Thursday, January 26, 2012

Wednesday, January 25, 2012

The present generation and the coming generations have to solve three grave problems, namely, population poverty and pollution if they have to survive. Pollution being the most dangerous problem likes cancer in which death is sure but slow. Environment pollution is assuming dangerous proportions all through the globe and India is not free from this poisonous disease. This is the gift of modern living, industrialization and urbanization. Unless timely action is taken we have a forbid and bleak future for the world.

The word noise is derived from the Latin term nausea. It has been defined as unwanted sound, a potential hazard to health and communication dumped into the environment with regard to the adverse effect it may have on unwilling ears.1

Noise is defined as unwanted sound. Sound, which pleases the listeners, is music and that which causes pain and annoyance is noise. At times, what is music for some can be noise for others2

Section 2 (a) of the Air (Prevention and Control of Pollution) Act, 1981 includes noise in the definition of ‘air pollutant’.

Section 2(a) air pollution means any solid, liquid or gaseous substance including noise present in the atmosphere such concentration as may be or tent to injurious to human beings or other living creatures or plants or property or environment.

According to Encyclopedia Britannica: In acoustic noise is defined as any undesired sound.3

In chambers 21st Century Dictionary the definition of noise has undergone a change. Noise pollution stands carved out as phrase separately from noise. The two are defined as under:

Noise- a sound; a harsh disagreeable sound, or such sound; a din. Pollution- an excessive or annoying degree of noise in a particular area, e.g. from traffic or aero plane engines.

Pollution is a noise derived from the verb pollute. Section 2 (c ) of the Environment (Protection ) Act, 1986 defines environmental pollution to mean the presence in the environment of any environmental pollutant. Section 2 (b) of the said Act definesenvironmental pollutant to means any solid, liquid or gaseous substance present in such concentration as may be ,or tends to be injurious to environment.

Noise can be described as sound without agreeable musical quality or as an unwanted or undesired sound. Thus noise can be taken as a group of laud, non harmonious sounds or vibrations that are unpleasant and irritating to ear.

2 Measurement:-

A decibel is the standard for the measurement of noise. The zero on a decibel scale is at the threshold of hearing, the lowest sound pressure that can be heard, on the scale acc. To smith, 20 db is whisper, 40 db the noise in a quiet office . 60 db is normal conversation, 80 db is the level at which sound becomes physically painful.

The Noise quantum of some of the cities in our country indicate their pitch in decibel in the nosiest areas of corresponding cities, e.g. Delhi- 80 db, Kolkata - 87,Bombay-85, Chennai-89 db etc.

3 Sources of Noise Pollution:- Noise pollution like other pollutants is also a by- product of industrialization, urbanizations and modern civilization.

Broadly speaking , the noise pollution has two sources, i.e. industrial and non- industrial. The industrial source includes the noise from various industries and big machines working at a very high speed and high noise intensity. Non- industrial source of noise includes the noise created by transport/vehicular traffic and the neighborhood noise generated by various noise pollution can also be divided in the categories , namely, natural and manmade. Most leading noise sources will fall into the following categories: roads traffic, aircraft, railroads, construction, industry, noise in buildings, and consumer products

1. Road Traffic Noise:-

In the city, the main sources of traffic noise are the motors and exhaust system of autos , smaller trucks, buses, and motorcycles. This type of noise can be augmented by narrow streets and tall buildings, which produce a canyon in which traffic noise reverberates.

2. Air Craft Noise: -

Now-a-days , the problem of low flying military aircraft has added a new dimension to community annoyance, as the nation seeks to improve its nap-of the- earth aircraft operations over national parks, wilderness areas , and other areas previously unaffected by aircraft noise has claimed national attention over recent years.

3. Noise from railroads: -

The noise from locomotive engines, horns and whistles, and switching and shunting operation in rail yards can impact neighboring communities and railroad workers. For example, rail car retarders can produce a high frequency, high level screech that can reach peak levels of 120 dB at a distance of 100 feet, which translates to levels as high as 138, or 140 dB at the railroad worker’s ear.

4. Construction Noise:-

The noise from the construction of highways , city streets , and buildings is a major contributor to the urban scene . Construction noise sources include pneumatic hammers, air compressors, bulldozers, loaders, dump trucks (and their back-up signals), and pavement breakers.

5. Noise in Industry: -

Although industrial noise is one of the less prevalent community noise problems, neighbors of noisy manufacturing plants can be disturbed by sources such as fans, motors, and compressors mounted on the outside of buildings Interior noise can also be transmitted to the community through open windows and doors, and even through building walls. These interior noise sources have significant impacts on industrial workers, among whom noise- induced hearing loss is unfortunately common.

6. Noise in building: -

Apartment dwellers are often annoyed by noise in their homes, especially when the building is not well designed and constructed. In this case, internal building noise from plumbing, boilers, generators, air conditioners, and fans, can be audible and annoying. Improperly insulated walls and ceilings can reveal the soundof-amplified music, voices, footfalls and noisy activities from neighboring units. External noise from emergency vehicles, traffic, refuse collection, and other city noises can be a problem for urban residents, especially when windows are open or insufficiently glazed.

7. Noise from Consumer products:-

Certain household equipment, such as vacuum cleaners and some kitchen appliances have been and continue to be noisemakers, although their contribution to the daily noise dose is usually not very large.

4 Harmful Effects:

On Human Being, Animal and Property: Noise has always been with the human civilization but it was never so obvious, so intense, so varied & so pervasive as it is seen in the last of this century. Noise pollution makes men more irritable. The effect of noise pollution is multifaceted & inter related. The effects of Noise Pollution on Human Being, Animal and property are as follows:

I It decreases the efficiency of a man:- Regarding the impact of noise on human efficiency there are number of experiments which print out the fact that human efficiency increases with noise reduction. A study by Sinha & Sinha in India suggested that reducing industrial booths could improve the quality of their work. Thus human efficiency is related with noise.

II Lack of concentration:- For better quality of work there should be concentration , Noise causes lack of concentration. In big cities , mostly all the offices are on main road. The noise of traffic or the loud speakers of different types of horns divert the attention of the people working in offices.

III Fatigue:- Because of Noise Pollution, people cannot concentrate on their work. Thus they have to give their more time for completing the work and they feel tiring

IV Abortion is caused: - There should be cool and calm atmosphere during the pregnancy. Unpleasant sounds make a lady of irriative nature. Sudden Noise causes abortion in females.

V It causes Blood Pressure: - Noise Pollution causes certain diseases in human. It attacks on the person’s peace of mind. The noises are recognized as major contributing factors in accelerating the already existing tensions of modern living. These tensions result in certain disease like blood pressure or mental illness etc.

VI Temporary of permanent Deafness:- The effect of nose on audition is well recognized. Mechanics , locomotive drivers, telephone operators etc. All have their hearing . Impairment as a result of noise at the place of work. Physictist, physicians & psychologists are of the view that continued exposure to noise level above. 80 to 100 db is unsafe, Loud noise causes temporary or permanent deafness.

VII EFFECT ON VEGETATION Poor quality of Crops:- Now is well known to all that plants are similar to human being. They are also as sensitive as man. There should be cool & peaceful environment for their better growth. Noise pollution causes poor quality of crops in a pleasant atmosphere.

VIII EFFECT ON ANIMAL:- Noise pollution damage the nervous system of animal. Animal looses the control of its mind. They become dangerous.

IX EFFECT ON PROPERTY:- Loud noise is very dangerous to buildings, bridges and monuments. It creates waves which struck the walls and put the building in danger condition. It weakens the edifice of buildings.

5 Legal Control:-

(a) Constitution of India

Right to Life:- Article 21 of the Constitution guarantees life and personal liberty to all persons. It is well settled by repeated pronouncements of the Supreme Court that right to life enshrined in Article 21 is not of mere survival or existence. It guarantees a right of persons to life with human dignity. Any one who wishes to live in peace, comfort and quiet within his house has a right to prevent the noise as pollutant reaching him.

Right to Information:- Every one has the right to information know about the norms and conditions on which Govt. permit the industry which effect the environment.

Right to Religion and Noise:- Right to religion does not include right to perform religious activities on loud speaker and electronic goods which produce high velocity of noise.

Directive Principal of State Policy:- The state has the object to make the enviorment pollution free.

Fundamental Duties:- every citizen of the country has the fundamental duty to clean the environment.

(b) Cr.P.C. Section 133

Here Section 133 is of great importance. Under Crpc. Section 133 the magisterial court have been empowered to issue order to remove or abate nuisance caused by noise pollution Sec 133 empower an executive magistrate to interfere and remove a public nuisance in the first instance with a conditional order and then with a permanent one. The provision can be utilized in case of nuisance of environment nature. He can adopt immediate measure to prevent danger or injury of a serious land to the public. For prevention of danger to human life, health or safety the magistrate can direct a person to abstain from certain acts.

Chapter IV of Indian Penal code deals with offences relating to public health, safety, ....decency , morals under Sections 268, 269, 270, 279, 280, 287, 288, 290 291 294. Noise pollution can be penalized with the help of above

section. Private remedies suits in the area may related to public nuisance under A299. This article punishment in case of Public nuisance law of torts covers. A person is guilty of public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger, or annoyance to the pubic or to the people in general who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage. Who ever commits a public nuisance in any case not otherwise punishable by this code, shall be punished with fine, which may extend to Rs. 200.

(d) Law of Torts Noise pollution is considered as civil wrong:-

Under law of torts , a civil suit can be filed claiming damages for the nuisance. For filing a suit under law of torts a plaintiff is required to comply with some of the requirement of tort of nuisance which are as follows:-

1. There should be reasonable interference.

2. Interference should be with the use & enjoyment of land.

3. In an action for nuisance actual damage is required to be proved. As a general rule either the presence or absence of malice does not matter. But in some cases deviation from the rule has been made.

In Christe Vs Davey The extent of noise & the amount of disturbance caused there by was ignored & it was held that the noise which arose due to the practice of lawful profession, & without any malice, could not be considered to be actionable nuisance.

In Hollywood Silver Fox Farm Ltd. Vs Emmett It was held that presence of malice was a factor in determining liability for noise amounting to nuisance. The court said that even on his won land was nuisance, & the defendant was liable in damages.

(e) Factories Act Reduction of Noise and Oil of Machinery:- The Factories Act does not contain any specific provision for noise control. However, unde the Third Schedule Sections 89 and 90 of the Act, noise induced hearing loss, is mentioned as notifiable disease. Similarly, under the Modal Rules, limits for noise exposure for work zone area have been prescribed.

(f) Motor Vehicle Act. Provision Relation to use of horn and change of Engine:- In Motor veichle Act rules regarding use horns and any modification in engine are made.

(g) Noise Pollution Control Rule 2000 under Environment Protection Act 1996 :-

Further for better regulation for noise pollution There are The Noise Pollution ( Regulation and Control ) Rules, 2000 – in order to curb the growing problem of noise pollution the government of India has enacted the noise pollution rules 2000 that includes the following main provisions:-

# The state government may categories the areas in the industrial or commercial or residential

# The ambient air quality standards in respect of noise for different areas have been specified.

# State government shall take measure for abatement of noise including noise emanating from vehicular movement and ensure that the existing noise levels do not exceed the ambient air quality standards specified under these rules.

# An area not less than 100 m around hospitals educations institutions and court may be declare as silence are for the purpose of these rules.

# A loud speaker or a public address system shall not be used except after obtaining written permission from the authority and the same shall not be used at night. Between 10 pm to 6 am

# A person found violating the provisions as to the maximum noise permissible in any particular area shall be liable to be punished for it as per the provision of these rules and any other law in force.

Schedule

(see rule 3(l) and 4(l)

Ambient Air Quality Standards in respect of Noise

Area Code Category of Area/Zone Limits in dB(A) Leq *

Day Time NightTime

(A) Industrial area 75 70

(B) Commercial area 65 55

(D) Silence Zone 50 40

*dB(A) Leq denotes the time weighted average of the level of sound in decibels on scale A which is relatable to human hearing. A "decibel" is a unit in which noise is measured. "A", in dB(A) Leq, denotes the frequency weighting in the measurement of noise and corresponds to frequency response characteristics of the human ear. Leq : It is an energy mean of the noise level, over a specified period.

6 Judiciary And Noise Pollution :-

In Raghunandan Prasad5 the engine of a factory was causing noise so as to be a serious nuisance to be the people living in the neighborhood the forbade the working of engine from 9 P.M. to 5 A.M.

In Mauj Raghu6 A rice mill working at night during season will not disentitle the inhabitants of locality to relief under this section if it is established that such working is a nuisance.

In Ram Avtar7 The appellant carried on a trade of auctioning vegetable in private house the noise caused by the auctioning caused discomfort to person living in society. An order was passed restraining auctioning g of vegetable in the their house. It was held by supreme court that the order was not justified merely because the applicant carried on auctioning gin connection with which the carts were brought they could not be taken as cause of problem Section 133 was held not intended to stoop such trades merely because of discomfort caused by the noise.

In Himmat Singh8 Where there were fodder tals in a residential colony to which fodder was brought daily during nights by trucks which were unloaded in the morning and fodder was cut during the day by electric operated machines. It was held that the carrying on the trades causing intolerable noises emanating offensive smells and spreading dust containing articles of fodder cut was public nuisance as noise pollution.

Some other important cases are also have great relevance in this regard:

In Govind singh9 the court examined the emerging parameters of public nuisance. The supreme court on special leave to appeal noted that the evidence disclosed the emission of smoke injurious to health and physical comfort of people living or working in the proximity of appellant bakery and held this as a case of public nuisance.

In Maulan Mufti Syed and Other10 V. State Of West Bengal AIR 1999 CAL 15 The court held imposition of restriction on the use of microphone and loud speakers by the state government between 9 pm to 7 am which inter alia include recitation of azan on microphone in early hours before 7 AM is not violative of Article 25 of constitution guaranteeing of freedom of religion.

Latest authority of supreme court is a land mark judgment in the field of noise pollution.

In Re: Noise Pollution11 Following important observations have been made by Supreme court regarding noise pollution which are discussed as follows:-

Facts of the case:

Anil mittal an engineer filed this case . the immediate reason for this was that a 13 years old girl was a victim of rape he cries for held and went unheard due to blaring sound of loudspeakers noise music over loud speakers in the neighbor hood. the Petitioner complain of noise created by the use of loudspeakers being used in religious performances or singing bhajans and the like in busy commercial hi fi audio systems are used.

- There are rules framed by the government regarding noise pollution and known as Noise Pollution control and Regulation Rules, 1999. On 11-10-2002 govt brought in an amendment in the rules. The amendment empowered the state government to permit use of loudspeakers or public address system during night hours between 10 pm to 12 pm in the mid night on or during the cultural or religious occasions for a limited period not exceeding 15 days.

- In this case supreme observed that Right to life enshrined in Article 21 is not of mere survival or existence. It guarantees a right of persons to life with human dignity. There in are included all the aspects of life which go to make a person life meaningful complete and worth living. Every body who wished to live in peace , comfort and quiet with in his house has a right to prevent the noise as pollutant reaching him. No one claim a right to noise to create noise even in his own premises which would travel beyond his precincts and cause nuisance to neighbors or others.

7 Conclusion:-

We have made the law relating to noise pollution but there is need to creating general awareness towards the hazardous effects of noise pollution. Particularly, in our country the people generally lack consciousness of the ill effects which noise pollution creates ad how the society including they themselves stand to beneficiary preventing generation and emission of noise pollution. The target area should be educational institutions and more particularly school. The young children of impressionable age should be motivated to desist from playing with firecrackers, use of high sound producing equipments and instruments on festivals, religious and social functions, family get-togethers and celebrations etc. which cause noise pollution. Suitable chapters can be added into textbooks, which teach civic sense to the children and teach them how to be good and responsible citizen which would include learning by heart of various fundamental duties and that would obliviously include learning not to create noise pollution and to prevent if generated by others. Holding of special talks and lectures can be organized in the schools to highlight the menance of noise pollution and the role of the children in preventing it . For these purpose the state must pay its role by the support and cooperation of non-government organizations (NGOs) can also be enlisted.

A COMPLAINT LETTER TO WEST BENGAL POLLUTION BOARD !!!

To,
The Director,
West Bengal Pollution Board

Sir,

(Sub: - Complaint about Noise and Air Pollution)

I want to draw your kind attention towards a severe problem, which we are facing in our locality. I am a resident of 225A, Daspara Road, Thakurpukur, Kolkata -700063. In our locality, there is a factory, where Fan blades and other related equipments are manufactured. While manufacturing those products, the factory owner shows a callous attitude in controlling the pollution. First of all, the sounds produced by those machines are above 65 decibel, which is creating lot of troubles for any Secondary or Higher Secondary students residing in our locality. On the other hand, those machines also emit smokes and dust particles in the air, which is very unhealthy.

We have complained about it to Mahalla committee and the local clubs, but they are totally helpless in this regard as the owner of this factory is a reputed CPI (M) party worker and Secretary of the local Milani Sangha Club of our locality. The name of the owner is Dilip Sardar. He has also given us threats that if we complain about his factory, then he can perform any kind of nuisance on our family members. Many people of this locality are scared to complain about his factory. His factory does not have any legal papers also. Earlier also, we complained to the Pollution Board of West Bengal. But, at that time, Mr. Dilip Sardar bribed the Inspection Engineer and the factory started functioning again. But, at present, it is really unbearable for us to tolerate this continuous air and noise pollution.

As citizens of India, can we expect some kind of co-operation and support from the Pollution Board of West Bengal or is it that we have to bear the atrocities of CPI (M) people of this Daspara area of Thakurpukur (Kolkata).

Kindly request you to resolve this issue as early as possible and keep my name disclosed from Mr. Dilip Sardar, as he is a CPI (M) goon. So, he may try to attack on anyone.

Please help us in this regard. We will really appreciate the kind gesture of West Bengal Pollution Board and Kolkata Municipal Corporation, if you can really take some actions to stop the air and noise pollution in our locality.

Thanks & Regards,
Arindam Sain
arindam.sain@gmail.com

Dear Sir,

There is an illegal Plastic factory in our locality. The locality is highly populated and is completely a residential area. This plastic factory is causing immense pollution which is leading to severe diseases like Tuber Culosis and other related disease. Many complaints has been registered against them in the nearest Police Station (Metiabruj Thana). But the Police doesnt pays any heed to our request. Possibly the Police takes some fixed bribe from them and as such they dont take any promt or positive action against them.

The gas which comes out from this Plastic Factory is extremely dangerous and we feel choked and suffocsted when inhaled.

Sir, therefore, I kindly and humbly request you to please take some positive and immediate action against this Illegal act.

This Illegal Plastic Factory is playing with lives. Our lives are in stake !!!

Please help us !!!

I have deep faith in you that my complaint will be taken in high consideration and a promt step will be taken from you against this Illegal factory.

I am waitng for your positive reply with lots of hope relying on you...

The Factory is located at the backside of Gulam Rasool Market...

This factory is located just behind the following address

Tuesday, January 24, 2012

DoE Notification

TEMPLE PRIEST HELD FOR DALIT'S MURDER IN RAJASTHAN VILLAGE

A fact-finding team which visited the village says he is involved in several cases. Financial assistance and free education for the victim’s children sought.

Jaipur: A temple priest at a village in Dausa district of Rajasthan allegedly murdered a Dalit man over the weekend purportedly for answering the call of nature at some distance from the place of worship. The priest, known for his caste biases, used to misbehave with Dalits and would not allow them to enter the temple or worship there. Hanuman Das, priest of the Hanuman temple in Khartala Nayawas village, allegedly killed 35-year-old Ramphool Koli with a scimitar after verbally abusing him on 25 October 2008. He also mutilated the victim’s body and disfigured his face.

The priest had been living in the Dalit-dominated village, 22 km from the district headquarters, for five years and had himself built the temple on a piece of government land. Later he encroached upon adjacent government land and is said to be illegally occupying the 25-bigha plot of land.

The police arrested Hanuman Das after registering a case against him under Section 302 (murder) of the Indian Penal Code and Section 3(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused has been remanded to police custody.

A fact-finding team of Jaipur-based Centre for Dalit Rights (CDR), which visited Khartala Nayawas after the murder over the weekend, alleged that the police are now trying to weaken the case by diluting its caste angle. The case under the SC/ST Act did not mention that the Dalit victim was killed as a result of untouchability practised by the priest.

CDR coordinator Ramdayal Bairwa said on 28 October 2008 that witnesses had deposed to having seen the priest’s brother, Kailash Chand Rana – with a known criminal background – on the spot, giving rise to suspicion that he was also involved in the murder. However, the police had not registered any case against him. Despite being informed of the crime early in the morning, the police reportedly reached the spot four hours later, when Ramphool had bled to death.

Hanuman Das was earlier involved in several cases of untouchability against Dalits, including one against former Sarpanch Maya Mahawar.

Bairwa said Dalits in the village had brought the “objectionable activities” of the accused to the notice of the police, but to no avail. He used to demand money from Dalits for establishing a “gausahla” and constructing an inn on the illegally occupied land while not allowing them anywhere near the temple or a hand-pump nearby.

The CDR demanded immediate arrest of all the accused in the case and payment of financial assistance of Rs 2 lakh under Section 12(4) of SC/ST Act to the victim’s family. The CDR also demanded that the district administration make arrangements for education of Ramphool’s daughter Lakshmi and son Mukesh in a residential government school and include them in Palanhar Yojana and provide security to his family and witnesses in the case.

Dalit woman killed in Rajasthan caste violence

JAIPUR: A 35-year-old Dalit woman died and another was seriously injured allegedly in a violent attack by a group of men belonging to the dominant Jat community at Nangla Bhai village in Bharatpur district of Rajasthan on Saturday.

The accused, named in the first information report, are yet to be arrested.

The dispute between the two sides started after a Jat boy riding a bicycle hit the eight-year-old daughter of Lajja Jatav at the street outside her house and injured her. When Lajja scolded the boy, he threatened to kill her and ran away.

After a while, a group comprising four Jat men armed with sharp-edged weapons and lathis arrived at the spot and allegedly attacked the Dalit family. Lajja and her relative Girraji Jatav, who sustained serious injuries in the assault, were rushed to the Government Hospital in Bharatpur.

Girraji succumbed to her injuries on Sunday morning, while Lajja was struggling for her life till the last reports came in.

After initial reluctance, the police registered an FIR when the post-mortem report of Girraji confirmed that the sharp-edged weapons had caused her death.

A team of the Centre for Dalit Rights led by its Bharatpur district coordinator Yashpal Lahiri visited Nangla Bhai near Nadbai, situated 20 km from Kumher infamous for the Dalit massacre of 1992, on Sunday to find an atmosphere of terror prevailing in the village.

The dominant Jats have reportedly threatened the minority Jatavs with dire consequences if they speak to outsiders.

The FIR has named Jitendra Singh, Shiv Singh, Kalheva and Dami – all residents of Nangla Bhai – as the main accused. CDR Director Satish Kumar said here that the accused wield political influence and the police were not likely to take action against them even though they were roaming around freely in the village.

The FIR has been registered at Nadbai police station under Sections 302 (murder), 148 (rioting, armed with deadly weapon), 149 (unlawful assembly), 354 (assault to outrage a woman’s modesty) and 323 (voluntarily causing hurt) of Indian Penal Code on the intervention of CDR. It also mentions the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, without specifying the sections.

Mr. Kumar demanded immediate arrest of the accused as well as urgent measures for security of the Dalit family victimised by the Jat community.

He said the senior district officers should immediately visit Nangla Bhai village to restore confidence among Dalits and ensure arrest of the accused persons.

The district administration is yet to announce monetary compensation to the next of kin of the deceased as well as the injured woman, which is mandatory under the SC/ST (PoA) Act. Mr. Kumar said Lajja should be treated free of cost in the Government Hospital and Bharatpur declared an atrocity-prone area under the SC/ST Act.

Bharatpur district in eastern Rajasthan has witnessed caste violence at regular intervals during the past two decades.

Over 30 Jatavs were burnt alive in broad daylight and 254 homes and hutments were set ablaze in the worst-ever carnage on June 6, 1992 at Kumher, not far from Nangla Bhai. Jats dominate social affairs in the region in the face of a blatant administrative apathy.

Saturday, January 21, 2012

The cruel attack, sexual abuse on six Dalit women - Letter to NHRC

Friends

Please Send the below complaint on your name or on your individual names to NationalHuman Rights Commission at covdnhrc@nic.in and chairnhrc@nic.in, remove my name and address at the applicants place and put your name and address

Before the National Human RightsCommission,

Faridkot House, Copernicus Marg, NewDelhi

Application no of 2012

Between Applicant

B.KarthikNavayan, Age 34 years

Occupation-ProgrammeOfficer

NationalDalit Forum, 12-13-441 2nd Floor,

Street No.1, Tarnaka, Secunderabad-500017

AndhraPradesh

1) Police Station, Morkahi

Khagaria,District, Bihar.

Phone number of Morkahi PoliceStation

6244 - 245580, 9431822799

2) The District collector

Collectorate Building,

Koshi CollegeRoad, Khagaria,

Bihar-851205 Respondents

PETITIONFILED U/S 12 OF THE PROTECTION OF HUMAN RIGHTS ACT 1993

Respected Sir

I, B.Karthik Navayan,Programme Officer, National Dalit Forum wants to bring to your kind noticeabout the cruel attack, sexual abuse on six Dalit women, gross violation ofhuman rights. And Inaction of Police and administration

On 09/12/2011, Friday, an upper caste mob brutally attackedSix Dalit Women namely 1) Smt Manju Devi, w/o Satan Sada, 2) Smt Dulari Deviw/o Kainu Sada; 3) Smt Parodevi w/o Ramnath Sada, 4) Smt Pabiya Devi w/o TaraniSada 5) Smt Reshma Devi w/o Wakil Sada 6) Geetha Devi w/o Dinesh Sada. All are belongs to Nararia village of Khagariadistrict in Bihar

Theaccused mob 1) Saroj Singh s/o Promod Singh 2) Anoj Singh s/o Promod Singh 3)Manoj Singh s/o Promod Singh 4) Dharmendra Singh s/o Promod Singh 5) PromodSingh s/o Uchit Singh 6) Uchit Singh s/o Ramswaroop Singh7) Wakil Singh s/oMaheshwar Singh 8) Kailas Singh s/o Maheshwar Singh 9) Maheshwar Singh s/o SukhdevSingh, all belongs to Chatar Village ofKhagaria District in Bihar

All theaccused went to the farm of dalit women Manju Devi on 09/12/2011 at 9 AM, toencroach it illegally, and started destroying it. When she came to know, shealong with her above said neighbor women went to the farm and tried to stop themob that started destroying the farm

Theaccused mob circled the 6 dalit women and abused them in filthy language, onthe name of their caste and attacked them by lathi danda and guns. All the 6dalit women shocked and asked them why they are destroying the farm. Theirritated mob had beaten all the women. Due to this two women went unconscious.One woman Dulari Devi’s both hands fractured, they also snatched the gold ringsworth of 15000/- (Fifteen Thousand Rupees)

SatanSada the husband of Manju Devi reached the place and requested for compromise.The accused mercilessly looted Rs 10000/-(Ten Thousand) from him at gun point.The accused number 1, Saroj Singh fired a bullet on Satan Sada, fortunately itmissed

TheAccused 2 Anoj Singh and Accused 3 Manoj Singh both sexually harassed PabiyaDevi and Parodevi; they removed Sarees and blouses of both dalit women andparaded nakedly. And they spit in the mouths of dalit women. Now all the victimsadmitted in the Sadar Hospital in Khagaria.

Thevictims lodged a complaint in the Morkahi Police Station; FIR isregistered number 80/2011 under section 147, 148, 149, 342, 323, 325, 504 ofIndian penal code and Section 3 (i) (ii) (iii), (iv), (x), (xi) of ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Act 1987. The stationhouse officer Sathyendra Kumar took up the investigation

Even after27 days of incident, neither an inquiry is conducted nor the accused arrestedby the police, due to the political influence of the Accused. And meanwhile the accused regularly calling andsending mediators to victims and threatening to withdraw the complaint bysaying that “police and other government officials not going to help thevictims, nothing will happen to accused” police only serve the rich people notpoor like you”.

I request your kind authority todirect the police to conduct inquiry and arrest the accused immediately, alsorequest you to direct the district government authority to visit the victimsand provide the necessary health facilities and compensation

TheDalits in this locality are feeling panic after this brutal attack on the dalitwomen so I further request National Human Rights Commission to visit the Narariavillage of Khagaria district in Bihar. And conduct an inquiry in this case, to givemoral support to the victims and local dalits

Date: 03/01/2012 Applicant

Place: Hyderabad sd/
B.Karthik Navayan

Thursday, January 19, 2012

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.

GYAN LAKSHAY NGO