UNTOUCHABILITY

Dr. Ambedkar argued in “Who Were the Untouchables?” that untouchables were defeated tribes or
“Broken Men” who lived outside the villages of the more victorious tribes and, since
they were mostly Buddhist and refused to give-up their religion, they were subjected to
the worst forms of degradation by Brahmans” . He further said that “Untouchablity was born
some time about 400AD.—out of the struggle for supremacy between Buddhism and
Brahmanism which has so completely moulded the history of India and the study of which
is so woefully neglected by students of Indian history.

Practice of untouchability is an offence and anyone doing so is punishable by law. The

Untouchability Offences Act of 1955 which was renamed as the Protection of Civil Rights Act in
1976 provides penalties for preventing a person from entering a place of worship or from taking
water from a tank or well etc. This Article read with Article 39(a) (ii) of the Directive Principles of
State Policy, makes it clear that the untouchability has been abolished and its practice is
forbidden.

The Constitution of India articulates in unequivocal words the eradication of the

Untouchability. Untouchability Offences Act, 1955 which was renamed as the Protection of Civil
Rights Act in 1976 provides penalties for preventing a person from entering a place of worship or
from taking water from a tank or well.
The expression “Civil Right” is defined as “any right accruing to a person by reason of the abolition of
Untouchability on the ground of Untouchability by Article 17 of the Constitution.” One of the major
obstacles in the implementation of the Protection of Civil Rights Act, 1955 is the lack of
statutory definition of the offence of Untouchability. The term Untouchability has neither been defined
in the Constitution or in the Protection of Civil Rights Act, 1955. Under the protection of Civil Rights
Act, 1955 any discrimination on the ground of Untouchability will be considered an offence. It
imposes a duty on public servants to investigate such offence. It provides that if a public servant
wilfully neglects the investigation of any offence punishable under this Act, he shall be deemed
to have abetted an offence under this Act.
Under the Protection of Civil Rights Act, 1955 the offences committed on the ground of
untouchability are punishable either by imprisonment up to six months or by fine up to 500
Rs. or both. A person convicted of the Untouchability is disqualified for contesting the
parliamentary elections or elections to the State legislatures.

The Supreme Court in 1993 in State of Karnataka v. Appa Balu Ingale, held that Untouchability
was
an indirect form of slavery and only an extension of the caste system. The Court observed that
Caste
System and Untouchability has stood together and would fall together. It is absolutely necessary
and
imperative to abolish the caste system as expeditiously as possible for the smooth functioning of the
rule of law and democracy.

The Supreme Court in 1961 in Devarajiah v. Padmanna, held that the purpose of Article 17 was to
end the inhuman practice of treating certain fellow beings as dirty by reason of their birth in certain
Castes. The right under Article 17 is available more against private individuals, than against the
State
since the likelihood of the State promoting or supporting the untouchability is rare and hence in the
view of the Supreme Court it is the Constitutional obligation of the State to take necessary action to
ensure that the said right is not violated.
ARTICLE 17 OF THE INDIAN CONSTITUTION:

Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability
arising out of Untouchability shall be an offence punishable in accordance with law.

Explanation:

Untouchability is neither defined in the Constitution nor in the Act. It refers to a social practice which
looks down upon certain depressed classes solely on account of their birth and makes any
discrimination against them on this ground. Their physical touch was considered to pollute others.
Such castes which were called untouchables were not to draw water from the same wells, or use the
pond/tank which is being used by the higher castes. They were not allowed to enter some temples and
suffered many other disabilities.

Inclusion of this provision in the Constitution shows the importance attached by the Constituent
Assembly towards eradication of this evil practice. Article 17 is also a significant provision from the
point of view of equality before law (Article 14). It guarantees social justice and dignity of man, the
twin privileges which were denied to a vast section of the Indian society for centuries together.
This right is directed against private persons. The nature of untouchability is such that it is not possible
to conceive where the State may practice untouchability.

In People’s Union for Democratic Rights v UOI, the Supreme Court held that whenever a fundamental
right contained in Arts. 17, 23 or 24 was being violated by a private individual, it would be the
constitutional obligation of the State to take necessary steps to interdict such violation and ensure that
such person should respect the right. Merely because the aggrieved person could himself protect or
enforce his invaded fundamental rights, did not absolve the State from its constitutional obligations.

Article 35 read with Article 17 confer on the Parliament power to make laws prescribing punishment
for practicing untouchability. The Parliament enacted the Untouchability (Offences) Act, 1955. In 1976,
it was made more stringent and was renamed ‘The Protection of Civil Rights Act, 1955. It defines ‘Civil
Right’ as ‘any right accruing to a person by reason of the abolition of untouchability by Article 17 of the
Constitution.’ All offences under the Act have been made non-compoundable.

The Act prescribes punishment (1-2 years imprisonment) for preventing any person from entering any
place of public worship or from worshipping or denying access to any shop, public restaurants, hotels
or places of public entertainment or refusing to admit persons to hospitals and refusing to sell goods or
render services to any person. Also, insulting a member of Scheduled Caste on the ground of
untouchability or preaching untouchability or justifying it on historical, philosophical, religious or other
grounds is a crime.
To prevent the commission of offences or atrocities against the members of the Scheduled Castes and
Scheduled Tribes, the Parliament also enacted the ‘Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.’

The Act provides for special courts for the trial of offences under the Act and for the relief and
rehabilitation of the victims of such offences. Atrocities committed against a Hindu SC or ST, who had
converted to another religion, can be prosecuted under the Act, if the victim is still suffering from social
disability.

In State of Karnataka v Appa Balu Ingale, the Supreme Court expressing its concern on the continuance of
the practice of untouchability, held that it was an indirect form of slavery and only extension of caste
system.
Some Landmark Judgments of the Apex Court

Referring to Ranga Iyer’s Bill (in the Bombay Legislative Council), Ambedkar said: “-----. If
Untouchability is a sinful and immoral custom in the view of the Depressed classes it
must be destroyed without any hesitation even if it was acceptable to the majority. This is the
way in which all customs are dealt with by Courts of Law, if they find them to be immoral and
against public policy.

The Courts in India, specially the Supreme Court and the High Courts have generally followed the
above dictum of Dr. Ambedkar. Some of the landmark judgments of the Apex Court produced
below bear testimony to this fact.

1. Venkataramana Devaru vs. State of Mysore, :

It would be an offence if a Hindu excludes to harijan, on the ground of his birth, from his private
temple. In this case Venkatarama Aliyar, J., of the Supreme Court observed thus."
" One of the problems which has been exercising the minds of the Hindu social reformers during the
period preceding the Constitution was the existence in their midst of communities which were
classed as untouchable. A custom which denied to large sections of Hindus the right to use public
roads and
institution to which all the other Hindus has a right of access, purely on grounds of birth could not be
considered reasonable and defended on any sound democratic principle, and efforts were being
made to secure its abolition by legislation. This culminated in the enactment of Article 17.“

2. Basheshar Nath vs. Commissioner of Income Tax Delhi & Rajasthan [²⁴]

In this case, Subba Rao J., observed that "Article 17 illustrates the evil repercussion of the doctrine of
waiver in its impact on the fundamental rights. That article in express terms forbids untouchatiolity;
obviously, a person cannot ask the State to treat him as an untouchable."
Bagpat Case

The Supreme Court on 16 sep 2015 directed the Delhi Police to protect a 23 year old dalit girl and
her family who fled from Bagpat in Utter Pradesh to Delhi after a khap panchayat
condemned her and her younger sister to be raped and paraded naked as punishment for their
brother’s elopement with a married, dominant caste woman. In the third consecutive
hearing, a bench of Justices Chelameshwar and A.M. Sapre showed the highest Judiciary’s
deep concern for the family’s plight and ensured that the protecting arms of the law was
firmly in their support. The girl had moved the court against the khap panchayat’s ire. The
girl’s brother was arrested in May, a day after he and the woman were handed over to the
police. A local court ordered his release on bail, but the family was unable to find anyone to serve
as a guarantor. The S.C. directed his release on a personal bond, and ordered the U.P.
Police to form a team led by a senior officer and investigate the drug charges (for being in illegal
possession of psychotropic substances) against him.