TMI Blog1992 (12) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court. The learned Single Judge of the Karnataka High Court allowed the criminal revision petition and acquitted all of them. This appeal by way of special leave petition is by the State of Karnataka against the judgment of the High Court. During the pendency of the appeal respondent Appa Balu Ingale died on November 4, 1991. The appeal against him has thus abated. 2. The charge against the respondents was that they restrained the complainant party by show of force from taking water from a newly dug-up bore well on the ground that they were untouchables. The prosecution produced four witnesses who were all Harijans. The trial court and the appellate court, on appreciation of the evidence, reached the concurrent-finding that the charge against the respondents-accused was proved beyond reasonable doubt. Ordinarily it is not open for the High Court to interfere with the concurrent findings of the courts below specially by reappreciating the evidence in its revisional jurisdiction. The High Court disbelieved evidence of all the four witnesses who deposed to the actual incident as happened before their eyes. According to the High Court their evidence was not uniform in regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have also right to take water from the well. On that the respondents-accused told the Harijans not to persist on taking water from the well otherwise the consequences would be serious. The Harijans thereafter left the well without taking water and went to their colony. PW2, Appaji Sinde, PW3, Sripati Mane and PW4, Lahu Shinde have repeated the occurrence in similar words as stated by PW1. 4. We have given our thoughtful consideration to the prosecution evidence as appreciated by the courts below. We do not find any infirmity in the evidence of the prosecution witnesses. The High Court lost sight of the fact that the social disability of the Harijan community was enforced on a threat of using a gun. It is proved beyond doubt that the complainants were stopped from taking water from the well on the ground that they were untouchables. 5. We allow the appeal, set aside the judgment of the High Court and restore the judgment of the learned Additional Sessions Judge Belgaum dated September 5, 1980. Respondents Shankar Babaji Patil and Rajaram Rama Sankpal shall undergo the sentence of simple imprisonment for one month and to pay the fine of ₹ 100 each with the default clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... social and economic life of the people, absence of inequitous 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 intercourse 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. Adoption of new ethos and environment are, therefore, imperatives to transform the diffracted society into high degree of mobility for establishing an egalitarian social order in Secular Socialist Democratic Bharat Republic. Untouchability of the Dalits stands an impediment for its transition and is a bane and blot on civilised society. 11. Article 17 of the Constitution of India, in Part III, a Fundamental Right, made an epoch making declaration that untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the villages, towns, slums etc. The Tribes live in intractable terrains and forests. Manu Smrithi prohibited the Dalits to wear decent clothes, wear precious metallic ornaments or even to use decent utensils, food and drink. This had led to the abominable and abnoxious practice of untouchability, depriving them of social intercourse, educational and cultural development and were condemned as worse than animals. In the words of Bharat Ratna Babasaheb Dr. B.R. Ambedkar in his preface to his book The untouchables page I, that it is a diabolical contrivance to suppress and enslave humanity. Its proper name would be infamy . At page 28, he stated that untouchability.... is a unique phenomenon unknown to humanity in other parts of the world. Nothing like it is to be found in any other society - primitive, ancient of modern. In one of his post independent fiery speeches, Dr. Ambedkar with his characteristic clarity and piercing appeal to the Dalits stated thus:- In order to have a clear understanding of untouchability and its practice in real life, I want you to recall the stories of the atrocities perpetrated against you. The instances of beating by caste Hindus for the simple re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tching water in a metal pot, sitting the bridegroom on the back of a horse, etc. In these cases you spend your own money. Why then do the high-caste Hindus get irritated? The reason for their anger is very simple. Your behaving on par with them insults them. Your status in their eyes is low, you are impure, you must remain at the lowest rung. Then alone will they allow you to live happily. The moment you cross your level the struggle starts. The instances given above also prove one more fact. Untouchability is not a short or temporary feature; it is a permanent one. To put it straight, it can be said that the struggle between the Hindus and the Untouchables is a permanent phenomenon. It is eternal, because the high caste people believe that the religion which has placed you at the lowest level of the society is itself eternal. No change according to time and circumstances is possible. You are at the lowest rung of the ladder today. You shall remain lowest forever. 13. According to him untouchability is an indirect form of slavery and only an extention of caste system. Caste system and untouchability stand together and will fall together. The idea of hoping to eradicate untouc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in full view of assembled villagers who are terrified into silence, burning groups of Untouchables to death, chopping of their hands or feet, raping women, destroying whole villages are routine. At p. 169 in conclusion he stated that Indian independence is a watershed event precisely because it both embodied this ideal of a new order and in fact has set in motion widespread and momentous changes that have affected virtually every Indian citizen, including the 100,000,000 Untouchables of India. The changes include both the heightened consciousness and resistance of untouchables to oppression as well as determined backlash of other castes against them. Similar views were made in Socio economic Study by S.R. Kakade in his Scheduled Castes National Integration 1990 Edn. Socio-religious study in 'Main Currents in Indian Society and Cohesion and Conflicts in Modern India' Vol. 3, edited by G.R. Gupta, Dr. Dinesh Khosla, a human rightist, after studying the conditions of untouchables and impact of protection of Civil Rights Act vis-a-vis human rights interacting with all sections of rural North India and staying with Dalits, in his Myth and Reality of the Protection of Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank water taken from the tank. At a dinner hosted by the Speaker of the Rajasthan Legislative Assembly in honour of the Chief Minister, Shri Jagannath Pahadia, the wife of the Speaker trembled to serve food to the Chief Minister thinking to have been polluted. A Central Minister's son highly-educated and economically well off, when had intercaste marriage, the bride's father, whose annual income is not a month's salary of the Manager of the boy, i.e. even of humble means, neither celebrated the marriage nor visited her house, nor even permitted her to visit his house for the past ten years. On October 30, 1978, the Doctor in Govt. Hospital in Monger did not admit a Sweeper Dalit women, who was struggling for life. (Vide Dr. Khosla's Myth and Reality of the protection of Civil Rights Law, p. 67). A Dalit Judge in north India High Court could not secure a house and had to get posted to another place whereat he has his abode. A Judge of a south India. High Court has not touched even water in the houses of Dalit or backward class judges. Even in Delhi, the capital of the country, in 1991 the Dalit officer had to vacate the rented house due to practice of untouchability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution by itself, it is a corollary of the institution of the caste system of Hindu Society. It is an attitude on the part of a whole group of people. It is a spirit of social aggression that underlies this attitude. 19. Lela Dushkin in his 'The Policy of the Indian National Congress towards the Depressed Classes and Historical Study, 1967 Edition stated that untouchability is ordinarily used in all sense, first to refer to the pollution - stigma attached to untouchables, secondly to refer to the set of practice engaged in by the rest of the society to protect itself from pollution conveyed by the untouchables and to symbolise their inferior status. Dr. M.C.J. Kagzi in his Segregation and Untouchability Abolition, 1976 Edition, at page 207 stated that it (untouchability) connotes the acts, action or practice of non-touching of the members of the lowest by the caste Hindus, which means separation, segregation and isolation of such persons from the higher caste Hindus. It means keeping the Harijan untouchables outside the mission. Swami Vivekanand had stated in his complete works that we refuse entirely to identify ourselves with 'do not touch me'. That is not Hindui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , liability, restriction or condition with regard to - (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. Article 23(1) prohibits begar and other similar forms of forced labour, (bonded labour). Article 23 also prohibits traffic in woman (Jogins and Devadasi system thrive on cruel monster of custom). Article 29(2) prohibits denial of admission into an educational institution maintained by the State or receiving aid out of State funds on grounds only of...caste or any of them. Article 25 guarantees freedom of religion and its exercise thereof is made available to Dalits. Sub-clause (2) thereof envisages that nothing in that article shall affect the operation of the existing law or prevent the State from making any law to provide for social welfare and reform or to throw open Hindu religious institutions of a public character to all classes and sections of Hindus. 23. Thus disabilities to which Dalits are subjected to, have been outlawed and denial thereof offends the right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an appointment to an office or post under the State. These positive rights created in favour of the Dalits, when violated or denied, they are not only enforceable in a court of law but also the inflators are liable to punishment under the Act. Take for instance the practice of bonded labour is not only an offence but its abolition is also a right enforceable under Abolition of Bonded Labour Regulation Act. Similarly the institution of (Jogins and Devadasi) by virtue of its prohibition under Article 23 is no longer a valid Custom. Any person tending to encourage it, is liable for not only damages but also criminal prosecution. Similarly denial of admission into educational institution on grounds of caste is an offence and also is enforceable through an appropriate proceedings. To impede the exercise of the right to residing in any part of the country and settlement, on grounds of untouchability is not only an offence but the conduct amounts to an offence under the Act. Under the welfare scheme when the houses constructed for the Dalits, Tribes and backward classes, if so allotted as to perpetuate untouchability, the officer not only commits misconduct in the discharge of public d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Dalits; equality of opportunity and of status, justice - social, economic and political to relieve them of their travils, tortures and tribulations endured for centuries due to historical reasons. The handicaps, disabilities and sufferings, restrictions or conditions to which they are subjected need eradication and redressed under rule of law by bridging the gaps by pragmatic interpretations. The Act not only prescribes penal offences but also accords civil and social rights as part of constitutional scheme. It requires to be enforced, interpreted and the evidence evaluated on the touch-stone of the constitutional creed and ethos and any negation would abrogate and abnegate the constitutional policy. 29. It is worth bearing in mind a stark lesson that the doctrine of separate but equal profounder in plassey v. Ferguson 41 Lawyers' Edition 356 (163 US 537), depleted the glorious contents of 14th Amendment to integrate the Negroes into the main-stream of American Society till it was buried fathom deep in Oliver Brown v. Board of Education of Topeka 98 Lawyers' Edition 873 (347 US 483) 1964. 30. M.P. Jain in his Indian Constitutional Law 4th Edition 1987 at p. 522 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his having exercising any such right, shall be punishable with imprisonment for a term of not less than one month and not more than six months and also with a fine which shall be not less than ₹ 100 and not more than ₹ 500. The other provisions are not relevant, hence omitted. The intention appears to be that the operation of law to be deterent. 33. When the mandate of Article 17 was being breached with impunity, and commission of atrocities on Dalits and Tribes continued unabated, to stamp out the evil, the Parliament stepped in and made Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 with stringent provisions to eradicate those offences with speedy trial. Relief and rehabilitation of the victims of such offence and related matters. The details thereof are not germane for discussion. 34. Judiciary acts as a bastion of the freedom and of the rights of the people. Jawaharlal Nehru, the Architect of Modern India as early as in 1944 stated that the spirit of the age is in favour of equality though the practice denies it almost everywhere, yet the spirit of the age trumphs. The judge must be atone with the spirit of his/her times. Power o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every kind that are the living forces behind the factors they deal with. By judicial review, the glorious contents and the trite realisation in the constitutional words of width must be made vocal and audible giving them continuity of life, expression and force when they might otherwise be forgotten or ignored in the heat of moment or under sway of passions of emotion remain aroused, that the rational faculties get befogged and the people are addicted to take immediate for eternal, the transitory for the permanent and the ephemeral for the timeless. It is in such surging situation the presence and consciousness and the restraining external force by judicial review ensures stability and progress of the Society. Judiciary does not forsake the ideals enshrined in he constitution, but make them meaningful and make the people realise and enjoy the rights. 35. The Judges, therefore, should respond to the human situations to meet the felt necessities of the time and social needs, make meaningful the right to life and give effect to the Constitution and the will of the Legislature. This court as the vehicle of transforming the nations life should respond to the nation's needs and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because of the difficulty of proof of accused's mental stage, jurisprudence points dispensing with or of the onus of proof of metis rea. The learned Judge concentrated more on sequence or absence of parrot like repetition of ocular words spoken by illiterate persons or play upon words and sought consistence forsaking the sense it conveyed and the effect it produced in preventing PWs. 1 to 4 and other Dalits to exercise the right to draw water from public borewell. The High Court gave the benefit of doubt when in fact, no such benefit does arise from evidence if considered in proper perspective nor exists to reach the finding of guilty. My brother has endeavoured to evaluate the evidence and found it to be acceptable. With respect I agree with my brother and there is nothing further to discuss on the evidence and I respectfully endorse his view. 39. Before concluding it is apposite to abstract the immortal speech which bears all time relevance and to the judiciary also by Dr. B.R. Ambedkar in the Constituent Assembly on November 25, 1949 thus: What we must do is not to be content with mere political democrary. We must make our political democracy a social democracy as we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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