Outlook English - Print Subscribers Copy Outlook English, 16 April 2018 | Page 26

CASTE OUT
OPI NI ON
K. VINAY KUMAR
& S.D.J.M. PRASAD
AN ATROCITY
ON THE LAW
Behind the street rage lies the Atrocity Act’s dilution after its weak execution
I
N the famous case of Mahad water tank agita-
tion, Narhari Damodar Vaidya vs Bhimrao
Ramji Ambedkar, the Bombay High Court heard
interesting contentions of the appellants who
refused Dalits access to water, citing the “cus-
tom of times immemorial”. In his judgement on
March 17, 1937, J. Broomfield summarised their
contention as follows: “The appellants, on behalf
of the caste Hindus of the town, of Mahad, sued
the res­
pondents, who represent the so-called
‘untouchables’, for a declaration that the
Choudhari Tank near the town belongs to them,
and that they alone have a right to use it and the
respondents are not entitled to use it, and for an
injunction against the respondents not to use it.”
There was no law to support the Dalit claim to
acc­ess the water in the Mahad water tank case.
The case went in favour of Dalits only because
the water tank vested in the municipality of
Mahad and was thus public property, and Narhari
Vaidya could not conclusively prove the custom
of exclusive use. A good 81 years later, on March
20, 2018, the Supreme Court of India, under the
Constitution of 1950, passed a judgement in the
case of Subhash Kashinath Mahajan v. the State
26 OUTLOOK 16 April 2018
GETTY IMAGES
ENOUGH!
Dalits protest at
Connaught Place,
New Delhi
The Act
prescribes
punishment
for the
government
machinery’s
failure to
implement
the law.
of Maharashtra and Anr. The times, indeed, have
changed, but not the social prejudices.
India started with protection of the rights of
Dalits with laws to counter the “custom of times
immemorial”. The Congress governments in the
provinces under the British Raj, passed 21 temple
entry and civil disability laws between 1938 and
1948, largely because of Mahatma Gandhi’s leader-
ship. The princely states under British para-
mountcy followed suit. Citing a few will help
understand the geographical spread of the “custom
of times immemorial”: the Orissa Temple Entry
Authorisation Act, the Bombay Harijan Temple
Entry Act, the East Punjab (Removal of Religious
and Social Disabilities Act), the Hyderabad-Harijan
Temple Entry Regulation, the Travancore-Cochin
Temple Entry (Removal of Disabilities) Act and the
Madras Removal of Civil Disabilities Act.
In the Constitution, which Dr B.R Ambedkar pil­
oted, India abolished the practice of Untouchability
in one stroke and made it a punishable offence.
India passed the Untouchability (Offences) Act,
1955, where the burden of proof lies with the acc­
used and not the victim. Both the anti-untouch­
ability crusaders passed away in the early years