ABOLITION OF UNTOUCHABILITY : THE CURRENT SCENARIO By - Sakshi Prashant Thorat
ABOLITION
OF UNTOUCHABILITY : THE CURRENT SCENARIO
Author : Sakshi Prashant Thorat
Subject: Constitutional Law
Class : SyLL.B
College Name : Thakur Ramnarayan College of Law
Contact no : 9757350986
Abstract
This research article is aimed at
examining the social evil which was prevalent. The exercise of Untouchability
one of the major reasons that deprived the underprivileged sector in availing
benefits and were been subjected to discriminatory practices . The study
further explores the implications of such void practice in terms of penalties
prescribed in the nature of imprisonment to curtail such social evil in today’s
reformed era .
Introduction
Untouchability in the simplest sense
can refer to the practice of discrimination to which people were been subjected to . Development of civilization
led to creation of classes . Human beings social creatures residing in an
environment establish communication with like minded individuals who possess
same ideologies , share same Psychological perceptions, views , opinions etc .
We are accustomed to adopt beliefs which are pre existent , failing to analyze
it’s why this belief was pre existent in the first place . Untouchability was a social evil
which was prevalent . Mistreatment of
people by excluding them from peacefully
and harmoniously residing in society . Exclusion was just a singular parameter
of discrimination , there were several acts which reflected hostility towards a
particular class .
How the concept of Untouchability emerged ?
The Concept of Untouchability was
firstly enlightened in Dharmashastra .
The class stratification i.e Brahmins , Kshatriyas, Vaishyas and Shudras and
amongst which the untouchables were not given equitable treatment . They were
been subjected to discrimination . The prime cause of such disparity due to
which such class suffered was aligned with their occupation , low social status
in the surrounding environment . The stratification was linked with
occupational activities or hereditary culture of ancestors which was passed
down to the subsequent generations .
Categorization of activities can be classified into activities of spiritual significance, warfare , those who were involved in trade ,
commerce activities . The untouchables were primarily engaged in activities of
sanitization , fishing , leather making . Due to the nature of the occupation
they performed or were engaged , they were shunned and ill treated in the
society . Lack of equal treatment reduce their social position and deprived
them of dignified life and livelihood . With the aid of numerous social reforms
and advancements , the concept of Untouchability is absolutely abolished and is
no longer practiced as all the classes contain fundamental right to live with
dignity without being subject to any sort of discrimination in any form
whatsoever . Moreover one of the main reasons why the social practical
Untouchability prevailed was due to lack of knowledge and awareness between the
classes and the disparity associated with social rank which led to disparity
creating distinction as supreme individuals or inferiority.
Legal reforms and Advancements pertaining to Article 17
Article 17 states that that the
practice of untouchability is abolished and it’s practice in any form is
forbidden. And if one resorts to such
inhumane practice , same shall be penalized in accordance with law . Article 17 was proposed in Draft Article 11
. There were several amendments pertaining to this draft one of the main
recommendations which was made to provide clarification about the definition of
untouchability . Failing to describe which , there would be situation of
ambiguity . In order to interpret the real meaning of untouchability , there
arises a need to define it . And untouchability in the present case shall be
construed to be caste or religious based untouchability. Subsequently this
amendment was rejected and the Draft Article 11 was adopted on 29 November 1948
.
Untouchability and the corresponding acts associated with it
The practice of Untouchability can
exist in various forms and the untouchables were mistreated through various
ways such as :
Restraint on entry to acquire education
This was one of the most primary
discriminatory practices which was been inflicted on the said class . As
belonging to low social status they are never viewed as equals in the society
and have always been consistently deprived of the equitable treatment in terms
of social welfare as well . Prohibiting them in terms of acquiring knowledge or
restricting them to enter or admitting into any educational institution or
prohibiting their access into any educational institution with the aim of
demoralizing them .
Restraint on entering into places of worship
Every individual is entitled to
profess his / her own without any restraint or prohibition thereof . Article 25
of the Indian Constitution guarantees freedom of religion in relation freedom
of conscience, free profession , practice and propagation of religion . Hereinafter if any individual
is restrained from exercise of his
fundamental right to religion same shall be construed as a gross violation of
his fundamental right and thereby is entitled to enforce his right . Untouchability is punishable if it restrains
a person
1. From entering into any place of
worship or prohibiting his entry in such place of worship , religious
institution which under general circumstances is open to all for the purpose of
processing their religion.
2. Preventing their access into any
place of worship for the purpose of offering prayers or worshipping or use of
any sacred water , tanks , public ghats wherein such place of worship is open
to all for the purpose of professing their religion or performing sacred
prayers
Punishment
Every person shall be punishable for
the above mentioned offences under the Protection of Civil Rights Act 1955 .
The punishment prescribed is imprisonment which shall not be less than one
month and not exceeding six months and similarly also be liable for fine of not
less than one hundred rupees but which should not exceed five hundred rupees .
Restraint
on entering into places of social amenities / activities of social welfare
Any person who is been restrained
from accessing any facilities created for social welfare and common enjoyment
on the grounds of untouchability . A person can be restrained in the following manner :
1. Preventing their access into any
educational institutions , religious institutions , public ghats , public
restaurants , hotels , recreational centres which are purely created for social
welfare.
2. Discrimination wherein practices
display inferiority towards them such as serving them food into different
utensils other than those which are utilised for the ordinary class .
3. Preventing their access to any river
, tank , ghats , cemetery , places of sanitary , roads , passages which are
maintained out of the State funds to which they have unrestricted access to .
4. Preventing their enrollment , access
to any charitable institutions or engagement
in charitable activities which are thereby created for social welfare.
5. A further extension of charitable
institutions whereby they are prevented from being a beneficiary or restraint
on availing benefits under such charitable trust which is maintained out of
public funds created in common interests of public in general.
6. Preventing their access to any public
conveyance or obstructing their enjoyment in availing services of public
transport / commutation created for the public at large wherein no one is
deprived of such whatsoever .
7. Restraining them to enter into any
occupation of their choice / preference , access to any profession . If a
person is restrained in the said manner not only the same is punishable for
committing the offence of untouchability but at the same time it constitutes a
gross infringement of the fundamental right to practice any profession ,
occupation which is guaranteed under Article 19(1) g of the Indian Constitution
.
8. Restraint on acquiring , occupying
ownership of the residential premises to which ordinary class in the general
sense has access to .
9. Preventing the access to any
Dharmashalas , Sarai , refugee centers which are created for all in general .
10. Causing obstruction in their practice of
professing religion , observance of any
religious practices, rituals , ceremonies and allowing their participation
without causing further intervention in the same regard .
11. Preventing their use of any jewelry for the
purpose of beautification or in general
sense of acquisition of any luxurious artifacts , finery which comprises a
section of personal enjoyment to which ordinary class has access to .
Punishment
The punishment prescribed for the
above mentioned offences is that the person shall be liable for imprisonment
which is not less than one month but at the same time does not exceed period of
six months and shall also be liable for
fine for not less than one hundred rupees but does not extends five hundred
rupees .
Restraining their entry in hospitals/ clinical centers
Prohibiting an individual in his
access to any medical assistance , treatment which he is in requirement of or
prohibiting their entry in any hospitals , dispensaries, clinics in the
following manner such as :
1. Restraining their entry or refusing
their admission in any hospitals, dispensaries. Clinics , medical institutions
for the purpose of availing medical assistance which is created for general
welfare to which the ordinary class has unrestricted access to
2. The discriminatory practice further
extends to their treatment post
admission in the institution as well such as how they are treated in the
comparison to other patients , are they are provided with adequate amount of
medical attention and all kinds of benefits attached to which a person is
entitled to who is availing medical aid .
Punishment
Every person shall be punished for
the above mentioned offences in accordance with the provisions of the
Protection of Civil Rights Acts 1955 . The punishment prescribed is that the
person shall be imprisonment for a term which may be not less than one month
but does not exceed six months and shall also
be liable to fine which should not be less than one hundred rupees but
which shall not exceed five hundred rupees.
Refusal to provide goods and services
Any person whomsoever refuses to sell
goods or provide services on the grounds of untouchability or refuses engage in trade or render services
which is ordinarily provided to individuals and no one can be restrained from acquiring
benefits under such services . The punishment prescribed for such
discrimination is that imprisonment for a term which shall not be less than one
month and period not exceeding six months and shall also be liable to pay fine
for one hundred rupees but not exceeding five hundred rupees.
Compelling a person to engage in forced labour
A person who is compelled to engage in forced labour which is
inclusive of practices such as cleaning of excretory waste , sanitization ,
sweeping , removing any carcasses under
a means of instrumentalizing
untouchability or an exercise which purports degradation of his social rank
wherein he is deemed fit to engage in such services because of his affiliation
to such social rank . Herein the compulsion executed on the person , wherein
the victim is placed under fear , threat of physical injury , defamation in
society . Such compulsion is directed to establish low estimation in the public
view where he is no more treated at par with others with aim of secluding him
from all social aspects of life.
Other Acts
which have similar implications to exclude the person
Other than the acts which are
prescribed as independent offences there are also certain acts which covey
similar discrimination against individuals but differ in execution such as :
·
Causing
infringement of rights to which a person is inherently entitled to .
·
Causing
physical injury in nature of molestation , assault , annoyance thereby
preventing the exercise of his lawful right with the aim of secluding the
person or his engagement in any social activities which is barred
due to his status .
·
Intentional
provocation to establish hostility or reflection of such hostility by
encouragement or abetment to expose such individuals to social injustice .
·
Insult
, disregard aimed to demoralize a person in societal view .
·
The act of restraint is in context of
prevention of persons in respect of his rightful occupation in any residential
premises , engaging into any profession
or trade or rendering of any services to
which a person is entitled to in general sense .
·
Propagating
the practice of untouchability in any perceivable form either through words ,
representations , acts and subsequently justifying the same under traditional
observance of values which are exercised since time immemorial or any connected
reasons .
·
The
punishment prescribed for causing injury to a person or his property is two
years which shall be not less than two years , wherein such act against the
property is committed in retaliation or vengeance against the person in
exercise of his lawful right to which he is been entitled to .
·
Refusing
or denial of his participation in any community service or social activities
which are thereby designated for social welfare but at the same time he is
abstained from submitting his engagement or when his involvement is not taken
into consideration and the same is subject to discrimination on grounds of
untouchability .
Cases
Safai
Karamchari Andolan and Ors Vs. UOI and ors
, 2014
Facts
This case was highlighted to address
the plight of manual scavengers who are engaged in the process of clensation . A writ petition was filed
under Article 32 to mandate performance
of the machineries in respect of implementation of Employment of Manual
Scavengers and Construction of Dry Latrines Prohibition Act 1993 . The occupation of manual scavengers includes
cleaning of human excrements , sanitization , treatment of sewage from the
outlets . As the nature of activities itself are a strong indication of inhumane deprecating practice which stressed
the need of its abolition in entirety .
The stigma of untouchability associated with it , the manual scavengers have
been victimized on several accounts and are often subjected to exploitation .
The people are involved in such practices who are engaged due to financial
constraints or as a result of occupational legacy which their ancestors were
involved in prior to them . Such employment should be abrogated and other
employment alternatives should be created in such place for manual scavengers
. A scheme was implemented namely Low
Cost Sanitation for liberation of Scavengers
for the purpose of elimination of scavenging and conversion of dry
latrines into more cost friendly latrines and creation of similar defecation
centers . However the said act failed to realize its objectives as the National
Commission for Safai Karmacharis – a statutory body submitted its reports that
reflected the issue of lack of implementation . Moreover there was lack of
consideration given to the exercise of liberation and no rehabilitation
measures were designed for such people who were engaged in the activity of
manual scavenging .
In December 2003 Safai Karmacharis
Andolan and community of manual scavengers highlighted the concern by filing
writ petition citing that the profession
of manual scavenging itself is gross violation of fundamental rights Article 14
, Article 21 , Article 17 and Article 23 and is unconstitutional in nature .
The petition contained certain points in respect of :
1. The petitioners sought absolute
elimination of dry latrines and the profession of manual scavenging as it is a
gross violation of fundamental rights .
2. Directions to formulate plans ,
reports and assessment of implementation of schemes pertaining to manual
scavenging .
3. Further they sought directions to
institute disciplinary actions against those who act in contravention of such
rules laid down therein .
Judgement
The enactment of Prohibition of
Employment as Manual Scavengers and their Rehabilitation Act of 2013 took into
consideration the measure of rehabilitation to be provided for such manual
scavengers which was not give prior consideration . In the light of such
provisions of 2013 Act , certain directions were issued in the same regard :
1. The necessary financial assistance
should be provided to the family members of such manual scavengers.
2. Their children shall be eligible to
avail benefits of scholarship under the relevant educational scheme .
3. They shall be entitled to acquire
residential premises and simultaneously financial assistance for the
construction of the said plot taken into consideration the eligibility of such
manual scavenger under the scheme .
4. Providing alternative rehabilitation
measures and employment facility for securing the livelihood of such workers .
5. Further relief shall be awarded in
nature of compensation to the dependents of the deceased in case of sewer
deaths or unfortunate accidents which
has resulted into loss of life . [1]
Transformation towards securing better livelihood
With the advent of legal advancements
and awareness among the classes the practice of class stratification holds trivial significance. As we continue to
employ ourselves with knowledge one is able to discern between the
discriminatory practices and can proceed towards enforcement of his right in
case infringement of the same . The authorities have taken cognizance of the
issue and have implemented measures for the advancement of classes in general
welfare .
Even though the practice of
untouchability has been criminalized so far . But the real transformation can
only be effective after it is brought into implementation in our day to day
approach. When we start to visualize others with humanitarian approach by
providing equitable treatment wherein no one is deprived of his / her right to live a dignified life. Wherein we collectively have faith in creating harmonious environment by suspending
our superstitious beliefs which have been traditionally transmitted to us
through generations . Then only the transformation in the appropriate sense can
be realized .