A B c STATE OF KARNATAKA v. APPA BALU JNGALE AND ORS. DECEMBER 1, 1992 [KULDIJ> SINGH AND K. RAMASWAMY, JJ.] Constitution of India, 1950: Articles 15, 17, 23 and 29-Un- touchability-Eradication of-Sociological and constitutional angulations- Considered. · . Protection of Civil Rights Act, 1955: Sections 4 and 7-Untouchability- Practice of-Members of Harijan Community restrained by show of force from drawing water from newly dug welf-Trial Court and appellate court holding charge against accused proved beyond reascmable doubt-In revisional jurisdiction High Court reappreciating evidence .and reversing con- D viction and sentence of accused-Validity of-Scope of legitation-Ex- plained-Court to interpret provisions keeping in view constitutional goals and purpose of Act.
The first respondent and four others were tried for the offences E under Sections 4 and 7 of the Protection of Civil Rights Act, 1955. The trial court convicted all of them under Section 4 of the Act and sentenced them to undergo simple imprisonment for one month and a fine of Rs.100 each, and in default to suffer simple imprisonment for further five days. The first respondent was further convicted under Section 7 of the Act but no separate sentence was awarded.
On appeal, the Additional Sessions Judge, F upheld the conviction and; sentence of the first respondent and two others, but allowed the appeal of the other two convicts and acquitted them. A Single Judge of the High Court allowed the criminal revision petition filed by the first resp1Jndent and two others. Hence, the appeal by special leave by the State. During the pendency of the appeal, the first respondent died G and the appeal against him thus abated.
Allowing the appeal, this Court HELD: l.1. There is no infirmity in the evi<lence of the prosecution witnesses. The High Court lost sight of the fact that disabilify of the H Harijan Community was enforced on a threat of using a gun. It is proved 284 -i STATE v. APP A BALU 285 beyond doubt that complainants were stopped from taking water from the A well on the ground that they were untouchables. [290-G] 1.2.
The charge against the respondents was that they restrained complainant party by show of force from taking water from a newly dug-up borewell on the ground that they were untouchables. The prosecution produced four witnesses who were all Harijans. The trial court and. the B Appellate Court, on appreciation of the evidence, reached the concurrent- finding that the charge against the respondents-accused was proved beyond reasonable doubt.
Ordinarily, it is not open for the High Court to interfere with the concurrent findings of the Courts below specially by re-appreciating the evidence in its revisional jurisdiction. The High Court C disbelieved evidence of all the four witnesses who deposed ·to the actual incident as happened before their eyes. It was of the view that their evidence was not uniform in regard to actual words uttered by the ac<;used persons and the manner in which they prevented the complainant party from taking water from the well.
The High Court rejected the testimony of ; the eye witnesses on the ground that it could not be said with any amount D of certainty which accused was guilty of the offences and that the evidence adduced on behalf of the prosecution was wholly insufficient to establish the charge of the offence under Section 4(iv) of the Act levelled against the accused. The High Court fell into patent error in rejecting the prosecution evidence.
The charge against the respondents has been proved beyond E doubt. [289-C-E; 290-A]
Per Ramaswamy, J. (Concurring) 1.1. The cri.ninal law primarily concerns with social protection, prescribes rules of behaviour to be observed by all persons and punishes them for deviance,transgression or omis1 sion. Mens rea is not an essential ingredient in social legislations is the settled law. Where social necessity demands from the angle of public welfare or because of the difficulty of proof of accused's mental stage, jurisprudence points dispensing with or of the onus of proof of mens rea. [307-B-C] 1.2.
The Judge concentrated more on sequence or absence of parrot like repetition of occular words spoken by illiterate persons or play upon words and sought consistence forsaking the sense it conveyed and the effect it produced in preventing PWs. 1to4 and other Dalits to exercise the right F G to draw water from public bore-well. The High Court gave the benefit of H 286 SUPREME COURTRK ORTS [1992) SUPP.3S.C.R.
A doubt when in fact, no such benefit does arise from evid_e~ce, if considered in proper perspectives, nor exist to reach the finding of guilty. (307-E·F) B 2.1. Artide 17 of the Constitution of India, in Part Ill, a Fundamen· tal Right, made an epoch making declaration that '!.mtouchability' is abolished and its practice in any form is forbidden. The enforcement of a111 disability arising out of 'untouchability' shall be an offence punishable i~ accordance with law.
In exercise of the power in second part of Article 11 and Article 35(a){ii), the Untouchability (Offences) Act, 1955 was made, which was amended in 1976 as "Protection of Civil Rights Act". Abolition -0f untouchability in itself is ·complete an.d its effect is all prevading C applicable to sta_te actions as well as acts or omission by individuals, institutions~"juristic or body of persons. (292-F, GJ D 2.2.
Neither the Constitution nor the Act defined 'Untouchability'. Reasons are obvious. It is not capable of precise definition. It encompasses acts/practices committed against Dalits in diverse forms. (298-111 2.3. Untouchability is founded upon prejudicial hatred towards Dalits as an independent institution. It is an attitude to regard Dalits as pollutants, inferiors and out-castes. It is not founded on mense rea; The practice of untouchability in any foi"ill is, therefore is a crime against the E Constitution.
The abolition of untouchability is th.e arch of the Constitu- tion to make. its preamble meaningful and to integrate the Dalits in the national main st~~ .Disabilities to which Dalits are subjected to, have been -0utlawed and denial thereof offends the right to equality enshrined in Article 14 of the Constitution etc. The Act also protects civil rights of Dalits. (300-D, E] F 2.4. The scheme in Part III, namely, fundamental rights, is to remove ·disabilities to which the Dalits are subjected to and to provide positive r;iglits in their favour and Part IV Directive Principles fasten duties on the State. to render socio-economic and political justice and to protect them G from all forms of exploitation and injustice.
In other words, Constitution c~arges the state to improve the quality of their life, social, economic and cultural pursuits as part of meaningful right to life guaranteed under Article 21 of the Constitutio~. (301-C, I>] 2.5. The thrust of Article 17 and the Act is to liberate the society from H blind and ritualistic adherence and traditional beliefs which lost all legal STATE v.APPABALU 2137 · or moral base.
It seeks to establish new ideal for society - equality to the A Dalits, at par with general publ.ic, absence of disabilities, restrictions or prohibitions on grounds of caste or religion, availability of opportunities and a sense of being a participant in the main stream of national life. [306-G] .2.6. The Act not only prescribes penal offences but also accords civil B and· social rights as part of constitutional scheme.
It requires to be enforced, interpreted and the evidence evaluated on the touch-stone of the constitutional creed and ethos and any negation would abrogate and abnigate the constitutional policy. [303-E] 2.7. Judiciary acts as a bastion of the freedom and of the rights of c the people. Power of judicial review, a constituent power has, therefore, been conferred upon the judiciary which constitutes one of the most portent and potent weapons to protect the citizens against violation of social, legal or constitutional rights.
Therefore, the judges would adopt purposive interpretation of the dynamic concepts of the Constitution and D the Act with its interpretative armoury to articulate the felt necessities of · the time. The Judge must also bear in mind that social legislation is not adocument for fastidious dialects but means of ordering of the life of the people. Judiciary does not forsake the ideals enshrined in the Constitution, but make them meaningful and make the people to realise and enjoy the E . rights.
This Court as the vehicle of transforming the nation's life, should respond to the nation's needs and to interpret the law with pragmatism to further public welfare to make the constitutional animations a reality. Common sense is always served in the court's ceaseless striving as a voice of reason to maintain the blend of change and continuity of order which is sine quo non for stability in the process of change in a parliamentary F democracy. [305-B-F;306-A-E] 2.8.
In interpreting the Act, the Judge should be cognizant to and always keep at the back of his/her mind the constitutional goals and the purpose of the Act and interpret the provisions of the Act in the light thus G shed to annihilate untouchability; to accord to the Dalits and the Tribes right to equality, social integration a fruition and fraternity a reality. [306-F] Shastri Yagnapurnshdasji & Ors. v.
Muldas Bhundardas Vaishya & Anr., [1966] 3 S.C.R. 242; Minerva Mills Ltd. & Ors. v. Union of India & H 288 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R. A Ors., (1981) 1 S.C.R. 206; Plassey v. Ferguson, 41 Lawyers' Edn. 356 (163) US 537; Oliver Brown v. Board of Educ,ation of Topeka, 98 Lawyers' Edn. 873 (347 US 483) 1964 and Josheph Lee Jones v. Alfrade N. Mayer Co., 20 Lawyers' Edn~ 2d 1189 (392 US 409) 1968, referred to.
B Constituent Assembly Debates, Vol. 3 pp. 434-435, referred to. Dr. B.R. Ambedka...s "The Untouchables'~ p.1 and 28; Social and Economic Development in India, a Reassessment: Edited by Dilip K. Basu . & Richar Sision, 1986 Edn.; James M. Freeman's "Consciousness of Freedom among India's untouchables'~ p.160-161; S.R. Kakade: Scheduled C Castes and National Integration, 1990 Edn.; Dr. Dinesh Khosla: "Myth and Reality of the Protection of Civil Rights Law", 1987 p.32; 'Impact of Social Legislation on Social Change', 1971; Dr.
Khosla's Myth and Reality of the Protection of Civil Rights Law, p.67; 21st report of SC & ST Commission, p.165; Mahatma Gandhiji's 'My philosophy of Life': Edited by A.T. Hin- gorani 1961 Edn. p.146; Lela Dushkin : ',The Policy of the Indian National D Congress towards the Depressed Classes and Historical Study, 1967 Edn.; Dr. E F M.C.J. Kagzi : Segregation and Untouchability Abolition, 1976 Edn. p.207; M.P.
Jain : Indian Constitutional Law, 4th Edn. 1987 P. 522, referred to. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.164 of 1983. From the Judgment and Order dated 1.4.1981 of the Karnataka High Court in Crl. Revision Petition No.478 of 1980. · M. Veerappa for the Appellant. K.R. Nagaraja for the Respondents. The Judgments of the Court were delivered by KULDIP SINGH, J. Appa Balu Ingale and four others were tried for the offences under sections 4 and 7 of the Protection of Civil Rights Act, G 19'55 (The Act).
The trial court convicted all of them under section 4 of the Act and sentenced them to undergo simple imprisonment for one month and a fine of Rs.100 each and in default to suffer simple imprison- ment for further five days. Appa Batu Ingale was further convicted under section 7 of ·the Act but no separate sentence was awarded to him for the\ H said offence. The Additional Sessions Judge Belgaum, on appeal, upheld '• ~ I = STATE v.
APPABALU [KULDIPSINGH,J.) 289 the conviction and sentence of Appa Balu Ingale, Shankar Babaji Patil and A Rajaram Rama Sankpal. The lear~ed Judge, however, allowed the appeal of the other two convicts and acquitted them. Against the judgment of the Appellate Court Appa Balu Ingale and twCl ethers went in revision before the High Court. The learned Single Judge of the Karnataka High Court allowed the criminal revision petition and acquitted all of them.
T~ appeal by way of speciaJ leave petition is by the State !)f Karnataka against B the judgment of the High Court. During the pendency of .the app~al respondent Appa Balu Ingale died on November 4, 1991. The appeal against him has thus abated. The charge against the respondents was that they restrained the C complainant party by show of force from taking water from a newly dug-up borewell on the ground that they were untouchables.
The prosecuti9n prod~ced four witnesses who were all Harijans. The trial court and the appellate court, on appreciation of the evidence, reached the concurre~t finding that the charge against the respondents-accused was proved beyond reasonable doubt. Ordinarily it is not open for the High Court to interfere D with the concurrent fmdings of the courts below specially by reappreciatuig the evidence in its revisional jurisdiction.
The High Court disbeliev¢d evidence of all the four witnesses who deposed to the actual incident ii.s happened before their eyes. According to the High Court their evidence was not uniform in regard to actual words uttered by the accused persons E and the manner they prevented the complainant party from taking water from the well. The High Court rejected the testimony of the eye witnesses on the following reasoning:- "Thus, not only the evidence of these witnesses regarding the actual manner in which the accused obstructed and what words they uttered, is discrepant and not consistent, but what is not certain from the evidence is as to who among the accused persons obstructed and used those particular words attributed to the accused.
It cannot ex- pect that all the accused would use the words simul- taneously in a chorus in the manner the witnesses stated before the court. Therefore, it cannot be said with any amount of certainty which among the accused was guilty of the offence. The evidence adduced on behalf of the F G prosecution was wholly insufficient to establish the charge H A B 290 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R. of the offence under Sec. 4(iv) of the Act levelled against them." We are of the. view that the High Court fell into patent error in rejecting the prosecution evidence.
We have examined the statements of eye witnesses as dealt with in detail by the appellate court. We are of the view that the charge against the respondents has been proved beyond doubt. PWl .'fhalu, who is the complainant, has deposed that the borewell in question was being drilled at a distance of about 15 feet from Harijan colony and water sprouted from the well on the date of the incident at about 9.30 p.m.
At that ti.me many person including the accused persons C and some Harijans including PWs 1 to 4 were present there. Two young girls of the Hindu community performed pooja. Thereafter 10/15 Hindus took water from the well for performing pooja at the temple. He further stated that he along with five other persons including PWs, who were all Harijans, also brought pots for taking water from the well. At that time the three respondents told the Harijans not to take water from the well as they D were "mahars" and that there was a separate well for them.
According to the complainant the three respondents ·further obstructed the Harijans from taking water saying, that if the Harijans insist on taking water the result would be unhappy. Respondent 1 told his men to bring a gun from his house ·and threatened the Harijans with dire consequences. "I:he com- plainant further stated that he told the accused persons that the Harijans E . have also right to take water from the well.
On that the respondents-ac- cused told the Harijans not to persist on taking water from the well otherwise the consequences would be serious. The Harijans thereafter left the well without taking water and went to their colony. PW2, Appaji Sinde, PW3, Sripati Mane and PW4, Lahu Shinde have repeated the occurrence F ·G in similar words as stated by PWl. We have given our thoughtful consideration to the prosecution evidence as appreciated by the courts below.
We do not find any infirmity in the evidence of the prosecution witnesses. The High Court lost sight of the fact that the social disability of the Harijan community was enforced on a threat of using a gun. It is proved beyond doubt that the complainants were stopped from taking water from the well on the ground that they were untouchables. We allow the appeal, set aside the judgment of the High Court and H restore the judgment of the learned Additional Sessions Judge Belgaum ~- STATE v.
APPABALU [K RAMASWAMI, J.] 291 dated September 5, 1980. Respondents Shankar Babaji Patil and Rajaram A Rama Sankpal shall undergo the sentence of simple imprisonment for one month and to pay the fine of Rs.100 each with the default clause as awarded by the trial court and upheld by the learned Additional Sessions Judge. While agreeing with the judgment propose by me K. Ramaswamy, J. has gone into "sociological and constitutional angulations" at great length.
I appreciate the erudite exposition of thoughts by the learned Judge, however, I do not wish to express any opinion and confine myself to the merits of the appeal. K. RAMASWAMY, J. In 1852 Frederick Douglass, a leading Black abolitionist of slavery described his agony on the eve of America's Inde- pendence Day thus: "This Fourth of July is yours, not mine. You may rejoice, B c I must mourn. To drag a man in fetters to the grand D illuminated temple of liberty, and call upon him to join you in joyous anthems, were inhuman mockery· and. sacriligious irony ...
I say it with a sad sense of the disparity between us. I am not included within the pale of this glorious annivers!lry .... the blessings in which you, this day, E rejoice, are not enjoyed in common. The rich inheritance of justice, liberty, prosperity and independence, be- queathed by your fathers, is shared by you, not by me. The sunlight that brought light and healing to you, has brought stripes and death to me." Same was the poignant agony of the Indian Scheduled Castes, Un- touchables, for short 'Dalits' on the eve of August 15, 1947, Indian Inde- pendence Day.
F On December 1, 1862, in the midst of fierce civil war to abolish slavery and the debate on the floor of the Senate to accord Civil rights to G Negroes was going on, Abraham Lincoln, the President of United States of America who later laid his precious life for that cause sent his message . to the Senate with memorable words thus:- "Fellow citizens, we cannot escape history. We .... will be H A B c 292 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R. remembered in spite of ourselves.
No personal sig- nificance or insignificance can spare one or another of us. The fiery trial through which we. pass will light us down in honor or dishonor to the latest generation .... We .... hold the power and bear the responsibility." The preamble of the Indian Constitution imbued among its people with pride of being its citizens in an intergrated Bharat with fraternity, dignity of person and equality of status.
But castism; sectional and religio.us diversities and parochialism are disintegating the people. Social stratifica- tion need restructure. Democracy meant fundamental changes in the social and economic life of the people, absence of inequitous conditions, ine- qualities and discrimination. There can be no dignity of person without equality of status and opportunity. Denial of equal opportunities in any walk of social life is denial of equal status1and amounts to prevent equal participation in social intercourse and deprivation of equal access to social D means.
Humane relations based on equality, equal protection of laws without discrimination would alone generate amity and affinity among the heterogenous sections of the Indian society. and a feeling of equal par- ticipants in the dt'.mocratic polity. Adoption of new ethos and environment are, therefore, imperatives to transform the diffracted society into high E degree of mobility for establishing an egalitarian social order in Secular Socialist Del!locratic Bharat Republic. "Untouchability" of the Dalits stands an impediment for its transition and is a bane and blot on civilised society.
Article 17 of the Constitution of India, in Part III, a Fundamental Right, made an epoch making declaration that "untouchability" is abolished F 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 exercise of the power in second part of Art. 17 and Art. 35 (a)(ii), the Untouchability {Offences) Act 1955 was· made, which was renamed in 1976 as "Protection of Civil Rights Act", for short 'the Act'.
G Abolition of untouchability in itself is complete and its effect is all prevad- ing applicable to state action~ as well as acts of omission by individuals, institutions, juristic or body of persons. Despite its abolition it is being practised with impunity more in breach. More than 75% of the cases under the Act are ending in acquittal at all levels. Apathy and lack of proper perspectives even by the courts in tackling the naughty problem is obvious.
H For the first time after 42 years of the Constitution came into force this ...... - STATE v. APPABALU [K. RAMASWAMl, J.] first case has come up to this Court to consider the problem. The Act is A not a penal law simpliciter but bears behind it monstreous untouchability relentlessly practised for centuries dehumanising the Dalits, constitution's animation to have it eradicated and to assimilate l/5th of Nation's popula- tion in the main stream of national life.
Therefore, I feel that it would be imperative to broach the problem not merely from the perspectives of B criminal jurisprudence, but more also from socialogical and' constitutional angulations. While respectfully agreeing with my learned brother Kuldip Singh, J. on his reasoning, conclusions and conviction, it is expedient, therefore, to have the case considered from the above back drop and address ourselves to the questions that arose for decision.
It is trite that the Caste system among the Hindus has·been struc- tured on graded hierarchy of Chaturvarnya and the Dalits and Scheduled Tribes (for short 'tribes') from among whom Sudras occupy ·the last rung c in the social ladder. Impregnable walls of separation with graded ine- qualities has, thus, been erected between different sections among Hindus. D The Dalits are made to serve the society in meiiial jobs as slaves and serfs.
Caste system segregated them from the main stream of the rational life and prevented the Hindus from becoming in integrated Society with fraternity and affinity. The Dalits are denied even access to potable water sources, education, cultural life and economic pursuits. They are made to live as beasts of burden at the outskirts of the villages, towns, slums etc. The E Tribes live in intractable terrains and forests.
Manu Smrithi prohibited the Dalits to wear decent clothes, wear precious metallic ornaments or even to use decent utensils, food and drink. This had led to the abominable and abnoxious practice of untouchability, depriving them of social intercourse, educational and cultural development and were condemned as wor~e than F animals. In the words of Bharat Ratna Babasaheb Dr. B.R. Ambedkar in his preface to his book "The untouchables" page I, that "it is a diabolical contrivance to suppress and enslave humanity.
Its proper name would be "infamy". At page 28, he stated that "untouchability....... is a unique phenomenon unknown to humanity in other parts of the w~rld. Nothing like it is to be found in any other society - primitive, ancient of modern. In G one of his post independent fiery speeches, Dr. Ambedkar with his char- acteristic clarity and piercing appeal to the Dalits stated thus:- ;'In order to have a clear un~erstanding of untouchability and its practice in real life, I want you to recall the stories H 294 A B c D E F G H SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R. of the atrocities perpetrated against you.
The instances of beating by caste Hindus for the simple reason that you have claimed the right to enrol your children in govern- ment schools, or the right to draw water from a public well, or the right to take a marriage procession with the groom on horseback, are very common. You allknow such instances, as they happen before your eye~. But there are several other causes for which atrocities are committed on the Untouchables by the caste Hindus which, if revealed, surprise foreigners.
The Untouchables are beaten for put- ting on clothes of good quality. They have beeri whipped because they used utensils made of metal like copper, etc. Their houses are burnt because they have brought land under cultivation. They are beaten for putting on the sacred thread. [A visible symbol worn by high-caste Hin- dus.] They are beaten for refusing to carry dead animals and eat carrion, or for walking through 'the village with socks and shoes on, or for not bowing down before the caste Hindus, for taking water in a copper pot while going out to the fields to ease themselves.
Recently an instance has been noted where the Untouchables were beaten for serving chapatis at a dinner party. "You must have heard and some of you must have ex- perienced such atrocities. Where beating is not -possible, you are aware of how the weapon of boycott is used against you. You all know how the .caste Hindus have made daily life unbearable by prohibiting you from getting work, by not allowing your cattle to graze in the jungles and prohibiting your men from entering the village.
But very few of you have realised why this happens. What is the root of their tyranny? To me, it is very necessary that we understand it. The instances cited above have nothing to do with the virtue and vices of an individual. This is not a feud between two rival men. The problem of untouchability is a matter of class struggle. It is a struggle between caste Hindus and the Untouchables. This is not a matter of doing injustice \ .~ ( ) STATE v.
APP A BALU [~ RAMASW AMI, J.] against one man. This is a matter of injustice being done by one class against another. This struggle is related to social status. This struggle indicates how one class should keep its relationship with another class of people. The struggle starts as soon as you start claiming equal treat- ment with others. Had it not been so, there would have been nq struggle over simple reason like serving chapatis, wearing good quality clothes, putting on the sacred thread, fetching water in a metal pot, sitting the bridegroom on the back of a horse, etc.
In these cases you spend your own money. Why then do the high-caste Hindus get ir- ritated? The reason for their anger is very simple. Your behaving on par with them insults them. Your status in their eyes is low, you are impure, you must remain at the lowest rung. Then alone will they allow you to live happily. The moment you cross your level the struggle starts. The instances given above also prove one more fact.
Untouchability is not a short or temporary feature; it is a permanent one. To put it straight, it can be said that the struggle between the Hindus and the Untouchables is a permanent phenomenon. It is eternal, because the high- caste people believe that the religion which has placed you at the lowest level of the society is itself eternal. No change according to time and circumstances is possible. You are at the lowest rung of the ladder today.
You shall remain lowest forever." 295 According to him untouchability is an indirect form of slavery and only an extention of caste system. Caste system and untouchability stand together and will fall together. The idea of hoping to eradicate un- touchability without destroying caste system is an utter futility. The prob- A B c D E F lem to the Dalits is discrimination of high order next to the problem of recovering their manhood.
In every nook and corner of the country, the G Dalits face handicaps, suffer discrimination and are meted out injustice as a daily routine. Despite the missionary work of reformers like Mahatma Jyotiba Phule, Periar E.V. Ramaswami Naiker, Swamy Dayanand Saraswathi and host of H 296 SUPREME COURT REPORTS (1992) SUPP. 3 S.C.R. A others to awaken s'ocial consciousness amongst untouchables their efforts - remained unsuccessful.
Dr. Ambedkar having been the victim of this cruel practice and suffered the ignomy of throwing files by peons at his face while he was Military Secretary of Maharaja of Baroda, beaten up for staying in incog- nito as a paying guest in a Parse Inn etc. became their crusader. He roused the B c Dalits' consciousness to fight for eradication of untouchability, to claim equality of treatment, status and oppor~unity and of equal rights, civil, politi- cal, social and economic and of dignity of person.
Mahatma Gandhiji, the father of the .Nation, too sincerely worked to abolish untouchability and na~ed them·as Harijans (children of God). The rights secured by Ambedkar in Poona Pact and 1934 Congress resolution formed foundation for Art.
17. Though the tenets of other religions do not pr~ach, by imitation, they too practice untouchability, though not in strict rigour. Emphirical study conducted by Socialogists, like, in Social and Economic Development in India, a Reassessment edited by Dilip K; Basu D and Richard Sision,.
Sage Publication, New Delhi, 1986 Edition, in the Chapter "Consciousness of Freedom among India's Untouchables", by James M. Freeman said that the Dalits are "world's most oppressed minorities". At p.160 he stated that severe economic domination usually has been sufficient to keep the untouchables in line, but evidence exists that E F the ultimate sanction was the use and threat of physical force. The numeri- cally larger and wealthier dominant high castes are quite capable of and in fact did crush the slightest perceived resistance to their will.
At p.161 it ~ was further stated that since independence, and particularly since 1970's as Untouchables have more openly resisted discrimination, reports of terrorism against them have increased both in number and in ferocity; gouging out the eyes of Untouchables in full view of assembled villagers who are terrified into silence, burning groups of Untouchables to death, chopping of their hands or foet, raping women, destroying whole villages are routine.
At p.169 in conclusion he stated that "Indian independence is a watershed event precisely because it both embodied this ideal of a new order and in fact has set in motion. widespread and momentous changes G that have affected virtually every Indian citizen, including the 100,000,000 Untouchables of India. The changes include both the heightened con- sciousness and resistance of untou_chables to. oppression as well as deter- mined backlash of other castes against them.
Similar views were made in Socio- economic Study by S.R. Kakade ~n his Scheduled Castes & National H Integration 1990 Edn. Socio~religious study in 'Main Currents in-Indian - ( STATE v. APPABALU [K. RAMASWAMI, J.] 297 Society and Cohesion and Conflicts in Modern India' Vol.3, edited by G.R. A Gupta, Dr. Dinesh Khosla, a human right~t, after studying the conditions of untouchables and impact of protection of Civil Rights Act vis-a-vis human rights interacting with all sections· of rural North India and staying with Dalits, in his "Myth and Reality of the Protection of Civil Rights Law'', Hindustan Publishing Corporation (India) Delhi, 1987, stated at p.32 that B untouchability thwarted the liberation of the human mind from the. oppres- sive trappings of centuries old traditions, beliefs, and myths; that it con- stantly emphasised the fact of birth in a caste, ultimately untouchability depressed and dampened the psychological motivations for social and economic development.
Law in its formal and institutional sense was, thus, rendered meaningless to the contemporary life of the untouchables. He C stated that the Act did not knock at the doors of those, who submerged in the traditions nor helped Dalits. S/Sri Bishwa B. Ch_atterjee, Sheo Swarath Sing and Dharam Raj Yadav in their 'Impact of Social Legislation on Social Change', the Minerva Associates Publication of 1971, in their survey in West Bengal from socialist point of view, high-lighted the still prevalent D untouchability in rural India and all the authorities do emphasise the need for proper and expeditious remedy.
Proverty and penury made the Dalits as dependants and became vulnerable to oppression. The slightest attempt to assert equality or its perceived exercise receives the ire of the dominent sections of the society E and the Dalits would become the object of atrocities and oppression. The lack of resources made the Dalits vulnerable to economic and social boycott. Their abject poverty and dependence on the upper classes in Rural Indian for livelihood stands a constant constraint to exercise their rights - social, legal or constitutional, though guaranteed.
Thus they have F neither money capacity, influence nor means to vindicate their rights except occasional collective action which would be defeased or flittered away by pressures through diverse forms. Consequently most of the Dalits are continuing to languish under the yoke of the practice of untouchability. The State has the duty to protect them and render social justice to them. G The statue of Swami Sampuranand at Varanasi when unvailed by no less than the Dy.
Prime Minister of Free India in February, 1978, Sri Babuji, Jagjivan Ram, it was believed to have been defiled and was purified ceremoniously with water brought from Ganges with all religious fervour, H 298 SUPREME COURT REPORTS (1992] SUPP. 3 S.C.R. A a repetition of Mahad Tank water purification with mounds of cow dung, cow urine and milk, an episode of March 1927 when Ambedkar and his colleagues drank water taken from the tank.
At a dinner hosted by the Speaker of the Rajasthan Legislative Assembly in honour of the Chief Minister, Shri Jagannath Pahadia, the wife of the Speaker trembled to serve B food to the Chief Minister thinking to have been polluted. A Central Minister's son highly-edu~ated and economically well off, when had inter- caste marriage, the bride's father, whose annual income is not a month's salary of the Manager of the boy, i.e. even of humble means, neither celebrated the marriage nor visited her house, nor even permitted her to visit his house for the past ten years.
On October 30, 1978, the Doctor in C Govt. Hospital in Monger did not admit a Sweaper DaHt women, who was struggling for life. (Vide Dr. Khosla's Myth and Reality of the protection of Civil Rights Law, p.67). A Dalit Judge in north India High Co!:lrt could not secure a house and had to get posted to another place whereat he has his abode. A Judge of a south ;1ndla. High Court has not touched even water D in the houses of Dalit or backward class judges.
Even in Delhi, the capital of the country, in 1991.the Dalit officer had to vacate the rented house due to practice of untouchability (vide 21st report of SC & ST Commission, p.165). Mass murders from Belchi in North to Tsundur in South India, gang rapes of Dalit women and arson of their huts; the mass movement by women volunteers to stop blatent practice of untouchability in the hotels E in Chittoor Dist. of Andhra Pradesh organised by Gita Ramaswamy, a noted social worker and journalist reported in an article titled "Ambedkar to Ayodhya" in the Main-stream dat~d January 5, 1991 are only illustrative of the relentless practice of untouchability, let alone, humiliations to count- less Dalits which are of every day's routine.
Thus even persons who. F improved their social status, economic position or holders of constitutional offices are no exceptions to the wrath and plague of untouchability and are self evident truths. So Dr. Ambedkar is right when he wrote that "untouch- ables are born and die as untouchables" and the scorn and scoff is carried from birth to graveyard. The emphasis here is not on individuals but to highlight the- acuteness of the problem and the urgency to eradicate the G evil; the insensitivity which the Dalits are subjected to; the remedy provided under the Act and the acute need to implement the law strictly.
Neither the Constitution nor the Act defined 'U ntouchability'. Reasons are obvious. It is not capable of pr,ecise definition. It encompasses H acts/ practices committed against Dalits in diverse forms. Mahatama a STATE v. APPABALU [K RAMASWAMI, J.] 299 Gandhiji in his 'My philosophy of Life' edited by A.T. Hingorani 1961 Edn. A at p.146, stated that "untouchability means pollution by the touch of certain person by reason of their birth in a particular state of family.
It is a phenomenon peculiar to Hinduism and has got no ~arrant in reasons or sastras". According to Dr. Ambedkar, "the untouchability is the notion Of defilement, pollution, contamination and the ways and means of .getting rid B of that defilement. It is a permanent hereditary st~in which nothing can cleanse". The Parliamentary Committee on Untouchability headed by Ji,. Elayaperumal in their 1969 report stated that 'untouchability' is a basic and unique feature and inseparably linked up with the caste system and social set up based upon it.
It does not require much research to realise that the phenomenon of untouchability in this country is fundamentally of a C religious or political origin. Untouchability is not a separate institution by itself, it is a corollary of the institution of the caste· system of Hindu Society. It is an attitude on the part of a whole group of people. It is a spirit bf social aggression that underlies this attitude.
Lela Dushkin in his 'The Policy of the Indian National Congress towards the Depressed Classes and Historical Study, 1967 Edition stated D that untouchability is ordinarily used in all sense, first to refer to the pollution - stigma attached to untouchables, secondly to refer to the set ~f practice engaged in by the rest of the society to protect itself from pollution conveyed by the untouchables and to symbolise their inferior status.
Dr. E M.C.J. Kagzi in his Segregation and Untouchability Abolition, 1976 Edi- tion, at page 207 stated that it (untouchability) connotes the acts, action or practice of non-touching of the members of the lowest by the caste Hindus, . which means separation, segregation and isolation of such persons from the higher caste Hindus. It means keeping the Harijan untouchables out- F side the mission. Swami Vivekanand had stated in his complete works that "we refuse entirely to identify ourselves with 'do not touch me'.
That is not Hinduism. It is in none of our books. It is an orthodox superstition which has interfered with national life all along the line". In Shastri Yagnapuntshdasji & Ors. v. Muldas Bhundardas Vaishya & G Anr., [1966] 3 SCR 242, this Court speaking through Gajendragadkar, C.J. held that 'untouchability is founded by superstition, ignorance, complete misunderstanding of the true teachings of Hindu religion'.
Sardar Vallabh Bhai Patel, during the course of the discussion on the floor of the Con- stitutent Assembly stated that, removal of untouchability is the main idea. H A B c D. E 300 SUPREME COURT REPORTS [1992) SUPP. 3 s,c.R. If abolition of untouchability is provided as a fundamental right, as .an offence, necessary adjustment will be made in the law that can be passed by the legislature, vide C.A.D.
Vol.3, pages 434-35. Thus it could be concluded that the untouchability has been grown as an integral facet of socio-religious practices being observed for over centuries; ~ept the Dalits av.;ay from the main-stream of the Society on. diverse grounds, be it