deliberately avoids the registration of cases under the POA and register cases under the Indian Penal Code which prescribes mild punishments when compared with the POA. Further even if that view is adopted then too there are more chances of discharge or acquittal due to the mismatch of factual position and the offence for the person is charged for ((See National Human Rights Commission, Report on Prevention of Atrocities on Scheduled Castes 25 (2004). Also see supra note 27.)).
The National Human Rights Commission in its report pointed out towards the system’s apathy regarding the implementation of Act by stating that in many of the States the special courts and special public prosecutors as required by the Act do not exist, there is no monitoring of the Act. The State governments have not shown any seriousness in identifying the untouchability prone areas ((Sukhdeo Thorat, Dalits in India: Search for a Common Destiny 145 (2009).)).
In the world’s largest democracy, a large segment of the society is still living under the darkness of age-old oppression and discrimination and facing humiliation, indignities on the basis of birth in a particular social group. It is a shame on the democratic values of the country that the stigma of untouchablity is comfortably breathing and surviving in the society even after six decades of independence. The available legal framework to counter the problem of untouchability and the caste based discrimination do not yield much fruits because of the feudal mindset along with the complicity of the state apparatus with the upper caste people. The attitude of the law enforcement machinery towards the application of the Act, the lack of awareness towards the substantive and procedural aspects of the law, the undue delay in disposal of cases by police and courts has made the Act ineffective and hindering the achievement of the aspirations of the Constitution of India to have a society free from the practice of untouchability. The under-implementation of the law enacted to counter such practices and the apathy of the law enforcement machinery is a major reason for the perpetuation of the exclusion and discrimination in the society. The lack of proper monitoring of the implementation of the Act is also a reason for the ineffective implementation of the legislation. The non-clarity as to the application of the legislation among the judges also leads to the ineffectiveness of the law. The restrictive application of the Act by the judiciary also affects the proper implementation of the law and at times the deserving cases remain unnoticed due to the restrictive application given to the Act. This is due to the lack of proper knowledge among the judiciary about the substantive aspects of the law. The denial of relief to the victim of discrimination on procedural ground also renders the Act ineffective. The practice of untouchability is still rampant in different parts of the country though abolished a long back in 1950 on papers. Apart from the apathy of the legal system, the castiest mindset of the people is a main reason which perpetuates the practice of untouchability. It is the mindset of the upper caste people not to mingle up with the people of the lower caste that is a big reason for the perpetuation of the practice of untouchability because the abolition of untouchabilty is counter-upper caste hegemony. The perpetuation of the practice of untouchability is also to maintain the age old supremacy of the upper caste and their vested interests. The practice of untouchability is much more rampant in the rural areas in comparison to the urban areas. The practice of untouchability is also prevalent among the scheduled castes, which is an issue of great concern. It is the lack of proper implementation of law on part of the state and the complicity and connivance of the state apparatus especially the police with the feudal mindset people of the upper castes that are rendering the constitutional vision of providing safeguard to the scheduled castes nugatory. To achieve the aim of social justice and to curb the problem of untouchability in the society, there is a dire need to understand the basic philosophy behind the Protection of Civil Rights Act and thus implementing the Act in its true spirit.