BLE-003 Law and Vulnerable Groups

Indira Gandhi
National Open University BLE-003

School of Law
Law and Vulnerable
Groups
Block
3
DALITS AND THE LAW
UNIT 10
The Protection of Civil Rights Act, 1955 and Rules, 1977 5
UNIT 11
The Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and Rules, 1995 22
UNIT 12
The Employment of Manual Scavengers and
Construction of Dry Latrines (Prohibition) Act, 1993 44
UNIT 13
The Bonded Labour System (Abolition) Act, 1976 53
Expert Committee
Prof. (Dr.) N.R. Madhava Menon Ms. Vrinda Grover
Member, Commission on Centre-State Director
Relations, New Delhi Multiple Action Research Group (MARG),
Former Director, NLSIU, Bangalore and New Delhi
National Judicial Academy, Bhopal
Ms. Abha Joshi
Lawyer, New Delhi
Prof. B.B. Pande
Former Professor of Criminal Law, Dr. Manik Chakrabarty
Law Faculty, University of Delhi Professor, Department of Law
The University of Burdwan, West Bengal
Mr. Babu Mathew
Country Director Prof. Srikrishna Deva Rao
Action Aid India, New Delhi Director, School of Law, IGNOU
Prof. K. Elumalai
Prof. S. Siva Kumar
Professor, School of Law, IGNOU
Research Professor
Indian Law Institute Ms. Suneet Kashyap
New Delhi Asst. Prof., School of Law, IGNOU
Prof. M. R. K. Prasad Ms. Gurmeet Kaur

V.M. Salgaocar College of Law Asst. Prof., School of Law, IGNOU
Panaji, Goa Mr. Anand Gupta
Asst. Prof., School of Law, IGNOU
Ms. M. Roopa
Independent Scholar Ms. Mansi Sharma
Bangalore Asst. Prof., School of Law, IGNOU
Block Preparation Team

Programme Coordinator : Prof. Srikrishna Deva Rao and Mr. Anand Gupta
Unit Writers : Units 10,11,12 & 13 : Ms. Nimisha Kumar
Content Editor : Mr. P.D. Mathews
Consultant : Ms. Jaishree Suryanarayanan
Material Production
Mr. Yashpal
Section Officer (Publication)
IGNOU, New Delhi
May, 2010
© Indira Gandhi Naitonal Open University, 2010
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BLOCK 3 DALITS AND THE LAW
Dalits are persons who have traditionally been considered ‘untouchable’ and
have been excluded from the caste system. Untouchability is a phenomenon that
legitimises degrading, humiliating and exploitative practices against persons
belonging to specific caste groups. Article 17 of our Constitution abolishes
untouchability and forbids its practice in any form. We will examine legislations
that were enacted to protect the rights of dalits, and to punish offenders who
discriminate against dalits and inflict violence on them. We will also examine
legislations that were passed to stop the practices of manual scavenging and
keeping bonded labour.
In the tenth unit, we will explain the important provisions of the Protection of
Civil Rights Act, 1976, (PCRA) and their interpretation by the judiciary, through
examples and cases. We will discuss the various forms of untouchability that are
practised, which constitute offences under the PCRA and the scope and
applicability of the PCRA. We will also discuss the protections that the victims
of untouchability are entitled to. We will analyse the reasons for the inadequate
implementation of the PCRA.
Despite the PCRA, SC/ST communities continued to be victims of atrocities.

The term ‘atrocity’ had not been defined in the past. Existing laws were found to
be inadequate to curb the grave crimes that were being committed against SC/
ST communities. It was found necessary to enact a special legislation to deter
crimes against them, which would not only define the term ‘atrocity’, but also
provide for higher punishment for committing such atrocities. This led to the
enactment of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act (POAA) in 1989. The Act creates special courts for the trial of
offences under the Act and also provides for the relief and rehabilitation of victims
of offences. In the eleventh unit, we will discuss this legislation. We will also
compare this with the PCRA.
Manual scavenging and bonded labour are practices of labour that are usually
suffered by the dalits because of their exclusion from the caste hierarchy. Both
manual scavengers and bonded labourers are vulnerable to exploitation because
of their low bargaining power vis-à-vis their employers, and their inability to
find alternative sources of livelihood. In the twelfth unit, we will explain the
main provisions of the Employment of Manual Scavengers and Construction of
Dry Latrines (Prohibition) Act, 1993 and examine the implementation of the
legislation. We will discuss the main provisions of the Bonded Labour System
(Abolition) Act, 1976 in the thirteenth unit.
Dalits and the Law
4
The Protection of Civil
UNIT 10 THE PROTECTION OF CIVIL Rights Act, 1955 & Rules,
1977
RIGHTS ACT, 1955 AND RULES,
1977
Structure
10.1 Introduction
10.2 Objectives
10.3 Legislative History
10.4 Applicability
10.5 Classification of Disabilities
10.6 Presumption as to Offences
10.7 Punishments
10.8 Other Requirements
10.9 Institutional Weaknesses
10.10 Summary
10.11 Terminal Questions
10.12 Answers and Hints
10.13 References and Suggested Readings
10.1 INTRODUCTION
Dalits are persons who have traditionally been considered ‘untouchable’ and
have been excluded from the caste system. Untouchability is a phenomenon that
legitimises degrading, humiliating and exploitative practices against persons
belonging to specific caste groups. The evolution of the caste system dates back
to Vedic ages. The Vedas use the term ‘varna’ (which means colour) to describe
caste, whereby the light skinned Aryans were distinguished from the dark skinned
and indigenous Dasyus. The literal meaning of ‘varna’ seems to indicate that the
caste system began as a result of racial differences between people. At the same
time, the characteristic feature of the caste system was its categorisation of the
pure and the impure based on religious beliefs and division of labour.
There is a divergence of views on the precise nature of the caste system as it
existed in Vedic times. The common understanding of the caste system is that
there were four varna divisions, namely, the Brahmins, Kshatriyas, Vaishyas
and Shudras. The first three groups were the twice-born (dwijas), who were
entitled to participate in initiation, second birth and religious life. The fourth
category was not allowed to carry out such activities and had to serve the three
groups preceding it in the hierarchy. There was a fifth category of people called
the Ati-Shudras or untouchables who did not form a part of the caste system but
were outside it. The untouchables were forced to perform tasks that the other
castes did not perform, such as disposing carcasses, cleaning excreta and other
waste, grave digging and tanning. The other castes refused to associate themselves
with the untouchables because of the nature of work carried out by them. As a
result, the untouchables used to live outside the settlements of the upper castes
and were excluded from the activities of the upper castes. The occupations that 5
Dalits and the Law were carried out by the different castes crystallised over time, resulting in the
entrenching of the caste system in Indian society.
After India gained her independence, the framers of the Constitution of India
introduced provisions that abolished untouchability and provided safeguards to
protect the rights of dalits. The most notable provision is Article 17 which
abolishes untouchability and forbids its practice in any form. It also says that the
enforcement of any disability arising out of untouchability shall be an offence
that is punishable by law. It is interesting to note that Article 17 is the only
fundamental right that imposes a punishment for the violation of the right.
In order to give effect to Article 17, legislations were passed at regular intervals
to protect the rights of dalits, and to punish offenders who discriminated against
dalits and inflicted violence on them.
In this unit, we will explain the important provisions of the Protection of Civil
Rights Act, 1976, (we will refer to it as PCRA) and their interpretation by the
judiciary, through examples and cases.
While reading this unit, please keep a copy of the Constitution of India, as well
as the texts of the Protection of Civil Rights Act & Rules with you, so that you
have a ready reference to the provisions that are being explained.
10.2 OBJECTIVES
After going through this unit, you should be able to:
describe the various forms of untouchability;
explain the scope of the Protection of Civil Rights Act (PCRA);
discuss the role of the judiciary in deciding cases under the PCRA; and
enumerate the problems faced in the implementation of the PCRA.
10.3 LEGISLATIVE HISTORY

In independent India, the safeguards that were provided in the Constitution for
the Scheduled Castes and Tribes were an attempt to improve their condition and
status and raise them to the same level as the upper castes. Jawaharlal Nehru, the
first Prime Minister found the problem of untouchability to be economic and
believed that the removal of poverty would result in the removal of discrimination
too. A number of States and Union Territories had anti-disabilities laws in force
between 1950 and 1955. ‘Anti-disabilities’ legislations were present in 14 States,
while ‘temple entry’ legislations were present in 7 States. 12 States did not have
either.
Parliament felt the need to have a central legislation that abolished untouchability,
and passed the Untouchability (Offences) Act, 1955. The Act punishes the
enforcement of any disability arising out of untouchability. The working of the
Act was not satisfactory due to certain loopholes and lacunae. A Committee
under the Chairmanship of Mr. Elayaperumal examined the Untouchability
Offences Act and made recommendations suggesting amendments to the
legislation. Some of the amendments were incorporated and the title of the
6 legislation was changed to the ‘Protection of Civil Rights Act’.
Activity 1 Rights Act, 1955 & Rules,
1977
Name any acts of untouchability that you have heard about/read in the
newspapers.
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10.4 APPLICABILITY
Since the PCRA does not explicitly State which groups of people it is applicable
to, the primary question to be answered is whether it is applicable only to members
of Scheduled Castes or whether it would be applicable to Scheduled Tribes and
other disadvantaged and discriminated groups as well. The courts have not been
unanimous on the matter but the predominant opinion is that the PCRA refers to
the practice of untouchability in its historical context where certain communities
are still considered as untouchable because of their caste.
The precise application of the PCRA to different caste groups has been litigated
in several cases as discussed below.
Exclusion based on sectional differences

Courts have been faced with the question as to whether the PCRA would be
applicable to distinctions made on the basis of belonging to different sects (such
as Jains, Buddhists etc). The Courts have held that the Act referred to
untouchability in its historical context where certain communities were treated
badly and excluded from public affairs because of caste.1 Hence, it would not
include differences on the basis of certain practices of sects that may exclude
other sects. The courts have protected the freedom of religious denominations to
manage their own religious affairs.
Whether applicable to Other Backward Classes, persons not belonging to

Scheduled Castes/Scheduled Tribes and who are not Hindus
The courts have held that the definition of untouchability has to be interpreted in
the historical context of the practice of untouchability where members of certain
groups have been excluded from various socio-religious and public spheres
because of their supposed ‘impure’ and inferior caste status. The provisions cannot
be extended to those who are not entitled to the protection thereof. 2
An exception to this interpretation of the courts is Section 7 (2) of the Act which
deals with non-members of the Scheduled Castes who face discrimination because
they have helped or been associated with members of Scheduled Castes. An
example in this regard is the case of Kanhu Ram v Durga Ram.3 The respondent
had stood as surety for Ramka, a member of the Scheduled Caste, against whom
a case had been registered. The petitioners resolved to ex-communicate him as
1
Devarajiah v Padmanna AIR 1958 Mys 84.
2
Bharatinath Namdeo Gavand v Lakshman Mali MANU/MH/1020/2006, 2007 (3) MhLJ 210.
3
MANU/HP/0029/1979, 1980 CriLJ 518. 7
Dalits and the Law he had stood as surety for a Harijan. The respondent filed a complaint under the
PCRA. The petitioners contended that the respondent could not file a complaint
under the Protection of Civil Rights Act as he was a Rajput and not a member of
the Scheduled Caste. The Court dismissed their application and held:
“It is evident by reference to Section 15 of the Untouchability (Offences) Act,

1955 that the offences under the Act are cognizable and there is nothing in the
Act to show that only a particular person can file a complaint for the offences
committed under the Act. Under the circumstances, there is no substance in the
contention that the respondent-complainant has no locus standi to file this
complaint.”4
Though the above case did not refer to Section 7 (2), this provision imposes
punishment on anybody who denies any right/privilege to which a member of a
community is entitled, or who participates in the excommunication of such person
because of his/her refusal to practice untouchability or because such person has
acted in furtherance of the objectives of the Act. The scope of the words “any act
done in furtherance of the object of this Act” is wide and would include
cooperating with or providing assistance to ex-untouchables. In the Kanhu Ram
case, the respondent by standing as surety for a member of the Scheduled Caste
provided him assistance. Hence, he would be able to take recourse to Section 7
(2) (ii) without there being any doubt as to his locus standi to file a complaint
under the PCRA.
Whether applicable to persons who have converted to Buddhism or any other

sect
Before 1990, the courts had held that the conversion of a person belonging to the
Scheduled Caste (SC) community would mean that s/he is no longer a member
of the SC and would not be entitled to any protection or benefits allowed to the
SC. After the passage of the Constitution (Scheduled Castes) Order
(Amendment) Act 1990, paragraph 3 of the Constitution (Scheduled Castes)
Order 1950 includes Buddhists to say that conversion of a Scheduled Caste
to Buddhism will not alter their status in respect of their caste.5 Thus, the
present position is that members of Scheduled Castes who convert to sects that
are considered to be a part of the Hindu religion will not lose their caste status
that entitles them to certain constitutional and legal protections. SC/ST members
who convert to another religion will lose their caste status.
Whether applicable when accused is a member of Scheduled Caste/ Scheduled
Tribe
Another question as regards applicability of the Act is whether a complaint can
be registered against an accused who is a member of a Scheduled Caste. It has
been held that where the complainant and accused are members of the Scheduled
Castes, an offence cannot be registered under the PCRA as there cannot be any
preaching or practising of untouchability on the ground of caste. Even if the
petitioner proved that the respondent had indeed abused him, this would mean
that he engaged in ‘self-condemnation of the community to which he equally
belonged to’. 6
4
Id Para 7.
5
T.R. Naval, Legally combating atrocities on Scheduled Castes & Scheduled Tribes 59 (New
Delhi: Concept Publishing Company, 2004).
6
8 State of Karnataka v Shantappa MANU/KA/0137/1996, 1997 CriLJ 2802.
Notification of Scheduled Castes not uniform across all States The Protection of Civil
Rights Act, 1955 & Rules,
The case of Charles Raj v State of Maharashtra7 highlights the conflict that 1977
exists in the notification of Scheduled Castes between different States. Here, the
complainant filed a case under the PCRA in the State of Maharashtra alleging ill
treatment by the accused on the grounds of untouchability. It was found that the
caste of the complainant had not been notified as Scheduled Caste in Maharashtra
but had been notified in Tamil Nadu from where the complainant hailed. However,
the Court referred to Article 341 which States that a caste would be deemed to be
a Scheduled Caste only in relation to that State as notified in the list. Hence, no
offence would lie either under the PCRA or the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act (POAA).
It is important to note that there is no Supreme Court decision that has set the
matter at rest. As a result, disputes regarding the scope of the PCRA have come
up before High Courts at regular intervals. The Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act on the other hand, as the title suggests, is
clearly applicable only to Scheduled Castes and Scheduled Tribes. This is evident
from the sections as well which begin by stating that a person who is “not a
member of the SCs/STs” is liable to be punished for carrying out any of the
atrocities mentioned in the Act. Hence, any offence committed by members of
the SCs/STs will not be treated as an offence under this legislation.
Self-assessment Questions
1) R distributed pamphlets which Stated that S was prohibited from entering
temples or places of public worship belonging to Jains. R also instigated
Jains not to have social or religious intercourse with others belonging to
the same religious community as the petitioner. Can S file a petition under
the PCRA?
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2) During a palanquin procession, Y insulted Z and other members of his

community, who had converted to Buddhism, saying that they had become
Buddhists, had stopped playing bands, and had instead started dancing
before the palanquin. Y abused them and told them to leave the procession.
Z filed a case under the PCRA. Will the case be maintainable?
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7
MANU/MH/0859/2004. 9
Dalits and the Law
3) G filed a case against H on the ground that the latter did not permit him to
participate in village festivals, that he did not accept donations from him,
and that he penalised people who interacted with him. H contended that
the PCRA was not applicable to G as he belonged to the Agra community
which fell under the category ‘Other Backward Classes’. Will the case
against H be maintainable?
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10.5 CLASSIFICATION OF DISABILITIES

Sections 3 to 7 of the PCRA detail out the various forms of untouchability that
are practised.
Religious Disabilities
Section 3 punishes the enforcement of religious disability on the ground of
‘untouchability’. The acts that have been prohibited by this section are:
preventing any person from entering a place of public worship open to persons
professing the same religion;
preventing any person from worshiping/offering prayers or bathing in a sacred

well or any other sacred water body.
The punishment is imprisonment between one month and six months and a fine
of Rs. 100 or more upto a maximum of Rs. 500.
While interpreting the scope of the term ‘prevent’, the courts have held that
prevention need not be by the use of physical force or threat of force, but that
even loud shouting to deter an untouchable from entering a temple would amount
to prevention. Such prevention should be on the ground of untouchability. This
means that the offence must have been committed with the intention to do a
forbidden act (which is called ‘mens rea’ in criminal law). You will recollect
from your study of criminal law in the previous course (BLE 002) that mens rea
refers to the mental State of the person who has been accused of committing a
crime.
It should be noted that the object of Section 3 is to put untouchables at par with
other Hindus and is extensive with other persons of the same religion. Hence, no
person can be refused admission to a place of public worship or prevented from
offering prayers on the ground of untouchability, where other persons belonging
to the same religion are admitted.
Social Disabilities
Section 4 imposes punishment for enforcing social disabilities on the ground of
untouchability. It lists the offences that fall under the purview of ‘social
10 disabilities’ as follows:
i) preventing any person from entering shops; The Protection of Civil
ii) preventing any person from entering public restaurants or places of public 1977
entertainment or from using utensils and other articles kept in any public
restaurant, dharamshala, sarai or musafirkhana;
iii) preventing any person from practising any profession, trade, occupation or
employment;
iv) preventing any person from using any river, stream, well, tank or any other
water body, or any cremation ground, sanitary convenience, road/passage
or pubic resort;
v) preventing any person from using any place which is used for charitable or
public purpose wholly or partly out of State funds;
vi) preventing any person from enjoying any benefit under a charitable trust
that has been created for the benefit of the public;
vii) preventing any person from using any public conveyance;
viii) preventing any person from constructing, acquiring or occupying any
residential premises and observing any social or religious custom or
ceremony;
ix) preventing any person from observing any social or religious custom or
ceremony, or from taking part in any religious, social or cultural procession;
x) preventing any person from using jewellery or finery.
Illustration: In a case in Karnataka, the Deputy Superintendent of Police had

conducted a raid on a tea shop on the basis of a petition filed by the chairman of
the Panchayat Committee. He found that certain utensils (lower part of a coconut
chip) were kept aside for use by Scheduled Castes. He registered a case under
Section 4 (i) and (ii) of the Protection of Civil Rights Act. It was held that
cognizance could be taken of the offences alleged against the accused even after
expiry of the period of limitation, in the interests of justice.
Refusal to admit persons to hospitals etc

Section 5 punishes the refusal, on the ground of untouchability, to admit persons
to hospitals, dispensaries, educational institutions or hostels that have been
established for the benefit of the public. Discrimination against any person after
his/her admission into such institutions is also an offence. The punishment that
can be imposed is a fine of a minimum of Rs. 100 and maximum of Rs. 500, and
imprisonment of a minimum of 1 month to a maximum 6 months.
Refusal to sell goods or render services

Section 6 punishes any person, who on the ground of untouchability, refuses to
sell any goods or provide any services to any person at the same time and place
and on the same terms as they are sold to other members of the public during the
ordinary course of business. Any delay in rendering the service, or variations in
the terms and conditions at which the goods are sold on the ground of
untouchability would be an offence under this Act. The punishment that can be
imposed is a fine of a minimum of Rs. 100 and maximum of Rs. 500, and
imprisonment of a minimum of 1 month to a maximum 6 months.
11
Dalits and the Law Other offences arising out of untouchability
Section 7 prescribes punishment for other offences that arise out of untouchability.
The offences are:
i) preventing any person from exercising his/her right under Article 17 of the
Constitution;
ii) molesting, injuring, annoying, obstructing, or causing a person to lose his/
her right or injures or boycotts any person who has exercised such right;
iii) using words (spoken or written), signs, visible representations or inciting or
encouraging any person/s to practice untouchability;
iv) insulting or attempting to insult a member of the Scheduled Caste on the
ground of untouchability.
The punishment that can be imposed is a fine of a minimum of Rs. 100 and
maximum of Rs. 500, and imprisonment of a minimum of 1 month to a maximum
6 months.
Section 7 (2) punishes a person who denies to any other person belonging to his/
her community, any right or privilege to which such person would be entitled as
a member of such community, or who participates in the excommunication of
such person on the ground that such person has refused to practice untouchability.
This provision protects persons who have been associated with people who are
treated as ‘untouchable’ or who refuse to carry out practices of untouchability.
Such persons can avail of the PCRA to take action against those who have denied
them rights or been party to their ex-communication.
An important question that has often come up before courts is the interpretation
of Section 7 (1) (d) of the PCRA which punishes persons who insult a member
of a Scheduled Caste on the ground of untouchability. The PCRA does not provide
a definition of ‘insult’. Section 504 of the Indian Penal Code (IPC) defines insult
as “an intentional use of abusive filthy language which is capable of provoking
breach of peace on the part of the complainant.”
The problem arises in ascertaining whether the insult of a Scheduled Caste has
occurred on the ground of untouchability. Courts have held that ‘insult simpliciter’
does not come within the purview of Section 7 (1) (d). The test is to ask whether
the insult would have taken place irrespective of the fact whether the victim was
or was not a member of the Scheduled Caste. If yes, then the insult falls under
the category ‘insult simpliciter’ which is outside the ambit of clause (d). On the
other hand, if the insult is uttered specifically because the victim was a member
of Scheduled Caste and would not have been made if he had been of higher
caste, then the insult is on the ground of untouchability. However, the courts
have said that no general rule can be laid down as it would depend on the facts
and circumstances of the case. It said that every insult/attempt to insult a Scheduled
Caste was not necessarily on the ground of untouchability and would not fall
under Section 7 (1) (d).
The predominant offences committed under the PCRA are insults under Section
7 (1) (d) which are committed in relation to Scheduled Castes. Most of them
12
result in acquittals due to the inability of the prosecution to either prove the The Protection of Civil
commission of the offence itself or to prove that it was committed on the ground 1977
of untouchability.
Illustration: In Laxman Jayaram v State of Maharashtra,8 the accused, who was

employed in the same department as the complainant, insulted him as follows:
“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.” An
offence was registered under Section 7 (1) (d) of the PCRA. The question before
the court was whether the insult had been on the ground of untouchability. The
Court held in the negative. It said that the accused intended to tell the complainant
to be honest and hardworking in the discharge of his duties as the accused had
just returned after a long leave.
Where Unlawful Compulsory Labour is deemed to be a practice of untouchability

Section 7-A punishes anybody who on the ground of untouchability compels a
person to do any scavenging, or sweeping, or removing any carcass, or flaying
an animal, or removing the umbilical cord, or performing any task of a similar
nature. Work of a ‘similar nature’ refers to unclean jobs which the upper castes
do not perform. The term ‘compel’ includes a threat of economic or social boycott.
The punishment is imprisonment for a minimum term of three months and a
maximum of six months, and a fine between Rs. 100 and Rs. 500.
4) M abused N and threatened to run over him with a tractor. N filed a case
against M under the PCRA. It was found that M and N had quarrelled in
the past and were not on good terms. N approaches you for legal advice.
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5) The upper caste inhabitants of a village boycott the members of the SC

community for refusing to clean up excreta and filth. Only L refused to
be a part of the boycott and spoke to the members of the SC community.
L was also boycotted by the upper caste inhabitants of the village. The SC
community of the village and L want to file a case under the PCRA. Will
their claim be maintainable?
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8
MANU/MH/0021/1980, 1981 CriLJ 387. 13
Dalits and the Law
10.6 PRESUMPTION AS TO OFFENCES
All the offences detailed in the PCRA require that the offence be committed on
the ground of untouchability. This means that there should be an intention (mens
rea) on the part of the accused to commit an offence against the victim, on the
ground of untouchability. If the intention is not proved, then the accused will not
be guilty of an offence under the PCRA.
In State of Karnataka v Appu Balan,9 Justice Ramaswamy said that the judge
should be cognizant to and always keep at the back of his/her mind the
constitutional goals and the purpose of the Act. According to him, mens rea is
not an essential requirement of social legislations where there is difficulty in
proving the State of mind of the accused. He said that the courts should give the
benefit of doubt to the victim.
Though the above decision was given by the Supreme Court, the true position of
law is that mens rea is an essential ingredient in criminal offences unless it
has been expressly excluded by the statute.
Justice Ramaswamy’s concern was that it is difficult for the victims of

untouchability to prove that offences on the ground of untouchability were
committed against them. This difficulty has been addressed by Section 12 which
makes a presumption in favour of members of the SC community. Section 12
comes into operation once the following two conditions are satisfied –
i) the victim is a member of the Scheduled Caste;
ii) the commission of an offence (excluding the mental element of the offender)
under the PCRA by the offender is proved.
Once the conditions are satisfied, the section allows the court to presume that
the offence was committed on the ground of untouchability, unless proved to the
contrary.
This section provides a special rule of evidence. Very often, it is difficult to

prove the most important ingredient of offences under the PCRA beyond
reasonable doubt, i.e., that the offence was committed on the ground of
untouchability. The reasons could be because of the victims’ inability to collect
evidence, their poor economic status and their poor legal knowledge. As a result,
the legislature incorporated Section 12 whereby, if an offence has been committed
against a member of the Scheduled Caste, the court shall presume that the act
was committed on the ground of untouchability. Hence, the burden of proof
shifts onto the accused to show that the act was not committed on the ground of
untouchability.
Self-assessment Question
6) Explain the significance of Section 12 of the PCRA.
...................................................................................................................
...................................................................................................................
...................................................................................................................
9
AIR 1993 SC 1126.
14
10.7 PUNISHMENTS Rights Act, 1955 & Rules,
1977
Apart from the punishments of imprisonment and fines mentioned for the various
forms of untouchability practised, the PCRA contains provisions imposing other
punishments. These provisions are as follows:
Cancellation/suspension of licences
Section 8 empowers courts to cancel or suspend the licences of persons who
have been convicted for offences under Section 6 (refusing to sell goods or render
services). The licence includes trade, profession or employment permits. The
Court has the discretion to decide whether to cancel or suspend the licence of the
offender in addition to the punishment imposed under Section 6.
Resumption or suspension of grants made by the government

Section 9 States that where the offender is the manager or trustee of a place of
public worship or any educational institution or hostel which is receiving grants
or money from the government, then the government has the discretion to suspend
the whole or part of the grant. The government has to judge whether the action
warrants such a punishment. The object of this section is to keep a check on
places of public worship, educational institutions and hostels and to deter them
from practising untouchability.
Power of State Government to impose collective fine

Section 10-A empowers the State Government to impose a collective fine on the
inhabitants of an area if they:
i) abet an offence under the PCRA;
ii) harbour persons who have committed offences under the Act;
iii) fail to provide assistance to discover the offender;
iv) suppress material evidence of the commission of an offence.
The State Government has to exercise its judgment to apportion the fine according
to the inhabitants’ means. Any person who is aggrieved by the imposition of the
collective fine can file a petition asking to be exempted from such payment or
for modification of the payment. The petition has to be filed before the State
Government or any other authority which is specified by the government within
a period of 30 days [Section 10 A (3) and Rule 4]. The State Government or
authority has to provide a reasonable opportunity of being heard to the petitioner
before passing its order.
Rule 3 of the Rules under PCRA prescribes the procedure that is followed while
deciding whether a collective fine is to be imposed or not. The State Government
may appoint an officer who is not below the rank of the Sub-divisional Magistrate
for conducting an inquiry. Such officer has to issue a public notice in the local
language of the area, indicating the date, time, place and purpose of the inquiry.
The notice has to also call upon the residents of the area to furnish information
and material which is necessary for the purpose of the inquiry. The inquiry
officer should follow the procedure for summary trials as detailed in Chapter
XXI of the CrPC. S/he should complete the inquiry as expeditiously as possible
and submit the report to the State Government within six weeks.
15
Dalits and the Law Enhanced punishment on subsequent conviction
Any person who has been convicted of an offence under the PCRA, and commits
an offence under the Act again, will be punished with imprisonment for a
minimum term of six months up to a maximum term of one year, and with a fine
of a minimum of Rs. 200 up to a maximum of Rs. 500. Offenders who are
convicted for a third time or more will be punishable with imprisonment for a
minimum term of one year up to a maximum of two years, and with a fine of a
minimum of Rs. 500 up to a maximum of Rs. 1000.
7) Apart from imprisonment and fines, what are the punishments that can
be imposed on offenders under the PCRA?
...................................................................................................................
...................................................................................................................
...................................................................................................................
...................................................................................................................
...................................................................................................................
10.8 OTHER REQUIREMENTS

Offences to be cognizable and triable summarily
Section 15 States that all offences punishable under the PCRA are cognizable.
This means that a police officer can arrest persons who have been accused
of committing offences under the Act, without a warrant.
The section also States that all offences which are punishable with
imprisonment for a minimum term of three months or less, may be tried
summarily by a Judicial Magistrate (of the first class) or by a Metropolitan
Magistrate according to the procedure laid down in the CrPC. Summary
trials are conducted for minor offences. Cases are disposed off quickly
without any lengthy procedure being followed.
Prior sanction of government needed for prosecution of public servants

Section 15 (2) prohibits courts from taking cognizance of a case where a
public servant has been charged with committing or abetting an offence
under the PCRA, without the prior permission of the central or State
Government, as the case may be.
Limitation on jurisdiction of civil courts
Section 13 prohibits civil courts from entertaining any suits and proceedings,
or executing any orders or decrees which are contrary to the provisions of
the PCRA. The section also prohibits civil courts from recognising customs
that impose disabilities on any person on the ground of untouchability, while
adjudicating any matter or executing any order.
Non-applicability of Probation of Offenders Act
The Probation of Offenders Act does not permit the courts to sentence
16 offenders under the age of 21 years to imprisonment. However, Section 16
A of the PCRA States that the Probation of Offenders Act will not apply to The Protection of Civil
any person above the age of 14 years who has committed an offence under 1977
the Act.
Measures by State Government to ensure civil rights
Section 15-A empowers the State Governments to take measures that are
necessary for ensuring that the civil rights arising from the abolition of
untouchability are available to victims of untouchability. Such measures
include:
provision of adequate facilities including legal aid;
appointment of officers for initiating and supervising prosecutions under
the PCRA;
setting up special courts for the trial of offences under the Act;
setting up committees to assist the government in formulating or
implementing the measures under this section;
provision for periodic surveys of the working of the Act;
identification of areas prone to the commission of offences under the
PCRA so as to adopt measures to ensure the prevention of commission
of such offences.
10.9 INSTITUTIONAL WEAKNESSES

Weaknesses of the criminal justice system affect prosecutions under the PCRA.
Since the criminal justice system involves the State machinery, there are many
instances of police complicity with the offenders, corruption, disinterest, lack of
proper knowledge about legal procedures and procedural delays. As a result, the
victim fails to get justice.
Given below are some of the problems faced during the implementation of the
PCRA.
Registration of FIRs
i) Details
While making a complaint under the PCRA, it is mandatory for the
complainant to State his caste in the FIR. In a Supreme Court judgment,10 it
was specified that while an FIR is not an encyclopaedia of events, the basic
prosecution case had to be Stated whereby it discloses the requirement of
law which would enable the police to conduct their investigation. For
offences under the PCRA, if the complainant does not State his caste in the
FIR, then the offence cannot be registered. The caste of the accused also has
to be Stated in order to show that s/he is not a member of the Scheduled
Castes.
If the caste of the complainant is not disclosed in the FIR, the police
authorities could not be said to have any material to invoke the powers
under Chapter XII of the Criminal Procedure Code and to commence
investigation considering the complaint to be a cognizable complaint.
10
Manoj alias Bhau v State of Mali (1994) 4 SCC 268.
17
Dalits and the Law ii) Delay in filing FIR/charge-sheet
A delay in filing the FIR or charge-sheet amounts to a procedural irregularity
that can be raised by the accused as a defence to show that injustice had
been caused to him. In a case,11 a police constable had been charge-sheeted
for an offence under Section 7 (3) of the PCRA. He contended that the
charge-sheet had been filed beyond the period of limitation (6 months) under
Section 468 of the CrPC, and that the investigation had continued beyond
the stipulated 6 months without the prior sanction of the Magistrate as
required by Section 167 (5) of the CrPC and was hence, illegal. The High
Court sent the case back to the trial court to see whether additional
investigation was necessary and whether any miscarriage of justice had been
caused because of the delay in filing the charge-sheet.
The victim of untouchability has no control over the investigation beyond the
filing of the offence and testifying during the proceedings. Non-compliance or
irregularities in procedural requirements result in the loss of a remedy to the
complainant for no fault of his/hers. At the same time, the reason for specifying
such requirements is to ensure that the rights of the accused are protected and so
that s/he does not get locked up for ages without being tried. It is the responsibility
of the investigation and prosecution agencies to ensure that procedural
irregularities do not take place resulting in vitiation of proceedings to the detriment
of the complainant or violation of the rights of the accused.
Non-consideration of police report by Magistrate

The Magistrate has to consider the police report that has been submitted after
investigation and then proceed with the case. Non-consideration of the police
report amounts to an irregularity in procedure.
In a case,12 the accused-petitioner refused to accept water from the non-petitioner

who had offered water to him on his request for the same, as he belonged to a
Scheduled Caste. A case was registered but the Magistrate proceeded with the
case without considering the police report that had been submitted as per the
requirements of Section 210 of the CrPC. This action was challenged before the
High Court which set aside the order of the lower court for not considering the
police report during the inquiry under Sections 200 and 202 of the CrPC. The
High Court held that the record which has been submitted by the police is a
material placed on the record and it is the duty of the court to consider that
record and then to arrive at its own conclusion as to whether process should be
issued against the accused or not. The case was sent back to the trial court to
proceed according to the law.
Insufficient evidence
An examination of judgments under the PCRA will show that numerous cases
result in acquittal of the accused due to the lack of sufficient evidence. As a
result, the rate of conviction is low. Very often, it is difficult for the prosecution
to prove mens rea on the part of the accused as regards the commission of an
offence on the ground of untouchability. The standard of proof in criminal offences
is high as the punishments affect the life and liberty of the accused. The offences
have to be proved beyond reasonable doubt.
11
State of Maharashtra v PC Tatyaji MANU/MH/0034/1985.
12
18 Jagadeesh Ram v State of Rajasthan MANU/RH/0152/1988, 1989 CriLJ 745.
Difficulties faced by victims to prove commission of offences The Protection of Civil
The victims of untouchability are often in subjugated positions as compared to 1977
the upper caste offenders who have economic and political clout. Hence, it is
difficult for them to find witnesses to support their cases. Witnesses often turn
hostile. With the requirement of high standards of proof for criminal offences, it
is all the more difficult for victims to prove the commission of offences on the
ground of untouchability.
A major problem is that Section 12 is not taken recourse to. If the burden of
proof is shifted onto the accused, the prosecution is saved from many hassles of
getting independent witnesses who do not turn hostile.
With the enactment of the SC/ST (Prevention of Atrocities) Act (POA), the
significance of the Protection of Civil Rights Act has receded to the background.
The number of cases registered under the PCRA has drastically reduced. Even
the treatment of offences under the PCRA when cases have been registered under
both the legislations is minimal. Yet, there are important aspects of the PCRA
(such as the shifting of the burden of proof onto the accused) that are not present
in the POA. The differences should be recognised by the enforcement authorities
so that the PCRA does not lose its utility.
There is an urgent need to strengthen the police and prosecution machinery for
better implementation of the PCRA. It is also necessary to strengthen the State
and district machinery which is responsible for enforcing the legislation. A
suggestion in this regard is to prepare a training manual that will contain simplified
explanations of the legislation and the legal procedures to be followed by the
State officials during the implementation of the legislation. It is important to
engage with other State organisations such as the NHRC, National Commissions
for Scheduled Castes and Scheduled Tribes as well as NGOs and other
organisations that are working to abolish untouchability.
10.10 SUMMARY
In this unit,
We discussed the various forms of untouchability that are practised, which
constitute offences under the PCRA. We discussed the scope and applicability
of the PCRA.
We analysed the role of the Judiciary in interpreting the provisions of the
PCRA, and deciding cases under the PCRA.
We also discussed the protections that the victims of untouchability are entitled
to and the punishments that are imposed on offenders, under the PCRA.
We analysed the reasons for the inadequate implementation of the PCRA.
10.11 TERMINAL QUESTIONS

1) Discuss the applicability of the PCRA in the light of judicial interpretation.
2) What are the various forms of untouchability that are punishable under the
PCRA? Explain with illustrations.
3) What are the reasons for the inadequate implementation of the PCRA? What
measures would you suggest to improve the implementation of the Act?
19
Dalits and the Law
10.12 ANSWERS AND HINTS
1) No. R’s acts and conduct amounted to instigation to social boycott towards
members of a particular community not on the ground of their origin but
because of religious or social beliefs and practices of the Jain community.
2) Yes, the case will be maintainable against Y. Converts to Buddhism retain
their SC status [Constitution (Scheduled Castes) Order (Amendment) Act
1990].
3) No case will lie against H. The Courts are clear that the PCRA applies only
to communities that have been historically considered as untouchable, namely,
the Scheduled Castes.
4) Test of insult simpliciter – If test is satisfied, then no case will lie. If test is
not satisfied, then case will be maintainable.
5) The claims of both the SC community as well as L will be maintainable
under Sections 7 (1) & (2).
6) Section 12 provides a special rule of evidence. Very often, it is difficult to
prove the most important ingredient of offences under the PCRA beyond
reasonable doubt, i.e., that the offence was committed on the ground of
untouchability. The reasons could be because of the victims’ inability to
collect evidence, their poor economic status and their poor legal knowledge.
Section 12 provides that if an offence has been committed against a member
of a Scheduled Caste, the court shall presume that the act was committed on
the ground of untouchability. Hence, the burden of proof shifts onto the
accused to show that the act was not committed on the ground of
untouchability.
7) Other punishments under POAA include:
— Cancellation/suspension of licences
— Resumption or suspension of grants made by the government
— Imposition of collective fine on the inhabitants of an area
— Enhanced punishment on subsequent punishment
Terminal Questions
1) The PCRA does not name a specific group that is entitled to its protections.
As a result, the interpretation of the applicability of the legislation was left
to the Judiciary. The predominant opinion of the Judiciary has been to apply
the Act to people who have historically suffered practices of untouchability,
namely, the Dalits. The PCRA does not apply to exclusion based on
membership to different sects and religions (including converts except
Buddhism and Sikhism). It does not apply to other backward castes. The
only exception is S. 7 (2) which applies to non-SC communities who have
been victims of untouchability for refusing to practice untouchability or for
assisting members of a SC community. The PCRA does not apply when
both the offender and the victim belong to a SC/ST community.
20
2) Sections 3 to 7 – Religious disabilities, social disabilities, discrimination in The Protection of Civil
entry to hospitals, discrimination in the sale of goods and services, and 1977
insults.
3) Discuss the following points:
Failure of the police machinery due to insufficient knowledge and lack
of will.
Errors of the court machinery.
Difficulties faced by prosecution and victims in proving offence – due
to hostile witnesses, powerlessness, corruption.
Acquittals due to insufficient evidence because of the high standards of
proof (beyond reasonable doubt) required by criminal law.
10.13 REFERENCES AND SUGGESTED

READINGS
Ramesh Chandra and Sangh Mittra, Untouchability and the Law (New Delhi:
Commonwealth Publishers, 1st ed. 2003).
R.K. Kshirsagar, Untouchability in India: Implementation of the law & its

abolition (New Delhi: Deep & Deep Publications, 1989).
Oliver Mendelson and Marika Vicziany, The Untouchables: Subordination,

Poverty and the State in Modern India (Cambridge University Press, 1st ed.
2000).
T.R. Naval, Legally combating atrocities on Scheduled Castes & Scheduled Tribes
(New Delhi: Concept Publishing Company, 2004).
K.D. Purane, Untouchability and the Law: The Ground Reality (New Delhi:
Gyan Publishing House, 2000).
21
Dalits and the Law
UNIT 11 THE SCHEDULED CASTES AND
SCHEDULEDTRIBES (PREVENTION
OF ATROCITIES) ACT, 1989 AND
RULES, 1995
Structure
11.1 Introduction
11.2 Objectives
11.3 Offences under the Act
11.3.1 Classification of Offences
11.3.2 Requirement of Mens Rea
11.3.3 Presumption as to Offences
11.4 Stages of a Case
11.5 Enforcement Authorities
11.6 Punishment for Offences
11.7 Rehabilitative and Preventive Measures to be taken by the State
11.8 Other Features of the Act
11.9 Comparing PCRA and POAA
11.10 Reasons for Inadequate Implementation
11.11 Summary
11.1 INTRODUCTION
In the previous unit, you studied the provisions and working of the Protection of
Civil Rights Act, 1955 (PCRA) and the Rules, 1977 that sought to protect victims
of untouchability. Yet the Scheduled Castes (SC) became victims of increased
number of atrocities due to agrarian tensions, ineffective implementation of the
PCRA and the Minimum Wages Act, rural indebtedness, bonded labour practices
and poor implementation of various developmental measures like the allotment
of surplus land (declared as such under land ceiling laws) to members of the
Scheduled Castes.
It was also found that greater awareness of their rights among the members of
the SC and ST communities had resulted in them asserting their rights. This was
not liked by the members of the dominant castes who attacked them in order to
subjugate them. Commission of atrocities like making members of SC
communities eat human excreta and inflicting physical violence on them were
common. Existing laws like the Protection of Civil Rights Act and the Indian
Penal Code were found to be inadequate to curb the grave crimes that were
being committed against SC/ST communities. It was found necessary to enact a
special legislation to deter crimes against them.
22
The term ‘atrocity’ had not been defined in the past. It was considered necessary The Scheduled Castes and
Scheduled Tribes Act, 1989
to not only define the term ‘atrocity’, but also provide for higher punishment for and Rules, 1995
committing such atrocities. This led to the enactment of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act (POAA) in 1989. The States
and Union Territories were enjoined to take special preventive and punitive
measures to protect SC/ ST communities from being victimised, and to provide
relief and assistance to rehabilitate victims of atrocities. The legislation, in addition
to providing stringent punishments, creates special courts for the trial of offences
under the Act and also provides for the relief and rehabilitation of victims of
offences.
In this unit, we will explain the main provisions under this Act and their
interpretation by the judiciary, through examples and cases. We will also compare
this with the Protection of Civil Rights Act (PCRA).
as the text of the SC and ST (Prevention of Atrocities) Act, 1989 and the Rules,
1995 with you, so that you have a ready reference to the Articles and provisions
that are being explained. You will be required to recall the important portions of
the previous unit on the Protection of Civil Rights Act.
11.2 OBJECTIVES
categorise the atrocities that have been listed in the SC and ST (Prevention
of Atrocities) Act, 1989;
explain the stages of a case registered under the Act;
analyse the role of the enforcement authorities;
describe the preventive, relief and rehabilitative measures to be taken by the
States;
compare the POAA with the PCRA; and
enumerate the difficulties in the working of the POAA.
11.3 OFFENCES UNDER THE ACT

For an offence to be committed under POAA, the offence should be committed
by a person who is not a member of the Scheduled Castes or Scheduled
Tribes, against a member of the SC or ST community. No offence will be
made out under the Act if the victim is not a member of the SC/ST community or
if the accused is a member of the SC/ST community. The Act does not define
‘Scheduled Castes’ and ‘Scheduled Tribes’ but refers to Articles 341 and 342 of
the Constitution. Articles 341 and 342 empower the President to notify the castes,
races, tribes or groups with respect to any State or Union Territory, in consultation
with the Governor, which shall be deemed to be Scheduled Castes or Scheduled
Tribes in relation to that State or Union Territory.
It is important to note that a SC/ST person who migrates to another State is not
entitled to the rights and benefits in matters, such as, admission to educational
institutions and employment in that State.1 Applying the same logic, since the
1
Marri Chandra v Dean (1990) 3 SCC 130. 23
Dalits and the Law person will not be considered as SC/ST in the State of his/her migration, there is
no question of the SC/ST (Prevention of Atrocities) Act applying to him/her.
Similarly, a person belonging to the SC/ST community who has converted to
another religion will not be considered as SC/ST. Only those persons who have
converted to Sikhism or Buddhism can avail of the POAA. The SC/ST Order
(Amendment) Act, 1990 says that any person who professes a religion different
from the Hindu, the Sikh or Buddhist religion will not be deemed to be SC/ ST.
11.3.1 Classification of Offences

The various atrocities that are given in Section 3 have been classified as follows:
1) Atrocities against person – Under this category, the atrocities committed
affect the body and reputation of a person.
The offences that affect the body are:
a) Forcing a member of the SC/ST community to drink or eat inedible or
obnoxious substances [S. 3 (1) (i)]
b) Forcibly removing the clothes of a person or parading him/her naked or
with a painted face and body or committing any similar act which is
derogatory to human dignity [S. 3 (1) (iii)]
c) The offences that affect reputation involve intentionally insulting or
intimidating with the intention to humiliate, a member of a Scheduled
Caste or Scheduled Tribe, in any place within public view [S. 3 (1) (x)].
The words of abuse should refer to the caste of the complainant. If there
is no reference to the caste, then no offence is made out under S. 3 (1)
(x).
Punishment for the offences mentioned above are imprisonment for a term
which shall not be less than six months but which may extend up to five
years, and a fine.
Illustration: The accused allegedly called the complainant ‘pulaya nadi’.

The complainant who belonged to the Pulaya community (a SC community)
filed a case under S. 3 (1) (x). The Court held that the term was obscene and
meant adulterer or son of a prostitute and did not have any caste implication.
Hence, S. 3 (1) (x) was not attracted.
2) Atrocities committed on women – The POAA punishes acts that outrage
the modesty of women belonging to the SC/ST community [S. 3 (1) (xi)]. It
also punishes persons who are in positions to dominate the will of women
and use their position to sexually exploit them [S. 3 (1) (xii)].
Punishment for the offences mentioned above are imprisonment for a term
which shall not be less than six months, but which may extend up to five
years, as well as a fine.
Illustration: T, a young lady belonging to the Scheduled Tribe community,

approaches W, a film director (who doesn’t belong to either the SC or ST
community) for a role in his upcoming film. W is aware that T is a tribal girl.
He conducts auditions and agrees to cast T. After some time, W gets intimate
with T and has sexual intercourse with her a number of times after saying
that he would marry her. When T gets pregnant and asks W to marry her, he
24
refuses. T can file a case under Section 3 (1) (ii) of the POAA. It is important The Scheduled Castes and
to note that consent on the part of the woman does not negate the and Rules, 1995
commission of the offence under the section. In fact, if sexual relations
take place forcibly against the woman, then there is no question of the
man dominating her will. Hence, the consent of the woman is a result of
the man dominating her will and amounts to sexual exploitation.
3) Social disabilities – The classification can be divided into two heads:
i) Denial of access to SC/ST communities to places of ‘public resort’ (places
to which the public are admitted such as parks, recreation grounds and
hospitals) and use of customary passages [S. 3 (xiv)].
ii) Denial of use to SC/ST communities of water of any spring, reservoir,

or any other source, if they have been using water from such spring,
reservoir or source. Any person who corrupts or fouls water is liable for
punishment. [S. 3 (xvi)]
The punishment for committing offences of social disability is imprisonment

for a minimum term of six months and a maximum of five years, as well as
a fine.
4) Atrocities affecting properties – The kind of offences that affect the

properties of SCs and STs are:
a) Dumping excreta, waste matter, carcasses, obnoxious substances in the

premises or neighbourhood of SCs & STs with the intent to cause injury,
insult or annoyance [S. 3 (1) (ii)].
b) Wrongful occupation of land belonging to members of the SC/ST

community [S. 3 (1) (iv)].
c) Wrongful dispossession of SC/ST members from land or premises or

water or interference with their rights over land, premises or water body
[S. 3 (1) (v)]. For the first part of the offence to be made out, it has to be
proved that the SC/ST was in possession of the land, premises or water
body. For the second part of the offence to be made out, it has to be
proved that the SC/ST has rights of easement, right of way or right of
using water.
d) Forcing or causing a member of a SC/ST to leave his/her house, village

or other place of residence [S. 3 (1) (xv)].
Punishment for these offences is imprisonment for a term which shall

not be less than six months but which may extend to five years, and a
fine.
Atrocities that damage properties of SC/ST members by fire or explosive

substances are punishable for a term of imprisonment of not less than
six months and not more than seven years, and a fine [S. 3 (2) (iii)].
Atrocities that destroy properties (place of public worship, human

dwelling or a place to store property) belonging to SC/ST members by
fire or explosive substances are made serious offences as the punishment
is imprisonment for life and a fine [S. 3 (2) (iv)].
25
Dalits and the Law 5) Atrocities by litigation – Atrocities by way of false, malicious or vexatious
suits or other litigation are punishable with a term of imprisonment of a
minimum of six months and a maximum of five years, and a fine [S. 3 (2)
(viii)].
It is important to note that an offence under this clause can be registered

only after the alleged false, malicious or vexatious suit is disposed off.2
Registration of a case before disposing the matter would amount to prejudging
the issue.
6) Atrocities by giving false information to public servants and courts

a) If false information is given to public servants to make them use their
lawful power to the injury and annoyance of SC/ ST communities, such
an act constitutes an offence under the POAA. The offence is punishable
with imprisonment for a term of a minimum of six months and a
maximum of six years, and a fine [S. 3 (1) (ix)].
b) When false evidence is given in courts with the intention of getting a

SC/ST member convicted of an offence with capital punishment, such
offence is punishable with imprisonment for life and a fine [S. 3 (2) (i)].
When the intention is to secure a conviction for an offence with severe
punishment, the offence is punishable with imprisonment for a term of
a minimum of six months and a maximum of seven years, and a fine [S.
3 (2) (ii)].
c) When a person who is not a member of a SC/ST destroys evidence in

relation to offences under the POAA with the object of protecting the
offenders from punishment, the offence is punishable with the
punishment provided for that offence [S. 3 (2) (vi)]
7) Atrocities infringing political rights – If members of SC/ST communities

are:
a) forcibly prevented from voting;
b) intimidated or threatened with harmful consequences if they vote;
c) forced to vote for a particular candidate; or
d) compelled to vote in an unlawful manner;
Such offences are punishable for a term of a minimum of six months and a
maximum of five years, and a fine [S. 3 (1) (vii)].
8) Atrocities causing economic exploitation – If members of SC/ ST

communities are compelled or enticed to beg or to do begar or forced or
bonded labour, the offenders are punishable for a term of six months extending
upto five years, and a fine [S. 3 (1) (vi)]. This section is in consonance with
Article 23 of the Constitution which prohibits traffic and forced labour of
human beings.
‘Begar’ refers to labour or service demanded by the Government or a person

without payment of remuneration.
2
Abdul Rasheed Siddiqui v State of MP AIR 1995 MP 138.
26
‘Forced labour’ refers to situations where persons are forced to work because The Scheduled Castes and
of the threat of physical force, imprisonment or fine, or even due to hunger and Rules, 1995
or poverty. The term is used even though remuneration is paid for the work
done but is below the prescribed minimum wages.
Illustration: In a case, R had been working in S’s house for 25 years for a
payment of Rs. 1500 per year and 12 bales of paddy. R was not given holidays
and was forcibly made to work even if he was unwell. R was a landless
labourer and a member of the SC community. Unable to bear the ill-treatment
anymore, R filed a case against S under Section 3 (1) (vi). The Court upheld
his complaint.
9) Atrocities by public servants – Any public servant who commits an offence
under Section 3 will be punishable with imprisonment for a minimum term
of one year which may extend up to the punishment provided for that offence.
However, the courts cannot take cognizance of any offence by public servants
without the prior sanction of the central or State Governments.
Illustration: A and B, who were the Tahsildar and Executive Officer of a
Notified Area Council of the Orissa Administrative Service Class, were
charged with the offence of abusing X and Y during the demolition of
unauthorised constructions under Section 3 (1) (x). The High Court held
that the A and B had acted in excess of their official duties. However, since
they were public servants on official duty, they were entitled to the protection
under Section 197 of the CrPC which requires the prior sanction of the central
or State Government as the case may be. The High Court found that the State
Government had not given any permission for the court to initiate prosecution
against the officials. As a result, no case could proceed against them.
11.3.2 Requirement of Mens Rea

There is a presumption that mens rea is a necessary ingredient of a statutory
criminal offence, unless the statute expressly or by necessary implication excludes
mens rea. The presumption may be rebutted by the statute that creates the offence
or by the subject matter with which the statute deals.
Mens rea is a necessary ingredient of offences of atrocities under the POAA.
Common minimum mens rea under the POAA is knowledge on the part of the
accused that the person, against whom the offence is committed, is a member of
the SC/ST community. The words indicating “knowledge and intention” will
have to be imputed from the offences detailed under S. 3. For instance, S. 3 (1)
(x) requires that the complainant prove that the accused knew that s/he was a
member of the SC/ST community, and that the accused intended to insult the
complainant on the ground of caste.
Activity 1
List 5 atrocities that have been committed against members of SC/ST
communities that have been reported in the newspapers.
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27
Dalits and the Law 11.3.3 Presumption as to Offences
Section 8 States as follows:
a) During the prosecution for an offence under the POAA, if it is proved that a
person rendered any financial assistance to a person accused of committing
an offence under the Act, the Special Court shall presume that such person
had abetted the offence. The burden of proving that there was no abetment
will be on the person accused of having abetted such offence.
b) During the prosecution for an offence under this Act, if the offence has been
committed by a group of people and if it is proved that the offence was a
sequel to any dispute regarding land or any other matter, it will be presumed
that the offence was committed in furtherance of a common intention.
1) M who does not belong to the SC/ST community abused N who belonged
to the ST community. The incident took place in M’s house around
midnight. Can an offence be made out against M?
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2) X, with the intention of harassing Y, a member of the SC community, files
a suit against him alleging that he had borrowed money from him but had
not repaid even after the specified time for repayment had lapsed. Y files
a counter complaint against X under Section 3 (1) (viii).
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3) D and E were neighbours who used to often quarrel with each other about
the boundaries of their land. D was a member of the SC community
whereas E belonged to an upper caste community. One day, the quarrel
between them turned nasty and D and E started physically beating the
other. Filthy abuses were exchanged. E then referred to D’s caste. D filed
a case against E under Section 3 (1) (x) of the POAA. E approaches you
for legal advice.
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28
The Scheduled Castes and
11.4 STAGES OF A CASE Scheduled Tribes Act, 1989
and Rules, 1995
1) Complaint to Police – When a complaint or information is given to the
police, Rule 5 (1) of the SC/ST (Prevention of Atrocities) Rules will apply
whereby the information given to the officer in charge of a police station
will be put down in writing, and will be read out to the complainant/
informant. Once the information has been noted down, it has to be signed
by the informant, and the substance of the complaint is to be entered in a
book maintained by the police station. A copy of the recorded complaint
will be given to the informant free of cost.
If the officer at the police station refuses to record the complaint, then Rule
5 (3) of the POAA States that the aggrieved informant can send the substance
of the complaint, in writing, to the Superintendent of Police. The
Superintendent of Police after conducting an investigation should make an
order to the officer who refused to register the complaint directing him to
record the complaint in the book to be maintained by the police station.
Rule 12 (2) says that the Superintendent will have to ensure that the First
Information Report (FIR) is registered in the book of the concerned police
station.
The complainant has another remedy in case of failure of a police officer to
register an offence under the POAA. S/he can file a complaint directly before
a Magistrate under Section 190 (1) (a), CrPC. The Magistrate can either
direct a police investigation under S. 156 or proceed with the case under S.
200, CrPC.
2) Investigation – Rule 7 (1) says that an offence committed under the POAA
is to be investigated by a police officer who is not below the rank of a
Deputy Superintendent of Police. The Deputy Superintendent has to appoint
an Investigating Officer after making a spot investigation. The Investigation
Officer has to complete the investigation within 30 days and submit the
report to the Superintendent of Police who will then submit the report to the
Director-General of Police. The Home Secretary and the Social Welfare
Secretary, the Director of Prosecution and the Director-General of Police
shall review the position of investigations at the end of every three months.
The provisions of Chapter XII of the CrPC relating to investigation, which
are not inconsistent with the provisions of the POAA and the Rules, will
apply to investigation of offences under the Act. Under the CrPC,
investigation consists of the following steps:
i) Proceeding to the spot.
ii) Ascertainment of facts and circumstances of the case.
iii) Discovery and arrest of the suspects.
iv) Gathering evidence relating to the offence such as examination of
persons connected to the commission of the offence, search of places
related to the offence and seizure of items needed to be produced at the
trial.
v) Deciding whether the accused needs to be brought before a Magistrate
for trial and if so, then to take the necessary steps for the same by filing
a charge-sheet. 29
Dalits and the Law After completing the investigation, the police officer files a report under S.
173 (2) of the CrPC. The report is either a charge-sheet or a final (closure)
report. If it is a charge-sheet, then the Magistrate can take cognizance of the
matter under S. 190 (1) of the CrPC and direct issue of process against the
accused. It is important to note that the Magistrate cannot issue process
against persons who may have been named as accused persons in the
FIR but who have not been charge-sheeted. However, if a stage under S.
3193 of the CrPC arrives when some evidence would be recorded, the Special
Judge can proceed against those who have not been charge-sheeted, if the
evidence indicates collusion of those persons.
Even if the report is a closure report, the Magistrate can take cognizance of
the case under Section 190 (1) (b) of the CrPC. It is not necessary for the
Magistrate to take cognizance of the offence only if the Investigating Officer
concludes that a case has been made out against the accused. S/he can ignore
the findings of the Officer and independently apply her/his mind to the facts
that emerged from the investigation and take cognizance of the case.
3) Inquiry – Where the Magistrate takes cognizance of a case on the basis of

the complaint itself under Section 190 (1) (a) of the CrPC, and decides to
postpone the issue of process against the accused, he has to conduct an
inquiry under Section 202 of the CrPC. Proviso (a) to Section 202 (1) States
that no investigation by the police can be directed. The Magistrate will have
to call upon the complainant to produce all his/her witnesses and examine
them on oath as the proviso to Section 202 (2) will apply as the offence is
exclusively triable by the court of sessions. The accused will be allowed to
attend the proceedings but he cannot take part in the proceedings. On
examination of the complainant and the witnesses, if the Magistrate
concludes that there is no sufficient ground for proceeding with the matter,
he has to dismiss the complaint and record his reasons for doing so. If he
concludes that there are sufficient grounds for proceeding, then he has to
direct issue of process under Section 204 of the CrPC.
After the accused appears in response to the process issued to him/her, the
Magistrate has to provide him/her with a copy of the police report and other
papers detailed in Section 207, if the case has been instituted on the basis of
a police report. If the case has been instituted on the basis of a complaint,
then the Magistrate has to provide the accused with a copy of the Statements
of all persons examined under Section 200 or Section 202, and copies of
Statements and documents in Section 208. The Magistrate then commits
the case to the Court of Sessions.
In cases under the POAA, offences are usually made out under the IPC as
well. However, the Magistrate is not allowed to split up the case and commit
only a part of it to the Special Court (Court of Sessions). The whole case
has to be committed to the Special Court.
4) Trial – All offences under Section 3 of the POAA are triable as warrant
cases and all offences under Sections 4 and 13 are triable as summons cases.
The Special Court cannot take cognizance of cases as a Court of original
3
Section 319 empowers the Court to proceed against other persons who appear to be guilty of
an offence.
30
jurisdiction. Cases have to be committed to it under Section 193. However, The Scheduled Castes and
in case a Sessions Court has taken cognizance of a case under the POAA and Rules, 1995
without a committal order, the accused has to raise objections to the
procedural irregularity at the earliest stage itself and not during the conclusion
of the proceedings. This is necessary to avoid a repetition of the entire trial
after the committal order is given.
A Special Court receives cases under the POAA as well as connected offences
from the committing Magistrate without any charges. The Special Judge
has to decide whether to discharge the accused or to frame charges. The
Judge will have to record the particulars in the charges keeping in mind the
provisions of Chapter XVII of the CrPC to decide whether charges may be
joined and tried at one trial and whether the offenders may be joined in the
same case.
4) S, a college student, who was a member of the ST community, was
molested by T, a student in the same college, who did not belong to the
SC/ST community. S filed a case under Section 3 (xi) of the POAA. The
police conducted an investigation and filed a charge-sheet before the
Sessions Court in the district. What procedure should be followed by the
Special Court in deciding the case?
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5) M approaches the nearest police station in his place of residence to file a

case against N under Section 3 (1) (x) of the POAA. The police officer in
charge refuses to register the complaint. N approaches you for legal advice.
What advice will you give him?
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11.5 ENFORCEMENT AUTHORITIES

1) Creation of Special Courts – The POAA provides for the establishment of
special courts under Section 14 to try offences under the Act in order to
facilitate the speedy trial of offences. A State Government, with the
concurrence of the Chief Justice of the concerned High Court, should specify
31
Dalits and the Law a Court of Sessions for each district to try offences under this Act. The
designation of Sessions Courts as special courts is in addition to their powers
specified under Section 9 of the CrPC. They do not cease to be Sessions
Courts.
Since the POAA does not enable Special Courts to take cognizance of cases,
the general procedure under the Code of Criminal Procedure has to be
followed. Section 193 of the CrPC says that only a Magistrate of first class
can take cognizance of cases. It should be noted that the Court of Sessions
will not be able to take cognizance of any offence under the POAA unless
the case has been committed to it by the competent Magistrate. The
Judge of the Special Court will have to return the complaint or challan for
presentation before the competent Magistrate.
The Special Court has exclusive jurisdiction in respect of offences under the
Act. No other court can conduct trial of such offences.
2) Appointment of Special Public Prosecutors – Under Section 15, a State

Government shall specify a Special Public Prosecutor or appoint an advocate
who has been in practice for a minimum of seven years, for the purpose of
conducting cases in the special courts. Under Rule 4, the State Government,
on the recommendation of the District Magistrate, has to prepare a panel of
eminent senior advocates (who have been in practice for a minimum of seven
years) for conducting cases in the Special Courts. The State Government
has to also specify a panel of Public Prosecutors for conducting cases in the
Special Courts.
The District Magistrate and the Director of Prosecution have to review the
performance of the Special Public Prosecutors and submit a report to the
State Government at least twice a year. If the State Government feels that a
particular Public Prosecutor has not conducted a case properly with the
necessary care and caution, it can remove him from the post after giving
reasons.
The District Magistrate and the officer in charge of prosecution have to review
the progress of cases registered under the Act and submit a monthly report to
the State Government.
3) Investigating Officer – An offence committed under the Act has to be

investigated by a police officer who is of the rank of a Deputy Superintendent
of Police or higher. Such investigating officer is appointed by the State
Government, the Director-General of Police and the Superintendent of Police
based on his/her past experience and ability to investigate cases on the right
lines and within a short span of time. It is important to note that the
investigation has to be conducted by the authorised police officer, failing
which the whole trial will be vitiated.
4) Scheduled Castes & Scheduled Tribes Protection Cell – The SC/ST

Protection Cell is to be set up by the State Government at the State headquarter
under the charge of the Director-General of Police. The Cell is in charge of
conducting surveys to identify areas that are prone to atrocities under the
Act and to recommend deployment of special police forces in such areas.
32
The Cell has also been entrusted with the responsibility of ascertaining causes The Scheduled Castes and
leading to offences under the Act and to make enquiries about the investigation and Rules, 1995
and spot inspections conducted by various officers. The Cell also has the
function of making enquiries about the wilful negligence by public servants
and to review the progress of cases registered under the Act. The Cell has to
submit a monthly report on about the action taken and proposed to be taken
under the POAA.
5) Nomination of a Nodal Officer – A Nodal Officer (preferably belonging to

the SC/ST community) is to be appointed by the State Government for
coordinating the functioning of the District Magistrates, Superintendents of
Police and other officers responsible for implementing the provisions of the
Act. The Nodal Officer is responsible for assessing the measures adopted
for providing immediate relief in cash or kind, to the victims of atrocities
and for assessing the adequacy of facilities like rationing, clothing, shelter,
legal aid, travelling allowance and transport facilities provided to victims of
atrocities.
6) Appointment of Special Officer (Rule 10) – A Special Officer of the rank

of an Additional District Magistrate or higher, has to be appointed in
‘identified areas’ to coordinate with the District Magistrate, Superintendent
of Police, SC/ST Protection Cell and other officers in charge of implementing
the provisions of the Act. The Special Officer has been entrusted with the
task of providing immediate relief to the victims of atrocities and setting up
awareness centres to educate SC/ST communities about their rights and the
protections available to them under the central and State laws. The Special
Officer is also responsible for coordinating with non-Governmental
organisations and providing them with financial and other assistance.
7) Constitution of State-Level Vigilance and Monitoring Committee (Rule

16) – The State Government has to constitute a high power Vigilance and
Monitoring Committee consisting of a maximum of 25 members consisting
of the Chief Minister, the Home Minister, the Finance Minister, the Welfare
Minister, all members of the Parliament and State Legislative Assembly
belonging to SC/ST communities, the Chief Secretary, Home Secretary and
Director General of Police, and the Secretary in charge of SC/ST welfare.
8) Constitution of District Level Vigilance and Monitoring Committee (Rule

17) – The District Level Vigilance and Monitoring Committee is to be set up
by the District Magistrate in each district to review the implementation of
the provisions of the Act, relief and rehabilitation facilities provided to the
victims, prosecution of cases, role of officers responsible for implementing
the provisions of the Act and the various reports received by the District
Administration. The Committee has to meet at least once in three months.
9) Conferment of powers on officers of the State Government – Section 9

of the POAA empowers the State Government to confer by notification in
the official gazette, the powers exercisable by a police officer on any officer
of the State Government, for the prevention and investigation of offences
under the Act.
33
Dalits and the Law
11.6 PUNISHMENT FOR OFFENCES
Punishment for neglect of duties
Section 4 of the POAA punishes the wilful neglect of duties by public servants
who do not belong to the SC/ST community, with a minimum term of
imprisonment of six months up to a maximum of one year. The term ‘duty’
refers to an act which an officer is required to perform under the POAA. The
word ‘wilful’ connotes an act which is done intentionally and which does not
have any lawful excuse.
An offence can be committed only in respect of a duty that an officer is bound to

perform under the Act. Any neglect in the performance of a duty under any
other legislation including the Criminal Procedure Code is not punishable
under the Act.
Illustration: In a case under the POAA, the Investigating Officer forwarded his
report to the Superintendent of Police recommending that the case was of a civil
nature and that the closure report should be made. The closure report was
submitted with the Superintendent’s approval. The Magistrate took cognizance
against the Investigating Officer and the Superintendent for an offence under
Section 4. The High Court did not accept the Magistrate’s view on the ground
that the POAA does not provide any procedure for investigation of cases. By
virtue of Section 4 (2) of the CrPC, offences are required to be investigated,
enquired into, tried or otherwise dealt with according to the provisions of the
CrPC except where the CrPC is superseded by a provision in a Special Act (in
this case the POAA). Hence the submission of the final report was not part of
any duty required to be performed under the POAA.
Enhanced punishment for subsequent conviction

Section 5 of the POAA imposes a higher punishment on a person who has already
been convicted of an offence under the Act and is convicted of another offence
under the same Act. The punishment is a term of imprisonment for a minimum
of one year and can extend up to the punishment provided for that offence.
Forfeiture of property of certain persons

Section 7 empowers the Special Court to forfeit the property (movable or
immovable) of any person convicted under the POAA, in addition to any other
punishment imposed. The Section also gives the Special Court the power to
attach property of a person accused of an offence under the Act during the trial,
and where the trial results in conviction, to forfeit such property.
Power of State Government to impose collective fine

Section 16 refers to Section 10-A of the Protection of Civil Rights Act and says
that it shall apply for the purposes of imposition and realisation of collective
fine.
34
11.7 REHABILITATIVE AND PREVENTIVE Scheduled Tribes Act, 1989
and Rules, 1995
MEASURES TO BE TAKEN BY THE STATE
Relief and Rehabilitation measures to be taken by the District Administration
Under Rule 12 of the SC/ST (POAA) Rules, the Police Officers and Magistrates
have to take certain measures that have been enumerated below:
i) The District Magistrate and Superintendent of Police have to visit the place
where the atrocity was committed to assess the loss of life and damage to
property. They have to prepare a list of the names of the victims, their family
members and their dependants who are entitled to relief.
ii) The Superintendent of Police has to ensure that a First Information Report
is lodged in the concerned police station. He has to appoint an Investigation
Officer, deploy police officers in the area and take such other preventive
steps that he deems necessary.
iii) The District Magistrate, Sub-Divisional Magistrate or any other Executive
Magistrate has to make arrangements to provide immediate relief in cash or
in kind or both to the victims of atrocity, dependants and their family
members. The amount of compensation payable is to be calculated in
accordance with the figures given in the schedules in Annexures I and III.
Immediate relief also includes food, water, clothing, shelter, medical aid,
transport facilities and other items essential for human beings.
iv) It is important to note that the immediate relief provided to the victims
of atrocities is in addition to any other rights to claim compensation
under any other law.
v) The concerned Magistrate has to send a report of the relief and rehabilitation
facilities that were provided to the victims of atrocities. If the Special Court
finds that compensation was not paid or that insufficient compensation was
paid to the victims of atrocities and their dependants, it can order that the
due payment be made.
Precautionary and Preventive measures

i) Externment
Section 10 gives power to the Special Court to order for the removal of a person
from any area included in “Scheduled Areas” or “Tribal Areas” within a stipulated
time. For this, the Special Court has to be satisfied that the person is likely to
commit an offence under the POAA after scrutinising a police report or a
complaint. The externment order should be in writing and cannot exceed a period
of two years.
The Special Court has to communicate to the person to whom the order is to be
issued, the contents of the order along with the grounds on which the order has
been made. Such person can make a representation against the order to the Special
Court within 30 days from the date of the order. The Special Court can revoke or
modify the order based on the representation.
Section 11 says that if the person either fails to obey the externment order or
enters into the specified area before the completion of the period of the externment
35
Dalits and the Law order without the permission of the Special Court, the Special Court can order
for the arrest and removal of such person outside the specified area.
Section 13 imposes punishment on any person who contravenes an externment

order. The punishment is imprisonment up to a term of one year and a fine.
ii) Preventive action to prevent commission of offences under the Act

Section 17 authorises a District Magistrate or Sub-divisional Magistrate or any
other Executive Magistrate or any police officer not below the rank of a Deputy
Superintendent of Police to take preventive action on receiving information about
the likelihood of an offence being committed under the POAA in the area under
their jurisdiction. The authorised officers have to conduct an inquiry after receiving
information about the threat or likelihood of the commission of an offence, in
order to ascertain whether there is sufficient ground for proceeding with preventive
measures. Once the officers are satisfied that there is sufficient ground for
proceeding, they have to declare the area to be an area prone to atrocities, and
take necessary action for maintaining peace, public order and tranquillity.
The provisions of the CrPC, that is, Chapter VII (Sections 106 to 124) dealing
with security for keeping peace and good behaviour, Chapter X dealing with
maintenance of public order and tranquillity (Sections 129 to 148) and Chapter
XI dealing with preventive action of police (Sections 149 to 153) may apply to
Section 17.
Rule 3 of the ST/ST (Prevention of Atrocities) Rules lists various measures that
have to be adopted by a State Government for taking precautions to prevent the
commission of atrocities. Some of the measures are:
Identification of atrocity prone areas.
Ordering the District Magistrate, Superintendent of Police or any other officer
to visit the identified area and review the law and order situation.
Cancellation of the arms licenses of persons who are not members of the
Scheduled Castes, Scheduled Tribes, as well as of their relations, friends
and employees, if it is deemed to be necessary.
Seizure of illegal fire arms and prohibition of the manufacture of fire arms.
Providing arms licenses to members of SC/ST communities if it is deemed

necessary for their safety.
Setting up Vigilance and Monitoring Committees to suggest effective

measures to implement the provisions of the Act.
Setting up awareness centres and organising workshops in identified areas

to educate persons belonging to SC/ST communities about their rights and
the constitutional and legal protections available to them.
Encouraging non-governmental organisations in promoting awareness among

the SCs and STs about their rights by providing them with financial and
other assistance.
Deploying special police forces in identified areas.

36
Reviewing the law and order situation, the functioning of different The Scheduled Castes and
committees, the performance of the Special Public Prosecutors, Investigating and Rules, 1995
Officers and other officers responsible for implementing the provisions of
the Act and the cases registered under it.
iii) Duty of the Government to ensure effective implementation of the Act

Section 21 imposes a duty on a State Government to take measures that are
necessary for the effective implementation of the Act, such as:
Provision of facilities such as legal aid to enable victims of atrocities to get

justice.
Provision of travelling and maintenance expenses to victims of atrocities

and witnesses during the investigation and trial of offences.
Provision of economic and social rehabilitation of victims of rehabilitation.
Appointment of officers for initiating and supervising prosecutions under

the Act.
Setting up committees at various levels to assist the Government in the

formulation and implementation of measures under the Section.
Periodic surveys of the working of the Act to identify methods for better
enforcement.
Identification of areas where SC/ST communities are prone to atrocities and

to adopt measures to ensure their safety.
6) What are the various preventive and precautionary measures that have to
be taken by the State Government to check atrocities against SC/ST
communities?
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11.8 OTHER FEATURES OF THE ACT

Non-applicability of Section 438 of the CrPC
Section 18 of the POAA says that an application for anticipatory bail under Section
438 of the CrPC cannot be made by any person who is accused of committing an
offence under the POAA. A mere accusation either in the FIR or in the Statement
of witnesses is a bar to the grant of anticipatory bail.
However, some courts have said that it is their duty to conduct a judicial scrutiny
to ensure that the provisions of S. 18 are not misused. Hence, they have held that
37
Dalits and the Law an application for anticipatory bail can be entertained if the POAA is not
applicable, which has to be ascertained from the facts of the case from the First
Information Report. The court will have to look at the true nature of the contents
of the charge, and examine whether the ingredients of the offence under the
POAA have been made out or not.4
Non-applicability of Section 360 of the CrPC and of the Probation of

Offenders Act
Section 19 of the POAA States that S. 360 of the CrPC and the provisions of the
Probation of Offenders Act will not be applicable to any person above the age of
18 years who is guilty of having committed an offence under the Act. S. 360 and
the Probation of Offenders Act provide for the release of offenders for their good
conduct after probation or after admonition. The prohibition of the applicability
of these provisions indicates that the seriousness of offences under the SC/ST
(Prevention of Atrocities) Act is far higher.
11.9 COMPARING PCRA AND POAA

The main reasons for the passing the SC/ST (Prevention of Atrocities) Act was
the failure of the Protection of Civil Rights Act to check the growing number of
atrocities that were being committed on the Scheduled Castes & Scheduled Tribes
in the face of the increasing assertion of their rights. Statistics of the SC/ST
Commission reports as well as the annual reports submitted by State Governments
on the working of respective legislations show that the number of cases filed
under the POAA is far higher than those filed under the PCRA. The present
section will compare and contrast the provisions of the two legislations in an
attempt to analyse possible reasons for such a disparity.
Scope of the Acts

The POAA does not define the term ‘atrocity’ but lists out the various acts that
constitute atrocities in Section 3. It includes offences that have not been covered
by either the IPC or the PCRA and which have been committed out of ‘hate’ and
‘caste biases’.
Section 3 offers protection and remedies against a list of atrocities – social,
personal, damage and destruction of properties, malicious prosecution, political
disabilities and economic exploitation.
The PCRA covers religious disabilities, social disabilities and disabilities imposed
on the exercise of rights under the legislation. It has a narrower scope than the
POAA. It also offers protection to persons whose rights are infringed upon because
of their refusal to practice untouchability or because of their association with
persons who are considered ‘untouchable’. It is important to note that the POAA
does not have a corresponding provision and is restricted in its application to
members of SC and ST communities only.
Hard & Soft Crime Models

The PCRA adopts a mild crime model to tackle the practice of untouchability
while the POAA is based on a hard crime model to prevent the commission of
atrocities on SC/ST communities. The features which categorise it as a hard
4
N.B Gungarakoppa v State of Karnataka AIR 2002 Kant 2038.
38
crime model are heavier punishments for offenders. Other strict provisions include The Scheduled Castes and
the denial of anticipatory bail and probation to offenders, cancellation of arms and Rules, 1995
licences of the accused, externment of potential offenders and empowering special
courts to attach and forfeit property.
It provides a stricter punishment for public servants who have committed offences
under the legislation. The POAA also penalises public servants for neglecting
duties that are to be carried out by them.
The PCRA does not contain any provisions penalising officers for neglecting
their duties but only has a provision which punishes public servants for abetting
an offence.
The PCRA contains provisions that impose sanctions on offenders such as Section
8 which cancels/suspends licences of persons who commit offences under Section
6, and like Section 9 which suspends grants to managers or trustees of a public
institution or place of worship who are guilty of offences under the Act.
Compensation
A significant feature of the POAA is its provision on compensation for victims
or their legal heirs. The Rules framed under the legislation mandate the prescribed
authorities to provide immediate relief in cash or in kind. The amount of
compensation payable varies from Rs. 25,000 to Rs. 2,00,000 depending on the
gravity of the atrocity.
The PCRA does not have any provision for paying compensation.
Special Courts/Prosecution Machinery
The POAA provides for the establishment of special courts for the speedy trial
of offences under the Act. It also provides for the appointment of Special Public
Prosecutors to conduct the trial of offences under the Act in the special courts.
There are no such provisions in the PCRA.

‘Public view’ requirement in “insult” cases
An examination of the provisions of the PCRA and POAA will reveal that the
latter requires that an offence be committed in “public view” under Section 3 (1)
(x)5 whereas Section 7 (1) (d) of the PCRA6 does not have any such requirement.
Shift in the burden of proof

Section 12 of the PCRA provides the benefit of a presumption in favour of the
complainant alleging the commission of an offence. The complainant has to
show that s/he is a member of the SC, and that an act constituting an offence
under the PCRA was committed against her/him. The Court will then presume
that the act was committed on the ground of untouchability. The burden of proof
shifts onto the accused to show that the act was not committed on the ground of
untouchability.
There is no such presumption in the POAA.

5
S. 3 (1) (x) of the POAA reads as follows – Whoever, not being a member of a SC or ST, —
intentionally insults of intimidates with intent to humiliate a member of a SC/ST in any place
within public view.
6
S. 7 (1) (d) says that whoever insults or attempts to insult a member of the Scheduled Caste on
the ground of untouchability will be punishable. 39
Dalits and the Law
11.10 REASONS FOR INADEQUATE
IMPLEMENTATION
Though the POAA is a comprehensive legislation on paper, in practice, it has
suffered from improper and inadequate implementation. The major obstacles to
implementation are the primary enforcers of the Act, namely, the police and the
bureaucracy who form the link between the State and society. Some of the reasons
for the inadequate implementation of the POAA are:
Unwillingness of policemen to register cases – Policemen are often

unwilling to register offences under the Act. In most cases, the unwillingness
to register cases is a result of a caste bias. Policemen belonging to the upper
castes are reluctant to file cases against persons belonging to the same caste,
because the offences are non-bailable and carry grave punishments.
Difficulties faced by victims of atrocities – Victims who manage to register

their complaints face immense difficulties in following up their cases. In
many instances, the accused persons are powerful upper caste landlords who
manage to threaten the victim to withdraw the complaint or bribe the officials
to dismiss the case.
Abysmal rates of conviction – Judicial delay is one reason for the low rate
of convictions. In most States, the existing Sessions Courts have been
designated as special courts as a result of which sessions courts’ are
overburdened with loads of cases. As a result, Judges are unable to provide
adequate attention to all the cases. The gap between the time when the case
was registered, and the actual hearing of the case, results in the intimidation
of the witnesses. Witness turn hostile and the accused get acquitted for
unsatisfactory evidence.
Multiplicity of authorities – The POAA and Rules under the Act create
numerous authorities with overlapping functions. They are not accountable
to anybody. As a result, it is very difficult to pin the blame of improper
implementation of the legislation onto any single authority. Yet resources
are spent on creating numerous authorities.
7) What are the reasons for the shortcomings in the implementation of the
POAA?
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40
11.11 SUMMARY Scheduled Tribes Act, 1989
and Rules, 1995
In this unit,
We analysed in detail, the atrocities that are committed against SCs/STs

which are punishable under the SC/ST (Prevention of Atrocities) Act.
We examined the roles of the various authorities that have been set up under
the POAA.
We discussed the relief and rehabilitation measures that have to be provided

to victims of atrocities, as well as the preventive measures that have to be
taken to prevent the commission of atrocities against SC/ST communities.
We analysed the differences between the PCRA and the POAA, and the
reasons for the higher number of cases registered under the POAA.
We examined the reasons for the inadequate implementation of the POAA.

1) Discuss the atrocities that are punishable under the POAA.
2) What is the procedure involved during the investigation and hearing of

offences under the SC/ST (Prevention of Atrocities) Act?
3) Which are the various authorities that have been created under the SC/ST
(Prevention of Atrocities) Act? Discuss their functions.
4) What are the kinds of relief and rehabilitation measures provided to victims
of atrocities? Are they dependant on the outcome of the cases registered
under the POAA? Also discuss the preventive measures that have to be taken
by the State to prevent the commission of atrocities against SC/ST
communities.
5) What are the salient differences between the Protection of Civil Rights Act
and the SC/ST (Prevention of Atrocities) Act? Do you think both legislations
should co-exist in their current form? Give reasons for your answer.

1) No offence can be made out against M as no other witnesses were present.
The ‘public view’ requirement under Section 3 (1) (x) was not satisfied.
2) Y cannot file a counter complaint during the pendency of the case filed by X
against him. He can register the offence only after the suit has been disposed
off as being false.
3) The test to be applied is whether the insult was insult simpliciter, that is,
would it have taken place had the complainant not belonged to the SC
community? The answer in this case is ‘No’ as the enmity between D and E
had existed for a long time. The insult uttered by E was made in the course
of a quarrel and as a result of previous enmity with D. 41
Dalits and the Law 4) The Special Court cannot take cognizance of the case without a Magistrate
committing the case. The Investigating Officer did not follow the correct
procedure. The Special Court will have to direct the officer to file the charge-
sheet before a Magistrate who will then commit the case to the Special Court.
5) Rule 5 (3) of the POAA Rules allows a complainant to approach the

Superintendent of Police with his/her complaint in case of failure of a police
officer to register an FIR. If this does not work, then the complainant can file
a private complaint before the Magistrate under Section 200 of the CrPC.
6) Preventive and precautionary measures that have to be taken by a State

Government include:
Externment/removal of a person from any area included in ‘Scheduled

Areas’ or ‘Tribal Areas’ for a stipulated period, which cannot exceed two
years. For this, the Special Court has to be satisfied that the person is
likely to commit an offence under the POAA after scrutinising a police
report or a complaint.
Once the officers authorised under the POAA are satisfied, after an inquiry,
that there is sufficient ground for taking preventive measures, they have
to declare the area to be an area prone to atrocities, and take necessary
action for maintaining peace, public order and tranquillity. Such action
can be taken as per the provisions in Chapters VII, X and XI of the CrPC.
Rule 3 of the ST/ST (Prevention of Atrocities) Rules lists various measures

that have to be adopted by a State Government for taking precautions to
prevent the commission of atrocities. These include:
o identification of atrocity prone areas;
o ordering the District Magistrate, Superintendent of Police or any other
officer to visit the identified area and review the law and order
situation;
o cancellation of the arms licenses of persons who are not members of
the Scheduled Castes/Scheduled Tribes;
o Seizure of illegal fire arms and prohibition of the manufacture of fire
arms.
7) Some of the reasons for the inadequate implementation of the POAA are:
Unwillingness of policemen to register cases
Difficulties faced by victims of atrocities
Abysmal rates of conviction
Multiplicity of authorities
Terminal Questions
1) Explain the offences according to their nature – offences against person and
reputation, offences against women, offences affecting properties, offences
causing economic exploitation, offences infringing political rights, offences
through malicious litigation, offences by public officials, offences causing
harm and annoyance by giving false information to public servants and courts,
42 and offences affecting access to public places (social disabilities).
2) Discuss the step by step procedures – registration of complaints (FIRs), The Scheduled Castes and
investigation of complaints, charge sheeting of offences, inquiry by and Rules, 1995
Magistrates, trial by courts.
3) Refer to Section 11.5 for the various enforcement authorities under POAA
and their functions.
4) Explain the following points:
Rehabilitation measures:
Assessment of loss to life and damage to property after visiting the scene
of the crime.
Lodging of FIR.
Paying compensation in cash or kind (as immediate relief ) according to
Schedules in Annexures I & II.
Preparing report on relief and rehabilitation measures taken.
Immediate relief does not depend on the outcome of the case. If the Special
Court finds that adequate compensation has not been given, it can order
for due payment to be made.
Preventive measures:
Special Courts can order for the externment of a person who is likely to
commit an offence under the POAA.
Police and other authorities can declare an area as being prone to atrocities
and take necessary preventive action.
Spreading awareness about the POAA.
Encouraging NGOs in their efforts to prevent the commission of atrocities.
Cancelling arms licenses of persons.
Reviewing the functioning of Investigating Officers, Special Public
Prosecutors and various committees established under the POAA.
5) The differences between POAA and PCRA should be discussed on the
following points:
Scope of the Acts.
Hard & Soft Crime Models
Prosecution machinery
Burden of proof.
‘Public view’ requirement.
Provision of compensation.
11.14 REFERENCES AND SUGGESTED READINGS

S.K. Chawla, Commentary on the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (Bhopal: Suvidha Law House Pvt. Ltd.,1st
ed. 2004).
T.R. Naval, Legally combating atrocities on Scheduled Castes and Scheduled
Tribes (New Delhi: Concept Publishing Co., 2004).
43
Dalits and the Law
UNIT 12 THE EMPLOYMENT OF MANUAL
SCAVENGERSAND CONSTRUCTION
OF DRY LATRINES (PROHIBITION)
ACT, 1993
Structure
12.1 Introduction
12.2 Objectives
12.3 What is Manual Scavenging?
12.4 Origins of the Practice of Manual Scavenging
12.5 History of Legislation
12.6 Main Features of the Act
12.7 Authorities under the Act
12.8 Schemes in Operation
12.9 Problems and Challenges
12.10 A Breath of Fresh Air….
12.11 Summary
12.1 INTRODUCTION
Manual scavenging and bonded labour are practices of labour that are usually
suffered by the dalits because of their exclusion from the caste hierarchy. These
practices have been prevalent for a long span of time but were legislated upon
much after the Constitution came into force. Both manual scavengers and bonded
labourers are vulnerable to exploitation because of their low bargaining power
vis-à-vis their employers, and their inability to find alternative sources of
livelihood.
In this unit, we will explain the main provisions of the Employment of Manual
Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (we will
refer to it as ‘the Act’), through examples and case law, and examine the
implementation of the legislation. We will discuss the main provisions of the
Bonded Labour System (Abolition) Act, 1976 in the next unit.
as the texts of the Employment of Manual Scavengers and Construction of Dry
Latrines (Prohibition) Act, 1993 with you, so that you have a ready reference to
the provisions that are being explained.
44
The Employment of Manual
12.2 OBJECTIVES Scavengers and
Construction of Dry
After going through this unit, you should be able to: Latrines (Prohibition) Act,
1983
explain the practice of manual scavenging;
discuss the scope of the legislation prohibiting manual scavenging;
describe the role of the judiciary in interpreting the Act; and
identify the problems faced in the implementation of the Act.
12.3 WHAT IS MANUAL SCAVENGING?

Manual scavenging is the manual removal of human and animal excreta (‘night
soil’) from dry toilets which do not have flushing mechanisms. The excreta are
removed using brooms, small tin plates and baskets that are carried on the head.
The manual scavengers carry the excreta to the place of disposal which is usually
alongside their settlements in the outskirts of the villages, towns and cities.
In India, manual scavenging is carried out by the dalits as they are at the bottom
of the caste hierarchy. The communities that are forced into the occupation of
manual scavenging are Han, Hadi in Bengal; Balmiki, Dhanuk in Uttar Pradesh;
Methar, Bhangi in Assam; Methar in Hyderabad; Paki in coastal Andhra Pradesh;
Thotti in Tamil Nadu and Kerala; Mira, Lalbhegi, Chuhura in Punjab; and Bhangi,
Balmiki, Chuhura in Delhi.
Manual scavengers earn anything between Rs. 20 to Rs. 160 a month. Due to the
nature of their work, they are prone to serious bacterial and viral infections that
affect their skin, eyes, limbs, respiratory and gastrointestinal systems. They are
not given adequate protection such as gloves, scrappers or even footwear. As per
official estimates, there are 7,70,338 manual scavengers in India, 1 whereas
unofficial figures suggest that their number could be as high as12 lakhs, of which
95% are dalits. Reports also suggest that their number has increased in the last
few years.2
Manual scavengers are employed by the railways, municipal corporations and

other government organisations. Some of them are also employed by private
individuals and organisations. Many manual scavengers work in the informal
sector as a result of which they do not have security of tenure, do not get fixed
wages and do not get any help during times of illness or incapacity, though the
illnesses are often a result of the nature of the work carried out by them without
any protective gear.
A big obstacle to the eradication of manual scavenging is the employment of

manual scavengers by the Indian Railways. Their services are indispensable as
the trains have ‘open discharge’ systems and stations do not have concretised
platforms that would allow waste to be washed away with jets of water. The
justification offered by the Railways for its practice is that it does not have the
money to adopt a better system. Yet, the railway budgets do not make any provision
1
Ashok Bharti, ‘Stuck in a Hole’, Counter Currents, February 2008. <http://
www.countercurrents.org/bharti110208.htm>
2
V. Venkatesan, ‘A case for human dignity’, Frontline, Volume 22, 04-17 June, 2005. <http:/
/www.hinduonnet.com/fline/fl2212/stories/20050617004311400.htm> 45
Dalits and the Law for eradicating manual scavenging. It now claims that a proposal to install sealed
latrines is ‘under consideration’ and that it will try out different technologies
such as biological/vacuum/filtration. However, it has not set any deadline to do
so as a result of which it continues to employ manual scavengers.
12.4 ORIGINS OF THE PRACTICE OF MANUAL

SCAVENGING
The origins of the practice of manual scavenging can be traced back to the caste
system. The first three varnas, the Brahmins (priests), Kshatriyas (warriors) and
the Vaishyas (traders) were considered dvijas (twice born) and the Shudras
(artisans, peasants, labourers) were considered the lowest caste. There was yet
another group of people called the panchamas or atisudras (untouchables), who
did not find a place in the caste system at all. The untouchables were made to
perform the menial chores of cleaning the villages. The Naradasamhita and the
Vajasaneyisamhita cite the disposal of human excreta as one of the fifteen duties
of the slaves.3
Tasks such as picking up night soil, leather work, removing dead cattle and other
lowly jobs were considered inferior because of the nature of the work. The people
who performed these jobs were also considered inferior. Such tasks were supposed
to be done by communities that were at the bottom of the caste hierarchy. These
communities were considered impure, were segregated from the other higher
castes and came to be considered as ‘untouchables’. The word asprsya, meaning
untouchable, was used for the first time in Visnusmriti. The Visnusmriti prescribed
the death penalty for any member of the untouchable castes who deliberately
touched members belonging to the upper castes. The upper castes were forbidden
from dining with the lower castes and there was a taboo on inter-caste marriage.
The upper castes were prohibited from performing forms of labour usually
performed by the untouchables, as they would lead to impurity of one form or
the other.
1) What is manual scavenging? Why has the practice persisted for so many
years?
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12.5 HISTORY OF LEGISLATION

In 1949, the Government of India wrote to all the State Governments directing
them to implement the recommendations of the Report of the Scavengers’ Living
Conditions Enquiry Committee. This committee was set up by the Backward
46
Classes Board of the government of Bombay and was headed by B.N. Barve.4 The Employment of Manual
Scavengers and
The State Governments did not take the required action. In 1957, the Ministry of Construction of Dry
Home Affairs (MHA) set up a committee headed by Prof. N.R. Malkani to prepare Latrines (Prohibition) Act,
a scheme to put an end to the degrading practice of manual scavenging. This 1983
committee submitted its recommendations and suggested that the central and
State Governments draw up a phased programme for implementing the various
recommendations in a systematic manner in the Third Plan. The scheme did not
lead to the abolition or decrease in the practice of manual scavenging due to the
Jagirdari system (Customary rights for Scavenging) in various cities, inadequate
organisational and financial resources of urban local bodies and the failure of
the State Governments to get the action programme adopted by all the local
bodies.
In 1965, the government appointed a new committee (again headed by Prof.

Malkani) to examine the issue of abolition of customary rights of manual
scavengers. The committee recommended the abolition of the customary rights
structure under which non-municipalised cleaning of private latrines was passed
on from generation to generation of scavengers in the form of a hereditary right.
There was no response from the State Governments.
In 1968-69, the National Commission on Labour recommended that a

comprehensive legislation be enacted for regulating the working, service and
living conditions of scavengers. During 1969, the Gandhi Centenary Year, a
programme for converting dry latrines into water-borne flush latrines was
undertaken. A similar programme was undertaken during the Fifth Five Year
Plan. However, it did not get implemented and was not included in the Sixth
Plan. In 1980, the Ministry of Home Affairs launched a scheme for the
rehabilitation of manual scavengers and for the conversion of dry latrines into
sanitary latrines. The scheme became part of the Centrally Sponsored Scheme
under the Protection of Civil Rights Act (Section 15-A). However, the focus was
only on urban areas and the scheme was dependent on grants being provided by
the State Governments as well. In 1985, the scheme was transferred from the
Home Ministry to the Ministry of Social Justice & Empowerment. In 1991, the
Planning Commission reviewed the scheme and decided to bifurcate it. The
Ministries of Urban and Rural Development were in charge of conversion of dry
latrines, and the Ministry of Social Justice was in charge of rehabilitating the
manual scavengers. In 1992, the Ministry of Social Justice introduced the National
Scheme for Liberation and Rehabilitation of Scavengers (NSLRS). Huge funds
were even allocated for the scheme. However, only a small number of scavengers
benefited from the scheme.
Finally, in 1993, the government enacted a law abolishing manual scavenging

and prohibiting the construction of dry latrines. The Employment of Manual
Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993
prohibits manual scavenging and the construction of dry latrines. The Statement
of objects and reasons says that though efforts had been made to eliminate the
practice of manual scavenging, the practice continues to exist. When the passing
3
S. Vishwanathan, ‘Exposing an abhorrent practice’, The Hindu, Volume 23, 11-24 February,
2006. http://www.hinduonnet.com/fline/fl2303/stories/20060224000808000.htm
4
47
Dalits and the Law of the Act was in progress, a huge centrally-sponsored programme had been
undertaken in all the States to convert dry latrines into water-seal latrines and to
construct water-seal latrines. Once a State completed the programme, it declared
itself as a ‘manual scavenger free’ State. The Act supplemented the programme
by punishing the construction or maintenance of dry latrines.
The legislators felt that the existing municipal laws were not stringent enough to
eliminate the practice of manual scavenging. However, since the subject matter
‘manual scavenging’ fell under the State List, a central legislation for the whole
of India could not be passed without the State legislatures passing the necessary
resolutions. The States of Goa, Karnataka, Maharashtra, Tripura and West Bengal
have passed the required resolutions.
12.6 MAIN FEATURES OF THE ACT

The Preamble of the Employment of Manual Scavengers and Construction of
Dry Latrines (Prohibition) Act, 1993, States that the Act provides for the
prohibition of the employment of manual scavengers as well as the construction
or continuation of dry latrines, and for the regulation of construction and
maintenance of water-seal latrines.
Section 2 (j) of the Act defines a ‘manual scavenger’ as a person who is engaged
in or employed for manually carrying human excreta.
Section 2 (i) defines a ‘latrine’ as a place that is set apart for defecation together
with the structure comprising such place, the receptacle for collecting human
excreta and any connected fittings and apparatus.
Employing manual scavengers or constructing dry latrines is punishable with
imprisonment for up to one year and/or a fine of Rs. 2,000 (Section 14). Offenders
are also liable to prosecution under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
The Act provides for registration of manual scavengers and their rehabilitation
through opportunities such as alternative employment and financing by the
Housing and Urban Development Corporation Limited for the construction of
water-seal latrines.
The Act makes provision for its proper implementation by the State Governments
through Executive Authorities. It provides for the appointment of proper
inspection staff (Section 9), the constitution of Project Committees for evaluating
schemes for the construction of water-seal latrines, the setting up of Monitoring
Committees for the monitoring of the progress of central schemes, and the
constitution of State Coordination Committees by the State Governments for the
proper coordination of the various schemes under the legislation (Section 13).
Section 6 of the Act empowers the State Governments to make schemes for the
rehabilitation of manual scavengers, for the construction and maintenance of
water-seal latrines and for the conversion of dry latrines into water-seal latrines.
Such schemes can provide for any or all of the following:
Time bound programme for the conversion of dry latrines into water-seal
latrines.
48
Technical or financial assistance for low cost sanitation to local bodies or The Employment of Manual
Scavengers and
other agencies. Construction of Dry
Construction and maintenance of community latrines and regulation of their Latrines (Prohibition) Act,
1983
use on a ‘pay and use’ basis.
Construction and maintenance of shared latrines in slum areas or for the
benefit of socially and economically backward classes.
Registration and rehabilitation of manual scavengers.
Procedure for conversion of dry latrines into water seal latrines.
Licensing for collection of fees in connection with community or shared
latrines.
Jurisdiction of Courts
Only courts of a Metropolitan Magistrate or a Judicial Magistrate of the first
class or higher in hierarchy can try offences under the Act. Prosecution for
offences under the Act can be initiated only by the Executive Authority or
with the prior sanction of the Executive Authority. Hence the court cannot
take cognizance of any offence under the Act unless the complaint has been
made by a person who has been authorised to do so by the Executive Authority
(Section 17). Section 16 of the Act makes all offences under this Act cognizable.
Section 18 imposes a limitation on the time period during which a complaint can
be filed. The complaint has to be made within 3 months from the date on which
the alleged commission of the offence came to the knowledge of the complainant.
2) ABC is an NGO that works to protect dalit rights. It finds that the residents
of an apartment periodically engage persons belonging to the Scheduled
Caste to manually remove human excreta from the drains of the apartment.
ABC files a case against the residents of the apartment. Will the case be
maintainable?
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12.7 AUTHORITIES UNDER THE ACT

Executive authorities
Under Section 5, a State Government can appoint a District Magistrate or a Sub-
Divisional Magistrate as an Executive Authority to exercise jurisdiction within a
specified area. The Executive Authority will be conferred with powers that will
enable him/her to ensure that the provisions of the Act are properly carried out.
S/he has to make all attempts to rehabilitate and promote the welfare of persons
who have been employed as manual scavengers.
49
Dalits and the Law Section 10 requires the Executive Authority to prevent environmental pollution
by taking action under the Act and by directing the owner or occupier of the
premises to take remedial measures within a stipulated time period. If the owner
or occupier does not take remedial action, then the Executive Authority can cause
such action to be taken at the cost of the owner or occupier.
Inspectors
Section 9 empowers a State Government to appoint inspectors and to define the
jurisdiction of their work. The inspector will be subordinate to the Executive
Authority created under Section 5. The inspector has to discharge any functions
that have been entrusted to him/her by the Executive Authority. The inspector
has to assess whether the provisions of the Act, and the rules and schemes made
under the Act have been complied with. The inspector also has to discharge the
function of examining and testing latrines, and of inspecting any buildings where
s/he has reason to believe that an offence under the Act has been or is about to be
committed.
Committees
The Central Government may constitute Project Committees for appraising
schemes for the construction of water-seal latrines in the country. It may also
constitute Monitoring Committees to monitor the progress of such schemes.
12.8 SCHEMES IN OPERATION

After the enactment of the Employment of Manual Scavengers and Construction
of Dry Latrines Prohibition Act, 1993, various schemes were put into action.
Section 11 imposes a duty on HUDCO to provide financial assistance for the
implementation of schemes for the construction of water-seal latrines as may be
made under Section 6. The schemes have been described below:
Integrated Low Cost Sanitation Scheme (ILCSS) – This scheme provides
for the conversion of dry latrines into low cost water borne latrines and
construction of new sanitary latrines. The object of the scheme is to
completely do away with dry latrines so that nobody will be forced to do
manual scavenging for a livelihood.
National Scheme for Liberation and Rehabilitation of Scavengers
(NSLRS) – This scheme rehabilitates persons who were employed as manual
scavengers by putting them in alternate dignified occupations after giving
them necessary training and financial assistance in the form of subsidies and
bank loans. The manual scavengers and their dependents are identified
through a survey after which their aptitude for various trades is ascertained.
They are then given training in identified trades.
Sanitary Marts – The Ministry of Social Justice and Empowerment
introduced the system of Sanitary Marts under the NSLRS. The manual
scavengers are organised into cooperatives and are made to run the marts as
commercial establishments that are capable of sustaining alternative
employment of scavengers. During the course of training, the trainees get a
stipend up to Rs. 500/- per month and a tool kit allowance up to Rs. 2,000-.
For rehabilitation, there is a prescribed financial package for different trades
by which financial assistance up to Rs. 50,000/- can be provided. The Central
50
Government has issued guidelines to all the State Governments to form groups The Employment of Manual
Scavengers and
of manual scavengers (in numbers between 5-25 people) to start production- Construction of Dry
cum-training-cum-service centres for the conversion of dry latrines to water Latrines (Prohibition) Act,
flush ones through the Sanitary Marts. The loans for the marts are to be 1983
provided by the National Safai Karmacharis Finance and Development
Corporation (NSKFDC).
Centrally Sponsored Scheme of Pre-Matric Scholarship for Children of
those engaged in unclean Occupations – The government of India
introduced the sponsored pre-matric scholarship scheme to assist the children
of scavengers, sweepers having traditional links with scavenging, flayers
and tanners, to ensure that they have access to education.
Total Sanitation Campaign – The Total Sanitation Campaign (TSC) was
launched in 1999 by the Ministry of Rural Development. The campaign
sought to provide sanitation facilities in rural areas with a number of objects,
including eradicating the practice of open defecation, abolishing the practice
of manual scavenging and converting dry latrines into flush latrines. The
campaign aims to provide sanitary latrines to all households in rural areas
by 2012.5
New Self Employment Scheme for Manual Scavengers – The government
introduced the Self Employment Scheme for Manual Scavengers (SRMS)
in 2006 as a national priority. Under the scheme, the identified scavengers
are provided with training, loans and subsidies. Banks are to provide credit
at the interest rates prescribed by the scheme. The government has set its
target for rehabilitating manual scavengers as March 2009. The implementing
agencies of the SRMS are the National Scheduled Castes Finance and
Development Corporation (NSCFDC), the National Handicapped
Development and Finance Corporation (NHDFC) and the National Safai
Karamchari Finance and Development Corporation (NSKFDC).
Schemes by the National Safai Karamchari Finance and Development
Corporation (NSKFDC) – The NSKFDC was set up in 1997 with the main
object of promoting the socio-economic empowerment of the manual
scavengers and safai karamcharis by providing them with financial assistance
at lower interest rates for income generating activities, and also to provide
them with technical and professional education. The kind of assistance
provided by the NSKFDC includes term loans, micro-credit finance,
education loans, and training and skill upgradation programmes.
Despite the implementation of these schemes, manual scavenging continues to

be practised. The government of India set a deadline of 31 December 2007 to
eradicate manual scavenging. The date has long passed without the practice of
manual scavenging having been abolished.
12.9 PROBLEMS AND CHALLENGES

Inadequacies in the implementation of welfare schemes for manual
scavengers: The Comptroller and Auditor General (CAG) said that the
National Scheme for Liberation and Rehabilitation of Scavengers (NSLRS)
5
“Eliminate dry latrines for manual scavenging to go: Meira”, The Hindu, June 14, 2008, http:/
/www.thehindu.com/2008/06/14/stories/2008061451021300.htm 51
Dalits and the Law has failed to achieve its objectives even after ten years of implementation
involving investments of more than Rs. 600 crores. The grant given by the
centre to the States had ‘gone, literally, down the latrine’. The CAG report
held the Ministry of Social Justice & Empowerment responsible for delaying
the disbursement of funds to the Scheduled Caste Development Financial
Corporations, and for having ‘hardly any workable monitoring machinery at
the Ministry, State and District levels’. The loan rejection percentages were
high in States. The CAG report said that it was unreasonable to expect a
poor and illiterate scavenger to comply with the rigours of project financing.
Failure to utilise the law: The CAG report said that the main drawback of
the schemes was their failure to employ the law, that is, the Employment of
Manual Scavengers and Construction of Dry Latrines Prohibition Act. One
of the reasons for the non-utilisation of the law could be the procedural
requirement of prior sanction of the Executive Authority for filing a case.
Uncertainty regarding number of manual scavengers: There is uncertainty
regarding the number of manual scavengers as defined in the Act. The proper
identification of manual scavengers is necessary for their rehabilitation and
in order to ascertain the magnitude of the problem.
Inadequate prohibitions in legislation: The Act does not prohibit the
employment of manual scavengers and the construction of dry latrines
directly. The State Governments are required to give a notice of 90 days of
their intention to bring the Act into force in their respective States. Also, the
State can make the Act applicable only if adequate facilities for the use of
water-seal latrines exist, or if it is necessary or expedient to do so for the
protection and improvement of the environment or public health in that area.
As a result of the mildness of the Act, many States have not yet adopted the Act
and many who have adopted the Act have not enforced its provisions to achieve
the intended results.
3) Discuss the reasons for the persistent continuation of the practice of
manual scavenging despite the existence of the Employment of Manual
Scavengers & Construction of Dry Latrines (Prohibition) Act.
..................................................................................................................
..................................................................................................................
..................................................................................................................
..................................................................................................................
..................................................................................................................
12.10 A BREATH OF FRESH AIR….

The Sulabh International Social Service Organisation has been engaged in efforts
to liberate and rehabilitate manual scavengers. The organisation has constructed
several water flush toilets and has provided alternate employment opportunities
(such as embroidery, making pickles and noodles etc.) to persons who had been
52
doing manual scavenging for a living. The UN Department of Economic and The Employment of Manual
Scavengers and
Social Affairs was impressed by the work done by Sulabh International and invited Construction of Dry
it to New York to interact with other NGOs who were engaged in work on Latrines (Prohibition) Act,
sanitation in different countries. Thirty six Indian women who had been 1983
rehabilitated also went to New York, met diplomats from the United Nations
and also walked the ramp with models. The problem of manual scavenging was
brought to the attention of the international forum. Hopefully, the Indian States
will be pressurised to take action to abolish the degrading practice.
The Navsarjan Trust based in Ahmedabad has been working to eradicate the
practice of manual scavenging in Gujarat since 1996. Its activities include filing
cases under the Employment of Manual Scavengers & Construction of Dry
Latrines (Prohibition) Act, putting pressure on the Government to rehabilitate
manual scavengers, working to gain arable land for scavengers through
government programmes, running life insurance programmes for the scavengers
and developing ecological sanitation facilities that eliminate the need for manual
scavenging.
In 2003, a public interest petition was filed by the Safai Karamchari Andolan in
the Supreme Court. It highlighted the fact that the practice of manual scavenging
persists in many States, and particularly in public sectors like the Indian railways.
The petitioners sought the enforcement of fundamental right of persons engaged
in this practice guaranteed under Article 17, read with Articles 14, 19 and 21. It
asked the Supreme Court to issue time-bound directions to the Union of India
and the various States to take effective steps to eliminate the practice of manual
scavenging, and to formulate and implement comprehensive plans for
rehabilitation of all persons employed as manual scavengers.
Most States denied the existence of manual scavengers and said that they had all
been rehabilitated in alternative employment. The Supreme Court admonished
the States but even after that, the States filed affidavits claiming that there were
no dry latrines or manual scavengers in their States. The Delhi Government even
accused Safai Karamchari Andolan of levelling false allegations against the
government without verifying facts.
The Supreme Court got impatient with the dilatory and insensitive responses of
the States and the centre and issued an interim order directing every department
of the central and State Governments to file an affidavit within six months through
a senior officer who would take personal responsibility for verifying the facts. If
the affidavit admitted that manual scavengers were used by a department or
public undertaking, then it should specify a time period with targets for
rehabilitating all manual scavengers.
12.11 SUMMARY
In this unit,
We examined the nature of the inhuman practice of manual scavenging and
the reasons for its persistence.
We analysed the provisions of the Employment of Manual Scavengers &
Construction of Dry Latrines (Prohibition) Act pertaining to the offences
punishable by the legislation, the duties of the State in implementing the
legislation and the schemes for rehabilitation of manual scavengers. 53
Dalits and the Law We discussed the shortcomings of the legislation, and the efforts that have
been made by organisations for the abolition of manual scavenging and the
rehabilitation of manual scavengers.

1) What are the main features of the Employment of Manual Scavengers &
Construction of Dry Latrines (Prohibition) Act?
2) Discuss the shortcomings of the Employment of Manual Scavengers &
Construction of Dry Latrines (Prohibition) Act.
12.13 ANSWERS & HINTS

1) Manual scavenging is the manual removal of human and animal excreta
(‘night soil’) from dry toilets which do not have flushing mechanisms. The
excreta are removed using brooms, small tin plates and baskets that are
carried on the head. The origins of the practice of manual scavenging can be
traced back to the caste system. Manual scavenging is carried out by the
dalits who did not find a place in the caste system at all. These communities
were considered impure, were segregated from the other higher castes and
came to be considered as ‘untouchables’.
2) Yes.
3) The reasons for the persistent continuation of manual scavenging are:
inadequacies in the implementation of welfare schemes for manual
scavengers;
failure to utilise the law;
uncertainty regarding number of manual scavengers;
inadequate prohibitions in legislation.
Terminal Questions
1) The answer should include the following points:
The Act does not directly apply to all the States. States have to pass
resolutions to extend the applicability of the legislation to the State.
Definitions of ‘manual scavenger’ and ‘latrine’. The employment of
manual scavenger and the construction of dry latrines are punishable
with imprisonment and a fine.
The State Governments are empowered to make schemes for the
rehabilitation of manual scavengers and for the construction of water
flush latrines.
Constitution of Executive authorities, Project Committees, Monitoring
Committees, and State Coordination Committees.
Prosecution for offences under the Act can be done only by the Executive
Authority or with his/her prior sanction.
54 The limitation period for filing of complaints is 3 months.
2) The answer should include the following points: The Employment of Manual
Scavengers and
Construction of Dry
Inadequate prohibitions – States are required to make the Act applicable Latrines (Prohibition) Act,
to their region by notification. 1983
Procedural requirement of prior sanction of the Executive Authority

for filing cases under the Act. This reduces the number of cases filed
under the Act.
Unsatisfactory implementation of welfare schemes for scavengers.
Uncertainty regarding the number of manual scavengers.
12.14 REFERENCES AND SUGGESTED

READINGS
V. Venkatesan, ‘A case for human dignity’, Frontline, Volume 22, 04-17 June,
2005. <http://www.hinduonnet.com/fline/fl2212/stories/20050617004311400.
htm>
S. Vishwanathan, ‘Exposing an abhorrent practice’, The Hindu, Volume 23, 11-

24 February, 2006. ht tp://www.hinduonnet.com/fline/fl2303/stories/
20060224000808000.htm
55
Dalits and the Law
UNIT 13 THE BONDED LABOUR SYSTEM
(ABOLITION) ACT, 1976
Structure
13.1 Introduction
13.2 Objectives
13.3 What is Bonded Labour?
13.4 Legislative History
13.5 Salient Features of the Act
13.6 Implementing Authorities
13.7 Offences and Punishments
13.8 Measures taken by the Central and State Governments
13.9 Role of the Supreme Court
13.10 Hurdles in Implementation
13.11 Summary
13.1 INTRODUCTION
Bonded labour is a practice of labour that has been prevalent for long and is
usually suffered by the dalits because of their exclusion from the caste hierarchy.
Like manual scavengers, bonded labourers too are vulnerable to exploitation
because of their low bargaining power vis-à-vis their employers, and their inability
to find alternative sources of livelihood.
In this unit, we will explain the main provisions of the Bonded Labour System
(Abolition) Act, 1976 (we will refer to it as ‘the Act’), through examples and
case law, and examine the implementation of the legislation.
as the text of the Bonded Labour System (Abolition) Act, 1976 with you, so that
you have a ready reference to the provisions that are being explained.
13.2 OBJECTIVES
explain the practice of bonded labour;
discuss the scope of the legislation abolishing bonded labour;
describe the role of the judiciary in interpreting the Act; and
identify the problems faced in the implementation of the Act.
56
The Bonded Labour System
13.3 WHAT IS BONDED LABOUR? (Abolition) Act, 1976
Bonded labour is the system by which a person is compelled, by economic

circumstances, to contract the labour of himself/herself and/or the members of
his/her family to the creditor for a specified or unspecified period. S/he pays off
loans with labour, instead of money or goods. The debtor and even his/her
dependants have to work for the creditor, without reasonable wages, or no wages,
in order to extinguish the debt. Exorbitant rates of interest are charged by the
creditor, as a result of which the amount of the debt keeps increasing. The rate of
interest is compounded, and very often, the interest due, exceeds the principal
amount within a year. Invariably, the debtor is unable to pay off the sum in his/
her lifetime and future generations have to work for the creditor to repay the
loan. In most cases, the creditor pays the bonded labourer a paltry sum of money,
which is below the market rate or the specified minimum wages. The bonded
labourer does not have the freedom to work for anybody else and does not have
the freedom of movement. The practice of bonded labour is highly exploitative
and violates the human rights and dignity of the workers.
The system of bonded labour originated from the uneven social structure that
was characterised by feudal and semi-feudal conditions. It is linked to broader
socio-economic problems of surplus labour, unemployment/underemployment,
unequal distribution of land and assets, low wages, distress migration and social
customs. Small and marginal farmers and rural artisans became landless labourers
and were forced into debt because of insufficient means of livelihood. After
independence, when the zamindari system was abolished, the rent collecting
intermediaries became the land owners by showing themselves as self-cultivating
farmers. This resulted in the eviction of thousands of tenants, who were compelled
to work for landlords who owned the lands.
The practice of bonded labour is directly linked to the caste system. Since the
people at the lowest end of the caste hierarchy do not have access to resources,
they are left to the mercy of the upper caste land owners for employment and
money. Also, since impoverished people do not possess land or any other property,
they are unable to provide any security to credit institutions and cannot borrow
money from them. As a result, they are forced to approach money lenders and
landlords in their villages. There are many instances where the money lenders
exploit the illiteracy of the debtors and fraudulently charge more interest than is
actually due and enter false figures in their records.
The system of bonded labour does not exist only in the occupation of agriculture
but is also prevalent in industries, particularly the plantation, mining, construction
and stone quarrying industries. Women and children are more vulnerable in the
bonded labour system as they are subjected to excessive workloads. They are
also prone to physical and sexual abuse. Sometimes, women are bought and sold
when their employer-creditor transfers the debt to somebody else. The women
are never given a choice when they are bought or sold.1 There are situations of
forced prostitution called the chukri system where women are made to work in a
brothel for a year or more to pay off a supposed debt to the brothel owner for
living expenses.
1
GS, Ajitha, Bonded Labour flourishes in new economy, Women’s Feature Service, http://
www.boloji.com/wfs3/wfs397.htm
57
Dalits and the Law
1) What is the bonded labour system? What are the reasons for its existence?
..............................................................................................................
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13.4 LEGISLATIVE HISTORY

Before the commencement of the Constitution, certain steps were taken towards
abolishing the practice of bonded labour. In 1833, the British Parliament passed
a legislation that abolished slavery. However, the government did not insist on
its implementation because of the resistance by the Princely States. In 1843, the
British Parliament passed the Anti-Slavery Act but it did not cover the problem
of bonded labour.
In 1862, the Indian Penal Code was enacted which included Section 374 that
made buying, selling and or/possessing slaves a punishable offence. The
legislation prohibited unlawful compulsion and taking of a person against his/
her will. In 1930, the International Labour Organisation (ILO) adopted the Forced
Labour Convention. The government of India asked the provincial governments
to give practical effect to the recommendations. Many provinces abolished forced
labour and enacted legislations in furtherance of the same. Though laws were
enacted to regulate bonded labour, no substantial action was taken to eradicate
the practice. As a result, the practice of bonded labour continued to exist.
During the drafting of the Indian Constitution, the framers considered forced
labour to be violative of human dignity and liberty. Article 23 was introduced
which prohibits traffic in human beings and begar and similar forms of labour.
Any contravention of the provision was made an offence punishable by law.
Despite the constitutional prohibitions on forced labour and enactments by the
States to abolish the practice, the system of bonded labour continued to exist and
the measures remained symbolic. During Mrs. Indira Gandhi’s tenure as Prime
Minister, the issue of bonded labour was included in the Twenty-Point Programme.
The fifth point of the Programme said: ‘bonded labour, wherever it exists will be
declared illegal’. In order to implement the fifth point, the Bonded Labour System
(Abolition) Act, 1976 was passed. The Act was enacted with the object of giving
effect to Article 23 of the Constitution.
13.5 SALIENT FEATURES OF THE ACT

Meaning of the terms ‘bonded labour’ and ‘forced labour’
Section 2 (g) defines the ‘bonded labour system’ as a system of forced or partly
forced labour under which a debtor enters/or is presumed to have entered into
an agreement with the creditor whereby he provides his labour to the employer-
creditor, and forfeits his freedom of movement, employment and his right to sell
58
any product of his labour. The debtor enters into this agreement in the following The Bonded Labour System
(Abolition) Act, 1976
cases:
a) He or his ascendants or descendants borrowed money from the creditor and
offers his labour to repay the loan and the interest.
b) He is born into a particular class or community who are bonded labourers.
c) He has to work as a bonded labourer in pursuance of a customary or social
obligation.
The definition also includes the system of forced or partly forced labour under
which a surety for a debtor enters into an agreement with the creditor whereby, if
the debtor failed to repay the debt, the surety would render bonded labour to the
creditor on behalf of the debtor.
Section 2 (f) defines a ‘bonded labourer’ as a labourer who incurs, or is presumed
to have incurred a bonded debt.
It is important to pay attention to the phrase ‘enters or is presumed to have entered

into a debt’ as is used in Sections 2 ( f ) and (g). This means that whenever a
labourer is made to provide forced labour, it is presumed that he is doing so in
consideration of an advance. The definitions in the statute were interpreted
narrowly whereby the bonded labourers were required to show the debtor-creditor
relationship between their employers and them in order to prove the existence of
bonded labour.
The Supreme Court recognised this difficulty and expanded the meaning of the
term ‘bonded labour’ in Bandhua Mukti Morcha v Union of India.2 The court
said, “Whenever it is shown a labourer is made to provide forced labour, the
court would raise a presumption that he is required to do so in consideration of
an advance or other economic consideration received by him and he is therefore
a bonded labourer.”
It is difficult for the bonded labourer to prove that he had taken any advance
from his employer, as the records are either in the custody of the employer or are
absent. Since bonded labour is an offence, employers deny having given any
economic consideration to the labourer. Hence, the presumption shifts the burden
of proving the existence of an economic consideration from the bonded labourer
to the employer.
At this juncture, it is necessary to pay attention to a related section, that is, Section
15. According to this section, whenever a bonded labourer or a Vigilance
Committee claims a debt to be a bonded debt, the burden of proof does not lie on
them but shifts to the employer-creditor to show that the debt was not a bonded
debt.
Section 2 (i) defines ‘nominal wages’ to be the minimum wages fixed by the
government by law, or the wages that are normally paid for the same or similar
labour in the same locality where no minimum wages have been fixed.
When a person provides labour or service to another person for remuneration

which is less than the minimum wage, it is presumed that he is acting under
2
AIR 1984 SC 802. 59
Dalits and the Law some compulsion which drives him to work. The compulsion under which he
acts is of many kinds – physical force, fear of imprisonment or fine, or economic
force (force of hunger or starving children).
In PUDR v Union of India, Justice Bhagwati has explained ‘economic force’ as

follows:
Where a person is suffering from hunger or starvation, when he has no resources

at all to fight disease or to feed his wife and children or even to hide their
nakedness, where utter grinding poverty has broken his back and reduced him to
the State of helplessness and despair and where no employment is available to
alleviate the rigour of his poverty, he would have no choice but to accept any
work that comes his way, even if the remuneration offered to him is less than the
minimum wages.3
Hence, the bonded labour system includes situations where a person provides
labour or service for a consideration that is below the prescribed minimum wages.4
This interpretation emphasises that the debtor-creditor relationship need not be
present in all kinds of bonded labour.
In 1985, an amendment was made to the Bonded Labour System (Abolition) Act
whereby an explanation was added to Section 2 (g) to include migrant workers
and contract workers as defined under the Inter-State Migrant Workmen
(Regulation of Employment & Conditions of Service) Act, 1979 and the Contract
Labour (Regulation & Abolition) Act, 1970 respectively, who were being treated
like bonded labourers.
Rights accruing to persons by virtue of the abolition of bonded labour

Freedom and protection of labourers from bondage – Section 4 abolishes bonded
labour from the date of the commencement of the Act. Every bonded labourer
who was under bondage prior to the commencement of the Act is discharged
from any obligation to provide any labour or service under any kind of bondage.
Section 4 prohibits persons from giving loans to any persons through the system
of bonded labour. It also prohibits persons from compelling any person to provide
bonded labour. Section 5 declares any custom, tradition, contract, agreement or
other instrument which requires any person to do work as bonded labour, as void
and inoperative.
Extinguishment of liability to repay bonded debt (Section 6) – Section 6 (1)

declares that any unpaid debts of persons (whether whole or in part) which was
being repaid through bonded labour till the commencement of the Act, shall be
deemed to be extinguished. Sub-section (2) prohibits the initiation of suits or
proceedings by employers/creditors against persons who were bonded labourers
for the recovery of the bonded debt and interest, while Sub-section (9) dismisses
any pending suits or proceedings against freed bonded labourers for the recovery
of bonded debts.
Sub-sections (4) and (5) restore the possession of movable goods or immovable
property to the bonded labourers, which had been attached and kept in court
3
(1982) 3 SCC 235 at 259.
4
60 Neeraja Chaudhary v State of Madhya Pradesh (1984) 3 SCC 243.
custody or which had been taken over by the employer-creditor for recovery of The Bonded Labour System
the bonded debt. Sub-section (6) allows freed bonded labourers to apply to the
prescribed authority for restoration of possession of their property after the lapse
of 30 days from the date of commencement of the Act.
Sub section (10) declares that every bonded labourer who has been arrested for
non-repayment of the bonded debt shall be released from detention.
Property of bonded labourers to be freed from mortgage – Section 7 States that

any property of a bonded labourer that was under mortgage, charge, lien or other
encumbrances for the recovery of bonded debts before the commencement of
the Act, is to be discharged and restored to the bonded labourers. If there is a
delay in restoring the property, then the labourer will be entitled to such mesne
profits as determined by the court (calculable from the date of commencement
of the Act).
Prohibition on eviction of labourers from homestead etc – Section 8 prohibits

the eviction of former bonded labourers from the residential premises that they
had been occupying prior to the commencement of the Act. If the employer-
creditor evicts a freed bonded labourer, then the Executive Magistrate in whose
jurisdiction the premises are situated, has to restore possession of the premises
to the labourer as soon as is possible.
Bar on employer-creditor from accepting payment of extinguished debt – Section

9 (1) prohibits employers-creditors from accepting any payment from freed
bonded labourers towards bonded debts that have been extinguished by the Act.
The section punishes the acceptance of such repayment with imprisonment for a
term that can extend up to 3 years, as well as a fine. The section also directs the
offender to refund the money that he had accepted from the bonded labourer.
2) What are the various entitlements of bonded labourers under the
Bonded Labour System (Abolition) Act?
.............................................................................................................
.............................................................................................................
.............................................................................................................
.............................................................................................................
3) Q paid Rs. 1500, Rs. 2200 and Rs. 3100 as an advance, to a couple to
hire the services of their children (aged above 14 years) to graze his
cattle. The children were given clothes and food. The Deputy
Commissioner rescued the children from Q and filed a case against
him under Section 16 of the Bonded Labour System (Abolition) Act.
Q contended that he had not practised bonded labour. Q approaches
you for legal advice. What advice will you give him?
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61
Dalits and the Law
13.6 IMPLEMENTING AUTHORITIES
District Magistrate – Under Section 10 of the Act, a State Government can
confer the District Magistrate with such powers as are necessary to carry out the
provisions of the Act.
Section 11 specifies the duties that are to be discharged by the District Magistrate.
Such duties include the promotion of welfare of the freed bonded labourers by
ensuring them credit facilities so that they are not forced into situations of forced
labour again. Though the section has been worded in mandatory terms by using
the word ‘shall’, it takes practical considerations into account and says that the
District Magistrates “…shall as far as practicable, try to promote the welfare of
the freed bonded labourers… .”
Section 12 entrusts District Magistrates with the duty of ascertaining whether

bonded labour or any form of forced labour is being practised in their areas of
jurisdiction.
Vigilance Committees – Section 13 provides for the constitution of Vigilance

Committees in each district and sub-division. A State Government has to constitute
such committees by notification in the official gazette. The Committees are to
comprise of a number of members including the District Magistrate or his
nominee, representatives of the SC/ST community, social workers, representatives
of official and non-official agencies and a representative of a financial/credit
institution.
Section 14 enumerates the functions of the Vigilance Committee which are as

follows:
i) to ensure the economic and social rehabilitation of the freed bonded labourers;
ii) to coordinate with rural banks and cooperative societies to extend adequate
credit to freed bonded labourers;
iii) to give advice to the District Magistrates on the action taken to ensure the
implementation of the provisions of the Act;
iv) to keep track of the offences which have been registered under the Act and
to conduct surveys to ascertain whether there are any offences for which
cognizance should be taken; and
v) to defend any suit that has been instituted against a freed bonded labourer
for the recovery of the bonded debt. The Committee may authorise any of
its members to defend the suit and such person shall be the authorised agent
of the freed bonded labourer.
The Vigilance Committee is empowered to assist bonded labourers in making

Statements to the police about their conditions of bondage.5
Executive Magistrate – Section 21 confers powers of a Judicial Magistrate on

an Executive Magistrate for the trial of offences under the Act. Such Executive
Magistrate shall be deemed to be a Judicial Magistrate.
5
Govind Shanwar Chatal v Dattatraya Waman Bhanushali 1992 Cri LJ 1228 (MANU/MH/
62 0158/1991).
The Bonded Labour System
Self-assessment Questions (Abolition) Act, 1976
4) P, a bonded labourer, files a case against Q, his employer, for keeping
him in bondage and not paying him any wages. The police conduct an
investigation and file a charge-sheet before the Executive Magistrate of
the District. The Executive Magistrate hears the matter and decides in
favour of the bonded labourer. On appeal, Q contends that the order was
bad in law as the Executive Magistrate was not empowered to try the
case. What is the true position of law?
..................................................................................................................
..................................................................................................................
..................................................................................................................
..................................................................................................................
..................................................................................................................
5) W, a member of the Vigilance Committee that had been constituted in

Thane District, Maharashtra, visited a village in the district to examine
whether bonded labour was being practised. X, a bonded labourer,
complained to W about his employer Y, who had kept him in debt bondage
for 13 years. X was getting a paltry sum for his labour. W prepared a
Statement with X’s complaint, signed by X and countersigned by W. The
complaint was filed with the District Magistrate. The police commenced
the investigation and registered a case against Y under Section 16 of the
Bonded Labour System (Abolition) Act. The charge-sheet was filed before
the Executive Magistrate who had been conferred with the powers of a
Judicial Magistrate. The Executive Magistrate held that W was not
empowered to record X’s Statement under the CrPC. X approaches you
for legal advice. What advice will you give him?
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..................................................................................................................
..................................................................................................................
13.7 OFFENCES AND PUNISHMENTS

Enforcement of bonded labour – Any person who compels anybody to render
bonded labour will be punished with imprisonment for a term that can extend up
to three years, and a fine which may extend up to Rs. 2000 (Section 16). The
punishment is the same for any person who advances a bonded debt (Section 17).
Extracting bonded labour – Any person who enforces any custom, tradition,
contract, agreement or other instrument to extract bonded labour from a person,
or from a member of his family, is punishable with imprisonment for up to three
years, and a fine up to Rs. 2000. Out of the fine paid by the offender, the bonded
labourer will be paid Rs. 5 per day for the labour extracted from him. 63
Dalits and the Law Failure to restore possession of property to freed bonded labourers – Section
19 says that if a person, who is required to restore possession of any property to
a freed bonded labourer, fails to do so within a period of 30 days from the
commencement of the Act, he shall be punishable with imprisonment for a term
of up to one year, and/or with a fine up to Rs. 1000. Out of the fine paid by the
offender, the bonded labourer will be paid Rs. 5 per day for the labour extracted
from him.
Abetment of an offence – According to Section 20, abetment of an offence

under the Act will be punished with the same punishment provided for the offence,
even if the offence was not committed.
13.8 MEASURES TAKEN BY THE CENTRAL AND

STATE GOVERNMENTS
The Ministry of Labour launched the Centrally Sponsored Scheme for the
rehabilitation of bonded labourers in 1978. Under the scheme, the State
Governments are provided financial assistance of a matching grant on a 50:50
basis. The funds for the scheme are sanctioned under the Five Year Plans. Once
the bonded labourers are identified, they are provided with a small sum as
immediate relief, after which they are given a rehabilitation grant. The
rehabilitation scheme is also integrated with other poverty alleviation
programmes. The District Collector is in charge of executing the Scheme.
The Union Ministry of Labour issued guidelines to all the States to formulate
rehabilitation schemes on a matching grant basis. Rehabilitation has the following
features:
It is not enough to provide physical and economic rehabilitation.
Psychological rehabilitation must be provided as well.
Physical and economic rehabilitation has 15 components including allotment
of house-sites and agricultural land, land development, provision of low-
cost dwelling units, provision of credit, training for acquiring new skills,
promoting traditional arts and crafts, provision of wage employment and
enforcement of minimum wages, medical care, supply of essential
commodities and education for the children of freed bonded labourers.
Integration of central and State schemes for better rehabilitation of freed
bonded labourers. This is necessary to avoid duplication of schemes and to
ensure that the funds are properly channelised for the various components
of rehabilitation schemes.
During the preparation of the schemes for rehabilitation, the bonded labourers
must be given the choice to opt for particular programmes so that the schemes
meet all the requirements of the freed bonded labourers thus ensuring that
they are not forced into bondage again.
13.9 ROLE OF THE SUPREME COURT

The judiciary has played a significant role in interpreting the provisions of the
Bonded Labour System (Abolition) Act. Judicial decisions have a vital impact
on the formulation and implementation of national policies. The Supreme Court
64
has given an impetus to the implementation of the Bonded Labour System The Bonded Labour System
(Abolition) Act in the following ways:
Public Interest Litigation – The Supreme Court encouraged public interest

litigation in the 1980s. It relaxed the rule of locus standi, whereby institution of
cases was not restricted only to the aggrieved parties but could also be done by
socially concerned individuals or groups. In Bandhua Mukti Morcha, Justice
Bhagwati held that a letter to any judge of the Supreme Court could be treated as
a writ petition under Article 32. The process of approaching the court was thus
simplified.
Appointment of Commissions by the Court – In the Bandhua Mukti Morcha

case, the court appointed investigative commissions to gather relevant information
for the enforcement of fundamental rights of disadvantaged persons. The
appointment of fact finding bodies enables the court to get proof of the exact
facts and conditions instead of relying only on the evidence and arguments led
by lawyers.
Relief and rehabilitation of freed bonded labourers – In the case of Neeraja

Chaudhary v State of Madhya Pradesh,6 where a group of bonded quarry workers
filed a writ before the Supreme Court, the court held that Articles 23 and 24
required that the bonded labourers be identified, released and suitably
rehabilitated. Any failure on the part of the State Government to implement the
provisions of the BLSA would violate Articles 21 and 23 of the Constitution.
Issuing and Monitoring of directions – The Supreme Court periodically

monitors the implementation of the directions issued by it in order to ensure
compliance. It has entrusted the monitoring function to vigilance bodies which
often comprise social action groups. In the Bandhua Mukti Morcha case, the
Court issued a set of 21 directions for the effective implementation of the social
and labour welfare legislations applicable to stone quarries.
Recognition of voluntary organisations – The Supreme Court has recognised

the importance of the role of voluntary organisations in the process of
identification and release of bonded labourers. It voiced its disappointment with
the official machinery and emphasised on the need to involve voluntary and
activist groups for the identification and rehabilitation of bonded labourers. It
ordered the States to create a conducive environment for such organisations.
6) Do you think the Supreme Court has strengthened the provisions of the
Bonded Labour System (Abolition) Act? Give reasons.
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
6
(1984) 3 SCC 243. 65
Dalits and the Law
13.10 HURDLES IN IMPLEMENTATION
Constitution of very few vigilance committees – Though Vigilance Committees
have to be constituted in districts and sub-divisions, very few have actually been
constituted, of which many are not operative.
Improper rehabilitation of freed bonded labourers – Many of the freed bonded

labourers are not rehabilitated as a result of which they are forced back into
bondage due to the lack of any other alternate employment.
The Bonded Labour System (Abolition) Act does not specify the kind of
rehabilitation measures that have to be provided to the freed bonded labourers.
The implementation of the legislation has been left to the concerned government.
Though many bonded labourers have said that they want land based rehabilitation
along with a pair of bullocks and agricultural implements so that they can practise
agriculture, they have not been provided with the same.
Improper implementation of the Act – Freed workers are often not provided
with any interim relief. They are not given identity cards with their photographs.
Offenders like the employers and contractors are not prosecuted under the Act.
The explanation given by the officers for the non-initiation of prosecution against
the offenders under the Act is that the employers and contractors do not resist the
release of the bonded labourers.
Corruption – There have been instances of faked bonded labour releases and
fraudulent rehabilitation measures, an example being in the stone quarries in
Rangareddy District in Andhra Pradesh. There was a racket where well to do
farmers and others were made out to be bonded labourers in an attempt to
fraudulently get money for rehabilitation from the State. The subsistence
allowances that are to be paid to the bonded labourers are stolen by corrupt
officials.
13.11 SUMMARY
In this unit,
We examined the nature of the phenomenon of bonded labour and the reasons
for its existence.
We analysed the provisions of the Bonded Labour System Abolition Act
with respect to the entitlements of freed bonded labourers, relief and
rehabilitation provided to them, authorities created for the enforcement of
the legislation, and the offences punishable by the Act.
We discussed the role of the Supreme Court in interpreting and implementing
the provisions of the Act.
We analysed the reasons for the improper implementation of the Act.

1) Discuss the important provisions of the BLSA.
66
2) The Bonded Labour System (Abolition) Act was enacted to eradicate a The Bonded Labour System
persistent practice of bondage that has been prevalent for a long time. Yet
the practice continues to exist in many places. Why has the legislation
remained a paper tiger?

1) Bonded labour is the system by which a person is compelled, by economic
circumstances, to contract the labour of himself/herself and/or the members
of his/her family to the creditor for a specified or unspecified period. S/he
pays off loans with labour and the debtor and his/her dependants have to
work for the creditor, without reasonable wages, or no wages, in order to
extinguish the debt. The practice of bonded labour is directly linked to the
caste system. Since the people at the lowest end of the caste hierarchy do not
have access to resources, they are left to the mercy of the upper caste land
owners for employment and money. It is also linked to broader socio-
economic problems of surplus labour, unemployment/underemployment,
unequal distribution of land and assets, low wages, distress migration and
social customs. Since impoverished people do not possess land or any other
property, they are unable to provide any security to credit institutions and
cannot borrow money from them. As a result, they are forced to approach
money lenders and landlords in their villages.
2) The various entitlements of bonded labourers under the Act are:

freedom and protection from bondage;
extinguishment of liability to repay bonded debt;
property of bonded labourers shall be freed from mortgage;
prohibition on eviction of labourers from homestead;
employer-creditor is prohibited from accepting payment of extinguished
debt.
3) Q is not guilty of practising bonded labour. The money offered to the parents
of the children hired by him was in the nature of wages for the services
rendered by him. The wages were paid as a lump sum in advance. Q had not
charged any interest on the amount. There is no debtor-creditor relationship
between Q and the parents. Though engaging child labour is an offence, it
should be tackled under the appropriate legislation. The provisions of the
Bonded Labour System (Abolition) will not apply.
4) Section 21 confers powers of a Judicial Magistrate on an Executive Magistrate
for the trial of offences under the Act. Such Executive Magistrate shall be
deemed to be a Judicial Magistrate.
5) A member of the Vigilance Committee is empowered to forward a Statement
of a bonded labourer to the District Magistrate. Section 157 of the CrPC
States that a police officer can undertake an investigation on information
received, or if he has reason to suspect that an offence has been committed.
X’s complaint revealed that there was a cognizable offence. In the present
case, the complaint had been signed by X and counter signed by W, a member
67
Dalits and the Law of the Vigilance Committee. In fact, one of the powers of the Vigilance
Committee is to ascertain whether offences under the Bonded Labour System
(Abolition) Act have been committed, and to take requisite action.
6) The Supreme Court has strengthened the Act by:
allowing public interest litigations on behalf of bonded labourers for

implementation of the Act;
appointing investigative commissions to gather relevant information for

the enforcement of fundamental rights of disadvantaged persons;
directing that the bonded labourers be identified, released and suitably

rehabilitated;
periodically monitoring the implementation of the directions issued by it

in order to ensure compliance through vigilance bodies which often
comprise social action groups;
recognising the importance of the role of voluntary organisations in the

process of identification and release of bonded labourers.
Terminal Questions
1) The answer should include the following points:
Meaning of the term ‘bonded labour’ and ‘forced labour’.
Abolition of bonded and forced labour. Employers of such labourers will

be punishable with imprisonment and a fine.
Rights of bonded labourers – extinguishment of liability to repay bonded

debt, release of mortgaged property, prohibition of eviction of labourers
from place of residence, and ban on employer from accepting bonded
debt.
Presumption in favour of bonded labourers – shift in the burden of proof

onto employer to show that debt was not a bonded debt.
Powers of District and Executive Magistrates, and Vigilance Committees

to enforce the legislation.
Relief and rehabilitation schemes.
2) The answer should include reasons for the inefficacy of the BLSA that pertain
to its implementation – constitution of few Vigilance Committees, improper
rehabilitation, corruption in releasing and rehabilitating labourers, and non-
initiation of prosecution against offenders.
13.14 REFERENCES AND SUGGESTED READINGS

Y.R. Haragopal Reddy, Bonded Labour System in India (New Delhi: Deep &
Deep Publications).
S.K. Singh, Bonded Labour and the Law (New Delhi: Deep & Deep Publications,
68 1994).

BLE-003 Law and Vulnerable Groups

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BLE-003 Law and Vulnerable Groups

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Indira Gandhi

National Open University BLE-003

Prof. M. R. K. Prasad Ms. Gurmeet Kaur

Block Preparation Team

Despite the PCRA, SC/ST communities continued to be victims of atrocities.

10.3 LEGISLATIVE HISTORY

Exclusion based on sectional differences

Whether applicable to Other Backward Classes, persons not belonging to

“It is evident by reference to Section 15 of the Untouchability (Offences) Act,

Whether applicable to persons who have converted to Buddhism or any other

2) During a palanquin procession, Y insulted Z and other members of his

10.5 CLASSIFICATION OF DISABILITIES

preventing any person from worshiping/offering prayers or bathing in a sacred

Illustration: In a case in Karnataka, the Deputy Superintendent of Police had

Refusal to admit persons to hospitals etc

Refusal to sell goods or render services

Illustration: In Laxman Jayaram v State of Maharashtra,8 the accused, who was

Where Unlawful Compulsory Labour is deemed to be a practice of untouchability

5) The upper caste inhabitants of a village boycott the members of the SC

Justice Ramaswamy’s concern was that it is difficult for the victims of

This section provides a special rule of evidence. Very often, it is difficult to

Resumption or suspension of grants made by the government

Power of State Government to impose collective fine

10.8 OTHER REQUIREMENTS

Prior sanction of government needed for prosecution of public servants

10.9 INSTITUTIONAL WEAKNESSES

Non-consideration of police report by Magistrate

In a case,12 the accused-petitioner refused to accept water from the non-petitioner

10.11 TERMINAL QUESTIONS

10.13 REFERENCES AND SUGGESTED

R.K. Kshirsagar, Untouchability in India: Implementation of the law & its

Oliver Mendelson and Marika Vicziany, The Untouchables: Subordination,

11.3 OFFENCES UNDER THE ACT

11.3.1 Classification of Offences

Illustration: The accused allegedly called the complainant ‘pulaya nadi’.

Illustration: T, a young lady belonging to the Scheduled Tribe community,

ii) Denial of use to SC/ST communities of water of any spring, reservoir,

The punishment for committing offences of social disability is imprisonment

4) Atrocities affecting properties – The kind of offences that affect the

a) Dumping excreta, waste matter, carcasses, obnoxious substances in the

b) Wrongful occupation of land belonging to members of the SC/ST

c) Wrongful dispossession of SC/ST members from land or premises or

d) Forcing or causing a member of a SC/ST to leave his/her house, village

Punishment for these offences is imprisonment for a term which shall

Atrocities that damage properties of SC/ST members by fire or explosive

Atrocities that destroy properties (place of public worship, human

It is important to note that an offence under this clause can be registered

6) Atrocities by giving false information to public servants and courts

b) When false evidence is given in courts with the intention of getting a

c) When a person who is not a member of a SC/ST destroys evidence in

7) Atrocities infringing political rights – If members of SC/ST communities

8) Atrocities causing economic exploitation – If members of SC/ ST

‘Begar’ refers to labour or service demanded by the Government or a person

11.3.2 Requirement of Mens Rea

3) Inquiry – Where the Magistrate takes cognizance of a case on the basis of

5) M approaches the nearest police station in his place of residence to file a

11.5 ENFORCEMENT AUTHORITIES

2) Appointment of Special Public Prosecutors – Under Section 15, a State

3) Investigating Officer – An offence committed under the Act has to be

4) Scheduled Castes & Scheduled Tribes Protection Cell – The SC/ST

5) Nomination of a Nodal Officer – A Nodal Officer (preferably belonging to

6) Appointment of Special Officer (Rule 10) – A Special Officer of the rank

7) Constitution of State-Level Vigilance and Monitoring Committee (Rule