INTRODUCTION

. Untouchability is a unique Hindu social institution which emerged in

the remote past. The so-called untouchables have been suffering the stigma of
untouchability followed by servitude, illiteracy and grinding poverty. Due to its
serious adverse effects on the Indian society in general and the untouchables in
particular, it has been vehemently opposed by many sensible persons including
saints, social reformers and political leaders in the past. Eventually, the
founding fathers of the constitution of India, who visualised a society based on
justice, liberty, equality and fraternity provided inter alia, for the abolition of
untouchability 1 in the Constitution which came into force on 26th January,
1950. It is stated categorically in the constitution under Article 17, that
''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. In consonance with this provision, the
Parliament, empowered under Article 35 of the Constitution has passed ''the
Protection of Civil Rights Act, 1955"; and it has been in implementation since
then.

Besides, some positive efforts have been made to ameliorate the socio-
economic condition of the so-called untouchables. They have been provided
with certain educational facilities under Articles 15(4) and 46, reservations in
the employment under Articles 16(4) and 335 and reservations in the Central
and State Legislatures under Articles 330(1) of the Constitution respectively.
Moreover certain other concessions and facilities are also given by the State
Governments. The planning Commission has been providing for the socio-
economic development of the erstwhile untouchables.

It is pertinent to enquire whether the so-called untouchables were

benefited by all these efforts? So far as the matter of reservations is concerned,

it is regrettable to note that except political sphere, the reservations in the

1. The constituent Assembly unanimously resolved to provide for abolition of untouchability,

on November 29, 1948, (C.A.D Vol. VIII. P.669).
educational and employment spheres remained unfulfilled. Their economic

condition has not marked any significant improvement irrespective of several

efforts in that direction. Of course, one cannot over look the effort made by

the Government in ameliorating the socio-economic condition of the ex-

untouchables, but all the efforts were very insignificant as compared to the

magnitude of the problem. Even the little benefits which they derived out of

the efforts of the Government were also looked upon by the orthodox and

reactionary forces with malice and jealousy. The reports of the Commissioner

for Scheduled Caste and Scheduled Tribe and National Commission for SC and

ST bear testimony to the fact that a number of terrorising atrocities are being

perpetrated on the so called untouchables every year in almost all the parts of

our country, sometime on the ground of untouchability and sometime on other

grounds. It seems that all the efforts have virtually failed to protect he interests

of the so-called untouchables.

Therefore, it requires a thorough investigation periodically into the

implementation of all the laws, policies and programmes of the Government in

respect of the so-called untouchables, which would be useful to the

Government and enlighten the public. Of all the problems of the untouchables,

the present study is obviously confined to and deals with the problems of legal

removal of untouchability in India.

I. THE PROBLEM

Although untouchability is legally abolished, it is prevailing, more or

less, throughout the country. This is a fact which needs no corroboration. Our

Constitution not only abolishes untouchability, but visualises an integrated

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society based on liberty, equality, justice and brotherhood which is a pre-

condition of the success of democratic system. On the other hand the practice

of untouchability which goes directly in contrast with the constitutional ideal,

divides our society into touchable and untouchables.

Of course, any social behaviour requires some authentic sanction either

in law or religion or valid custom of a given society for its prevalance. But the

institution of untouchability is almost without any sanction whatsoever. The

Constitution of India has not only abolished and forbidden the practice of

untouchability, but it has also made it and 'offence' punishable by law.

Accordingly the Parliament has passed "The Protection of Civil-Rights Act,

1955" to prescribe punishment for various offences of untouchability. Thus,

the supreme law of the land, i.e. the Constitution has provided for its abolition

and punishment for its practice in any form.

Previously, it was given to understand that untouchability had religious

sanction. Several saints and social reformers have repeatedly tried to obliterate

this wrong notion or misunderstanding from the minds off Hindu people; but in

vain. Even now also some religious authorities and social reformers are

interpreting the religious texts so as to remove the 'misconceived' belief of the

people regarding its religious sanction. 2 Thus it has lost its religious sanction.

Before the advent of legal abolition of untouchability it was one of the

important social customs of the Hindu society. So far as its customary sanction

is concerned it has lost that too. According to C.K. Allen, "Modem states,

however, entrust their tribunals with a power of adjudging custom by standards

2. Swami Vivekanand, B.G.Tilak, V.D.Savarkar, Swami Chinmayananda, Golwarkar Gwuji

and many others refuted the custom of untouchability and interpreted the religious text so
as to suit the principle of equality and Hindu fraternity.

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of positive legality and policy. No custom can be allowed to run counter to a

fundamental principle of common or statute law. Though it may be an

exception to it, and any custom which though good in its origin, conflicts with
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a rule of law subsequently made, is thereby abrogated." The custom of

untouchability was bad in its "origin" itself, as such it cannot "conflict"

lawfully with the rule of law at all. Then how could there be a standing

customs which has been explicitly struck off by the relevant constitutional and

statutory provisions?

Moreover, the institution of untouchability is neither beneficial to the

untouchables nor to the caste Hindus materially or otherwise. This inhuman

practice of untouchability had deprived them of all the fundamental rights and

reduced them to mere chattels. It was being a 'permanent stain', there was no

chance for upward mobility to the untouchables. All the problems like poverty,

illiteracy and a number of others are incidental to or connected with

untouchability, as it was the origin of all the problems. Even the caste Hindus

also were not benefited by the institution of untouchability. It had divided

Hindu society into two hostile groups: 'touchables and untouchables'. A

considerable number of untouchables converted to Muslim, Sikh, Christianity

and Buddhist religion due to the apathetic and inhumanitarian attitude of the

caste Hindus towards them. This caused a great loss to the strength of the

Hindus. Mahatma Gandhi who realised the danger of untouchability has

rightly said that ''untouchability is a curse that is eating into the vitals of

Hinduism, and I often feel that unless we take due precaution and remove this

3. Allan, C.K, ''Law in the Making'', p. 150 (Oxford University Press, London, 1964, 7'11
Edn.).

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from our midst, Hinduism itself is in danger of destruction." Moreover, it

became an obstacle in the national unity, emotional integration and socio-

economic development. Therefore, our country suffered defeat on all the

fronts. The keen study of the Indian history may reveal the fact that

untouchability became the prime factor on which certain important historical

events were based, which turned the course of our history viz. Rise of British

Empire, Decline of Maratha power in 1818, the War of 1857, etc. It has upset

the 'balance of power' between the religious communities and various

.kingdoms. Thus, in spite of all these disadvantages, the practice of

untouchability is prevailing in our country.

It is, however, expected that the social change may come through law

and law implementing machinery. But on the perusal of the reports of the

Commissioner for Scheduled Castes and Scheduled Tribes which reveal the

increasing number of offences of untouchability and harassments every year, it

is felt that the law of untouchability could not fulfil its expected role of social

change. It could not deter the prospective offenders, nor it could create a

necessary confidence about the legal system in the minds of the ex-

untouchables. Even many people do not know that the law preventing and

punishing the practice ofuntouchability is in existence.

Thus, neither there is any authentic sanction behind the institution of

untouchability, nor it is based on any rational or utilitarian ground. But

paradoxically enough, it is prevailing, more or less, throughout the country

4. Hingorani, Anand T. (Ed), ''My Philosophy of Life by Mahatma Gandhi'', p. 159 (Pearl
Publications Pvt. Lt~, Bombay-I, 1961)

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irrespective of its legal eradication. This naturally gives rise to the problem:

Why the 'practice of untouchability is still prevailing in our country even

though there is positive law, prohibiting and punishing its practice? Why the

relevant law could not fulfil its expected role? Is it because of improper, partial

and defective implementation of the law, or because of the implementation of

the inadequate, ambiguous and defective law itself, or because of both. How

long the untouchables would be treated as 'Persona non-grata' and segregated

by the Hindu Society. Whether there is any substantial and final solution to

this problem?' This is the question which forms the very basis of the present

study.

II. OBJECTIVES OF THE STUDY

The broad objectives of the present study are as under:

1. Generally, it is the responsibility of the Legislature making the law

for providing punishment for any offence to define the very offence itself But

neither the Constituent Assembly, which declared untouchability as an offence,

nor the Parliament which passed, the Protection of Civil Rights Act, 1955

providing punishment for the offences of untouchability had defined the said of

offence. In the absence of clearly defined offence, it is difficult to ascertain

whether or not the offence was committed. However, during the course oftime

some attempts have been made to define the offence of untouchability by the

learned Judges and Scholars, still it needs thorough explanation with all its

ingredient so as to know its true nature. Therefore, it is proposed to define the

concept of untouchability in its real perspective.

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 2. It is necessary to know the nature and scope of the law which has

been in implementation for the abolition of untouchability and the Protection of

Civil Rights accruing to the ex-untouchables by reason of abolition of

"untouchability". Therefore, it is desirable to take stock of the existing law

aimed at the removal of untouchability before proceeding further to inquire into

the implementation of the said law. This may facilitate to know as to what

extent the law implementing machinery has implemented the law in its real

perspective. It is also desirable to inquire whether there are any inadequacies,

ambiguities and defects inherent in the law itself.

3. (a) In almost all the crimes mens rea is an important ingredient

constituting the act punishable by law5, unless it is dispensed with, either

explicitly or impliedly. Untouchability is however, a criminal act punishable

under PCRA. Whether the evidence of mens rea in the offences of

untouchability is relevant one? Whether there is any specific or implied

provision as to the ingredient of mens rea in the Act itself? This is an important

issue which needs reasonable explanation.

(b) In almost all the crimes consent is and important element in

deciding the gravity of the crime6 • Untouchability is a legal crime. Therefore, it

is necessary to find out whether consent has any relevance in the cases of

untouchability? Whether one can freely and legitimately consent to the act or

institution which is detrimental to one's own interests. Whether or not it can be

a good plea in defence in such cases.

5. The principle oflaw is, ''Actus nonfacit reum, nisi mens sit rea''.

6. There is a principle oflaw, "Volenti non fit injurid'.

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 4. There is no reference as to untouchables either in the Constitution or

m the statute, most probably presuming that there could be no more

untouchables after the abolition of untouchability. Although untouchability is

abolished, the so-called untouchables continue to suffer the stigma of

untouchability. Most of them are constitutionally known as Scheduled Castes.

Even the converts to other religions who are not legally Scheduled Castes also

suffer the stigma of untouchability Therefore, it is proposed to identify as to

who are the victims of untouchability at present and who should get the benefit

under the relevant law.

5. Law implementing machinery, obviously, involves the

Administration, Police and Judiciary. Hence it is desired to know the

organisational set up and the process of law implementation at the

Administrative, Police and Judicial levels so as to know the organisational and

procedural lacuna, if any, with any one of them or with all of them. Further, it

is desired to go into the details of the working of the law implementing

machinery so as to know the role played by the Legislation and the law

implementing machinery in the removal ofuntouchability.

6. It is the object of the criminal justice system to apprehend the

criminals by awarding appropriate punishment so as to root out the criminal

attitude in the society; that too as expeditiously as possible. However, the

increasing trend of crimes gives rise to a doubt whether the offenders are being

duly prosecuted and punished or they go unpunished or the matter remains

pending at the appropriate levels. If they are punished, whether the punishment

to which the convict is subjected is equal to the quantum of punishment

provided in the Act? If they are acquitted, what are the causes of acquittal?

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Whether pendenc~ of the cases has any relevance with the decision thereon?

These are certain pertinent questions which find answers in the study.

7. The law of untouchability composing mainly the PCR Act is the

creation of Indian Parliament. However, it is the responsibility of respective

States and Union Territories Government to implement the same. The

enforcement of any law, of course, requires a suitable machinery at all the

levels of the administrative units. The PCR Act, however, provide for special

courts, prosecuting officers, legal aid etc, which may rightly be called as

infrastructure of law. It is proposed to know whether such infrastructure of law

has been created by the State Governments for the efficient and expeditious

implementation of the law; if so, to what extent and what role they have played

in the removal ofuntouchability.

8. The co-ordination of the political will and administrative will is a

pre-condition of the proper implementation of the law concerned. Therefore it

is desired to find out whether or not there is proper co-ordination and co-

operation between the Central Government and the State/Union Territories

Governments so far as the implementation of the law in question is concerned

and if it is so to what extent. Further, it is proposed to find out whether there is

proper co-ordination and co-operation between the administrative, police and

judicial departments so far as implementation of the law of untouchability is

concerned, if so, to what extent.

9. The Constitution had provided for the Commissioner for SC and ST

and after the Amendment in 1990, it now provides for the National

Commission for SC and ST to investigate into all maters relating to the

safeguards provided for the SC and ST under the Constitution and report to the

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President upon the working of these safeguards at such intervals as the

President may direct. It is desirable to know whether the Commissioner for SC

and ST has been performing his expected role under the Constitution? What is

the contribution of his office in the formulation of the policies with special

reference to implementation of the law of untouchability? Further, it is also

desirable to know as to what special measures have been taken for the

evaluation of the policy of eradication of untouchability and what was their

contribution in this respect.

10. It is, however, desired not to find out mere facts, but to suggest

certain remedies in the light of those facts which will be useful in securing

expeditious implementation of the law in question.

ID KEY-CONCEPTS

Unless the context otherwise requires the meaning of certain key

concepts that are referred to in this inquiry would be as under:

(1) Implementation

The Dictionary meaning of "implementation" is ''to put into effect

according to or by means of a definite plan or procedure' .7 So far as

implementation of the law of untouchability is concerned, implementation

means enforcement of all the provisions of the law of untouchability so as to

secure social equality. The implementing machinery includes the

administrative, police and judicial officials. Thus implementation means the

implementation of the law ofuntouchability by the administrative, police and

7. The Random~ Dictionary.

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judicial Departments in accordance with 'a definite plan or procedure'

provided in the law in question.

(2) The Law of Untouchability

There is no specific codified law of untouchability as such. It is very

much in scattered position. Besides, it is not defined anywhere. Therefore, it

is difficult to find out which law is the law of untouchability. However, for the

purpose of the present study it may be said that the law which aimed at or

related to the abolition of untouchability and which is more or less punitive in

nature is the law ofuntouchability. It obviously includes:

a) The Constitution of India: Provisions with special reference to

the Untouchability. 8

b) Legislative measures adopted by various States for the removal

ofuntouchability, before 1955. 9

c) The Protection of Civil Rights Act, 1955. 10

d) The Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities Act, 1989)

e) The relevant provisions under other statutes viz. Indian Penal

Code, 1860; the Code of Criminal Procedure, 1973 and the

Representation of Peoples Act, 1951. 11

f) All the laws made by the State Governments in this respect. 12

8. Discussed in detail tmder Chapter-ill.

9. Ibid

10. Ibid.

11. Ibid.

12. See Appendix "A".

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 g) Any rule, resolution, policy or scheme of the Central as well as

of State Government and Union Territories administrations aimed

at.removal of untouchability.

(3) The Ex-untouchables

In order to identify the victims of untouchability, the word 'ex-

untouchables' has been used in the study. Thus, it stands for the members

belonging to the so called untouchable castes, legally known as Scheduled

Castes, who either belong to Hinduism or Sikhism and Scheduled Castes

'Converts to Buddhism; or Christianity'.

IV SCOPE AND LIMITATIONS

As untouchability is practised, more or less, throughout the country and

the law of its eradication has also nation-wide implications, it is proposed to

inquire into the implementation of the law of untouchability in India as a

whole. This may be called a macro-level study of this problem.

So far as the period pertaining to the present enquiry is concerned, it

starts from the coming into force of the Constitution i.e., from 1950 to the

present day, with special emphasis on the study of the period which begins

from the passage of the Protection of Civil Rights Act, 1955 to the present day.

It being a politico legal study of the problem of untouchability, it has

been strictly dealt with as such. Although it covers _the whole country and the

period up to present day, it has its own limitations. Due to lack of adequate

and up-to-date information, the enquiry confines to certain facts and a certain

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period only.

V. RESEARCH AIDS

The present study is based on the relevant information and secondary

data available in (i) the contributions made by various authorities on the

subject, (ii) Reports of the Commissioner for Scheduled Castes and Scheduled

Tribes, (ii) Report of the Committee on untouchability, Economic and

Educational Development of the Scheduled Caste, headed by L. Elayaperumal

(1969), (iv) Reports of the Commission for Scheduled Castes and Scheduled

Tribes, (v) Reports of the National Commission for SC and ST, (vi) Report of

various State Governments, (vii) Reports of the Parliamentary Committee for

the welfare of Scheduled Castes and Scheduled Tribes, and (viii) several law

reports and journals.

It is also based on the relevant information and data from the surveys

conducted for this purpose and the personal discussions with some important

administrators, police officials and learned judges and advocates, and obtaining

information through questionnaires.

After collection of relevant data, the tables were prepared with relevant

information at their appropriate places. The chief analytical tools were simple

percentages and verbal descriptions.

VI. SIGNlFICANCE OF THE STUDY

Untouchability is a disgrace and disadvantageous to almost all the

Indians, particularly to the ex-untouchables who form approximately one-fifth

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of the total population of our country. 13 Thus, it is not the problem of a few

persons, but of a large humanity.

It is, however, becoming more conspicuous in the manifestation of

various forms of atrocities, often spreading widely throughout a particular

region, rather than mere touch-me-notism. 14 This trend is, of course , very

dangerous to the national unity and integrity. Thus the problem is becoming

more acute, complex and serious causing disharmony in the society.

Undoubtedly, law is an effective instrument of serial change in a given

society, but it has miserably failed in India in accomplishing its object.

Therefore, it is necessary to find out as to why the legal remedy could not be

successful in eradication of the problem of untouchability. "In many cases"

Shishir Kumar, the Ex-commissioner for SC and ST states, "even though all

requirements of the law are met, justice is not done. There is something

lacking in our jurisprudence." 15 What is that 'something" which lacks in our

jurisprudence? Why the present law could not create necessary apprehension in

the minds of the caste Hindus that the enforcement of untouchability would

13. According to 1981 census, the total population of Scheduled Caste was 80,005,398 in the
total population of 683,782,461, fonning 14.60 per cent of the total population. (Hindus
82.72% including 14.60% SC and 6.94% ST, Muslims l 1.20o/o, Christians 2.59% Sikhs
1.89°/o, Buddhist 0. 71 %, Jain 0.48% ). According to 2003 census, SC population was 140
million in India

14. Atrocities committed on Scheduled Castes and Neo-Buddhists in Marathwada region of

Maharastra State in 1978 on the ground of renaming of Marathwada University after the
name of Dr. Babasaheb Ambedkar, and atrocities on Scheduled Castes in Gujarat state in
1981 on the ground of reservations in the educational institutions and employment are the
instances of widespread atrocities.

15. Indian Express, September 13, 1982.

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result in serious legal consequences? Whether the fault lies either in law or in

the modus operandi of the law enforcement agencies? The present study is but

a modest attempt to answer questions in the light of relevant facts.

VII ORGANISATION OF CHAPTERS

The present Research Work is divided into seven chapters.
Chapter I deals with the concept of untouchability. Here an attempt has

been made to explain the meaning, nature and historical development of the

concept ofuntouchability.

Chapter II is devoted to the law aimed at removal of untouchability.

These laws are viewed in their real perspective and spirit so as to know the

inadequacies, defects or ambiguities if any, in these laws.

Chapter III deals with the concept of atrocities, its various aspects and

the causes of atrocities on the so-called untouchables.

Chapter IV deals with the analysis of the law for combating atrocities

on the Scheduled Castes.

Chapter V deals with the working of the law of untouchability at the

administrative level, police level and judicial level. It takes into account their

organisational set-up, their modus operandi and the role played by them in

abolition of untouchability.

Chapter VI gives information regarding the various special measures

which are to be adopted under the laws of untouchability by various states and

union territories in order to protect the rights of SCs arising out of abolition of

untouchability.

Chapter VII contains the observations, conclusions and suggestions in

respect of expeditious implementation of the law in question.

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