DALIT JURISPRUDENCE

SUBMITTED BY:
SUNIDHI SACHDEVA
OF
FACULTY OF LAW, JAMIA MILLIA ISLAMIA
UNDER THE GUIDANCE OF
Prof. Eqbal Hussain
 CERTIFICATE
The project entitled DALIT JURISPRUDENCE submitted to the Faculty
of Law, Jamia Millia Islamia for JURISPRUDENCE as part of my
internal assessment is based on my original work carried out under
the guidance of Prof. Eqbal Hussain .The research work has not been
submitted elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the
research paper has been duly acknowledged.
I understand that I myself could be held responsible and
accountable for plagiarism, if any, detected later on.

Signature of the candidate:

Date:
 INDEX
1. INTRODUCTION.
2. ROLE OF DR. B.R. AMBEDKAR IN DEVELOPING THE
CONCEPT OF DALIT JURISPRUDENCE.
3. AIMS AND OBJECTIVES OF DALIT JURISPRUDENCE.
4. CONSTITUTIONAL PROVISIONS.
5. LEGISLATIVE ENACTMENTS.
6. JUDICIAL APPROACH.
7. CONCLUSION.
 INTRODUCTION
India is a culturally diverse nation, composed of numerous languages, religions,
traditions etc. This heterogeneous nature of the society defines India and is its
biggest strength. Minorities and minority groups form an essential and integral
part in sustaining this diversity. The Constitutional framers acknowledged the
existence of such minorities and thereby drafted a robust and living Constitution
which guaranteed protection and equality before the law by virtue of protective
discrimination. One such minority group which has been struggling since time
immemorial are the DALITS. The Dalits or as Mahatma Gandhi called them,
‘Harijans’ have been victims of deep seated casteism and prejudice prevalent in
India.

Upliftment of downtrodden is no doubt a noble cause. There are various

provisions in the Constitution of India that talk about giving protection to the
Dalits. State law, when it comes to combating the thousands of injustices of
Indian Society lacks social legitimacy. As such, it is a deeply weakened
instrument when it comes to dealing with caste-based discrimination.

Thus, in spite of the given constitutional and legal protection, we continue to

observe that discrimination on the basis of caste is still practiced in most parts
of India, particularly in Northern India. The incident in Una, Gujarat on 11th July,
2016 has raised many eyebrows. Four men were tied up and beaten in public by
cow vigilante groups based on the apprehension that they were responsible for
killing and skinning a dead cow. This incident has raised public outcry not only in
the state of Gujarat but all over the country. The Dalit community have made a
strong case of discrimination and have come out to protest against the same.
This is not a single odd case, the Dalits have been on the receiving end for ages.
They continue to face such blatant discrimination and there is a rise in the
number of such incidents and atrocities. The average Indian mind is imprinted
with this age old prejudicial system and thus unfortunately, caste system
dominates the country and all its institutions.

This has given rise to a new concept and jurisprudential philosophy called DALIT
JURISPRUDENCE. It is the responsibility of the judges and the judiciary to mete
out justice to the Dalits. It aims at the emancipation of these communities from
social injustice, economic oppression and bondage of upper castes by securing
for them liberty, equality and dignity and protecting them from the injustice and
discrimination. It is the Dalits segregated in far flung busters, slums and ghettos
have been afflicted by grinding poverty, diseases and ignorance. Justice Krishna
Iyer portrayed and studied the utter backwardness of the Harijan
Humanity, stated that Jurisprudence to be living law, must respond to the
bhangi colony and the black ghetto intelligently enough to equalize
opportunities within the social, political and economic orders, by waking up for
long spells of depreviation1. Protection of Civil Rights Act, 1955 in addition to the
Constitution and particularly the Preamble, Articles 14 to 17, 38, 39, 46, 335,
338, 340, 342, 355 and 366 form the corpus jurisprudence of Dalit Jurisprudence
to protect the disadvantaged sections.

ROLE OF DR. B.R. AMBEDKAR IN

DEVELOPING THE CONCEPT OF DALIT
JURISPRUDENCE
Dr. Ambedkar’s presence in India is ubiquitous in terms of national
iconography with national holidays as well as universities being named after
him. Perhaps, the best known image of Dr. Ambedkar is of him holding the
Constitution in his hand and looking into the distance. He was the originator of
the “lawless laws of Hinduism” which not only denied equality before law as a
principle to the untouchables but also inscribed the extra territorialisation of
whole communities of human beings and their castigation as being outside the
pale of humanity.
Dr. Ambedkar’s view of the law was deeply rooted in his own experience of
discrimination under the rigid laws of caste. It was arguably this experience of
suffering at the hands of the caste laws authored by the society which turned
him to the relentless quest to combat caste through various forms of law and
love. He introduces the term “Constitutional Morality” into public disclosure to
make the point that Indian democracy could not be founded on

1
Available at http://alexis.org.in/dalit-atrocities-and-jurisprudence/
Majoritarianism, but rather it must be based on a constitutional ethic of
respect for dispersed and powerless minorities.

AIMS AND OBJECTIVES OF DALIT

JURISPRUDENCE
The broad objectives of Dalit Jurisprudence can be summed up as follows:

1. To oppose casteism which is one of the biggest social menace in India.

2. To recover histories of struggle for human dignity and caste
discrimination.
3. To foreground dignity and humiliation as key ethical categories that have
shaped the political struggles and ideological agendas in India.
4. To historicize the persistence of caste inequality and discrimination that
have acquired new forms in a modern and democratic India.
5. To oppose anti-dalit and anti-minorities propaganda.

CONSTITUTIONAL PROVISIONS FOR THE

PROTECTION OF DALITS
Indian Constitution, in its bill of rights guarantees of all citizens basic civil and
political rights and fundamental freedoms. In addition the Constitution has
special provisions prohibiting discrimination based on caste. These provisions
are found under:

1. The right to equality (Article 15, 16 and 17).

2. The Right against Exploitation (Article 23)
3. Cultural and educational rights (Article 29 and 30)
4. Prohibition against disenfranchisement in elections based on one’s
religion, race, caste or sex (Article 325).
5. Articles 330 and 333 permit Union and State legislature to reserve seats
for members of the Scheduled Castes and Scheduled Tribes indigenous
(people or adivasi) based on their population in each constituency.
 6. Article 338 mandates the creation of a national commission for
Scheduled Castes and Scheduled Tribes to monitor safeguards provided
to them.
7. Finally, Article 341 makes possible the governmental identification
ofdifferent subcategories of Scheduled Castes in relation to each State
the listof Scheduled Castes or sub groups within the Scheduled Castes.
Published by the president through public notification is deemed final.2

The Constitution of India aims at the establishment of a just and equitable

social order. It has established the supremacy of law. It is itself a fundamental
law. The Constitution is full of ideal of liberty, equality and social justice and
political matters. Truly speaking, the Constitution of India is an excellent peace
of social engineering. It provides special safeguards in favour of Scheduled
Castes and Scheduled Tribes with a view to maintain proper balance in the
society and guarantee social equilibrium and to serve as an effective
instrument of social engineering. The State has been put under obligation to
strive hard to promote the welfare of the depressed classes and secure a
stable social order in which social, economic and political is provided to them
all on equal footing with other sections of society. The rights of the Scheduled
Castes and Scheduled Tribes are sought to be preserved first, through the
fundamental rights. These rights apply generally to all citizens as well as to
Scheduled Castes and Scheduled Tribes but this is not at all. A number of
specific provisions have also been incorporated in the Constitution,
safeguarding specifically the social economic, educational and political rights of
the Scheduled Castes and Scheduled Tribes and for safe guarding various socio-
economic interests give that remained backward, exploited, under developed
and to protect them from exploitation and atrocities, provisions have been
made in the Constitution, giving certain benefits to these communities, to
enable them catch up with the rest of the society in all walks of life.3

2
Sesha Kethinemi, Gail Diane Humiston Dalits, The “Opressed People” of India, How are their social, economic
and human rights addressed? IllINOIS State University, Vol. 4, 2010, p.113.
3
Ibid, p. 114
 LEGISLATIVE ENACTMENTS

To fulfil the Constitutional provisions pertaining to Dalits, India has passed

various laws to enact to protect their rights. Some of them are:
1. The protections of Civil Rights Act, 1955.
2. The Bonded Labour (Abolition) Act, 1976.
3. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989.
4. The Employment of Manual Scavengers and Construction of Dry Latrines
(Prohibition) Act, 1993.
5. Various land reforms to redistribute community land to the landless.

Finally, to monitor enforcement of these laws, The Central Government

established the National Commission for Scheduled Castes and Scheduled
Tribes and the National Human Rights Commission in the early 1990s.

JUDICIAL APPROACH FOR THE UPLIFTMENT

AND PROTECTION OF DALITS
The judiciary has not been lagging behind in removing the atrocities against
dalits but has done an immense commendable work through various
monumental and celebrated decisions for the upliftment of the conditions of
these weaker sections.

We have entered a revolutionary era in the field of judicial process for

upholding the rights of the poor, the exploited and the downtrodden. Cases
like Asiad4, Bandhua Mukti Morcha5, and Neeraja Chaudhary6 are illustrations
wherein "the Supreme Court relaxed the rigour of locus standi and gave
constitutional dimensions to various statutory rights. The court did not falter in
setting appropriate legal bases when it recognised and enforced the rights of
4
People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473
5
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
6
Neerja Choudhary v. State of M.P., AIR 1984 SC 1099
the depressed and evolved an anti-poverty jurisprudence. Judicial outlook is
rightly reflected by views which Justice Ramaswamy which he has expressed in
State of Karnataka.vs Appa Balu Ingale7 in which he observed "The Non -
Judicial walks of life may be thus Caste ridden, the shining path of Constitution
requires a vigilant assault on the practice of untouchability. The Judiciary acts
as a bastion of freedom and protector of the rights of the people. And law
must be capable of expanding the freedom of the people, the legal order must
be deployed with utmost equal care to combat a highly inequitable social
order. The mandate of the Constitution would be a reality only when law is
enforced strictly; the implementation and interpretation is to be measured by
the factual improvement in the quality of the life of dalits." He further advised
the judges "The Judges, therefore, should respond to the human situations to
meet the felt necessities of the time and social needs, meaningful right to life
and give effect to the Constitution and the will of the legislature. This Court as
the vehicle of transforming the nation's life should respond to the nation's
needs and to interpret with pragmatism to further public welfare 193 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 (i.e. SC & ST Act
1989) 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 shed to annihilate Untouchability, to
accord to the Dalits and the Tribes right to equality, social integration a fruition
and fraternity a reality."

D. Murli Krishna Public School v. Regional Joint Director of School Education8

is a case where judicial enthusiasm for dalit upliftment has resulted in a
decision which, although just and fair, lacks in sound reasoning and adequate
legal foundation. In this case, a registered society started by an advocate
belonging to the scheduled caste established an English medium school for
imparting education to the dalit children. When recognition for the school was
sought for, the state government proceeded, by issuing a show cause notice,
to withdraw even the temporary recognition. The petitioner moved the High

7
AIR 1993 SC 1126
8
AIR 1986 A.P. 204
Court of Andhra Pradesh to quash the notice and for an order for recognition.
The court allowed the petition and granted the relief.

In another case of Jai Singh v. Union of India9, the Rajasthan High Court upheld
the validity of the SC/ST (Prevention of Atrocities) Act, 1989 and pointed out
that the act attempts to abolish untouchability and caste differences in tune
with the Constitutional mandate of Article 17 of the Constitution of India.

It is no wonder that a judge is often moved by the social atrocities brought to

his notice. Being an instrument of social justice, law should be used to
counteract social injustice. The judge should so formulate and interpret the
contents of law that this noble purpose is achieved. He should certainly
respond and come to the rescue of the exploited when the matter is placed
squarely before him. In this process he should act not only as a mere judicial
functionary but also as a social reformer. Otherwise the distinction between
the two will become obliterated. Judicial craftsmanship lies in so formulating
suitable legal foundations for social demands. For instance, in Asiad10 when the
Supreme Court attempted to counteract the evils of non-payment of minimum
wages, child labour and violation of labour welfare laws, it gave solid legal
bases for its decision. Non-payment of minimum wages was equated with
forced labour and brought within the ambit of article 23 of the Constitution.
Child labour was brought within article 24, and violation of labour welfare
legislation within article 21.

CONCLUSION
This paper has sought to discuss about the protection and upliftment of the
Dalits in the country. Inspite of the various constitutional mandates, legislative
acts and judicial pronouncements by the Courts, there is not much
improvement in the position and status of the Dalits. The ‘failures’ have to be
located in the context of the Indian society and the dominance of the ideas of
caste as law. The law of the State has to be understood as nothing less than a
brave attempt to challenge social hierarchies of over 2,500 years. In this
contexy, both norm articulation and an attention to the details of procedure

9
AIR 1993 Raj 177
10
Supra note 4
are very important. The basic idea is that legal activism cannot stop at norm
articulation but must struggle with the difficult task of actualizing the norm in a
deeply flawed society.
Perhaps, the greatest relevance of the ideas embedded in this concept can be
found in the notions of fraternity and constitutional morality. In a society tnat
is still deeply hierarchical, communal and parochial, it is imperative to build
fraternity and love among the people. It is really essential that fraternal
relations be built through such a politics of love.
This draws attention to the importance of judiciary internalizing a belief in
Constitutional morality, which must play the role of ensuring that Indian
democracy does not become the brute rule of majority. It is the constitutional
responsibility of the judiciary to ensure that majoritarian sentiments are kept
in check through the morality of the Constitution.