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Right to Untouchability

Untouchability is the hate fullest expression of Caste System and it is a crime against God and man. - Mahatma Gandhi

Untouchables are literally outcastes. They are also known as depressed classes, harijans etc; but today they are more frequently referred to as ‘Dalits’. Dalits, literally meaning “broken people”, are at the bottom of India’s Caste System.However, historically persons born in lowest castes and classes of persons doing menial jobs, criminals, persons suffering from contagious diseases and tribals living outside the so-called civilized world were considered as Untouchables. The discrimination can be in the form of physical or social boycott from the society. Untouchability is a menace and social evil associated with traditional Hindu society. It was believed that people of higher castes could become impure even if a shadow of an untouchable person touches him and to re-gain his purity he had to take a dip into holy waters of the Ganga. Today members of SC/ST are considered as ‘Dalits’ and they are subjected to various forms of discrimination in the society.

International Human Rights Law:

International Convention On The Elimination Of All Forms Of Racial Discrimination, 1965

The Committee on the Elimination of Racial Discrimination (CERD) affirmed that “the situation of Scheduled Castes and Scheduled Tribes falls within the scope of “ the International Convention on the Elimination of All Forms of Racial Discrimination, 1965.

Article 6 of the convention provides that state parties shall “assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other state institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.”

International Covenant On Civil And Political Rights, 1966

In July 1997 the sixtieth session of the Human Rights Committee considered India’s third periodic report submitted under Article 40 of the International Covenant on Civil and Political Rights. While the Committee notes the efforts made by the State Party to eradicate discrimination:
it recommends that further measures be adopted, including education programmes at national and state levels, to combat all forms of discrimination against these vulnerable groups, in accordance with articles 2, paragraph 1, and 26 of the Covenant.

In addition to the violations outlined above, Articles 7, 9, 14, and 26 of the ICCPR are of particular relevance to the abuses documented in this report.

Article 7 prohibits the use of torture, or cruel, inhuman or degarding treatment or punishment. The right to liberty and security of person is guaranteed by Article 9 and includes freedom from arbitrary arrest and detention, entitlement to a trial within a reasonable time or to release, and compensation for victims of unlawful arrest or detention.

Article 26 of the ICCPR guarantees the right to equal protection before the law and prohibits discrimination on any ground including, among others, race, sex, religion, political or other opinion, social origin, birth, or other status.

International Covenant On Economic, Social And Cultural Rights, 1966

Article 7 of the International Covenant on Economic, Social and Cultural Rights provides that state parties shall “recognize the right of everyone to the enjoyment of just and favorable conditions of work”. These include “fair wages and equal remuneration for work of equal value without distinction of any kind,” and “safe and healthy work conditions”.

Convention Against Torture And Other Cruel, Inhuman, Or Degrading Treatment Or Punishment, 1984

The convention defines torture as:
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Severe beatings of dalit men and women by the police documented in this report fall well within this definition. Indian police routinely employ torture techniques in police stations, lock-ups, and detention centers throughout the country. The sexual abuse of women by state agents in a custodial setting amounts to torture if the agent uses force, the threat of force, or other means of coercion to compel a women to engage in sexual intercourse.

The prohibition on degrading treatment also extends to the use of demeaning language where the employment of such language is intended to dehumanize and weaken an incarcerated person.

Convention On The Rights Of The Child, 1989

Article 32 of Convention on the Rights of the Child dictates that states parties recognize the “right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or….be harmful to the child’s health or physical, mental, spiritual, moral or social development.

Forced Labour Convention, 1930

The International Labour Organisation’s (ILO) Forced Labour Convention requires signatories to “suppress the use of forced or compulsory labour in all its forms in the shortest period possible”. In 1957, the ILO explicitly incorporated debt bondage and serfdom within its definition of forced labor.

Indian Laws

Constitution of India, 1950

The struggle for independence was not only against the foreign rule of British but it was against the social evils such as untouchability prevailing from centuries. After Independence when great leaders of freedom struggle agreed to make our own Constitution regarding the abolition of social evils and upliftment of down-trodden castes and social groups etc.

Part III of the constitution deals with Fundamental Rights to which every citizen is entitled.
Some of these rights are as follows:
Article 14 – The State shall not deny to any person equality before the law or equal protection of law within the territory of India.
Article 15 – The state shall not discriminate against any citizen on ground only of religion, race, caste, sex or place of birth or any of them.
Article 21 states that, no person shall be deprived of his life or personal liberty except according to the procedure established by law.
Article 23 forbids forced labour.

Article 17 reads as follows:

“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”.
Article 46 of the Indian Constitution, “ The State shall promote with special care the educational and economic interests of the weaker section of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation”.

In M.Kathiresan v. State of Tamil Nadu,
The Madras High Court held that investigation conducted by an officer other than a DSP is improper and bad in law and proceedings based on such an investigation are required to be quashed. The Courts without taking into consideration the inadequacies of the State, have been punishing SC/STs for the same. Shri Pravin Rashtrapal, Member of Parliament rightly pointed out that there are insufficient officers at that level. His statement is supported by the Annual Report of 2005-2006 of Ministry of Home Affairs. Of the total posts sanctioned by the government under Indian Police Service more than 15 percent of the posts are vacant. This basically means that there is one IPS officer for 77,000 SC/STs.

In Dr. Ram Krishna Balothia v. Union of India,
The Madhya Pradesh High Court held that the entire scheme of the SC/ST Act is to provide protection to the members of the Scheduled Castes and Scheduled Tribes and to provide for Special Court and speedy trail of the offences. The Act contains affirmative measures to weed out the root cause of attrocities, which had denied SCs and STs basic civil rights. the Act has addressed the problem regarding the dispensation of justice, but what this failed to deal with is the problem of ‘rehabilitation’. According to the report submitted by the National Commission for Review and Working of the Constitution, victims of atrocities and their families should be provided with full financial and any other support to make them economically self-reliant without their having to seek wage employment from their very oppressors.

In State of Madras v. Champakam Dorairajan,
The court held that reservations in educational institutions were in violation of Article 29(2) which prohibited educational institutions from denying admission to applicants based on religion, race, caste, or language. The court maintained that special quotas on the basis of caste were violative of the prohibition against caste discrimination. Shortly thereafter, Article 15(4) was passed which effectively overruled Dorairajan.

Central Government Act

Section 3 in The Protection of Civil Rights Act,1955:

Punishment for enforcing religious disabilities. Whoever on the ground of “untouchability” prevents any person- (a) from entering any place of public worship which is open to other persons professing the same religion or any section therefore, as such person; or (b) from worshipping or offering prayers or performing any religious service in any place or public worship, or bathing in, or using the waters of, any sacred tank, well, spring or water-course, river or lake or bathing at any ghat of such tank, water- course in the same manner and to the same extent is permissible to other persons professing or any section there of, as such the same religion, or any section there of, as such person; shall be punishable with imprisonment for a term of not less than one month and not more than six months and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees.

The Protection Of Civil Rights Act, 1955

Protection of Civil Rights Act, 1955 is an Act to prescribe punishment for the preaching and practice of untouchability for the enforcement of any disability arising therefrom Article 17 of the Constitution of India specifies that untouchability is abolished and its practice in any form is forbidden 2a. Court is left with no option and is bound to pass a sentence of imprisonment and also fine while convicting accused under Section 4 of the Protection of Civil Rights Act 2b. where it is proved that accused prevented Harijans from tarring water on the ground of untouchability, Conviction was held to be justified.

Scheduled Caste And Scheduled Tribe (Prevention Of Atrocities) Act, 1989

The normal provisions of the existing laws like, the Protection of Civil rights Act 1955 and Indian Penal Code have been found inadequate to check these atrocities continuing the gross indignities and offences against Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 & Rules, 1995. The SCs and STs (Prevention of Atrocities) Act, 1989 with stringent provisions was enacted on 9 September, 1989.

Section 21(1) and (2) of SC/ST (POA) Act, 1989 stipulate that the State Government shall take all such measures as may be necessary for its effective implementation.

Section 23(1) of the Act authorises the Central Government to frame rules for carrying out the purpose of the Act. Drawing power from this section, the Scheduled Castes and the Scheduled Tribes (POA) Rules of 1995 were framed. The rules for the Act were notified on 31 March 1995.

The purpose of the Act was to help the social inclusion of Dalits into Indian society, but the Act has failed to live up to its expectations admitted by the Union Minister for Home Affairs in Parliament on 30 August 2010.

Regional Laws:

European Convention For The Prevention Of Torture And Inhuman Or Degrading Treatment Or Punishment, 1987

2/1/07, European Union passed a resolution that India’s enforcement of laws to protect Dalits – grossly inadequate. Also found that “atrocities, untouchability, illiteracy and inequality of opportunity, continue to blight the lives of India’s Dalits”. The resolution called on the Indian government to end caste-based discrimination.

African Charter On Human And People’s Rights, 1981

Article 2 of African Charter provides that every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present charter without distinction of any kind, such as, race, ethnic group, colour, sex, language, religion, political or any other opinion national and social origin, fortune, birth or other status. The charter also contains guarantee of non discrimination.

Right Against Untouchability In U.S:

In the United States Constitution, the Fourteenth Amendment was created with the intention of securing and upholding rights that had been given to the newly freed black slaves. The Equal Protection Clause of the Fourteenth Amendment prevented the states from discriminating against blacks. In the areas of employment law, the Civil Rights Act of 1991 has overturned a number of recent Supreme Court decisions that greatly curtailed the effectiveness of proving racial and sexual discrimination. The U.S. Supreme Court’s latest decisions made it more difficult to prove racial discrimination under Title VII.

Both Indian and American law has tried to incorporate substantive equality into a framework of formal equality. 24/7/07, US House of Representatives passed a concurrent resolution condemning the caste system and untouchability in India.

Conclusion:
In our society there still exist feeling of superiority of caste and birth. We can experience the practice of untouchability in everyday life around us, especially in rural and semi-urban areas of the country. Also, in big metro cities, the inhuman practice of manual scavenging is still there. According to a news report of Press Trust of India (PTI), on January 3,2014, four tea shop vendors were arrested by the Police in Karnataka for practicing untouchability while selling tea - they were serving tea in different types of cups to caste Hindus and SC/STs.

The incidence shows that the evil practice is so deep rooted in Hindu society that even after 70 years of Independence is continuing in one form or other. However, it can be said that things are slowly changing, the mind set of modern generation is also changing. Today’s youth with modern education and globalized outlook are viewing the social order from different perspective of equality and impartiality and not from the religious or traditional point of view. Hopefully, the wicked practice of untouchability would be removed from the society sooner rather than later and our country would usher into a new era of social equality and brotherhood which will be the true India of Gandhi and Ambedkar.

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