Abolition of untouchability: A critical analysis

By Nickkita Shome-

INTRODUCTION: -

Many people think that untouchability prevailed years ago. However, in some parts of India, untouchability still prevails and people are scared of the members of the so-called ‘higher caste’. Even in the United States of America, till the late 19th century, the concept of slavery was followed and practiced. This method was later abolished in 1863 by President Abraham Lincoln by Emancipation Proclamation 13th Amendment which stated that “ All the persons held as slaves are, and henceforth shall be free”. Thus, by this proclamation, slavery was abolished in America.

In the same way, in Indian Constitution, we can observe that the fundamental rights are discussed in Part- III (Article 12-35) and out of which one of them is the Right to Equality which are mentioned in Article 14 to 18. Amongst which Article 17 specially deals with the Abolition of Untouchability. It states 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 the law.”[1]

In our society, the problem of untouchability is prevailing for a long time and also there had been struggles since then. During British rule in India, there had been a lot of movements against untouchability that were led by Mahatma Gandhi, Jyotiba Phule, and B. R. Ambedkar. Gandhiji even quoted “ Untouchability is a sin of Hinduism”. Moreover, while making the Indian Constitution, the constituent assembly, unanimously passed the proposal of abolishing untouchability. Sardar Vallabhai Patel and B. R. Ambedkar mentioned that if we make the abolition of untouchability, a fundamental right and make the practice of untouchability a punishable offence then the practice would automatically come to an end.

In simple words, ‘untouchability’ means to temporarily or permanently discriminate against a person. This can be done due to various reasons such as any communicable disease, caste, religion, gender, etc. It is basically, a product of the caste system. It is very shameful to mention that many rural and urban areas of India still practice untouchability.

Although Article 17 is largely dependent on the word ‘untouchability’, still the word is described neither in the Constitution nor in any Acts. And thus, it did not have any extent or application mentioned anywhere. However, the extent of the term was fixed later with the help of the judiciary. However, in the case of Jai Singh Vs Union of India and the Devarajiah Vs. B.Padmanna Case, it was held that the concept of ‘untouchability’ as mentioned in Article 17 would only be used in a caste-based sense.

To abolish untouchability, Article 17 performs two things –

1. Forbid – It states that untouchability in any form is forbidden.

2. Punished - It states that even after forbidding if anyone practises it, they will be punished according to the law.


SITUATIONS THAT ARE CONSIDERED AS UNTOUCHABILITY: -

1. Refusing admission to any person to public institutions, such as hospitals, dispensaries, educational institutions;

2. Preventing any person from worshipping or offering prayers in public worship.

3. Subjecting any person to any disability with regards to access to any shop, public restaurant, hotel, public entertainment

4. Insulting a member of SC/ST on the ground of untouchability.

5. Preaching untouchability directly or indirectly.


PROTECTION OF CIVIL RIGHTS ACT, 1955: -

In the Indian Constitution, it is mandated that all the punishments for not abiding by the rules prescribed in Part-III will be provided through Article 35 and thus, the punishments for the offenders of Article 17 will also be provided through it. Therefore, after combining these two articles, a bill, known as The Untouchability (Offences) Act, 1955, was passed in Parliament to prescribe punishment for the offenders. Even so, after some years, people realised that the punishments prescribed in the above-mentioned Act were inadequate, and thus, to make changes in the Act, a committee, known as The Committee on Untouchability, Economic and Educational Development of the Scheduled Castes, was formed in the year 1965. This committee recommended some serious changes to improve the Act to prevent someone from discriminating. Consequently, to include the changes recommended by the committee, the present Act was amended and renamed in the year 1976 as The Protection of Civil Rights Act, 1955.

The expression ‘Civil Rights’ is defined as ‘any right accruing to a person by reason of the abolition of untouchability by Article 17 of the Constitution’[2]. This Act prescribes punishment which may extend to imprisonment up to six months and also with a fine which may extend to five hundred rupees or both for anyone enforcing, on the ground of ‘untouchability’ religious disabilities like – preventing any person from entering any place of public worship or from worshipping or offering prayers therein (Section 3) or social disabilities like access to any shop, public restaurants, hotels, or places of public entertainment (Section 4) and refusing to admit persons to hospitals (Section 5) and refusing to sell goods or render services to any person (Section 6) or for other offences, arising out of “untouchability” (Section 7). [3]

The key modifications made by the committee were: -

1. Non- Compoundable – The offences under this Act were made non-compoundable.

2. Enhancement of Punishment – The punishment of all the offences under the Protection of Civil Rights Act was enhanced.

3. Duty of Public Servant – It is stated in the Act that it is the duty of each public servant to investigate and look for people who are committing offences mentioned in the Act. Moreover, if the public servants deny to perform the same, then they are held absolutely liable for the offences.

4. Place of Worship – It was included in the amendment that if any person practises, preaches, or justifies untouchability in any place of worship, then it will be held as an offense under the Act.

5. Power of State Government – The State Government has been provided with the power that if a group of people practise untouchability, then, they can impose a collective fine upon them or can prescribe a collective punishment against them.


SCHEDULED CASTE AND SCHEDULED TRIBE( Prevention of Atrocities ) ACT, 1989:

This specific act provides more protection against untouchability and prescribes more punishments against the same. It also states the procedure of trial, relief system, the punishments for specific offences in all cases of discrimination. Furthermore, it demands special courts for the trial of these matters.

IMPORTANT CASE LAWS: -

· People’s Union for Democratic Rights Vs. Union of India[4]

It was held by the Hon’ble Supreme Court that the protection of Article 17 and Article 15(2) will be available against the state as well as private individuals and it is the unconstitutional duty of the State to take necessary steps to see that these fundamental rights are not violated. The eradication of untouchability is also mentioned in Article 15(2) and therefore, on the grounds of untouchability, no person can be denied access to shops, public places, hotels, and restaurants or the use of wells, roads, bathing ghats and places of public resort maintained wholly or partially out of the State’s funds or dedicated to the use of the general public.

· State of Karnataka Vs. Appa Balu Ingale, 1993[5]

The respondents were tried for offences under Sections 4 and 7 of the Protection of Civil Rights Act, 1955 and convicted and sentenced to undergo simple imprisonment for one month and a fine of Rs. 100 each. The charge against the respondents was that they restrained the complainant party by show of force from taking water from a newly dug up borewell (tube well) on the ground that they were untouchables. The High Court acquitted them. The Supreme Court upheld the conviction. The court held that the object of Article 17 and the Act is to liberate the society from blind and ritualistic adherence and traditional belief which has lost all legal or normal base. It was held by the Hon’ble Supreme Court, in this case, that, the objective of Article 17 is to abolish any discrimination, restriction and prohibition on the basis of caste and religion.



CONCLUSION: -

We can observe through the above-mentioned cases and Acts prevailing in our country that the Constitution and the lawmakers have tried their level best to stop discrimination based on caste and religion and henceforth, ruling out ‘untouchability’. However, there are some cruel minds in our country, who, behind the shadow of religion, practise discrimination. It is hard to believe that we are in the 21st Century but, still, people did not move forward leaving their malpractices behind. Discrimination often brings depression to the person who is being discriminated against. From our day-to-day life, we can observe that at times a child who is differently abled is being discriminated against in a school by their peers. Children must be given the knowledge to not discriminate from a very preliminary level but the saddest part is that some of us do not even realise that we are discriminating. For example, the beggars on the local train. We often see people not giving them money just because they do not want to touch them. It is our moral responsibility to help them as well as make them aware of hygiene. Even in the present Covid scenario, we can often see people hiding their disease in the fear that people would avoid them and start discriminating against them. A person needs to understand that contagious diseases are harmful for sure, but we should only avoid the disease not the person as a whole.


References: [1] https://www.hrw.org/reports/1999 [2] Amit Khaas, assistant professor (sociology), Indian institute of legal studies [3] Indian-constitution-for-1st-sem-examination/15347630/view, https://www.studocu.com/ [4] Asiad Project Worker’s Case, AIR 1982 SC 1473 [5] AIR 1993 SC 1126





Nickkita Shome

BALLB(H), 2nd Semester

Amity University Kolkata

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