Article 17 and the Untouchability Statutes

In one line

Article 17 abolishes untouchability and leaves Parliament alone to punish it, and the two statutes Parliament made contain the presumptions, the special courts and the bail rules that decide whether the abolition means anything.

In the wording a student can write in an exam: article 17 abolishes untouchability, forbids its practice in any form, and makes the enforcement of any disability arising out of it an offence punishable in accordance with law; article 35(a)(ii) gives PARLIAMENT, and expressly denies a State Legislature, the power to prescribe punishment for acts declared offences under Part III, and requires Parliament to make such laws as soon as may be. The statutes are the Protection of Civil Rights Act 1955, enacted as the Untouchability (Offences) Act 1955 and renamed in 1976, and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989. In Subhash Kashinath Mahajan v. State of Maharashtra the Supreme Court read safeguards into the Act of 1989; Parliament removed them by inserting section 18A; and in Prathvi Raj Chauhan v. Union of India the Court UPHELD the removal.

The enforcement machinery of the Act of 1955

The offences themselves are worked in Module II. What matters here is the apparatus around them, because a right that cannot be proved is not a right.

Section 7A, deemed enforcement. Whoever compels any person, ON THE GROUND OF UNTOUCHABILITY, to do any SCAVENGING OR SWEEPING, or to remove any carcass, or to flay any animal, or to remove the umbilical cord, or to do any other job of a similar nature, shall be DEEMED to have enforced a disability arising out of untouchability, and is punishable with imprisonment of not less than three months. The deeming provision removes the need to prove the ground separately once the compulsion and the nature of the work are shown.

Section 12, the presumption. Where any 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. This is the single most important evidentiary provision in the Act, because the ground is the element hardest to prove directly.

Section 13. No civil court shall entertain a suit, pass a decree or execute one contrary to the Act, and no court shall recognise any custom, usage or right which would inflict a disability contrary to it.

Sections 8 and 9, the economic sanctions. Cancellation or suspension of a LICENCE held by a person convicted, and resumption or suspension of a GRANT made by Government to a place of public worship whose manager or trustee is convicted.

Section 10A, the collective fine. Where after inquiry the State Government is satisfied that the inhabitants of an area are concerned in or abetting an offence under the Act, or harbouring offenders, or failing to render assistance in discovering or apprehending them, or suppressing material evidence, it may by notification impose a COLLECTIVE FINE on those inhabitants and apportion it according to its judgment of their respective means.