Is Section 16 of SC/ST Act a Dead Letter? M. Ravindran, Senior Advocate, Madras High Court

Is Section 16 of SC/ST Act a Dead Letter?

M. Ravindran, Senior Advocate, Madras High Court
Former Addl. Solicitor General of India (South),
Former President, Madras Bar Association
August 22, 2020

After the British Parliament passed the Govt of India Act 1935, elections to the Madras Lesgislative Assemby were held in 1937. Congress won 159 out of 215 seats in the Assembly. C. Rajagopalachari was elected as Premier of Madras Presidency. Dr. Subbarajan became the Law Minister. This Ministry lasted for two years (15th July 1937 to 19th October 1939), and it brought in two important legislations regarding the practice known as “untouchability”.
1. Removal of Civil Disabilities Act (Act 21 of 1938)
2. Temple Entry Authorization and Indemnity Act 1939
1938 Act was to remove the disabilities in public spaces, faced by ‘Harijans’ – as people from historically “untouchable” communities were known in the early part of the 20th century. The Act of 1939 was to authorize their entry into temples. Thus, our state was the forerunner in removing untouchability through legislation.

In 1934, Mahatma Gandhi undertook his “All India Harijan Tour”. When he visited Madurai he went only up to the entrance of Meenakshi Temple and refused to go inside the precincts, the reason being that P. Kakkan who had accompanied the Mahatma was denied entry to the temple on grounds of being a Harijan. Gandhiji said he would enter the temple only after all Harijans were permitted entry. ‘Temple Entry Authorization and Indemnity Act of 1939’, was passed by Rajaji’s government. On 8th July 1939, A. Vaidyanatha Iyer, President of Tamilnadu Harijan Seva Sangh announced his decision to take Harijans and Chanars (known today as Nadars) inside the Meenakshi Temple. Hindus from historically privileged and “high” castes opposed this move. Muthuramalinga Thevar, the fearless Congress leader issued a statement, “I will be there at the entrance of Meenakshi Temple. Those who dare prevent the entry of Harijans or whosoever may come there to face me, and I will answer them appropriately.” Vaidyanatha Iyer etched a new page in history by entering the temple together with six Harijans and one Chanar. Among this history-making group was the great P. Kakkan. Muthuramalinga Thevar true to his word was present on the day to provide protection from hostile forces who were determined to stop the temple entry. On his 1946 visit to Madurai, the Mahatma entered Meenakshi temple, having been vindicated in his principled stand.

The proceedings of the Constituent Assembly dated 26th November 1949 show the adoption of Babasaheb Ambedkar’s motion “That the Constitution as settled by the Assembly be passed”. Babu Rajendra Prasad, President of the Assembly, formally signed the bill which had become an Act by way of its authentication, in order that it might come into force immediately. Thus, our Constitution came into force on 26th November 1949. Lawyers and Judges celebrate the date as Law Day. Article 17 of our Constitution declares, “…Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of ‘untouchability’ shall be an offense punishable in accordance with law”. These few, powerful words put a constitutional stop to centuries of injustice. To give effect to the constitutional mandate, the young Indian Parliament passed the Untouchability Offences Act (Act 22 of 1955).

This Act underwent amendment and renaming in 1976. Section 10a of the 1976 ‘Protection of Civil Rights Act, 1955’ unequivocally states that the concerned state government has the authority to impose collective fine if it were to be found that inhabitants of an area had directly committed an atrocity as defined by law, or had abetted such a commission. Despite its stern language, the 1976 Act did not achieve the desired result, namely the complete abolition of practices of untouchability. Subsequently, the Parliament passed “The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (Act 33 of 1989). The wordings of Section 16 of this 1989 Act are significant.
“Section 16. Power of State Government to impose collective fine.—The provisions of section 10A of the Protection of Civil Right Act, 1955 (22 of 1955) shall, so far as may be, apply for the purposes of imposition and realisation of collective fine and for all other matters connected therewith under this Act.”
Thus we see that these two enactments leave no room for ambiguity with regard to the imposition and realization of collective fine from residents of the area and abettors to the criminal offense. This is intended to serve as a deterrent to would-be perpetrators. As for the authorities, not invoking Section 16 of Prevention of Atrocities Act in instances of cognizable offence would quite simply be atrocious.

And yet here we are in August 2020, the 74th year of our independence, when a Dalit Panchayat President (who won elections as an Independent candidate) was prevented from hoisting the national flag by none other than her fellow office-bearers. Smt V. Amritham, President of Aathupakkam Panchayat near Gummidipoondi was denied her right to hoist the national flag on 15th August, on the grounds that she was Dalit. In the seventy first year of the adoption of the Indian Constitution, office-bearers of the Panchayat, and residents of Aathupakkam village had the audacity to commit this offence in plain view. This is shameful at a human level and violates the letter and spirit of our constitution. Thiruvallur Dictrict Collector and the Superintendent of Police eventually made their way to the village and duly provided protection as Smt Amritham hoisted the national flag, not on August 15 but a full five days later, on 20th August 2020. It is not clear as to what action has been taken against the Secretary, Vice-President and other Panchayat members who committed this offence in the first instance. And what about the residents of Aathupakkam who stood by while this constitutional violation was being perpetrated? It is to be hoped that the authorities have invoked the provisions of Section 16 of the SC/ST Prevention of Atrocities Act, 1989.

Beginning with landmark legislations in the years 1938 and 1939 our state has been a pioneer in banning the reprehensible social system of untouchability. In 1949 the national constitution carried the enlightened tradition forward by permanently abolishing this system of oppression. After 80 years of legislation why must we still wake up to news of such an atrocity precisely around independence day celebrations, when citizens wave flags and the authorities recount our “progress” as a modern, independent nation? Unless the attitudes of individuals and communities change, no laws can eradicate bigotry and discrimination whether against Dalits or any historically disadvantaged groups. Even today, we have the two-tumbler system in some village tea stalls across our state and the rest of India. Educators and social activists must continue to shine light on the evils of this system, while the government must remain vigilant and unflinchingly enforce the law no matter the political consequences. As for Aathupakkam village incident, it would be astonishing and inexplicable if the TN state government and its officers failed to invoke the powers vested in them by these legislative provisions.

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