CRIMINOLOGY

Social Legislations and Crime

7
 A CRITIQUE OF THE PROTECTION OF CIVIL RIGHTS ACT

Component-I (B) Description of Module:

Description of Module
Subject Name Criminology
Paper Name Social Legislations and Crime
Module Name/Title A CRITIQUE OF THE PROTECTION OF
CIVIL RIGHTS ACT

Module Id 3
Pre-requisites In order to understand the current legal approach
adopted in India to protect civil rights, it is
essential to understand the historical development
of the relevant laws starting from its genesis
through the provisions of constitution.
It is hence essential to have a basic understanding
of the relevant provisions of Constitution
including those relating to equality.
It is also essential to have the basis understanding
of the principles of criminal liability and criminal
procedure.
Objectives The object of this module is to understand the
legal approach adopted by India then and now to
eradicate the practice of untouchability and
thereby promote civil rights.

To critique the current legal approach in this

regard.

Keywords Civil rights, untouchability, casteism, equality,

special courts.
 Component – II – e-Text

I. Introduction

Discrimination of any kind unless is lawfully permitted for justifiable reason is a social
wrong. Social justice requires treating them as legal wrongs thereby imposing appropriate
sanctions. Discrimination based on casteism is a menace India is struggling to prevent. It is
for this purpose that various laws including through the provisions of the Indian Constitution
and special enactments are framed.

Learning Outcomes:

1. To understand the concept of civil rights and related terms

2. To analyse the legal approach adopted to prevent untouchability
3. To analyse the legal approach currently adopted to protect civil rights
4. To critically assess this legal approach
5. To suggest appropriate measures tostrengthen this current approach.

II. CONCEPTUAL UNDERSTANDING:

The term untouchability was defined by the National Human Rights Commission (NHRC) in
its Report on Prevention of Atrocities against Scheduled Castes (Saxena Committee Report),
as “the practices evolved as social restrictions in sharing food, access to public places and
denial of access to drinking water sources etc.”1 According to Babasaheb B.R. Amebedkar
“Untouchability is the notice of defilement, pollution, contamination and the ways and means

1
http://shodhganga.inflibnet.ac.in/bitstream/10603/26529/13/13_chapter%204.pdf, last visited
on 10th December 2016, quoting National Human Rights Commission,” Report on Prevention
of Atrocities AgainstScheduled Castes”, (2004)13.
of getting rid of that defilement. It is a case of permanent hereditary stain which nothing can
cleanse.”2 Thus untouchability connotes clear violation of civil rights.

Civil rights generally refer to Personal liberties that belong to an individual, owing to his or
her status as a citizen or resident of a particular country or community3. The Oxford
dictionary defines untouchable as “Of or belonging to the lowest-caste Hindu group or the
people outside the caste system”. The term indicates absence of illegal discrimination,
including discrimination based on caste. Section 2 (a) defines “civil rights” as “any right
accruing to a person by reason of the abolition of “untouchability” by Article 17 of the
Constitution”. 4 In Jai Singh and Anr. Vs. Union of India (UOI) and others5, the High Court
of Rajasthan observes that:

“This Article [Article 17 of the Indian Constitution] does not define

'untouchability'. Parliament has passed a statute called
The Untouchability Offences Act' (22 of 1955). The title of the Act
was changed by Parliament by an Amendment Act in 1976. The
Act was now called 'The Protection of Civil Rights Act'. The
expression 'civil right' is defined as 'any right accruing to a person
by reason of the abolition of untouchability by Article 17 of the
Constitution'. This Act also does not attempt any definition of the
word 'untouchability'. The absence of a definition of untouchability
may give rise to some legal quibbling”.

III. LEGAL APPROACH TOWARDS PROTECTION CVIL RIGHTS

2
http://shodhganga.inflibnet.ac.in/bitstream/10603/26529/13/13_chapter%204.pdf, last visited
on 10th December 2016, quoting Mamta Mehmi, “The Protection of Civil Right Act, 1955:
An Introspection ofConceptual Framework quoted in Rattan Singh and Varinder Singh,
Socio-Economic Offences in India, (2008)214.
3
http://legal-dictionary.thefreedictionary.com/Civil+Rights., last visited on 11th December
2016.
4
Article 17 of Indian Constitution.
5
AIR 1993 Raj 177
Right to equality and equality treatment is enshrined as fundamental rights under Indian
Constitution. According to Article 14 “The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth.” Article prohibits
discrimination by stating - “(1) The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall,
on grounds only of religion, race, caste, sex, place of birth or any of them, be subject 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. State thus must ensure that a person is not
discriminated on the grounds as mentioned above.” At the same time, constitution provides
for protective discrimination. Article 15(4) states: “(5) Nothing in this article or in sub-clause
(g) of clause (1) of article 19 shall prevent the State from making any special provision, by
law, for the advancement of any socially and educationally backward classes of citizens or for
the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to
their admission to educational institutions including private educational institutions, whether
aided or unaided by the State, other than the minority educational institutions referred to in
clause(1) of Article 30.”

Article 16 protects equality of opportunity in matters of public employment and also states
that “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of, any
employment or office under the State.” According to Article 35, it is only the Union
Government which is empowered to make laws in relation to matters which under clause (3)
of Article 16.

Article 17 of Indian Constitution aims to abolish Untouchability by stating “Untouchability is

abolished 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 order to
further implement this provision the Untouchability Offences Act of 1955 was enacted. The
Act was amended and renamed in 1976 as the Protection of Civil Rights Act in 1976. In
addition in 1989 the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act
was enacted. Apart from these above mentioned constitutional provisions, Article 46 directs
the State to “promote with special care, the educational and economic interests of weaker
sections of the people and in particular of Scheduled Castes and Scheduled Tribes and shall
protect them from social injustice and all forms of exploitation.”

IV. PROTECTION OF CIVIL RIGHTS ACT – SALIENT FEATURES AND

IMPORTANT PROVISIONS:

The Protection of Civil Rights Act of 1955 is an Act which prescribes “punishment for the
preaching and practice of Untouchability and for the enforcement of any disability arising
there from”. The Act extends to entire country. It provides for punishment for the acts which
enforces religious disabilities. Some of the salient features of the Act are:

 Any person who prevents a person belonging to Scheduled Caste community from
entering places like a public temple, using a well, water room, hotel, inn, shall be
prosecuted under the Act
 All the offences of untouchability under this Act are cognizable offences (arrest
without warrant).
 There is no provision for compromise under this Act.
 If a person propagates “untouchability” or its practice in any form, an offence can be
registered under this Act against such person.
 Any person who justifies, whether on historical, philosophical or religious grounds or
on the ground of any tradition of the caste system or on any other ground, the practice
of “untouchability” in any form, shall be considered as an offender

Section 3 of the Act criminalises the following if committed on the “ground of

untouchability” –

a) Preventing a person’s entry to any place of public worship which is open to other
persons professing the same religion or any section thereof, as such person, or
b) Preventing a person from worshipping or offering prayers or performing any religious
service in any place of public worship, or bathing in, or using the waters of, any
sacred tank, well, spring or water course or rivers or lake or bathing at any ghat of
such tank, water-course, river or lake
 The above acts are subjected to imprisonment for a period of not less than one month
and can extend up to 5 months. It is also subject to imposition of fine between Rs. 100
to Rs. 500/- .

According to section 4 of the Act a person who enforces social disability can be punished
with imprisonment between one month to six months and fine between Rs. 100 to Rs. 500/-“.
According to this section, enforcing social disability means “a person on the ground of
untouchability -

- enforces against any person any disability in relation to access to any shop,
public restaurant, hotel or place of public entertainment; or
- disables a person from using any utensils, and other articles kept in any public
restaurant, hotel, dharmshala, sarai or musafirkhana for the use of the general
public or
- prevents a person to practice any profession or the carrying on of any
occupation, trade or business or employment in any job; or
- prevents a person from using or accessing any river, stream, spring, well,
tank, cistern, water-tap or other watering place, or any bathing ghat, burial or
cremation ground, any sanitary convenience, any road, or passage, or any other
place or public resort which other members of the public have a right to sue or
have access to; or
- prevents a person from using or accessing any place used for a charitable or a
public purpose maintained wholly or partly out of State funds or dedicated to
the use of the general public or
- prevents a person from enjoying any benefit under a charitable trust created for
the benefit of the general public or
- prevents a person from using or accessing to, any public conveyance; or
- prevents a person from making any construction, acquisition, or occupation of
any residential premises in any locality
- prevents a person from using any dharamshala, sarai or musafirkhana which is
open to the general public or
- prevents a person from observing any social or religious custom, usage or
ceremony or prevents him from taking taking part in or taking out, any
religious, social or cultural procession or
 - prevents a person from making use of any jewellery and finery,

However it is essential to understand that these rights guaranteed through provisions like the
above are only enforceable against public property ant not private. In the case of Benudhas
Sahu v. State6the court ruled out the application of Section 4(iv) to private wells. Similarly
section 5 punishes refusal to admit persons to hospitals, dispensary, educational institutions or
any hostel, etc.; section 6 punishes refusal to sell goods or render services on the ground of
untouchability.

Section 7(1) punishes other offences arising out of untouchability which includes:

- preventing any person from exercising any right accruing to him by

reason of the abolition of untouchability under Article 17 of the
Constitution,
- acts of molesting, causing injuries, annoyance, obstruction, causing
or attempting to cause obstruction to any person in the exercise of
any such right,
- inciting or encouraging another person or class of persons or public
to practice untouchability in any form, by words, either spoken or
written, or by signs or by visible representations or otherwise
- Insulting or attempting to insult, on the ground of untouchability a
member of a Scheduled Caste.

According to Section 7(1A) imposes punishment upon a person who commits any offence
against the person or property of any individual as a reprisal or revenge for his having
exercised any right accruing to him by reason of the abolition of “untouchability” under
article 17 of the Constitution. This also includes offences of

“(i) causing denial to any person belonging to his community

or any section thereof any right or privilege to which such
person would be entitled as a member of such community or
section, or

6
ILR(1962)Cut256
 (ii) Taking any part in the ex-communication of such person,
on the ground that such person has refused to practise
“untouchability” or that such person has done any act in
furtherance of the objects of this Act.”

It is important to note that the Act provides for multiple sanctions against certain offences
which can be seen through provisions like Section 8. According to section 8 if a personis
convicted of an offence under Section 6 and holds any licence under any law relating to any
profession, trade, calling or employment with regard to which the offence is committed, the
court apart from punishing him under section 6 can additionally also cancel or suspend such
license. Thus for example if the offence is committed by not allowing a person into a hotel on
the ground of untouchability, his hotel license can also be cancelled or suspended. Similarly
according to section 9, if a manager or trustee of a place of public worship or any educational
institution or hostel which is in receipt of a grant of land or money from the Government is
convicted of an offence under the Act, such grant may be suspended either in part of
completely by the government if it is warranted in a case.

Section 10A of the Act empowers the state government to collect fine after conducting an
inquiry for certain offences including the offence committed by the inhabitants of an area
who are concerned with or abetting the commission of any offence punishable under this Act
or harbouring persons who have committed offences under the At or for failing to render
essential and possible assistance in discovering or arresting a person who has committed an
offence under this act or in suppressing material evidence of the commission of such offence.

Repeated offenders get enhanced punishment as per section 11 of the Act. According to the
section according to which if a person is already been convicted of an offence under this Act
or of an abatement of such offence and is again convicted of any such offence or abetment, he
can be punished for the second time conviction with imprisonment for a term between 6
months to 1 year and also with the fine between Rs. 200 to Rs. 5000/-. This can be further
extended to imprisonment for a term between 1 year to 2 years and also with the fine between
Rs. 500/- to Rs. 1000/-.

The Act to an extent adopts strict liability approach. It provides for presumption based
liability under section 12 according to which “Where any act constituting an offence under
the Act is committed in relation to a member of a Scheduled Castle the Court shall presume,
unless the contrary is proved, that such act was committed on the ground of “untouchability”.

Act also criminalises preliminary offences such as attempt to commit offences. According to
section 10, “Whoever abets any offence under this Act shall be punishable with the
punishment provided for the offence.” The statutory explanation provided to the section
further widens the scope of this provision by clarifying that “A public servant who wilfully
neglects the investigation of any offence punishable under this Act shall be deemed to have
abetted an offence punishable under this Act.”

Section 14 imposes criminal liability upon officers running a company, by imposing liability
upon every person who at the time the offence was committed was in charge of, and was
responsible to the company for the conduct of the business of the company, when such
company commits an offence under the Act. However if such person proves that he had no
knowledge of such offence’s commission or has complied with all due diligence to prevent
such commission, he shall not be liable. However if such offence is committed with the
consent of any director or manager, secretary or other officer of the company, such director
manager, secretary or other officer can be punished.

V. PROCEDURAL ISSUES UNDER THE ACT

The Act makes all offences cognizable in nature, thereby imposing obligation upon police
officer to register the case [First Information Report] and investigate the matter. Further, the
concerned investigating officer can arrest the accused without a warrant. 7Further all offences
except where it is punishable with imprisonment for a minimum term exceeding three months
needs to be tried summarily by a Judicial Magistrate of the First Class or in a metropolitan
area by a Metropolitan Magistrate in accordance with the procedure specified in the said
code. This provision by requiring summary trial procedure ensures completion of trial within
a limited period.8 However to an extent, the Act provides a procedural protection to public
servants committing offence under the Act. According to Section 15(2), previous sanction is
required to try a public servant, who is alleged to have committed the offence of abetment of
an offence punishable under this Act, while acting or purporting to act in the discharge of his
official duty. Such the previous sanction should be taken from the -

7
See section 15
8
See section 15.
 (a) Central Government, if such public servant is employed in
connection with the affairs of the Union; and

(b) State Government, if such public servant is employed in

connection with the affairs of a State.”

The Act bars the application of Probation of offenders, if such offender has crossed 14 years
of age.9 Further according to section 265A of Criminal Procedure Code, plea bargaining is
not allowed in relation to offences covered under the Protection of Civil Rights Act.

Section 15A(2)(i) of the Protection of Civil Rights Act, 1955, provides for adequate facilities,
including legal aid to the persons subjected to any disability arising out of 'untouchability' to
enable them to avail themselves of such rights. Section 15A (2) (iii) of the Protection of Civil
Rights Act, 1955, provides for setting up of special courts for trial of offences under the Act.
Special Police Stations for registration of complaints of offences against SCs and STs have
been set by the Governments of Bihar, Chhattisgarh and Madhya Pradesh.10

The National Commission for Scheduled Castes (NCSC) as per Article 338(5) is duty bound
to prevent atrocities against SCs and "(a) to investigate and monitor all matters relating to the
safeguards provided for the Scheduled Castes under this Constitution or under any other law
for the time being in force or under any order of the Government and to evaluate the working
of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of
rights and safeguards of the Scheduled Castes." The NCSC’s Atrocities and Protection of
Civil Rights Wing deals with cases relating to Scheduled Castes under the Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Protection of Civil
Rights Act, 1955, either on receipt of complaints from individuals or information from other
sources (including the media).11

V. RECENT NCRB STATISTICS12:

9
See section 16A
10
See: http://socialjustice.nic.in/writereaddata/UploadFile/arpcr08.pdf., last visited on 9th
December 2016.
11
See: http://socialjustice.nic.in/writereaddata/UploadFile/arpcr08.pdf
12
See: http://ncrb.nic.in/., last visited on 12th December 2016.
 TOTAL NUMBER OF CASES REPORTED IN INDIA
Year No. of cases Laws reported under
reported
2014 47,064 40,300 cases u/ IPC along with the SC/ST (POA) Act
(atrocities cases i.e. where SC/ST(POA) Act applied)

6,511 cases were reported under various section of IPC

wherein the SC/ST (POA) Act was not applied

152 cases under other SLL crimes

101 cases of the Protection of Civil Rights Act

2013 39,408
Showing an increase of 19.0% in 2014 over 2013.

HIGHEST INCIDENTS OF CRIME AGAINST SCS REPORTED - STATE WISE – 2014

States No of cases reported Percentage accounted for
Uttar Pradesh 8,075 cases 17.2 %
Rajasthan 8,028 cases 17.1 %
Bihar 7,893 cases 16.8 %
Madhya Pradesh 4,151 cases 8.8 %

CASES REGISTERED UNDER THE PROTECTION OF CIVIL RIGHTS ACT - STATE

WISE – DURING 2014
Haryana 31 cases
Gujarat 19 cases
Bihar 12 cases
Andhra Pradesh 9 cases
Tamil Nadu 8 cases
A total of 101 cases under this Act were reported during 2014

TOTAL NO. OF CASES REGISTERED U/ PROTECTION OF CIVIL RIGHTS

ACT IN INDIA
Year Cases reported
2005 453
2010 148
2011 74
2012 64
2013 87
2014 115

VI. CRITIQUE OF THE ACT:

Dr. Ambedkar had said that the name of the legislation should be ‘The Civil Rights
(Untouchables) Protection Act’ so that it would indicate enforcement and protection of rights
in addition to punishment of offenders.13 However today the Act despite the change in its
nomenclature remains a more punitive law and hardly adopts any preventive approach while
enforcing civil rights. Hence the concern raised by Dr. Ambedkar remains to be an issue till
date. The Act is even today used only against offences committed and has hardly any
provisions imposing obligations on state to prevent commission of crimes affecting civil
rights.

Many States report the number of cases reported under the act as “nil”, which is certainly far
from the reality.14Further in 2003, only 0.56% of cases completed trial with 99% of
acquittal.15Punishment prescribed under the Act is not deterrent enough to prevent further
commission of the offence. Offences under section 3 and 4 in fact deserve more stringent
punishment. According to the Act, an exclusive special court of session should be established
in each district to try the matters. However not every court is exclusively special court and
many courts are designated special courts.

13
http://shodhganga.inflibnet.ac.in/bitstream/10603/26529/13/13_chapter%204.pdf, last
visited on 10th December 2016, quoting Rajya Sabha Debates, Vol. VII, No.16-29 on 16th
September, (1954)2431]
14
ibid.
15
ibid.
 VII. SUGGESTIONS:

It is essential to impose and ensure strict adherence to the timely completion of investigation
of cases and disposal of cases under the Act. Sensitization of investigating, prosecuting and
judicial officers will help effective implementation of the Act. Further in the place of
designated special courts, an exclusive court must be mandatorily established. Further better
protection of victims and witnesses may contribute to more successful procedure, as this may
prevent them from turning hostile. State must also adopt better preventive approach rather
than focusing only on punitive.

The Ministry of Home Affair’s Advisory on Implementation of PCR Act requires16 the State
Governments: “to undertake a comprehensive review of the effectiveness of the machinery in
tackling the problems faced by the members of the SCs/STs and takes appropriate measures
aimed at increasing the responsiveness of the law and order machinery.” It further states that
even though “some State Governments have taken some measures in this regard, yet, these
measures need to be strengthened further, so that members of these vulnerable groups feel
secured, enjoy their human rights and live their life with dignity and respect that they
deserve.”17 The advisory e-emphasizes the need to implement the Protection of Civil Rights
Act, 1955 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 effectively both in letter and spirit.18 According to the Ministry actions required to be
taken urgently includes the following:19

- Ensuring that First Information Report (FIR) is invariably registered by the Police
Station wherever and whenever a complaint of atrocity is received by it.
- In case the registration of FIR is denied by the Police Officer on duty without any
valid reason, such an officer, if not being a member of a Scheduled Caste or a
Scheduled Tribe, should be prosecuted
- Ensuring investigation of the offences of atrocities by an Officer not below the rank of
Deputy Superintendent of Police, completing the investigation on top priority and
within thirty days

16
Ministry of Home Affairs, Advisory on Implementation of PCR Act, available at
http://mha.nic.in/apcr, last visited on 12th November 2016.
17
Ibid.
18
Ibid.
19
ibid
 - Sensitizing Police Officers in regard to the implementation of the Act with regular and
effective training to the Police Officers, Special Public Prosecutors and the concerned
District Administration officers in regard to the implementation of the laws.
- Displaying the salient features of the Act on the billboards/hoardings in all the police
stations, especially in the rural areas and at other selected places frequently visited by
the public.
- Launching awareness generation campaign and organizing seminars on the provisions
of the Act

VIII. SUMMARY:

Although legislations like Protection of Civil Rights Act have a dismal record of
enforcement, they carry a symbolic value – India treats caste discrimination as a serious form
of human rights violations.20Offences affecting civil rights are a social concern. The problem
hence must be addressed holistically and not just with an enactment.

As was rightly opined by the Elayaperumal Committee “the problem of untouchability is,
therefore, inseparably linked up with the question of the caste system and the social set up
based on that. It is an indisputable fact that the caste system is the dominating social force in
this country. Hence any attempt to remove untouchability without striking at the root of the
caste system is simply to treat the outward symptoms of a disease or to draw a line on the
surface of the water. Untouchability cannot be abolished in this country unless the social
order is changed by establishing new values, and for this purpose the values based on the
Hindu religion must be changed first.”21 In addition, it is essential to make appropriate
changes to the existing laws so as to make it more stringent and deterrent, including by
increasing the extent of punishment prescribed. More preventive measures are required to be
adopted.

Further it’s a fact that “Social equality cannot be forced upon people by the laws of the State.
Unless the sentiment of equality produces great changes in our social habits and social

20
Shubhojit, what is Article 17 of Indian Constitution, http://www.elections.in/political-
corner/what-is-article-17-of-indian-constitution/. Last visited on 11th December 2016.
21
http://shodhganga.inflibnet.ac.in/bitstream/10603/26529/13/13_chapter%204.pdf, last
th
visited on 10 December 2016, quoting Ramesh Chandra & Mittra, Sangh, Op.cit. (2003) 42.
institutions, social equality is a difficult ideal to attain. But if the sentiment of social equality
is carefully and wisely cultivated, it is sure to make a considerable addition to the realisation
of social justice.” 22

---------------------------- ----------------------------------------------------------------------------

__ ___ ___

22
Justice Sri. P. S. Narayana, Commentary on The Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 and Rules 1995 and Protection of Civil Rights
Act, 1955 and Rules 1977, 5th Edition, Gogia Law Agency, Hyderabad, 2005, at p. 409.