A

B

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STATE OF KARNATAKA

v.

APPA BALU JNGALE AND ORS.

DECEMBER 1, 1992

[KULDIJ> SINGH AND K. RAMASWAMY, JJ.]

Constitution of India, 1950: Articles 15, 17, 23 and 29-Un­

touchability-Eradication of-Sociological and constitutional angulations­

Considered.

· . Protection of Civil Rights Act, 1955: Sections 4 and 7-Untouchability­

Practice of-Members of Harijan Community restrained by show of force

from drawing water from newly dug welf-Trial Court and appellate court

holding charge against accused proved beyond reascmable doubt-In

revisional jurisdiction High Court reappreciating evidence .and reversing con-

D viction and sentence of accused-Validity of-Scope of legitation-Ex­

plained-Court to interpret provisions keeping in view constitutional goals and

purpose

of Act.

The first respondent and four others were tried for the offences

E under Sections 4 and 7 of the Protection of Civil Rights Act, 1955. The trial

court convicted

all of them under Section 4 of the Act and sentenced them

to undergo simple imprisonment for one month and a fine of Rs.100 each,

and in default to suffer simple imprisonment for further five days. The

first respondent was further convicted under Section 7 of the Act but no

separate sentence was awarded. On appeal, the Additional Sessions Judge,

F upheld the conviction and; sentence of the first respondent and two others,

but allowed the appeal of the other two convicts and acquitted them. A

Single Judge

of the High Court allowed the criminal revision petition filed

by the first

resp1Jndent and two others. Hence, the appeal by special leave

by the State. During the pendency of the appeal, the first respondent died

G and the appeal against him thus abated.

Allowing the appeal, this

Court HELD: l.1. There is no infirmity in the evi<lence of the prosecution

witnesses. The High

Court lost sight of the fact that

disabilify of the

H Harijan Community was enforced on a threat of using a gun. It is proved

284

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STATE v. APP A BALU 285

beyond doubt that complainants were stopped from taking water from the A

well on the ground that they were untouchables. [290-G]

1.2. The charge against the respondents was that they restrained

complainant party by show of force from taking water from a newly dug-up

borewell on

the ground that they were untouchables. The prosecution

produced four witnesses who were all

Harijans. The trial court and. the B

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

re-appreciating the evidence in

its revisional jurisdiction. The High Court C

disbelieved evidence of all the four witnesses who deposed

·to the actual

incident

as happened before their eyes. It was of the view that their

evidence was not uniform in regard to actual words uttered by the

ac<;used

persons and the manner in which they prevented the complainant party

from taking water from the well. The High Court rejected the testimony of

; the eye witnesses on the ground that it could not be said with any amount D

of certainty which accused was guilty of the offences and that the evidence

adduced on behalf

of the prosecution was wholly insufficient to establish

the charge of the offence under

Section 4(iv) of the Act levelled against the

accused. The High Court fell into patent error in rejecting the prosecution

evidence.

The charge against the respondents has been proved

beyond E

doubt. [289-C-E; 290-A]

Per Ramaswamy, J. (Concurring)

1.1. The cri.ninal law primarily concerns with social protection,

prescribes rules of behaviour to be observed by all persons

and punishes

them for deviance,transgression

or omis

1

sion. Mens rea is not an essential

ingredient in social legislations is

the settled law. 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 the onus of proof of mens rea. [307-B-C]

1.2. The Judge concentrated more on sequence or absence of parrot

like repetition of occular 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. 1to4 and other Dalits to exercise the right

F

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to draw water from public bore-well. The High Court gave the benefit of H

286 SUPREME COURTRK ORTS [1992) SUPP.3S.C.R.

A doubt when in fact, no such benefit does arise from evid_e~ce, if considered

in proper perspectives,

nor exist to reach the finding of guilty.

(307-E·F)

B

2.1. Artide 17 of the Constitution of India, in Part Ill, a Fundamen·

tal Right, made an epoch making declaration that '!.mtouchability' is

abolished and its practice in any form is forbidden. The enforcement of

a111 disability arising out of 'untouchability' shall be an offence punishable

i~ accordance with law. In exercise of the power in second part of Article

11 and Article 35(a){ii), the Untouchability (Offences) Act, 1955 was made,

which was amended in 1976 as "Protection of Civil Rights Act". Abolition

-0f untouchability in itself is ·complete an.d its effect is all prevading

C applicable to sta_te actions as well as acts or omission by individuals,

institutions~"juristic or body of persons. (292-F, GJ

D

2.2. Neither the Constitution nor the Act defined 'Untouchability'.

Reasons are obvious.

It is not capable of precise definition. It encompasses

acts/practices committed against Dalits in diverse forms.

(298-111

2.3. Untouchability is founded upon prejudicial hatred towards

Dalits as an independent institution. It is an attitude to regard Dalits as

pollutants, inferiors

and out-castes. It is not founded on mense rea; The

practice of untouchability in any

foi"ill is, therefore is a crime against the

E Constitution. The abolition of untouchability is th.e arch of the Constitu­

tion to make. its preamble meaningful and to integrate the Dalits in the

national main st~~ .Disabilities to which Dalits are subjected to, have

been -0utlawed and denial thereof offends the right to equality enshrined

in Article

14 of the Constitution etc. The Act also protects civil rights of

Dalits.

(300-D, E]

F

2.4. The scheme in Part III, namely, fundamental rights, is to remove

·disabilities to which the Dalits are subjected to and to provide positive

r;iglits in their favour and Part IV Directive Principles fasten duties on the

State. to render socio-economic and political justice and to protect them

G from all forms of exploitation and injustice. In other words, Constitution

c~arges the state to improve the quality of their life, social, economic and

cultural pursuits as part of meaningful right to life guaranteed under

Article

21 of the

Constitutio~. (301-C, I>]

2.5. The thrust of Article 17 and the Act is to liberate the society from

H blind and ritualistic adherence and traditional beliefs which lost all legal

STATE v.APPABALU 2137

· or moral base. It seeks to establish new ideal for society -equality to the A

Dalits, at par with general publ.ic, 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.

[306-G]

.2.6. The Act not only prescribes penal offences but also accords civil B

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

abnigate the constitutional policy. [303-E]

2.7. Judiciary acts as a bastion of the freedom and of the rights of

c

the people. Power of judicial review, a constituent power has, therefore,

been conferred upon the judiciary which constitutes one of the most

portent and potent weapons to protect the citizens against violation of

social, legal

or constitutional rights. Therefore, the judges would adopt

purposive interpretation of the dynamic concepts of the Constitution and

D

the Act with its interpretative

armoury to articulate the felt necessities of

· the time. The Judge must also bear in mind that social legislation is not

a document for fastidious dialects but means of ordering of the life of the

people. Judiciary does not forsake the ideals enshrined in the Constitution,

but make them meaningful

and make the people to realise and enjoy the E

. rights. This Court as the vehicle of transforming the nation's life, should

respond to the nation's needs and to interpret the

law 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 F

democracy. [305-B-F;306-A-E]

2.8. 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 G

shed to annihilate untouchability; to accord to the Dalits and the Tribes

right to equality, social integration a fruition and fraternity a reality.

[306-F]

Shastri Yagnapurnshdasji & Ors. v. Muldas Bhundardas Vaishya &

Anr., [1966] 3 S.C.R. 242; Minerva Mills Ltd. & Ors. v. Union of India & H

288 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

A Ors., (1981) 1 S.C.R. 206; Plassey v. Ferguson, 41 Lawyers' Edn. 356 (163)

US 537; Oliver Brown v. Board of Educ,ation of Topeka, 98 Lawyers' Edn.

873 (347 US 483) 1964 and Josheph Lee Jones v. Alfrade N. Mayer Co., 20

Lawyers' Edn~ 2d 1189 (392 US 409) 1968, referred to.

B

Constituent Assembly Debates, Vol. 3 pp. 434-435, referred to.

Dr. B.R. Ambedka ... s "The Untouchables'~ p.1 and 28; Social and

Economic Development in India, a Reassessment:

Edited by Dilip K. Basu . & Richar Sision, 1986 Edn.; James M. Freeman's "Consciousness of

Freedom among India's untouchables'~ p.160-161; S.R. Kakade: Scheduled

C Castes and National Integration, 1990 Edn.; Dr. Dinesh Khosla: "Myth and

Reality of the Protection of Civil Rights Law", 1987 p.32; 'Impact of Social

Legislation on Social Change', 1971; Dr. Khosla's Myth and Reality of the

Protection of Civil Rights Law, p.67; 21st report of SC & ST Commission,

p.165; Mahatma Gandhiji's 'My philosophy of Life': Edited by A.T. Hin­

gorani 1961 Edn. p.146; Lela Dushkin : ',The Policy of the Indian National

D Congress towards the Depressed Classes and Historical Study, 1967 Edn.; Dr.

E

F

M.C.J. Kagzi : Segregation and Untouchability Abolition, 1976 Edn. p.207;

M.P. Jain : Indian Constitutional Law, 4th Edn. 1987 P. 522, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal

No.164

of 1983.

From the Judgment and

Order dated 1.4.1981 of the Karnataka High

Court in Crl. Revision Petition No.478 of 1980. ·

M. Veerappa for the Appellant.

K.R. Nagaraja for the Respondents.

The Judgments

of the Court were delivered by KULDIP SINGH, J. Appa Balu Ingale and four others were tried for

the offences under sections 4 and 7 of the Protection of

Civil Rights Act,

G

19'55 (The Act). The trial court convicted all of them under section 4 of

the Act and sentenced them to undergo simple imprisonment for one

month and a fine of Rs.100 each and in default to suffer simple imprison­

ment for further five days. Appa Batu Ingale was further convicted under

section 7

of

·the Act but no separate sentence was awarded to him for the

H said offence. The Additional Sessions Judge Belgaum, on appeal, upheld

'•

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STATE v. APPABALU [KULDIPSINGH,J.) 289

the conviction and sentence of Appa Balu Ingale, Shankar Babaji Patil and A

Rajaram Rama Sankpal. The lear~ed Judge, however, allowed the appeal

of the other two convicts and acquitted them. Against the judgment of the

Appellate Court Appa Balu Ingale and twCl ethers went in revision before

the High Court. The learned Single Judge of the Karnataka High Court

allowed the criminal revision petition and acquitted

all of them.

T~

appeal by way of speciaJ leave petition is by the State !)f Karnataka against B

the judgment of the High Court. During the pendency of . the app~al

respondent Appa Balu Ingale died on November 4, 1991. The appeal

against him has thus abated.

The charge against the respondents

was that they restrained the C

complainant party by show of force from taking water from a newly

dug-up

borewell on the ground that they were untouchables. The prosecuti9n

prod~ced four witnesses who were all Harijans. The trial court and the

appellate court, on appreciation of the evidence, reached the concurre~t­

finding that the charge against the respondents-accused was proved beyond

reasonable doubt. Ordinarily it is not open for the High Court to interfere

D

with

the concurrent fmdings of the courts below specially by reappreciatuig

the evidence in its revisional jurisdiction. The High Court disbeliev¢d

evidence of all the four witnesses who deposed to the actual incident ii.s

happened before their eyes. According to the High Court their evidence

was not uniform in regard to actual words uttered by the accused persons E

and the manner they prevented the complainant party from taking water

from the

well. The High Court rejected the testimony of the eye witnesses

on the following reasoning:-

"Thus, not only the evidence of these witnesses regarding

the actual manner

in which the accused obstructed and

what words they uttered,

is discrepant and not consistent,

but what

is not certain from the evidence is as to who

among the accused persons obstructed and used those

particular words attributed to the accused. It cannot

ex­

pect that all the accused would use the words simul­

taneously in a chorus in the manner the witnesses stated

before the court. Therefore, it cannot be said with any

amount of certainty which among the accused

was guilty

of the offence. The evidence adduced on behalf of the

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prosecution was wholly insufficient to establish the charge H

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290 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R.

of the offence under Sec. 4(iv) of the Act levelled against

them."

We are of

the. view that the High Court fell

into patent error in

rejecting the prosecution evidence. We have examined the statements of

eye witnesses as dealt with in detail by the appellate court. We are of the

view that the charge against the respondents has been proved beyond

doubt.

PWl .'fhalu, who is the complainant, has deposed that the borewell

in question was being drilled at a distance of about 15 feet from Harijan

colony and water sprouted from the

well on the date of the incident at

about

9.30 p.m. At that ti.me many person including the accused persons

C and some Harijans including PWs 1 to 4 were present there. Two young

girls of the Hindu community performed pooja. Thereafter 10/15 Hindus

took water from the

well for performing pooja at the temple. He further

stated that he along with

five other persons including

PWs, who were all

Harijans, also brought pots for taking water from the well. At that time the

three respondents told the Harijans not to take water from the

well as they

D were "mahars" and that there was a separate well for them. According to

the complainant the three respondents

·further obstructed the Harijans

from taking water saying, that if the Harijans insist on taking water the

result would be unhappy. Respondent 1 told his men to bring a gun from

his house ·and threatened the Harijans with dire consequences. "I:he com­

plainant further stated that he told the accused persons that the Harijans

E

. have also right to take water from the well. On that the respondents-ac­

cused 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

F

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in similar words as stated by PWl.

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.

We allow the appeal, set aside the judgment of the High Court and

H restore the judgment

of the learned Additional Sessions Judge Belgaum

~-

STATE v. APPABALU [K RAMASWAMI, J.] 291

dated September 5, 1980. Respondents Shankar Babaji Patil and Rajaram A

Rama Sankpal shall undergo the sentence of simple imprisonment for one

month and to pay the fine of Rs.100 each with the default clause as

awarded

by the trial court and upheld by the learned Additional

Sessions

Judge.

While agreeing with the judgment propose

by me K. Ramaswamy, J.

has gone into

"sociological and constitutional angulations" at great length.

I appreciate the erudite exposition of thoughts

by the learned Judge,

however, I do not wish to express any opinion and confine myself to the

merits of the appeal.

K. RAMASWAMY, J. In 1852 Frederick Douglass, a leading Black

abolitionist of slavery described his

agony on the eve of America's Inde­

pendence Day thus:

"This Fourth of July is yours, not mine. You may rejoice,

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I must mourn. To drag a man in fetters to the grand D

illuminated temple of liberty, and call upon him to join

you in joyous anthems, were inhuman mockery·

and.

sacriligious irony ... I say it with a sad sense of the disparity

between

us. I am not included within the pale of this

glorious

annivers!lry .... the blessings in which you, this day, E

rejoice, are not enjoyed in common. The rich inheritance

of justice, liberty, prosperity and independence, be-

queathed

by your fathers, is shared by you, not by me. The

sunlight that brought light and healing to

you, has brought

stripes and death to

me."

Same was the poignant agony of the Indian Scheduled Castes, Un­

touchables, for short 'Dalits' on the eve of August 15, 1947, Indian Inde­

pendence Day.

F

On December 1, 1862, in the midst of fierce civil war to abolish

slavery and the debate on the floor of the Senate to accord Civil rights to G

Negroes was going on, Abraham Lincoln, the President of United States

of America who later laid his precious life for that cause sent his message .

to the Senate with memorable words thus:-

"Fellow citizens, we cannot escape history. We .... will be H

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292 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R.

remembered in spite of ourselves. No personal sig­

nificance or insignificance can spare one or another of

us.

The fiery trial through which we. pass will light us down

in honor or dishonor to the latest generation .... We .... hold

the power and bear the responsibility."

The preamble of the Indian Constitution imbued among its people

with pride of being its citizens

in an intergrated Bharat with fraternity,

dignity of person and equality of status. But castism; sectional and religio.us

diversities and parochialism are disintegating the people.

Social stratifica-

tion need restructure. Democracy meant fundamental changes in the social

and economic life of the people, absence of inequitous conditions, ine­

qualities 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

1

and amounts to prevent equal

participation in social intercourse and deprivation of equal access to social

D means. Humane relations based on equality, equal protection of laws

without discrimination would alone generate amity and affinity among the

heterogenous sections of the Indian society. and a feeling of equal par­

ticipants

in the

dt'.mocratic polity. Adoption of new ethos and environment

are, therefore, imperatives to transform the diffracted society into high

E

degree of mobility for establishing an egalitarian social order in

Secular

Socialist Del!locratic Bharat Republic. "Untouchability" of the Dalits stands

an impediment for its transition and

is a bane and blot on civilised society.

Article

17 of the Constitution of India, in Part III, a Fundamental

Right, made an epoch making declaration that "untouchability"

is abolished

F 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. In exercise of

the power in second part of Art. 17 and Art. 35

(a)(ii), the Untouchability {Offences) Act 1955 was· made, which was

renamed in 1976 as "Protection of Civil Rights Act", for short 'the Act'.

G Abolition of untouchability in itself is complete and its effect is all prevad­

ing applicable to state action~ as well as acts of omission by individuals,

institutions, juristic or body of persons. Despite its abolition it

is being

practised with impunity more in breach. More than 75%

of the cases under

the Act are ending

in acquittal at all levels. Apathy and lack of proper

perspectives even

by the courts in tackling the naughty problem is obvious.

H For the first time after 42 years of the Constitution came into force this

......

-

STATE v. APPABALU [K. RAMASWAMl, J.]

first case has come up to this Court to consider the problem. The Act is A

not a penal law simpliciter but bears behind it monstreous untouchability

relentlessly practised for centuries dehumanising the Dalits, constitution's

animation to have it eradicated

and to assimilate l/5th of Nation's popula-

tion in the main stream

of national life. Therefore, I feel that it would be

imperative to broach the problem not merely from the perspectives of B

criminal jurisprudence, but more also from socialogical and' constitutional

angulations. While respectfully agreeing

with my learned brother Kuldip

Singh,

J. on his reasoning, conclusions and conviction, it is expedient,

therefore, to have the case considered from the above back drop and

address ourselves to the questions that arose for decision.

It

is trite that the Caste system among the Hindus

has·been struc­

tured on graded hierarchy of Chaturvarnya and the Dalits and Scheduled

Tribes (for short 'tribes') from among whom Sudras occupy ·the last rung

c

in the social ladder. Impregnable walls of separation with graded ine­

qualities has, thus, been erected between different sections among Hindus. D

The Dalits are made to serve the society in meiiial jobs as slaves and serfs.

Caste system segregated them from the main stream

of the rational

life and

prevented the Hindus from becoming in integrated Society with fraternity

and affinity. The Dalits are denied even access to potable water sources,

education, cultural life and economic pursuits. They are made to live as

beasts

of burden at the outskirts of the villages, towns, slums etc. The E

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

wor~e than F

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

w~rld. Nothing

like it

is to be found in any other society

-primitive, ancient of modern. In G

one of his post independent fiery speeches, Dr. Ambedkar with his char­

acteristic clarity and piercing appeal to the Dalits stated thus:-

;'In order to have a clear un~erstanding of untouchability

and its practice

in real life, I want you to recall the stories H

294

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SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

of the atrocities perpetrated against you. The instances of

beating by caste Hindus for the simple reason that you

have claimed the right to enrol your children in govern­

ment schools, or the right to draw water from a public

well, or the right to take a marriage procession with the

groom on horseback, are very common.

You allknow such

instances,

as they happen before your

eye~. But there are

several other causes for which atrocities are committed on

the Untouchables by the caste Hindus which, if revealed,

surprise foreigners. The Untouchables are beaten for put­

ting on clothes of good quality. They

have beeri whipped

because they used utensils made of metal like copper, etc.

Their houses are

burnt because they have brought land

under cultivation. They are beaten for putting on the

sacred thread.

[A visible symbol worn by high-caste Hin­

dus.] They are beaten for refusing to carry dead animals

and eat carrion, or

for walking through 'the village with

socks and shoes on, or for not bowing down before the

caste Hindus, for taking water in a copper pot while going

out to the fields to ease themselves. Recently an instance

has been noted where the Untouchables were beaten for

serving chapatis at a dinner party.

"You must have heard and some of you must have ex­

perienced such atrocities. Where beating is not -possible,

you are aware of how the weapon of boycott is used

against you. You all know how the . caste Hindus have

made daily life unbearable

by prohibiting you from getting

work,

by not allowing your cattle to graze in the jungles

and prohibiting your men from entering the village. But

very

few of you have realised why this happens. What is

the root of their tyranny? To me, it is very necessary that

we understand it.

The instances cited above have nothing to do

with the

virtue and vices of an individual. This is not a feud between

two rival men. The problem of untouchability is a matter

of class struggle. It

is a struggle between caste Hindus and

the Untouchables. This

is not a matter of doing injustice

. ~

(

)

STATE v. APP A BALU [~ RAMASW AMI, J.]

against one man. This is a matter of injustice being done

by one class against another. This struggle is related to

social status. This struggle indicates how one class should

keep its relationship with another class of people. The

struggle starts as soon

as you start claiming equal treat­

ment with others.

Had it not been so, there would have

been

nq struggle over simple reason like serving chapatis,

wearing good quality clothes, putting on the sacred thread,

fetching 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 ir­

ritated? 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."

295

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 un­

touchability without destroying caste system

is an utter futility. The prob-

A

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D

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F

lem to the Dalits is discrimination of high order next to the problem of

recovering their manhood.

In every nook and corner of the country, the G

Dalits face handicaps, suffer discrimination and are meted out injustice as

a daily routine.

Despite the missionary work of reformers like Mahatma Jyotiba Phule,

Periar E.V. Ramaswami Naiker,

Swamy Dayanand Saraswathi and host of H

296 SUPREME COURT REPORTS (1992) SUPP. 3 S.C.R.

A others to awaken s'ocial consciousness amongst untouchables their efforts -

remained unsuccessful. Dr. Ambedkar having been the victim of this cruel

practice and suffered the ignomy of throwing

files by peons at his face while he

was Military Secretary of Maharaja of Baroda, beaten up for staying in incog­

nito as a paying guest

in a

Parse Inn etc. became their crusader. He roused the

B

c

Dalits' consciousness to fight for eradication of untouchability, to claim

equality of treatment, status and oppor~unity and of equal rights, civil, politi­

cal, social and economic and of dignity of person. Mahatma Gandhiji, the

father of the .Nation, too sincerely worked to abolish untouchability and

na~ed them·as Harijans (children of God). The rights secured by Ambedkar

in Poona Pact and 1934 Congress resolution formed foundation for Art. 17.

Though the tenets of other religions do not pr~ach, by imitation, they too

practice untouchability, though not

in strict rigour.

Emphirical study conducted by Socialogists, like,

in Social and

Economic Development in India, a Reassessment edited by Dilip

K; Basu

D and Richard Sision,. Sage Publication, New Delhi, 1986 Edition, in the

Chapter "Consciousness of Freedom among India's Untouchables", by

James M. Freeman said that the Dalits are "world's most oppressed

minorities". At p.160 he stated that severe economic domination usually has

been sufficient to keep the untouchables

in line, but evidence exists that

E

F

the ultimate sanction was the use and threat of physical force. The numeri­

cally larger and wealthier dominant high castes are quite capable of and

in

fact did crush the slightest perceived resistance to their will. At p.161 it

~

was further stated that since independence, and particularly since 1970's

as Untouchables have more openly resisted discrimination, reports of

terrorism against them have increased both

in number and in ferocity;

gouging out the eyes of Untouchables in

full view of assembled villagers

who are terrified into silence, burning groups of Untouchables to death,

chopping

of their hands or

foet, 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

G that have affected virtually every Indian citizen, including the 100,000,000

Untouchables of India. The changes include both the heightened con­

sciousness and resistance of

untou_chables to. oppression as well as deter­

mined backlash of other castes against them. Similar

views were made in

Socio-economic Study

by S.R. Kakade

~n his Scheduled Castes & National

H Integration 1990 Edn. Socio~religious study in 'Main Currents in-Indian

-

(

STATE v. APPABALU [K. RAMASWAMI, J.] 297

Society and Cohesion and Conflicts in Modern India' Vol.3, edited by G.R. A

Gupta, Dr. Dinesh Khosla, a human right~t, 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 Rights Law'',

Hindustan Publishing Corporation (India) Delhi, 1987, stated at p.32 that B

untouchability thwarted the liberation of the human mind from the. oppres-

sive trappings of centuries old traditions, beliefs, and myths; that it con­

stantly emphasised the fact

of birth in a caste, ultimately untouchability

depressed and dampened the psychological motivations for social and

economic development. Law in its formal and institutional sense was, thus,

rendered meaningless

to the contemporary life of the untouchables. He C

stated that the Act did not knock at the doors of those, who submerged in

the traditions nor helped Dalits.

S/Sri Bishwa B. Ch_atterjee, Sheo Swarath

Sing and Dharam Raj Yadav in their 'Impact of Social Legislation on Social

Change', the Minerva Associates Publication of 1971, in their survey in

West Bengal from socialist point of

view, high-lighted the still prevalent D

untouchability in rural India and all the authorities do emphasise the need

for proper and expeditious remedy.

Proverty and penury made the Dalits as dependants and became

vulnerable to oppression. The slightest attempt to assert equality or its

perceived exercise receives the ire of the dominent sections

of the society E

and the Dalits would become the object of atrocities and oppression. The

lack of resources made the Dalits vulnerable to economic

and social

boycott. Their abject poverty

and dependence on the upper classes in

Rural Indian for livelihood stands a constant constraint to exercise their

rights -social, legal or constitutional,

though guaranteed. Thus they have F

neither money capacity, influence nor means to vindicate their rights except

occasional collective action which would be defeased or flittered away by

pressures through diverse forms. Consequently most of the Dalits are

continuing to languish under the yoke of the practice

of untouchability. The

State has the duty to protect them and render social justice to them.

G

The statue of Swami Sampuranand at Varanasi when unvailed by no

less than the Dy.

Prime Minister of Free India in February, 1978, Sri

Babuji, J agjivan Ram, it was believed to have been defiled and was purified

ceremoniously with water brought from Ganges with all religious fervour, H

298 SUPREME COURT REPORTS (1992] SUPP. 3 S.C.R.

A a repetition of Mahad Tank water purification with mounds of cow dung,

cow urine and milk, an episode of March 1927 when Ambedkar and his

colleagues drank 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

B

food to the Chief Minister thinking to have been polluted. A Central

Minister's son highly-edu~ated and economically well off, when had inter­

caste 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

C Govt. Hospital in Monger did not admit a Sweaper DaHt 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 Co!:lrt could not

secure a house and had to get posted to another place whereat he has

his

abode. A Judge of a south

;1ndla. High Court has not touched even water

D 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 (vide 21st report of

SC & ST Commission,

p.165). Mass murders from Belchi

in North to Tsundur in

South India, gang

rapes of Dalit women and arson of their huts; the mass movement

by

women volunteers to stop blatent practice of untouchability in the hotels

E in Chittoor Dist. of Andhra Pradesh organised by Gita Ramaswamy, a

noted social worker and journalist reported

in an article titled "Ambedkar

to Ayodhya"

in the Main-stream

dat~d January 5, 1991 are only illustrative

of the relentless practice of untouchability, let alone, humiliations to count­

less Dalits which are of every day's routine. Thus even persons

who.

F

improved their social status, economic position or holders of constitutional

offices are no exceptions to the wrath and plague of untouchability and are

self evident truths.

So Dr. Ambedkar is right when he wrote that "untouch­

ables are born and die as untouchables" and the scorn and scoff

is carried

from birth to graveyard. The emphasis here is not on individuals but to

highlight

the-acuteness of the problem and the urgency to eradicate the

G evil; the insensitivity which the Dalits are subjected to; the remedy provided

under the Act and the acute need to implement the

law strictly.

Neither the Constitution nor the Act defined

'U ntouchability'.

Reasons are obvious.

It is not capable of pr,ecise definition. It encompasses

H acts/ practices committed against Dalits in diverse forms. Mahatama

a

STATE v. APPABALU [K RAMASWAMI, J.] 299

Gandhiji in his 'My philosophy of Life' edited by A.T. Hingorani 1961 Edn. A

at p.146, stated that "untouchability means pollution by the touch of certain

person

by reason of their birth in a particular state of family. It is a

phenomenon peculiar to Hinduism and has got no

~arrant in reasons or

sastras". According to Dr. Ambedkar, "the untouchability

is the notion

Of

defilement, pollution, contamination and the ways and means of .getting rid B

of that defilement. It is a permanent hereditary st~in which nothing can

cleanse". The Parliamentary Committee on Untouchability headed

by

Ji,.

Elayaperumal in their 1969 report stated that 'untouchability' is a basic and

unique feature and inseparably linked

up with the caste system and social

set up based upon it.

It does not require much research to realise that the

phenomenon of untouchability

in this country is fundamentally of a C

religious or political origin. Untouchability is not a separate institution 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 bf

social aggression that underlies this attitude.

Lela Dushkin in his

'The Policy of the Indian National Congress

towards the Depressed Classes and Historical Study, 1967 Edition stated

D

that untouchability is ordinarily used in all sense, first to refer to the

pollution -stigma attached to untouchables, secondly to refer to the set

~f

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. E

M.C.J. Kagzi in his Segregation and Untouchability Abolition, 1976 Edi­

tion, 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 out- F

side 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

Hinduism. It

is in none of our books. It is an orthodox superstition which

has interfered with national life all along the

line".

In Shastri Yagnapuntshdasji &

Ors. v. Muldas Bhundardas Vaishya & G

Anr., [1966] 3 SCR 242, this Court speaking through Gajendragadkar, C.J.

held that 'untouchability is founded by superstition, ignorance, complete

misunderstanding of the true teachings of Hindu religion'. Sardar Vallabh

Bhai Patel, during the course of the discussion on the floor of the Con­

stitutent Assembly stated that, removal of untouchability is the main idea. H

A

B

c

D.

E

300 SUPREME COURT REPORTS [1992) SUPP. 3 s,c.R.

If abolition of untouchability is provided as a fundamental right, as . an

offence, necessary adjustment

will be made in the law that can be passed

by the legislature, vide

C.A.D. Vol.3, pages 434-35.

Thus it could be concluded that the untouchability has been grown

as an integral facet of socio-religious practices being observed for over

centuries; ~ept the Dalits av.;ay from the main-stream of the Society on.

diverse grounds, be

it of religiqus, customary, unfounded beliefs of pollu­

tion etc. It

is

an· attitude and way of behaviour of the general public of the

Indian social order towards Dalits. Though it has grown

as an integral part

of caste syslem, it became an institution

by itself and it enforces disabilities,

restrictions, conditions and prohibitions on Dalits for access to and the use

of

places· of public resort, public means, roads, temples, water sources,

tanks, bathing ghats; etc., entry into educational institutions or pursuits of

avocation or profession which are open to all and

by reason of birth they

suffer from social stigma. Untouchability and birth as a scheduled caste are

thus intertwine root causes. Untouchability, therefore,

is founded upon

prejudicial hatred towards Dalits as

in independent institution. It is an

attitude to regard Dalits

as pollutants, inferiors and out-castes. It is not

founded on

mense rea. The practice of untouchability in any form is,

therefore, a

crime against the Constitution. The Act also protects civil

rights of Dalits. The abolition of untouchability is the arch of the Constitu­

tion to make its preamble meaningful and to integrate the Dalits

in the

national main-stream.

In furtherance thereof Art.15(2) removed disabilities that no citizen

shall, on grounds only of religion, race, caste,

sex, place of birth or any of

F them, be subjected to any disability, 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. Art.

23(1) prohibits begar

and other similar forms

of forced labour, (bonded labour). Article 23 also

G prohibits traffic in woman (Jogins and Devadasi system thrive on cruel

monster of custom). Art.29(2) prohibits denial of admission into an educa­

tional institution maintained by the

State or receiving aid out of State funds ·

on grounds only of ......... caste or any of them. Art.25 guarantees freedom

of religion and its exercise thereof

is made available to Dalits. Sub-clause

•

H , (2) thereof envisages that nothing in that article shall affect the operation

•

STATE v. APPABALU [K. RAMASWAMI, J.] 301

of the existing law or prevent the State from making any law to provide for A

social welfare and reform or to throw open Hindu religious institutions -0f

a public character to all classes and sections of Hindus.

Thus disabilities to which Dalits are subjected to, have been outlawed

and denial thereof offends the right to equality enshrined in Art. 14 of the

Constitution etc. These provisions als~ furnish evidence of sociology that B

Dalits have been denied access to all the public means open to the gener;al

public and

of public amenities. The practice of untouchability is the

robt

cause for social segregation, denial of opportunities for educational,

economic and cultural pursuits; Dalits are subjected to severe discrimina­

tion, disabilities, liabilities, prohibitions, restrictions

or conditions etc. The C

scheme in

Part III, namely, fundamental rights is to remove disabilities to

which the Dalits are subjected to and to provide positive rights in their

favour and Part IV directive principles fasten duties on the State to render.

socio-economic

and political justice and to protect them from all forms of

exploitation and injustice by operation of Art. 38 and Art.46 of the Con- D

stitution. In other words Constitution charges the state to

improve the

quality

of their life, social, economic and cultural pursuits as part

of

meaningful right to life guaranteed under Art.21 of the Constitution.

The above provisions seeks to serve three-fold p.urposes; (i) outlawed

the disabilities to which Dalits are subjected to;

(ii) they are made an E

offence under the Act; and

(ill) provided rights enforceable as civil rights.

Untouchability

is the

root cause and consequently any religious, social,

customary or moral grounds to enforce untouchability no longer subsists

nor is valid after January

26,

1950. Enforcement of any disability is a crime

against human rights and the Constitution entails the wrong doer with

punishment. All customs, usages, practices directly

or

indirectly recognis­

ing

or encouraging the practice of untom;hability in any form is void, being

opposed to public policy. Even a contract, covenant

or any private trans­

action tending to recognise, encourage

or effectuate untouchability in any

form

is, therefore, void ab initio.

The right to reservation for appointment to an office or a post under

the state, has been guaranteed under Arts.16 and

14 and right to admission

F

G

into an educational institution is guaranteed under Arts. 15 & 29(2). The

right to residence and settlemen.t in any part of the country has been

guaranteed under Art. 19(1)(e) and right to an avocation

or a profession H

302 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R.

A has been guaranteed by Art. 19(1)(g). Article 335 gives them the right 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 infractors are liable to punish­

ment under the Act. Take for instance the practice of bonded labour

is not

·B

c

only an offence but its abolition is also a right enforceable under Abolition

of Bonded Labour Regulation Act. Similarly the institution qf (J ogins and

Devadasi) by virtue of its prohibition under Art.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 education-

al 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 alloted as to perpetuate

D untouchability, the officer not only commits misconduct in the discharge of

public duty but also by his conduct becomes liable for prosecution. Any

contract or saJe of the allotted lands or buildings to others

is void being

opposed to public policy and the purchaser acquires no right, title or

interest therein. The Dalits or the State are entitled to restitution of such

houses or lands allotted to them.

E

F

Art. 51A Fundamental duties in Chapter IV A brought by the Con­

stitution 42nd Amendment Act,

1976 enjoins as a fundamental duty every

citizen to promote harmony, spirit of brotherhood amongst all the people

transcending sectional diversities etc. to develop scientific

temper'

humanism, the spirit of inquiry, reform and to strive towards excellence in

all spheres of individual and collective activity so that the nation constantly

rises to higher levels of endeavour and achievement. Poverty, illiteracy and

caste system are positive dangers to democracy. Democracy

is essentially

a form of society. Political democracy without social democracy cannot last

long. Elevation of the less privileged to the level

of other sections of society

G is essential, otherwise democracy would be in danger. Political and

economic democracy would be of no avail unless social inequalities are

removed. The Act

is an instrument to effectuate civil, social, cultural,

economic and constitutional rights

of the Dalits.

In

Minerva Mills Ltd. &

Ors. v. Union of India & Ors., [1981) 1 SCR

H 206 at p.250, this Court, speaking per majority Chandrachud, CJ. angulated

..

STATE v. APPABALU [K. RAMASWAMI, J.] 303

harmony between the fundamental rights and the directive principles as A

goals of social revolution under rule of law and held that "there is no sphere

of public life where delay can defeat justice with more telling effect than

the one in which the common man seeks the realisation of his aspirations.

The promise of a better tomorrow must be fulfilled today, day after

tomorrow it runs the risk of being conveniently forgotten. Indeed so many H

tomorrows have come an~ gone without a leaf turning that today there is

a lurking danger that people will ..york out their destiny through the

compelled cult of their own 'dirty hands'. Words bandied about in marbled

halls say much but fail to achieve as much."

The above mandate and goal of the Constitution would be a reality

C

if only the law is enforced strictly. The march of law should match to

protect the life and there should be factual improvement in the quality

o~

life of the Dalits; equality of opportunity and of status, justice -social,

economic and political to relieve them of their travils, tortures and tribula­

tions endured for centuries due to historical reasons. The handicaps,' D

disabilities arid 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

E

would abrogate and abnigate the

Ct,nstitutional policy.

It is worth bearing in mind a stark lesson that the doctrine of

"separate but equal" profounded in plassey v. Ferguson, 41 Lawyers' Edition

356 (163 US 537),depleted the glorious contents of 14th Amendment to F

integrate the Negroes into the main-stream of America! Society till it was

buried fathom deep in

Oliver Brown v. Board of Education of Topeka, 98

,

Lawyers' Edition 873 (347 US 483) 1964.

M.P. Jain in his Indian Constitutional Law 4th Edition 1987 at p.522

stated that 'Art.17 read with Art.15(2) protects an ihdividual from dis-

G

criminatory conduct not only on the part of the

State but even on the part

of the private persons in certain situations. The Supreme Court has stated.

that whenever any fundamental right like Art.17

is violated by a private

individual, it

is the constitutional obligation of the state to take necessary

steps to interdic such violation and ensure observance

of the fundamental H

304 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

A right by the private individual who is the victim of transgression. The State .

is under a constitutional obligation to see that there is no violation of the

fundamental rights of such person'.

B

c

The ratio in Joseph Lee Jones v. Alfrade H Mayer Co.,

20 Lawyers'

Edition 2d

1189 {392

US 409) 1968, that the plaintiff, a Negro could be

entitled by an injunction to purchase a house fr~m a white who denied sale

on the ground of colour barrier and statute

42

USC Art. 1982 :would apply

to both a state and private acts of denial of equality

is an instance to show

that denial of

civil rights on grounds of untouchability (Negro's segrega­

tion)

is actionable at law.

The Amended Act adopted the definition of 'Scheduled Castes' as

defined in Art. 466(24) read with Art.

341 of the Constitution. By Clause

(bd) of

Sec. 2 of the Act, Civil Rights is defined to mean "any right accruing

to a person

by reason of the abolition to untouchability by Art. 17 of the

.

D Constitution". Sec.3 prescribes punishment to enforce religious disability

on the ground of untouchability. Sec.4 prescribes punishment to enforce

social disability on the ground of untouchability with regard to the

enumerated offences and clause

(iv) relevant for the purpose of this case

postulates that whoever, on the ground of untouchability, enforce against

any person

any disability with regard to the use of or

acce~s to ...... water

E taps ....... , shall be punishable with an imprisonment for a ·term of not less

F

than one month and not more than six months and also with a fine which

shall not be less than Rs.100 and not more than Rs.500. ·Section 7

prescribes punishment that (1) w~oever prevents any person from exercis­

ing any right

by reasons of abolition of untouchability under Art.17 of the

Constitution; (b) obstruct or cause or attempt to cause obstruction to any

person in the exercise of any

such· right, by reason 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 Rs.100 and not more than Rs.500. The other

provisions are not relevant, hence omitted. The intention appears to be that

G the operation of law

t9, be deterent.

When the mandate of Art.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

H and Scheduled Tribes

{Prevention of Atrocities) Act, 1989 with stringent ~·

I .

STATE v. APPA BALU [K RAMASWAMI, J.] 305

prov1s1ons to eradicate those offences with speedy trial. Relief and A

rehabilitation of the victims of such offence and related matters. The details

thereof are not germane for discussion.

Judiciary acts

as a bastian 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 atune with the spirit of his/her times. Power of judicial

review, a constituent power has, therefore, been conferred upon the

judiciary which constitutes one of the most importent and potent weapons

B

to protect the citizens against violation of social, legal or constitutional C

rights. The judges are participants in the living stream of national iife,

steering the law bet:Ween the dangers of rigidity ,on the one hand and

formlessness on the other hand in the seemless web of life. The great tides

and currents which engulf the rest of the men do not turn aside in their

course and pass the judges idly bye. Law should subserve social purpose.

D

Judge must be a jurist endowing with the legislator's wisdom, historian's

search for truth, prophet's vision, capacity to respond to the needs of the

present, resilience to cope with the demands of the future and to decide

objectively disengaging himself/herself from every personal influence or

predilictions. Therefore, the Judges would adopt purposive interpretation

of the dynamic concepts of the Constitution and

the Act with its interpreta~ E

tive armoury to articulate the felt necessities of the time. The Judge must

also bear in mind that social legislation is not a document for fastidious

dialects but means of ordering in the life of the people. To construe

law

F

one must enter into its spirit, its setting and history. Law should be capable

of expanding freedoms of the people and the legal order can, weighed

with

utmost equal care, be made to provide the underpinning of the highly

inequitable social order. The power of judicial review must, therefore, be

exercised

with insight into social values to supplement the changing social

needs. The existing social inequalities or imbalances are to be

remo~ed and

social order readjusted through rule of

law, lest the force of violent cult

gain

ugly triumph. Judges are summoned to the duty of shaping the G

progress of the law to consolidate society and grant access to the Dalits

and Tribes to public means or places dedicated to public use or places of

amenities open to public etc. The

law which is the. resultant product is

n~t ·

found but made. Public policy of law, as determined by new conditions,

would enable the courts to recast the changing conceptions of social values H

306 SUPREME COURT REPORTS (1992] SUPP. 3 S.C.R.

A of yester years yielding place to the changed conditions and environment

to the common good.

The courts are to search for light fr.om among the

social elements

of 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

B

audible giving them continuity of life, expression and force when they might

otherwise be forgotten or ignored i~ 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 consiousness and the restraining

C 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.

The Judges, therefore, should respond to the human situtations to

D meet the felt necessities. of the time and social

ni::eds, make mearungful the

right to life and give effect to the constitution and the

will of the Legisla-.

ture. This court as the vehicle of

tr~nsforming the nations life should

responde to the nation's needs and to interpret the law with pragmatism

E

F

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, the judge should be congnizant 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 make fraternity a reality.

The thrust

of Art. 17 and the Act is to liberate the society from blind

and ritualistic adherence

and traditional beliefs which lost ali legal or moral

G base. It seeks 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 of opportunities and a sense of

being

a· participant in the main stream of national life.

H While the court, therefore, is to adopt the psychological approach,

STATE v. APPABALU [K RAMASWAMI, J.j 307

reasonable doubt does not mean the mind of a doubting Thomas, nor A

. vacillation, nor pusillanimity, nor deep seated prejudices or predilections

covertly found in other walks of life. The application of the test of a

reasonable man acting

in

·similar circumstances and reasonable doubt of a

reasonable man

is the rule.

The learned Judge in appreciating the evidence of

PW-1 to PW-4

B

appears to have fell into the trap of traditional mould and found doubt

when none exits. The criminal law primarily concerns with social protec­

tion, 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. As stated by C

Justice Krishna Iyer in his

"Social Mission of Law" at p.91 that, "the act

may or may not be accompanied

by guilty mind but for the

sense of justice

among the community, being ordinarily effective against individual, to leave

it to the moral plane; the law makes intent, knowledge and degree of

negligence an ingredient of the offence. But where

sodal

·necessity D

demands from the angle of public welfare or because of th~ difficulty of

proof of accused's mental stage, jurisprudence points dispensing with or of

the onus of proof of

mens

rea." The teamed 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 E

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.

F

Before concluding it is apposite to abstract the immortal speech

which bears

all .time

relevance and to the judiciary also by Dr. B.R. G

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

well.

PolitlcaI democracy cannot last H.

308 SUP~EME COURT REPORTS (1992) SUPP. 3 S.C.R.

A unless there lies at the base of it a social democracy. What

does social democracy.mean? It means a way of life which

recognizes 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

B

form a union of trinity in the sense that to divorce one · from the other is .to defeat the very purpose of democracy.

~.,, '

Liberty cannot be divorced from equality, equality cannot

be divorced from liberty. Nor can liberty and equality be

divorced from fraternity. Without equality, liberty would

produce

the supremacy of the few over the many. Equality

c without liberty would kill individual initiative. Without

fraternity, liberty

and equality could not become a natural

course

of things. It would require a constable to enforce

them.

We must begin by acknowledging the fact that there

is complete absence of two things in Indian society.

One

D

of these is equality. 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 fu which

there are some who have immense wealth as against many

who live in abject poverty.

E

On 26th January, 1950, we are going to enter into a

[

life of contradictions. In politics we will have equality and

in social and economic life we will have inequality. In

politics we will be recognizing the principle of one man,

F

one vote and one vote, one value, In our social and

economiC life we shall, by reason of our social and

economic structure, continue to deny the principle of one

man, one value. How long shall we continue to life this

life

of contradictions? How long shall we continue to deny

G

equality in our social and

econo~ic life? If we continue

to deny it for long, we will do so only ·by putting our

political democracy in peril. We must remove this con-

tradiction

at the earliest possible moment or else those

who suffer from inequality

will blow up the structure of

political democracy which we have so labouriously built

H

up."

ll-

STATE v. APPA BALU [RAMASWAMY,J.] 309

This salutory message is the torch bearer and beacon light in the ad- A

ministration of the law under the act and other social legislations.

Accordingly, I agree with

my brother on the conviction and sentences

imposed on the respondents and the appeal

is accordingly allowed.

N.P.V. Appeal allowed.