DALIT JURISPRUDENCE

India is a culturally diverse nation, composed of numerous languages, religions,

traditions etc. This heterogeneous nature of the society defines India and is its
biggest strength. Minorities and minority groups form an essential and integral part
in sustaining this diversity. The Constitutional framers acknowledged the existence
of such minorities and thereby drafted a robust and living Constitution which
guaranteed protection and equality before the law by virtue of protective
discrimination. One such minority group which has been struggling since time
immemorial are the Dalits. The Dalits or as Mahatma Gandhi called them,
‘Harijans’ have been victims of deep seated casteism and prejudice prevalent in
India. Article 17 of the Constitution of India abolished untouchability in the Indian
state. Furthermore, the Parliament amended the Untouchability (Offences) Act,
1955 and changed its title to the Protection of the Civil Rights Act. In spite of the
given constitutional and legal protection, we continue to observe that
discrimination on the basis of caste is still practiced in most parts of India,
particularly in Northern India. India is a culturally diverse nation, composed of
numerous languages, religions, traditions etc. This heterogeneous nature of the
society defines India and is its biggest strength. Minorities and minority groups
form an essential and integral part in sustaining this diversity. The Constitutional
framers acknowledged the existence of such minorities and thereby drafted a
robust and living Constitution which guaranteed protection and equality before the
law by virtue of protective discrimination. One such minority group which has
been struggling since time immemorial are the Dalits. The Dalits or as Mahatma
Gandhi called them, ‘Harijans’ have been victims of deep seated casteism and
prejudice prevalent in India. Article 17 of the Constitution of India abolished
untouchability in the Indian state. Furthermore, the Parliament amended the
Untouchability (Offences) Act, 1955 and changed its title to the Protection of the
Civil Rights Act. Perhaps the biggest issue and stumbling block is the blatant
exploitation of the Dalits by the political class. The Dalits have been reduced to a
political tool and thus often exploited and ignored. They are remembered during
the electoral season and thereafter forgotten. The development of this section is not
a priority and thus, they continue to remain in poverty. The Dalits are also
discriminated on the basis of the occupation and often are limited to pursue
demeaning tasks such as manual scavenging and cleaning.1

Such incidents smudge the social fabric of India. It questions the crucial concept of
‘justice’. In a country where we cannot protect our own citizens from such
condemnable atrocities, it would be a joke if we claim that there’s a sense of
justice and equality in India. We need to question the existing system and its
validity in this time and age. It’s time that such prejudices and discriminations are
done away with if we, as a nation, wish to survive and grow. Ignoring selective
sections of the society and not making them a party of the development process
will lead to unimaginable consequences which we cannot fathom at this stage. It’s
high time that we appreciate and involve these castes into the mainstream and
bring an end to such institutionalized social discrimination.

JUDICIAL APPROACH TOWARDS DALIT DISCRIMINATIONS

The judiciary has not been lagging behind in removing the atrocities against dalits
but has done an immense commendable work through various monumental and
celebrated decisions for the upliftment of the conditions of these weaker sections.
The courts have taken a very serious view in respect of untouchability. Judicial
outlook is rightly reflected by views which Justice Ramaswamy which he has
1
http://alexis.org.in/dalit-atrocities-and-jurisprudence/ last visited on 22 april, 2019
expressed in State of Karnataka.vs Appa Balu Ingale2. In which he observed "The
Non -Judicial walks of life may be thus Caste ridden, the shining path of
Constitution requires a vigilant assault on the practice of untouchability. The
Judiciary acts as a bastion of freedom and protector of the rights of the people. And
law must be capable of expanding the freedom of the people, the legal order must
be deployed with utmost equal care to combat a highly inequitable social order.
The mandate of the Constitution would be a reality only when law is enforced
strictly; the implementation and interpretation is to be measured by the factual
improvement in the quality of the life of dalits. " He further advised the judges.
"The Judges, therefore, should respond to the human situations to meet the felt
necessities of the time and social needs, meaningful right to life and give effect to
the Constitution and the will of the legislature. This Court as the vehicle of
transforming the nation's life should respond to the nation's needs and to interpret
with pragmatism to further public welfare to make the Constitutional animations a
reality, Common sense is always served in the court's ceaseless striving as a voice
of reason to maintain the blend of change and continuity of order which is sine quo
non for stability in the process of change in a Parliamentary democracy. In
interpreting the Act (i.e. SC & ST. Act 1989) the judge should be cognizant to and
always keep at the back of his /her mind the Constitutional goals and the purpose
of the Act and interpret the provisions of the Act in the light thus shed to annihilate
Untouchability, to accord to the Dalits and the Tribes right to equality, • social
integration a fruition and fraternity a reality."

2
AIR 1993 SC 1126 p 1135-36
JUDICIAL APPROACH IN RESPECT OF CONSTITUTIONAL
PROVISIONS

The approach towards Dalits, adopted by Supreme Court and High Courts can be
discussed under the following heads: (A)Under Article 17 Article 17 of the
Constitution of India, in Part III, made an epoch in making declaration that
'Untouchability' is abolished and its practice in any form is forbidden. The
enforcement of any disability arising out of "Untouchability" shall be an offence
punishable in accordance with law. Article 17 of the Constitution is on the lines of
the provisions of Article 2 of the Universal Declaration of Human Rights. It is a
very important and significant provision from the point of view of equality before
law. It guarantees social justice, (which has now been held by Supreme Court as
fundamental Right),3 and dignity of man, the twin privileges which were denied to
a vast section of the Indian society for centuries together4 , The Supreme Court of
India in State of Karnataka v. Appa Balu Ingale5 , the first case before it on
"Untouchability" held that the purpose of Article 17 of the Constitution is to
establish new ideal for society based on principle of egalitarianism. As per K.
6
Ramaswamy j "the thrust of Article 17 is to liberate the society from blind and
ritualistic adherence and traditional beliefs which lost all legal or moral base. It
seeks to establish new ideal for society-equality to the Dalits as par with general
public, absence of disabilities, restrictions or prohibitions on grounds of caste or
religion, availability of opportunities and a sense of being a participant in the main
stream of National life" Rajasthan High Court in Jai Singh v. Union of India7 held
that Article 17 of the Constitution is similar to the 13 Amendment of the

3
Ashok Kumar Gupta v. State of U.P. (1997) 5 SCC 201 (Para 26)
4
Lai, Shyam & Saxena, K.S. Ambedkar and Nation Building (New Delhi, Rawat Publications- 1998) p.259
5
Cr. L.R(1993)p.72
6
ibid
7
AIR 1993 Raj 177 p.181-182
Constitution of the United States of America which abolished slavery. The
Supreme Court of India in People's Union for Q Democrate Rights v. Union of
India8 held that the Fundamental Right under Article 17 of the Constitution is
available against private individuals also and it is the Constitutional duty of the
state to take necessary steps and ensure that this Fundamental Right is not violated.
The Allahabad High Court in State v. Gulab Singh punished the Hindus as they
compelled the bridegroom of the Scheduled Caste to alight from the dola-palki
while passing through the village. Madras High Court in P.S.Charya and Others
v. State of Madras held that Article 17 is prospective legislation and the laws in
force in the state before the commencement of the Constitution are specifically
saved upto the extent they are not 195 inconsistent with the provisions of the
Constitution and are to continue until altered, repealed, modified or amended by
Parliament. On the term of "Untouchability" "The Madras High Court in above
mentioned case" held that the term "Untouchability" includes the act of preventing
certain classes of Hindus who were once known as "Depressed classes" from
entering a public 1 ^ temple. In Janki Parsad and Others v. State of J&K,
Supreme Court held, "Where a person is refused admission in a temple on the
ground of his being a Harijan, the refusal is to be presumed to be on the ground of
untouchability. " In Devarajjah V Padmanna the Mysore High Court held that "
untouchability" is not to be understood in its literal and grammatical sense but to
be understood as the practice as it has developed historically in this country. In
Surya Narayan Chaudhary v State of Rajasthanthe Rajasthan High Court permitted
the entry of Harijans to temple without purification ceremonies, on a Public
Interest Petition. The High court disposed off the petition with necessary directions
in favour of Harijans. The Court pointed out that under the Nathdwara Temple Act,
the state government had the power of general superintendence over the temple
8
AIR 1982 SC1473
administration. Therefore, it could prevent infringement of Constitutional or other
legal provisions. It had a duty to prevent 196 hostile discrimination. It further ruled
that every devotee, including the Harijan who wants to enter the temple, shall be
permitted to do so in accordance with the general practice. Harijans shall not be
subjected to additional conditions. The purification ceremonies shall be
discontinued as it violated Articles 14, 15 and 17 of the Constitution. "The Govt,
must also lake strict steps to ensure that there is no further mockery of this
Constitutional guarantee and offenders, if any, are promptly dealt in accordance
with law. " The Govt, undertaking was noted and it was asked to keep the law and
order. On the otherhand those who claimed public interest were asked not to "use
the Harijans as pawns on political chess board "

IN RESPECT OF PEAMBLE OF CONSTITUITON:

The Constitution-makers gave to the preamble "The place of Pride. It embodies in

a solemn form all the ideals and aspirations for which the country has struggled
during the British regime. In re Berubari case, the Supreme Court has said that
the preamble to the Constitution is a key to open the mind of the makers,and shows
the general purpose for which they made the several provisions in the Constitution.
In Keshavananda Bharti v. State of Kerala9 the Supreme Court held that the
preamble is the part of Constitution and Sikri C.J. in this case observed, "It seems
to me that the preamble of our Constitution is of extreme importance and the
Constitution should be read and interpreted in the light of grand and in noble vision
expressed in the Preamble. ". In state of Karnataka v. Appa Balu Ingale and
others Supreme Court of India has rightly expressed the spirit of the preamble of
the Constitution of India. The court observed, "The Preamble of the Indian

9
AIR 1973 SC 1461
Constitution imbued among its people with pride of being its citizens in an
integrated Bharat with fraternity, dignity of person and equality of status. But
Casteism, sectional and religious diversities and parochialism are disintegrating the
people. Social stratification need restructure, democracy meant fundamental
changes in the social and economic life of the people, absence of iniquitous
conditions, inequalities and discrimination. There can be no dignity of person
without equality of status and opportunity. Denial of equal opportunities in any
walk of social life is denial of equal status and amounts to prevent equal
participation in social inter course and deprivation of equal access to social means.
Humane relations based on equality, equal protection of laws without
discrimination would alone generate amity and affinity among the heterogeneous
sections of the Indian society and a feeling of equal participants in the democratic
polity. Adaptation of new ethos and environment are, therefore, imperatives to
transform the diffracted society into high degree of nobility for establishing an
egalitarian social order in secular, socialist, Democratic Bharat Republic,
"Untouchability" of the Dalits stands an impediment for its transition and its bane
and blot on civilised society." These views of Supreme Court are required to be
transformed by Hindu society for establishing a society of equals based on
fraternity.

Article 14- Right to Equality

The idea of equality expressed in the Preamble of the Constitution has been
embodied under Article 14 of the Constitution in the sense to have a society of
equals. The Supreme Court of India in Dalmia Cement (Bharat) Ltd. v. Union of
India held that the concept of equality and equal protection of laws guaranteed by
Article 14 in its proper spectrum encompasses social and economic justice in a
political democracy and equality before law is co-relative to the concept of rule of
law for all around evaluation of healthy social order. A basic postulate of the rule
of law is that "Justice should not only be done but it must also be seem to be done".
The healthy social order is only possible in India, if the members of Scheduled
Castes and Scheduled Tribes are brought at par with other members of Indian
communities. So as to give justice to Dalits Article 14 permits reasonable
classification based on intelligible differentia having a rational relation with the
object sought to be achieved. Supreme Court in Giri V.V v. Dora Suri D held that
section 54(4) of the Representation of the People Act 1951, which confers a double
advantage upon members of the Scheduled Castes or Tribes to be returned to
general seats even though seats have been reserved for them under the
Constitution, being sanctioned by Article 15(4) (A) does not violate the principle
of equality embodied under Article 14 of the Constitution. The Courts are of the
view that Article 14 of the Constitution also permits special treatment, which is
authorized by other provisions of the Constitution. But that treatment must be
within reasonable limit and shall not be so excessive as to render nugatory the
general principle of equality professed to the members of all communities by
Article 14. Hence, the special provisions for the advancement of backward classes
of Scheduled Castes and Scheduled Tribes under Article 15(4) or reservation of
posts for backward classes under Article 16(4) will be unconstitutional because of
contravention of Article 14, if it is carried to an unreasonable extent i.e. more than
50% In Indra Sawhney v. Union of India , Supreme Court was of the view that the
doctrine of equality enshrined under Article 14 is a dynamic and evolving concept
and it has many facets. It includes in itself the equalities provided under Articles
15-18 of Part III as well as in Articles 38,39, 39A, 41 and 46 of part IV. The object
of all these provisions is to attain justicesocial, economic and political which is
indicated in the Preamble and which is sum total of the aspirations incorporated in
Part IV of the Constitution10.

In Arti Gupta v. State of Punjab11 the Supreme Court held that reduction of
minimum qualifying marks from 35% to 25% in order to accommodate more
candidates of Scheduled Castes and Scheduled Tribes to fulfil the reserved quota is
not arbitrary and violative of Article 14 of the Constitution. In Indra Nehru Gandhi
v. Raj Narayan12 the Supreme Court held that the rule of the law embodied in
Article 14 is the "Basic feature" of the Indian Constitution and hence it cannot be
destroyed even by an amendment of the Constitution under Article 368 of the
Constitution. But Article 14 of the Constitution is subject of Article 39 (b) and (c)
as Supreme 200 Court in Sanjeev Coke Mfg. Co. v. Bharat Cooking Coal Ltd. has
held that "Where Article 31-c comes in Article 14 goes out"

ACTS RELATED

(A) Judiciary and Protection of Civil Rights Act, 1955 After 42 years of the
making of the Constitution, as well as after 38 years of the enforcement of
Protection of Civil Rights Act, 1955, the first case that came up before the
Supreme Court was that of State of Karnataka V Appa Balu Ingale and no
others. In which Appa Balu Ingale and four others were tried for the
offences under sections 4 and 7 of the Protection of Civil Right Act, 1955
on the charges that they restrained the complainant party who were
Harijans, by show of force from taking water from a newly dug up
borewell, on the ground that they were untouchables. The trial court
convicted all of them under Section 4 of the Act and sentenced them to

10
Basil, D.D. Shorter Constitution of India (Wadhwa Publication Nagpur Edition XIII 2001) p. 100
11
AIR 1988 SC 481
12
AIR 1975 SC 2299
undergo simple imprisonment for one month and a fine of Rs. 100 each and
in default to suffer simple imprisonment for further five days. Appa Balu
Ingale was further convicted under Section 7 of the Act but no separate
sentence was awarded to him for the said offence. The Additional Sessions
Judge Belgaum, on appeal, upheld the conviction and sentence of Appa
Balu Ingale, Shankar Babaji Patil and Rayaram Rama Sankpal. Against the
judgement of the Appellate court, Appa Balu Ingale and two others went in
revision before the High court. The High Court allowed revision petition
and acquitted all of them. But when this case came by way of Special Leave
Petition before the Supreme Court, the Supreme Court upheld the decision
of lower trial court and convicted them under the Act. The Court held that
the object of Article 17 and the Act is to liberate the society from blind and
ritualistic adherence and traditional belief, which has lost all legal or moral
base. The Act seeks to establish new ideas for society equality to the Dalits
at par with the general public, absence of disabilities, restrictions or
prohibition on the grounds of Caste or religion. While convicting the
respondents K. Ramaswamy J. in his concurring judgement, pointed out that
in this Act Mens-rea is not essential ingredient. As per Ramaswamy: "The
criminal law primarily concerns with social protection, prescribes rules of
behaviour to be observed by all persons and punishes them for deviance,
transgression or omission. Mens-rea is not an essential ingredient in social
legislations, is the settled law. But where social necessity demands from the
angle of public welfare or because of the difficulty of proof of accused's
mental stage, jurisprudence points dispensing with or of onus of proof of
mens-rea" Prior to this decision Allahabad High Court in State v. on Gulab
singh convicted and punished the Hindus under corresponding state statute
as they compelled the bridegroom of the Scheduled Caste to alight from the
 dola-palki while passing through the village. In the same way, the
constitutional validity of Bengal Hindu Social Disabilities Removal Act
1948 was challenged in go Banali Das v. Pakhu Bhandari before Calcutta
High Court: Where Banali Das, who was a Harijan filed a complaint against
Pakhu Bhandari and others alleging that the accused had refused to cut his
hair and also to render similar services to other members belonging to the
Harijan community. On behalf of defendant, it was argued that the Bengal
Hindu Social Disabilities Removal Act, 1948 was violative of Article
19(l)(g) of the Constitution. The Calcutta High Court rejected this
contention and held that there was nothing in the Act, which cut down the
right to carry on the profession of a barber. "All it does it to prohibit him
from discriminating between one Hindu and another in carrying out his
duties as a barber... It does not deny any person equality before law. It tends
to make all persons equally in society and before the law and it cannot
possibly be argued that this Act denies any person equal protection of
laws."
(B) Judiciary and Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989

The Courts, which were already having thousands of pending cases, were
unable to cope up with the cases. The number of atrocities were not
decreasing against untouchables under the effect of Protection of Civil
Right Act, 1955. To deal with these problems effectively Parliament
enacted SC and ST (Prevention of Atrocities) Act, 1989. For the first time,
this Act was challenged before Rajasthan High court in Jai Singh v. Union
of India84. The Rajasthan High Court upheld the validity of SC/ST
(Prevention of Atrocities) Act, 1989 and pointed out that the Act attempts to
abolish untouchability and caste differences in tune with the Constitutional
mandate of Article 17 of the Constitution of India. The Supreme Court on
the question of validity of Section 18 of SC/ST (Prevention of Atrocities)
Act 1989 denying the application of Section 438 on Cr.P.C (Anticipatory
bail) pointed out in State of M.P. and others v. Ram Krishna Balodia that
offences under the Act form distinct class by themselves and cannot be
compared with other offences the court held: "There is every likelihood that
the persons committing offences under Section 3 of the SC/ST (Prevention
of Atrocities) Act 1989 might use their liberty while on anticipatory bail to
terrorize their victims and to prevent a proper investigation. Hence Section
18 of the Act denying application of Section 438 Cr. PC to these offences is
not violative of Article 21 of the Constitution." Despite of stringent
provisions of the laws dealing with the prohibition of untouchability as well
as the hard attitudes of the Courts against untouchability, the atrocities
against untouchables even continued in all states. Offences like Murder,
gang rape, public auction of women, urinating in the mouth of women,
compelling boys to eat nightsoil, parading naked women in the village,
mass killings and destroying of houses and other properties went on
unabated.

CONCLUSION

Dalit movement was envisaged as a transformative social revolution to

grant basic human rights such as liberty, equality and justice to the
marginalised sections of society. These demands took the shape of various
protests and movements. Dr B.R Ambedkar championed the cause of Dalits
and they were granted various fundamental and other legal rights in the
Constitution of India. However, only constitutional provisions did not
 prooved sufficient in uprooting the age-old practice of discrimination. In the
post-independent India these demands took a violent shape in the Dalit
Panthers movement. The movement proved successful in gathering support
and providing much needed self-esteem to the Dalits but failed in delivering
any real change. Dalits also took the alternative method of converting to
Buddhism to emancipate from the caste-based discrimination in Hinduism.
Presently, the movement has taken the shape of political interests and the
real issue is being ignored. Various legislations as discussed above were
enacted to abolish practices relating to untouchability and atrocities against
Dalits. This project also looked upon the cast-based discrimination in India
and the continuous demand for rights which are put forward in various
countries. To conclude, it can be said that to abolish such social stigmas
broad social changes and respect for basic human rights for all is required.13

13
https://www.lawctopus.com/academike/dalits-the-fight-against-discrimination/ last visited on 22 April, 2019
Jamia Millia Islamia University
Faculty of Law

JURISPRUDENCE

Dlit Jurisprudence

Submitted by: Ujjwal Mishra

Roll No: 58; B.A.LL.B(Hons.) SF, 4th Semester

Submitted to: Mr. Mohd. Salim