The recent killing of a student from Arunachal Pradesh, Nido Tania, in the lajpat Nagar shopping complex in New Delhi and shortly later the brutal attack on a group of students of North-East which is alleged by activists as a racist assault has brought to the fore that racial discrimination, racial verbal abuse based on colour, race, etc, in Indian society is a living reality.
It is worth mentioning that racial discrimination and civil rights protection are inextricably interwoven and civil rights are guaranteed for citizens under the Constitution which require strict enforcement by the State. Whenever there is infraction of civil rights, it would entail criminal prosecution against the offender as per the mandate of the Constitution and the Protection of Civil Rights Act.
The PCR Act has a wider ramification as discriminatory practices based on caste, race and colour are not only criminal offence but a social evil. law enjoins to protect the lower section of the society from exploitation by people of higher castes who claim such privilege by virtue of their birth. The practice of untouchability in its ugly form was prevalent among caste Hindus which divided them into different sub-divisions and those of lowest category by their birth became untouchables. The Constitution wanted to eradicate this self-imposed restriction by people of higher castes. So, utouchability in any form is abolished.
The pages of human history reveal that man has always revolted against slavery and racial discrimination against certain classes of people. This has happened in the case of American Negros, who fought against slavery. In France, people went against Barons during the French Revolution. In Russia, people rose against autocratic Russian Czars to abolish serfdom. Dr Martin luther King and Nelson Mandela of South Africa have also championed the cause of civil rights protection and fought against apartheid and racial discrimination.
The Indian Constitution has also made special provisions to ameliorate the condition of Dalits as enshrined in Part XVI which deals with measures of securing adequate representation of this class of people in legislatures and posts and, in general, for their socioeconomic uplift. Article-17 or the PCR Act does not define the term ‘untouchability’. The omission would appear to be deliberate as the intention of the Constitution makers was to leave no room for continuance of the evil practice. Even earlier, there was Madras Removal of Civil Disabilities Act-1938, which refers to the untouchables as any particular community known as Harijans, Depressed Classes or the like. The Croog Scheduled Castes (Removal of Social Disabilities) Act-1940 refers to them as Scheduled Castes. This clearly indicates that the subject matter of Article-17 is not untouchability in its grammatical sense but the practice as it had developed historically.
The salutary provisions, all taken together, prohibit the practice of untouchability in any form. Significantly, the fundamental rights in Part -III operate as limitations on the State’s power and impose negative obligations on the State not to encroach upon individual liberty and they are enforceable only against the State. However, there are certain fundamental rights which are enforceable against the whole world and they are to be found inter-alia in Articles 17, 23 and 24. It is the State’s obligation to take steps for interdicting such violations. This aspect has been dealt by the Supreme Court in the case of People’s Union for Democratic Rights verses Union of India, popularly the Asiad Project Worker’s case,
The apex court in 1993 pronounced a judgement of far-reaching Constitutional significance in the case of Sate of Karnatak vrs Appa Balu Ingale. The court held, “The thrust of Art 17 of the Act is to liberate the society from the blind and ritualistic adherence and traditional beliefs which lost all legal or moral bases. It speaks to establish new ideal for society -- equality to the Dalits, at par with general public, absence of disabilities, restrictions or prohibitions on grounds of caste or religion, availability or opportunities and a sense of being a participant in the mainstream of national life. In interpreting the Act, 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 Tribes right to equality, social integration, a fruition and fraternity, a reality.”
The court also referred to the abstract of the immortal speech by Dr BR Ambedkar on the floor of the Constituent Assembly which bears the signature of social justice. It is: “What we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it, a social democracy. What does social democracy meanIJ It means a way of life which recognises liberty, equality and fraternity as the principles of life. These principles, liberty, equality and fraternity, are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. On the social plane, we have in India, a society based on the principle of graded inequality, which means elevation for some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty. How long shall we continue to deny equality in our social and economic lifeIJ If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which we have so laboriously built up.”
Mahatma Gandhi was of the firm opinion that real Swaraj would be brought if there is social justice for the poor and rich alike and economic emancipation of the needy and downtrodden. He fought against untouchability although the country had achieved its independence. He always stood for the cause of socialism, secularism and classless society. The legislations for the cause of Schedule Castes and Scheduled Tribes are largely built on the ideals cherished by the Father of Nation. It’s high time we shunned this type of intolerance, colour prejudices, barbarous and degrading human treatment which constitutes an attack on the self-respect of a person in this era of human rights consciousness.
Writer is former special judge CBI, Bhubaneswar and Professor of law, lal BahadurShashtri National Academy of Administration, Mussoorie)