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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.
efforts in that direction. Of course, one cannot over look the effort made by
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
grounds. It seems that all the efforts have virtually failed to protect he interests
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
I. THE PROBLEM
less, throughout the country. This is a fact which needs no corroboration. Our
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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
in law or religion or valid custom of a given society for its prevalance. But the
Constitution of India has not only abolished and forbidden the practice of
the supreme law of the land, i.e. the Constitution has provided for its abolition
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
people regarding its religious sanction. 2 Thus it has lost its religious sanction.
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,
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of positive legality and policy. No custom can be allowed to run counter to a
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
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?
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,
untouchability, as it was the origin of all the problems. Even the caste Hindus
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
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
fronts. The keen study of the Indian history may reveal the fact that
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
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
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
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:
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
the inadequate, ambiguous and defective law itself, or because of both. How
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.
for providing punishment for any offence to define the very offence itself But
nor the Parliament which passed, the Protection of Civil Rights Act, 1955
providing punishment for the offences of untouchability had defined the said of
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
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2. It is necessary to know the nature and scope of the law which has
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
provision as to the ingredient of mens rea in the Act itself? This is an important
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
5. The principle oflaw is, ''Actus nonfacit reum, nisi mens sit rea''.
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4. There is no reference as to untouchables either in the Constitution or
Even the converts to other religions who are not legally Scheduled Castes also
who are the victims of untouchability at present and who should get the benefit
procedural lacuna, if any, with any one of them or with all of them. Further, it
machinery so as to know the role played by the Legislation and the law
increasing trend of crimes gives rise to a doubt whether the offenders are being
pending at the appropriate levels. If they are punished, whether the 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.
levels of the administrative units. The PCR Act, however, provide for special
courts, prosecuting officers, legal aid etc, which may rightly be called as
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
is desired to find out whether or not there is proper co-ordination and co-
and after the Amendment in 1990, it now provides for the National
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
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
desirable to know as to what special measures have been taken for the
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
ID KEY-CONCEPTS
(1) Implementation
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
the Untouchability. 8
9. Ibid
10. Ibid.
11. Ibid.
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g) Any rule, resolution, policy or scheme of the Central as well as
at.removal of untouchability.
untouchables' has been used in the study. Thus, it stands for the members
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.
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
subject, (ii) Reports of the Commissioner for Scheduled Castes and Scheduled
(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
the welfare of Scheduled Castes and Scheduled Tribes, and (viii) several law
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
After collection of relevant data, the tables were prepared with relevant
information at their appropriate places. The chief analytical tools were simple
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of the total population of our country. 13 Thus, it is not the problem of a few
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
Therefore, it is necessary to find out as to why the legal remedy could not be
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
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
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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
been made to explain the meaning, nature and historical development of the
concept ofuntouchability.
These laws are viewed in their real perspective and spirit so as to know the
Chapter III deals with the concept of atrocities, its various aspects and
Chapter IV deals with the analysis of the law for combating atrocities
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.
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.
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