Untouchability, and the Act That Abolished It

Why it matters. It is the only reported decision squarely on the meaning of a word the Constitution abolishes and never defines, and the negative form of the holding is the useful part: a boycott or an exclusion within a community, for reasons other than birth in a particular class, is not untouchability however unpleasant it is.

The Act of 1955

Its name, section 1(1). Enacted as the Untouchability (Offences) Act 1955, renamed the Protection of Civil Rights Act 1955 by the Untouchability (Offences) Amendment and Miscellaneous Provision Act 1976, which also made the offences non-compoundable and strengthened the Act considerably.

Its reach, section 1(2) and (3). It extends to the whole of India, and came into force on the date the Central Government appointed by notification. There is no State exception and no Scheduled Area exception, which matters because article 17 itself admits of none.

Section 2. Definitions, including "civil rights", which means any right accruing to a person by reason of the abolition of untouchability by article 17, and "place of public worship" and "shop", both defined widely.

The offences, sections 3 to 7.

Section 3, religious disabilities. Punishment for preventing a person on the ground of untouchability from entering a place of public worship open to other persons professing the same religion, from worshipping or offering prayers there, or from bathing in or using the waters of a sacred tank, well, spring or watercourse.

Section 4, social disabilities. Punishment for enforcing a disability on the ground of untouchability in respect of, among many others, access to a shop, public restaurant, hotel or place of public entertainment; the use of utensils kept in such a place; the practice of any profession or the carrying on of any occupation, trade or business; the use of a water source, road, burial or cremation ground, sanitary convenience, dharamshala or any other place of public resort; the use of jewellery and finery; the enjoyment of the benefits of a charitable trust; and the construction or occupation of a residential premises in any locality.

Section 5, hospitals and educational institutions. Punishment for refusing to admit a person on the ground of untouchability to a hospital, dispensary, educational institution or hostel established for the benefit of the public, or for discriminating in the treatment there given.

Section 6, goods and services. Punishment for refusing to sell goods or render services to any person on the ground of untouchability, on the same terms and conditions on which they are sold or rendered to others.

Section 7, other offences. Punishment for preventing a person from exercising a right accruing from the abolition of untouchability; for molesting, injuring, annoying, boycotting or causing any other injury on that ground; for insulting a member of a Scheduled Caste on the ground of untouchability; and for preaching untouchability or justifying it on historical, philosophical or religious grounds or on the ground of tradition of the caste system.

The machinery, sections 8 to 16. Cancellation or suspension of a licence; resumption or suspension of a Government grant; abetment; enhanced penalty on a subsequent conviction; a presumption by the court in certain cases; limitation of the jurisdiction of civil courts; offences by companies; and the offences being cognizable and triable summarily.

Section 12, the presumption, is the provision worth naming. Where an act constituting an offence under the Act is committed in relation to a member of a Scheduled Caste, the court shall presume, unless the contrary is proved, that the act was committed on the ground of untouchability.

Section 15A, inserted in 1976. The State Government shall take such measures as may be necessary for ensuring that the rights arising from the abolition of untouchability are made available to and are availed of by the persons subjected to any disability; and it lists them, including adequate facilities for legal aid, the setting up of special courts, the setting up of committees at appropriate levels to assist in the implementation of the Act, the provision for a periodic survey of the working of the Act, and the identification of areas where persons are under a disability and the adoption of measures to remove it.

Section 17, and the Schedule. The enactments in the Schedule are repealed to the extent that they correspond to or are repugnant to this Act. The Schedule lists the State laws the Act displaced, among them the Travancore-Cochin Removal of Social Disabilities Act and Temple Entry (Removal of Disabilities) Act, and the Coorg Scheduled Castes (Removal of Civil and Social Disabilities) Act and Temple Entry Authorisation Act. Two things follow. Untouchability legislation began in the STATES, well before 1955; and a State law survives so far as it is not repugnant, so a State enactment on the subject is not automatically displaced.

Section 15A is the most important provision in the Act for this paper. It is Parliament, twenty-one years after enacting the offences, recording in the statute itself that the offences alone had not delivered the rights, and building machinery instead. The point is made at length in [What Law Cannot Do: The Limits of Legislating Change].

Why the Act largely failed

Because the offences are minor and summarily triable, which signals that the conduct is a petty offence rather than a constitutional wrong.

Because the complainant lives in the village. The enforcement limit, and Appa Balu Ingale is the case that shows it: a proved offence took two appeals to produce a conviction.

Because the presumption in section 12 requires the victim to be identified as a Scheduled Caste member and the act to be proved first.

And because the Act reaches "untouchability" and not violence. A person who is beaten for drawing water is the victim of an assault, and the Act's offences are about the disability rather than the injury. That gap is exactly what the Act of 1989 was enacted to close.

A worked example

A shopkeeper refuses to sell to a customer on the ground of caste and serves them in a separate cup; a temple committee refuses entry; and a landlord refuses to let a room.

The shop. Section 6, refusing to sell goods or render services on the ground of untouchability; and section 4, which covers access to a shop and the use of utensils kept there. Article 15(2) applies as well.

The temple. Section 3, religious disabilities, and article 17 directly. If the temple is denominational, the temple-entry question in [Temple Entry] arises but article 17 admits of no exception.

The room. Section 4 covers the construction or occupation of a residential premises in any locality. Article 15(2) does not, because a private letting is not one of the listed places.

The presumption. If the customer is a member of a Scheduled Caste, section 12 presumes that the act was done on the ground of untouchability unless the contrary is proved.

And the practical question. Who complains, to whom, and what happens to them afterwards. That is section 15A's subject and the reason the section exists.

What this does NOT mean

It does not mean the Act is repealed. It is in force alongside the Act of 1989, which deals with atrocities rather than disabilities.

It does not mean article 17 is confined to caste. Chandrachud J's opinion in the Sabarimala case treats social exclusion of women based on menstrual status as a form of untouchability; the dissent rejected that reading. Both are stated in [Temple Entry].

And it does not mean untouchability means what the word says. Devarajiah is express: it refers to the historical practice against certain classes by reason of birth, not to any avoidance of contact.

Quick revision

Article 17: untouchability abolished, its practice in any form forbidden, the enforcement of any disability arising out of it to be an offence punishable in accordance with law; absolute, horizontal, and undefined. Devarajiah v. B. Padmanna, Mysore HC 1957: not used in a literal or general sense; conduct within a community for reasons other than birth in a particular class is outside it. Protection of Civil Rights Act 1955, formerly the Untouchability (Offences) Act, renamed in 1976: section 2 definitions including civil rights; section 3 religious disabilities; section 4 social disabilities; section 5 hospitals and educational institutions; section 6 goods and services; section 7 other offences including preaching untouchability; section 12 the presumption where the victim is a Scheduled Caste member; section 15 cognizable and summarily triable; section 15A, inserted 1976, obliging the State to provide legal aid, special courts, committees, periodic surveys and the identification of areas.

Test yourself

1. Set out article 17 and give three things that make it unusual. Untouchability is abolished and its practice in any form is forbidden, and the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. It is subject to no limitation or exception of any kind; it binds private persons as well as the State; and the word is left undefined, being placed in inverted commas in the Constitution itself.

2. What did Devarajiah decide about the meaning of untouchability? That it is not used in a literal or general sense but refers to the practice as it developed historically against certain classes by reason of their birth in them, so that conduct relating to a person's position within his own community, and not related solely to origin in a particular class, is outside the mischief of the Act.

3. Name the five offence sections of the Act of 1955 and what each covers. Section 3, religious disabilities; section 4, social disabilities including shops, occupations, water sources, roads, burial grounds and residence; section 5, refusal of admission to hospitals and educational institutions; section 6, refusal to sell goods or render services; and section 7, other offences including obstruction, boycott, insult and the preaching or justification of untouchability.

4. What does section 12 provide, and why does it matter? That where an act constituting an offence under the Act is committed in relation to a member of a Scheduled Caste, the court shall presume, unless the contrary is proved, that it was committed on the ground of untouchability. It matters because the ground of an act is otherwise almost impossible to prove.

5. Why is section 15A the most significant provision in the Act for this paper? Because it was inserted in 1976, twenty-one years after the offences, and obliges the State Government to provide legal aid, special courts, implementation committees, periodic surveys and the identification of affected areas. It is Parliament recording in the statute itself that offence provisions alone had not delivered the rights article 17 created.