Article 17 of the Indian Constitution

Introduction

The term Scheduled Caste and Scheduled Tribe is a defined legal term. It was adopted in 1935, when the British listed the lowest caste and tribes of the Hindus into a Schedule appended to the Government of India Act for the purpose of statutory safeguard and to protect their interest.  The concept of “Schedule” caste and tribes is relevant only in the context of statutory provisions, government programs and politics.

Outside this context there is no “Schedule” caste or tribes. In a population as diverse as India, the Schedule Caste and Tribes comprise of nearly 40% of the population as per the last census. Born into numerous communities, each with its own identities, traditions, but one common problem, that of being suppressed for centuries. They have never earned the status of equals in society.

The democratic traditions which developed in the last two centuries have upheld the lofty principles of “Equality before the Law”. The principle itself is a great leap forward towards humanity. For it recognizes that all men and women are equal in sight of the law. It transcends all narrow restrictions which separate people into high and low. However, it took a long time for people to realize that the recognition of a principle in itself does not ensure its practice, namely, that the de jure concept is different from its de facto application.

The Indian Constitution guarantees the right to equality and justice, and this is to extend to every citizen of the country under the Fundamental Rights which are guaranteed to them. But even to this date, Untouchability is a prevalent practice which rears its ugly head in modern India, despite Article 17 of the Constitution having abolished the practice of untouchability. It is a well known fact that untouchability is practiced unabated in rural areas, although there has been some change in cities. Even after 55 years of the Constitution being in force India has failed in the implementation of a fundamental right enshrined in the Constitution.

The cure is part of the cause in this case; as Dalits avail themselves of the advantages of reservation in India, and awareness of rights increases, the status quo of inter-caste relations in villages faces severe challenges. Increased violence, and increased reporting of incidents of violence, is a natural product. Although Dalit groups have had great success in gaining publicity for their cause, they have consistently failed to hold the Indian government to the standards of existing national and international legislation. There is, in fact, a law in place to fight the violence being visited upon Dalits, but it suffers from neglect.

In 1989, the Government of India passed the Prevention of Atrocities Act (“POA”), which delineates specific crimes against Scheduled Castes and Scheduled Tribes as “atrocities,” and describes strategies and prescribes punishments to counter these acts. POA attempts to curb and punish violence against Dalits through three broad means. Firstly, it identifies what acts constitute “atrocities.” These include both particular incidents of harm and humiliation such as the forced consumption of noxious substances, as well as the systemic violence faced by many Dalits, especially in rural areas. Such systemic violence includes forced labour, denial of access to water and other public amenities, and sexual abuse of Dalit women. Secondly, POA calls upon all the states to convert an existing sessions court in each district into a special court to try cases registered under the POA. Thirdly, POA creates provisions for states to declare areas with high levels of caste violence to be “atrocity-prone” and to appoint qualified officers to monitor and maintain law and order.

The objective of POA is also to break away from caste system. As the caste system is a curse in our society ,the sooner it is destroyed the better. The caste system is an outdated feudal institution which has weakened our country because it disunites us. Hence, the sooner it is done away with the better, so that India emerges not just as a modern, powerful, industrial State but also shows that there are no “unequals among its equals.” The time has come for India to show that justice must not only be done but must be seen and experienced by its people to be done.

Research Methodology

Aim and Object of the Paper:

The aim and object of this research paper is to better understand the working and interpretation of Article 17 of the Constitution and in doing so analyze the realities of the failure of the Article over the years and the changes to be able to reconcile the legislative intent with the politico-social reality. An attempt will be made by the researcher to evaluate whether or not the purposes of Article 17 were served  in relation to the original legislative intent and the need to enact subsequent legislations to strengthen the intent behind Article 17 while at the same time, the failure in implementing the law and spirit of Article 17 and supporting legislations.

Scope and Limitation of the Paper:

The scope of this paper extends to studying how Article 17 and supporting legislations have evolved and the purposes it served. This paper gives a broad overview of the existence of untouchability in India, the role played by civil society, judiciary and the legislature to try and redress the problem as well as analyse the reasons for the failure or lack of political will. The paper seeks to cull out defining characteristics and purposes behind the use of this Article as a means of addressing the problem as well as a source of power within the hierarchical structure of political society .The limitations of the paper are that apart from the broad overview, the researcher has sought to narrow the scope by studying a few key instances, in order to give a more comprehensive feel of the practical reality of Article 17, by studying a few key cases which analyse the loopholes and the reality of untouchability in its various manifest forms in India.

Method of Writing:

This research paper has been written using both descriptive and analytical methods. However, the approach adopted in using both these methods has been to critique the information utilized to the extent possible. The descriptive mode of writing has been adopted to discuss the intent of having Article 17 in the Constitution and the analytical mode of writing has been employed in the analysis of the reasons and rationale behind the construction and legal and political interpretation and interplay while utilizing the said Article and subsequent legislations.

Hypothesis:

It’s the researcher’s working hypothesis that it is not that Article 17 was inadequate to prevent untouchability but it came to be inadequate as a result of breakdown in governmental machinery in response to the political manipulations of power in an attempt to balance out pre-existing social hierarchies. This is evident because other enshrined fundamental rights such as the right to life or right against preventive detention have not been constitutional failures on account of better implementation reflecting that at the end of the day, everything is a matter of proper political will, policy and implementation. Any failure can under the constitutional scheme of things only be caught by a pro-active judiciary.

Researchable Questions.

The following questions have been raised by the researcher during the course of this research paper:

(i)         What was the original legislative intent of the framers of the Constitution with regard to Article 17?

(ii)        Are all fundamental rights mere paper rights? Especially in light of the prevalence of untouchability has Article 17 in effect been reduced to being a directive principle of state policy?

(iii)       Why did Article 17 prove to be insufficient to achieve its vaulted objective? Why have legislations enacted to support the objectives of Article 17 proven to be equally unsuccessful in completely eradicating untouchability?

(iv)             To what extent has the enactment of POA helped alleviate the problem of untouchability in India?

(v)               Do sufficient safeguards exist in domestic legislation in India which are on par with international legislations when it comes to prevention of the existence of untouchability?

(vi)             What has been the contribution of the Courts in the interpretation of Article 17, if any?

(vii)           Is the continued existence of untouchability in India today, a failure of law or law and order or civil society or lack of political will or a combination of all of the above factors? FORMAT AND RE-NUMBER

Sources of Data:

The researcher has relied on both primary and secondary sources of information in the course of his paper. The primary sources comprise case law and the Constitution. The secondary sources comprise articles and books.

Mode of Citation:

All sources referred to have been cited. A uniform mode of citation has been used throughout the paper.

The Constitutional Provisions for Affirmative Actions

As the Preamble of the Constitution expressly declares that “to secure to all citizens Justice, social, economical and political, liberty of thought, expression, belief, faith and worship- equality of status and of opportunity.”

The Fundamental Rights have been extended to every citizen of this country to guarantee the basic freedoms extended to individuals. Article 17 of the Constitution has abolished the “practice of untouchability” and severely punishes those who practice it. Article 21 guarantees the right to life and liberty. The Indian Supreme Court has interpreted this right to include the right to be free from degrading and inhuman treatment, the right to integrity and dignity of the person, and the right to speedy justice.[1] When read with Article 39A on equal justice and free legal aid, Article 21 also encompasses the right to legal aid for those faced with imprisonment and those too poor to afford counsel.[2]

The State also guarantees that “the state shall not discriminate against any citizen on grounds only of religion, race, caste, place and birth or any form”. In the directive principles it adds that “The state shall promote with special care the educational and economic interest of the scheduled castes/tribes and shall protect them from social injustice and all forms of exploitation”.

Article 46 comprises both development and regulatory aspects and stipulates that: “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and forms of exploitation.” As the article falls under the category of directive principles and not fundamental rights, it cannot be enforced by the state’s courts. Article 15(4)[3] empowers the state to make any special provisions for the advancement of any socially and educationally backward classes of citizens, or for scheduled castes and scheduled tribes. This particular provision has enabled several states to reserve seats for scheduled castes and scheduled tribes in educational institutions, including technical, engineering, and medical colleges. It has also paved the way for reservations in police forces.

Article 330 provides reservations for seats for scheduled castes and scheduled tribes in the Lok Sabha (the House of the People), while Article 332 provides for reservations in the state legislative assemblies. Article 334 originally stipulated that the above two provisions would cease to have effect after a period of ten years from the commencement of the Constitution. This article has since been amended five times, extending the period by ten years on each occasion.[4]

In accordance with these constitutional provisions a number of measures have been initiated by the government for providing protection to the untouchables (scheduled castes and Scheduled tribe). These measures are in the nature of both protective and developmental. In the ‘protective sphere’ untouchability was legally abolished and its practice in any form foreboded by the Anti-Untouchability Act, of 1955. Nearly two decades later, in 1976, the 1955 Act was reviewed in order to make it more stringent and effective, and the Protection of Civil Rights Act 1955 (“PCR Act”) was enacted. In 1989, the government enacted yet another Act, namely the Scheduled Castes/Tribes Prevention of Atrocities Act in order to prevent atrocities against members of the SC/ST. The need for this additional act was felt because under the circumstances, PCR 1955 and normal provisions of the Indian Panel Code had been found to be inadequate to provide safeguards to SC/ST against several crimes.

The Provisions of the POA

Article 17 of the Constitution deals with abolition of untouchability which reads thus:

“Abolition of 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.

The expression “Untouchables” has not been defined and is usually used with references to those persons who are born in those castes and communities that are classified as Harijans or outcaste. The expression may also so be interpreted as to include persons who are made untouchables even though they might have been born in a higher caste. In the Hindu Dharma Shastras there was always a sharp distinction been the “Jathi Chandalas” (born untouchables) and “Karamchandalas” (those who be came untouchables on account of their own conduct.[5]

In Surys Narayan Choudhary v. State of Rajasthan[6], the Rajasthan High Court held that the entry of all devotees for worship into temples would be regulated by the same conditions which apply equally to everyone without any additional conditions for entry being imposed on any Harijans devotee. It was directed that the reported and much published practice of purifications of Harijans alone before allowing them entry into the temples for worship by making them wear “Kanthimala”, sprinkling them with “Gangajal” shall be discontinued forthwith since the conditions imposed on “Harijans” devotes aloes is discriminatory and violative of the right of equality guaranteed to Harijans by Articles 14, 15 and 17 of the Constitution.

The people belonging to higher classes in the society when they refused professional service to “Harijans” on the grounds of his being Harijans seek to perpetuate and enforce disability arising out of untouchability when they offer insults to a Harijan on the ground of his being so, they do the same thing. The acts clearly fall within the inhibition contained in Article 17 of the Constitution and clearly offences as described therein.[7]

Article 17 of the Constitution which makes the practice of untouchability an offence must be read with Article 35(a)(ii) which confers upon Parliament exclusive powers to make laws prescribing punishment for those acts which are declared to be offence under Part III of the Constitution of India. Article 17 does not deal with untouchability in its literal and grammatical sense, but with the practice as it developed historically in India.[8]

Even in the present day and age where equality has been granted under the Constitution to every citizen, there are atrocities being committed every day against the weaker section of society. Even through the implementation of the Civil Rights Act, 1955 there has still been flaws in the system to ensure every one enjoys his or her fundamental rights extended to him. The prevention of Atrocities Act, 1989 was passed unanimously in both houses of Parliament to ensure the Atrocities against the SC/ ST come to a halt and the people who committee this Atrocities are punished and justice be render to those abused.

The POA  has been legislated so as to safe guard the Scheduled Caste and Scheduled Tribe. Section 3 of POA deals with punishments for offences of atrocities. Section 3(1) (i) to (xv) specify the offences of the atrocities and whoever not being a member of the Scheduled Caste and Scheduled Tribe commits any such offence or offences, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. Section (2) to (vii) specify the offences and punishments too.

To improve the provisions of S. 3 of the POA, the first and foremost prerequisite is to establish that the victim belong to the Scheduled Caste or Scheduled Tribe category. The POA does not provide for any presumption to be drawn in favour of, or against any person in this regard.[9]

Merely because S.3 and 4 of Act 33 of 1989[NOW WHICH ACT IS THIS???Dont call everything Act ass] provide for sever punishments it cannot be said that the POA is ultra vires on that ground.[10] Where the applicability of Act of 33 of 89 itself is doubtful accused can be enlarged on anticipatory bail.[11]

As it was held in Rupabhai v. State of Gujrat, [12] the court is empowered to compound offences by invoking inherent powers under Scheduled Caste and Scheduled (POA) Act, and the Protection of Civil Rights Act, 1955. These seem to be no arbitrariness in the omission of mens rea in most of the offences under S.3.[13] Where there is no order appointing the Civil Judge and C.J.M as Additional Sessions Judge by High Court under S.9 of the Code of Criminal Procedure, Learned Civil Judge acting as in charge Sessions Judge has no power to grant bail.[14] Cognizance of offence on the basis of report under S.173 Cr.P.C, has to be taken by the Magistrate and it is not up to the discretion of the Police Commissioner under S.96 of the Bombay Police Act, 1951.

In the absence of proof whether the complaint belongs to Scheduled Caste or Scheduled Tribe, the accused cannot be convicted.[15]

Changes Required in POA

It was held in Ramesh L. Aneja and R.L. Aneja v. State and Anr,[16] The proceedings before the Metropolitan Magistrate had been initiated on a complaint under S. 3(x) of The SC ST (POA) Act, 1989 against the petitioner, on receipt of the complaint report was filed signed by the Hari Singh. As per the regulations of the Act an enquiry was conducted, it was found that the petitioner had actually not committed any offence and that the complaint had been filed in order to pressurize the petitioner to deter him from proceeding against the complainant who failed to deposit Rs.59,670 in the bank handed over to him by the petitioner for depositing in the bank.

It is contended by the respondent that the FIR had been registered by then. Further it is contended that as per the rules framed under the Act the investigation must be complete within one month of the registration of the FIR and that if that is not concluded on account of this order the report under Section 173 Cr.P.C. pursuant to the FIR will become bad in law it was clarified that the FIR registered will remain in existence despite the order of stay.

There is a general lapse in this statue to ensure a member of the Scheduled Caste or Scheduled Tribe does not misuse the rights extended to him. A lot of cases have been quashed on the ground of a member of the SC/ST falsely accusing someone of an act which he had not committed and hence there should be an addition in the Act where if an SC/ST is found of abusing his powers, he should be severely dealt with.

In Rajaji Hegolji Thakore v. State of Gujarat,[17] the petitioners was accused of having committed offences punishable under Sections 143, 342, 395, 323, 504 and 506(2) of the Indian Penal Code and S. 3(1) (10) of the SC/ST (POA) Act, 1989 by virtue of an F.I.R. lodged with Bhabhar Police Station. They challenged this petition under Article 226 read with Articles 14, 16 and 21 of the Constitution

Asking for the issue a writ of mandamus or any other writ, order or direction in the nature of mandamus or any other appropriate writ, directing the Investigating Officer to release the petitioners on bail in the event of their arrest in connection with offences

The Court held that petition is devoid of merits and powers under Article 226 of the Constitution are not required to be exercised in favor of the petitioners. The petition was dismissed. Article 226 guarantees a right to a citizen to approach the High Court, the validity of these cases is an abuse on the Fundamental Right of the citizen as this Act encroaches on the right of an individual.

The former Attorney Generally Soli Sorabjee presented the official view with regard to the failure of the judiciary and executive to make use of the provisions of the Act and to protect the untouchables from the commissions of Atrocities. He mentioned at the current rate of convictions under the Act, it should be viewed in light of the fact that the Indian criminal jurisprudence is based on presumption any proof beyond reasonable doubt.

While accepting that one of the biggest problems with the legislations is the non implementation of the legal provisions and the broad interpretation, he adds the caveats that this is not a situation exclusive to Dalits but includes other weaker sections of society. He goes on to argue that there is a need to accept and implement the legal provisions  and advance the status of the Dalits and to provide for them with immediate protection against commission of atrocities, one must not ignore the important steps taken by the founding fathers of the Constitution who have made vast attempts in this sphere.[18]

In Ismail Kalubhai Gharasia v. State of Gujarat[19] the accused here was sentenced under S.3 (2) of the POA to 7 years rigorous imprisonment for the act of committing rape of a 9 year old Scheduled Caste girl by the Special Courts. The accused then challenged this in the High court where he was found to be not guilty of any charges as the evidence of the girl dint not match the identity of the man.

The powers vested with the Special Courts which have been setup under the 33 of 89 Act are vast and inherent to the bases that speedy Justice be rendered and can try offences under IPC committed in course of the transactions as long as they are read with S3. of the Act. The fact being in most of the judgment passed by the Special Courts have been overruled by the higher courts as there has been a discrepancy in the system of Justice rendered which tilt in the balance of the SC/ST. Although the Prevention of Atrocities Act is a powerful weapon on paper, in practice it has suffered from a near-complete failure in implementation.

In G. Krishnan S/o Govindan, Kumutha v. Union of India )[20], by means of this writ petition, the petitioner had challenged S. 3 and 18 of the SC/SC (POA) Act, 1989 as ultra vires the Constitution. The challenged the same on the grounds that they were falsely accused by a member of the Scheduled Caste and a criminal case under Sections 323/427 of the IPC and S. 3(1)(10) of the SC/ST (POA) Act, 1989. The petitioner applied for anticipatory bail under Section 438 of Cr.P.C. but that application was dismissed by the District and Sessions Judge, in view of Section 18 of the SC/SC (POA) Act, 1989.

As regard the validity of Section 18 of the POA, that has already been upheld by the Supreme Court inState of M.P. and Anr. v. Ram Krishna Balothia and Anr.[21] The Court took into consideration the validity of S. 3 of the Act. The court came to the opinion, there is nothing unconstitutional in S. 3 of the Act. It is the constitutional obligation of the State to protect the interests of the Scheduled Castes and Scheduled Tribes from social injustice. The object of the Act is to prevent atrocities against the members of the Scheduled Castes and Scheduled Tribes, who have been oppressed and downtrodden for thousands of years in our country

In Sanjay Narhar Malshe v.  State of Maharashtra[22] A question of law, important and interesting which is sought to be raised in this Petition relates to the powers of the Judicial Magistrate in respect of the grant or refusal of the bail to accused persons in cases which are exclusively triable either by the Sessions Courts or Special Courts established under a special statute

Petitioner that though the provisions of SC/ST (POA) Act, 1989 under which the charge-sheet has been filed, specifically provide under Section 18 thereof that the provision of Section 438 of the Code is not applicable to the cases arising under the said Act, yet there is no bar under Section 209 of the Cr.P.C or under any other provision of law including under the said Act for grant of bail to the person accused of offences punishable under Section 3 of the said Act while the matter is being committed to the Special Court.

Referring to the decision of the Apex Court in Gangula Ashok and Anr. v. State of A.P.[23] wherein it has been ruled that a Special Court under the said Act is not empowered to take cognizance directly of the offence committed under the said Act but it has to be only after committal of the case by the Magistrate in exercise of powers under Section 209 of the Code, it is submitted that it is necessary for the Magistrate to commit the proceedings to Special Court in order to enable to Special Court to take cognizance of the said proceedings arising from the charge-sheet filed by the Police in relation to the offence in question. It is further submitted that in the interregnum period there is absolutely no justification for detention of the petitioner, nor it has been the case of the Investigating Agency that such detention is necessary. Besides, there is no statutory provision debarring the Magistrate to refuse bail in the course of the committal proceedings. However, considering the normal practice followed by the Magistrate in committal proceedings, it is necessary for this Court to give direction to the Court of Magistrate to exercise their powers in relation to the grant of bail even in such cases including the one of the Petitioner.

Meanwhile the interim relief granted to the Petitioner to continue till the appropriate order is passed by the Magistrate

In G. Raja Sundera Babu and Ors. v.  Government of Andhra Pradesh and Ors[24]. The petitioners contend that in view of these instances, the area be declared as “PRONE TO ATROCITIES” within Section 17 of the Act.

Parliament enacted the Act with a view to provide security to the persons belonging to Scheduled Castes and Scheduled Tribes. Special procedure was prescribed and stringent measures were indicated for violation of the rights of the persons belonging to the said categories. It is true that the implementation of the provisions of the Act has gone a very long way, in containing the atrocities against the Dalits. However, instances are not lacking, where the provisions of the Act are grossly misused by persons other than the genuine victims, to advance their political or personal causes. It is too difficult to generalize the issue either way. Misuse of the provisions of law is not something uncommon. However, because of the stringent measures provided for under the Act, the impact felt by the victims of misuse of the process of the Act is substantial. Hence, the Court held it did not find any basis for claim of the petitioners. The petition was dismissed.

Out of the 31,011 cases tried under the POA in 2004, only a paltry 1,677 instances resulted in conviction while 29,334 ended in acquittal. This is a result, where there are a lot of flaws within the Act or within the executive to take a firm stance on the issue.

The POA is a powerful piece of legislation. If only the many voices professing to be working on behalf of the Dalits of India could work effectively to make sure that the Central Government was held accountable to its promises and more importantly to the fundamental principle enshrined in the Constitution available to every citizen of the nation.. Only then will the rate of convictions be justified when compared to the amount of cases that appear before the judiciary. For it is time that the judiciary also lived up to its constitutional mandate of being an “impartial judiciary” and show that justice is done and can be seen to be done.

Constitutionality of the Act of 1989.

Given the nature and the content of the Act and the manner in which it provides for stringent and mandatory punishments for a myriad of offences hitherto unmentioned in previous Act, as well as given the fact that the present Act follows in the wake of a more latent legislation in the area it is hardly surprising that the present Act should be subjected to strict scrutiny and its validity challenged on the grounds of unconstitutionality. The researcher here tries to analyze the trend of such a challenge by the way of the case law that appears in this regard.

The constitutional validity of the act was challenged on various grounds in the case of Dr. Ram Krishna Balothia v. Union of India.[25] Objections were raised on the grounds that the entire act was discriminatory and therefore infringes on Article. 15(1), of the Constitution and is not saved by Article. 15(4). The punishment of offence committed by a non SC or ST person against a person of those communities s not a measure that would ensure the up liftment and advancement of those communities. 8A provides that a person who provides financial assistance to a person accused of such offences is presumed to have abetted the offence unless the contrary is proved. This provision is unclear, vague and preposterous and creates a premature criminal liability and is therefore violative of Article 14 and 21.

Section 18 makes Section 438 of CrPC inapplicable to offences committed under this Act.

On the first grounds of the Act being violative of Article 15(1) the court held that the Act to be protected under Article 15(4) and in this regard a comment was made that the substance of Article 15(4) should not be read in a narrow manner and the idea of protective discrimination which was embodies in this article should be recognized, with regard to advancement it should not be read to mean only social and educational advancement and the idea of advancement brings within its sweeps every kind of advancement. Thus advancement under Article 15(4) would include safeguarding the ability of these communities to live with dignity and self respect. This would only be possible if they allowed to live free of fear and humiliation and protection against the commitment of all norms of atrocities against them. Thus the Act fall within the protection of 15(4).

On the issues of non inclusion of members from within the communities the court has not made any comment, but it is obvious that given the nature and the object of the Act and its intensions to provide protection for those who fall within these communities it is however unlikely that the same Act would provide for the prosecution of the same members. Any Act or atrocities committed by them will be tried under ordinary procedure in the IPC.

With reference to 8(1) the court held it was necessary to prevent the rich from encouraging the commission of offences while remaining at a safe distance from the actual commission of the crime. Further the Act was not held to be arbitrary to the extent that there was an process of checks in place to prevent the abuse of the power given by the Act.

While the high court conceded the point made regarding anticipatory bail under 18 the matter was taken up by the Supreme Court on appeal. The Supreme Court in the case of State of MP v. Ramkrishna Balothia[26] which was the appeal sent as a result of the former case, was asked to decide the option of anticipatory bail to a person accused of an offence under this Act. The court reversed the decision of the high court and held the provision to be valid on in light of the larger objectives of the Act.

The court argued that while an offence under section 3 arises out of the practice of untouchability, it should be viewed with respect to the larger aim of the Act which was the prevention of atrocities against these people and the provisions of stringent penal sanctions  for the commission of such offences. Thus the exclusion of section 438 with respect to this Act must be viewed in light of prevailing social conditions which give rise to such offences may threaten and intimidate the victims into withdrawing their complaints or obstruct the functions of the prosecution.

The court referred to the object of the Act in order to highlight the manner in which the Act took cognizance of the crimes committed against those protected under it by others with vested interest and further the trend of retributive action that generally follows any attempt made by their victims to assert their rights and seek the redressal of wrong through executive and judicial intervention.

Viewed from such circumstances from the denial of anticipatory bail to such persons cannot be considered to attract Article. 14 as the offences forma distinct class by themselves and cannot be compared with other offences. The court further held that given the context in which the crimes take place the denial of anticipatory bail cannot be considered to be contravention of Article 21 since it is the only effective method of ensuring the implementation of the law under the circumstances.

In the case of Virendra Singh v. State of Rajasthan,[27] the court held that in no person accused of offences under the act may avail himself of the options of anticipatory bail is clearly denied through section 18. the only manner in which such an option would be applicable would be in the event that there exists a doubt regarding whether the offences was committed under section 3 of the Act and this must be gathered by courts through the FIR filed. The courts have merely to ascertain the existence of an accusation which complies with all the requirements for an offence under section 3, the courts will not then go into examine the validity of such an accusation in order to come to a decision regarding the granting of anticipatory bail.

The validity of the Act was also challenged in Ravindran Pillai v. Union of India[28], which questioned the constitutionality of the Act with reference to its oppressive provisions. The courts examined the constitutional basis provide for the legislation by was of Article. 17 which it regarded to be significant  from the point of view of social justice and the guarantee of dignity and justice to a vast section of society to whom they were denied for centuries. Further given the nature of the article as well as the object and reasons for the enactment of the legislature and prevailing social conditions, the court concluded that the Act could not be declared unconstitutional on the grounds of it being oppressive.

The constitutionality of the Act was once again raised in the case of Jai Singh v. union of India,[29] with specific reference to section 3 and 18. in deciding the case the court drew from the preamble to the Act which laid out its objects and reasons which included the protection of certain sections of society from continued oppression and the commission of inhuman practices and continues oppression against them. Article 17 of the Constitution was also examined in this regard and was hailed as a significant provision with reference to equality before the eyes of the law.

With reference to the contention made regarding unconstitutionality on the basis of section 18 and violation of Article 21, the court held that the denial of anticipatory bail was not a denial of the due process of law. Article 21 guarantees that the procedure to be followed in a trial of criminal case must be fair, just and equal. The right of anticipatory bail does not flow from Article 21. The right has been created by a statute and can be denied by another statute enacted by parliament. Article 21 is not intended to be a constitutional limitation on the powers of the legislature. The parliament has the power to deny the application of section 438 of Cr.P.C to a special legislation and given the nature of the content and the purpose of the Act, it may be safely be construed to be a special legislation in this regard.

With reference to the contention of unconstitutionality on the grounds of it being a discriminatory legislature the court held that this too could not constitute a valid ground for declaring the statute to be unconstitutional. The petitioners contended that the Act was discriminatory on the grounds that it allowed for the prosecution of offences committed by case Hindus but not members of the SC and ST community. On this ground the court held that where the object of the Act was the protection of the members of the said communities against the oppression of caste Hindus, there could be no valid basis for prosecuting the same members under the Act.

Thus upon examination of the aforementioned case one may draw the conclusion that the bulk of challenges of the Act have been one grounds of discrimination or wrongful classification as well as the violation of the due process of law either on the basis of the denial of anticipatory bail or with regards to the overly oppressive nature of the punishment prescribes under it.

An important aspect with respect to punishment is the position regarding mandatory death penalty. This may be compared to Section 303 of the IPC which was declared to be unconstitutional on the basis that it removed all possibilities of judicial discretion with respect to granting of capital punishment. Within such a backdrop the validity of the provision made under this Act for grating of mandatory death penalty maybe questioned. With regards in a mechanical application of the law one could provide the case of a untouchable mother who might take the punishment in a suit in order to protect her son, who by virtue of his paternal lineage would be considered to be a caste Hindu for the purpose of the Act. Would the application of mandatory death penalty to use its discretion and in keeping with the rarest of rare principles which operates regarding capital cases be allowed to take account of mitigating circumstances.

Thus the debate regarding the constitutionality of the Prevention of Atrocities Act remains an evenly balanced one with argument made for both sides. To date the court seems to take a view that supports the validity of the legislature despite numerous attempts made in the different States, to invalidate the Act on the grounds that it was being abused by the SC and ST community to settle old disputes and vendettas.

Conclusion

From being called shudras to harijans to modern day parlance of scheduled caste and scheduled tribes, very little has changed in terms of treatment and injustice being meted out to some segments of India’s population. The injustice is done at the hands of the system-which encompasses government, judiciary, legislature and civil society. Makes one wonder that while India has a civil society, does this translate into having a civilized society? Probably not-for the existence of untouchability in various parts of India still proves that India today is a society of unequal equals.

Having examined the Act and( which Act moron- POA, SC/ST POA or 33 of 89) the practice of untouchability and the failed attempts made by the legislature to further the constitutional mandate to eradicate such practices in order to achieve the ideal society through justice and equality, it is frustrating at the very least to see that even though somewhat adequate protection has been offered to the SC/ST on paper, there seems to be no adverse effect on the perpetrators. They can still commit atrocities with impunity and escape all the consequences for their actions. This is a clear instance of breakdown of the constitutional mandate and of the law and order machinery in society.

Neither the Civil Rights Protection Act nor the far more stringent POA have been successful in achieving it mandate of abolition of untouchability and the practice untouchability continues even to this very date. The failure of the legislature is attributed mainly to ineffectiveness of the legal provisions. Before the coming into force of the present POA, it was a widely held debate that the flaw and the lack of success of curbing the practice of untouchability was due to inherent flaws and lenience in the system. However the same cannot be said for the present Act at it has extremely stringent and at times oppressive provisions regarding the commission of offences under the Act as well as their punishments thereby.

It is time to accept the fact that no amount of oppressive legislation would succeed without the support of the legislative and executive and strong commitment on its part to enforce and protect the weaker sections of the society. The issue of punishment will only prove to be a deterrent to the offenders and sufficiently redress or protect the victim in the event that there are a lot of convictions for the crimes being committed and speedy up the process of investigation and justice.

While the researcher had addressed that there is a sharp debate regarding constitutionality of the being violative of Article 14, 15 ,19 and 21 of the Constitution, the balance of the arguments are at present evenly matched and the Hon’ble Supreme Court has held in favor  of upholding of the Act. Further while there may be a valid contention raised regarding the possible abuse of the Act, the cases mentioned in the previous chapters show that some measures are being taken to prevent arbitrary and mechanical implementations of the Act.

It can be said that regardless of the nature of the Act, attempts are being made in order to escape the accountability regarding its ineffectiveness’ in implementing the existing cases. The problem may not lie in the nature of the legislation but in the implementation. Whatever may be one’s view regarding the stern provisions, the admittance of the failure of the Act to quash the practice of untouchability has failed, and this is not due to the provisions but more so due to the failure of executive inertia to ensure the same.

Until this issue can be resolved when political will backs the stringent enforcement of the Act and perpetrators of the crime are punished, India stands in the dock. It is up to the system now to decide whether India is really for the Indians or for a fragmented population. The time has come for India to be a society of equals. To give form to the spirit and letter of the mandate enshrined in Article 17 and to understand at all levels of society that these rights are non derogable.