PROTECTION OF CIVIL RIGHTS ACT, 1955: CASES

Section 3

State of M.P. v. Puranchand, Madhya Pradesh High Court held for the purpose of section 3, the person prevented must either be professing the same religion as other persons to whom the place is open.

The object of Section 3 is not to create any new rights in favour of untouchables but it is intended only to put them at par with other caste Hindus.

Parameswaran Moorthy v. Vasudeo Kurup, the Kerala High Court held that Section 3 does not confer unfettered and absolute rights to perform religious services that are supposed to be performed only by priests according to religious tenets or to enter such places where such

rituals are being conducted.

In Hindu Religious Endowment Board v. L.T Swamiyar, (AIR 1954 282) the Supreme Court held that there is no unregulated and unrestricted right of entry in a public temple or other religious institution for persons who are not connected with religious functions.

In the case of Venkatraman Devaru v. State of Mysore, the SC held that denominations had the religious freedom to manage their own religious affairs and could hence exclude outsiders from temple ceremonies.

Section 4

Benudhas Sahu v. State (ILR(1962)Cut256) the court held that Section 4 (iv) does not apply to private wells because the owner of private well is free to regulate the use of well by co-villagers. If the owner of private well permitted other people in the village to draw water from the well, it does not means that every villager has a right of access to or right to use the well.

Section 7: Punishment for other offences arising out of untouchability.

In M. Lakshminarayana Reddy vs The Union Of India (AIR 1987) considering the issue of Constitutional validity of Section 7, the court held that Rights conferred under Arts. 14, 19 and 21 cannot be considered as superior to other rights and obligations created by other articles of the same Chapter. The court held that the petitioner did not have a right to do any act that was forbidden by the same chapter. 

PROTECTION OF CIVIL RIGHTS ACT, 1955: A LEGISLATIVE HISTORY.

Historical Background. 

People of lower castes for centuries suffered social injustices by the higher castes. Under the traditional Hindu society, people belonging to Scheduled castes and Scheduled tribes communities were treated as the untouchables. They were prohibited from using public places and common provisions such as ponds, pools, parks, wells etc. 

They were debarred from Hindu temples, places of worship and from using roads, vehicles, ferries, schools and public convenience. Their very shadows were considered as imminent pollutants and hence they were branded as untouchables.

These disabilities made life miserable for scheduled castes.

In order to tackle the problem of untouchability, Article 17 of the Constitution was incorporated in the Constitution to rescue the Scheduled Castes from the inhuman atrocities being committed against them by the upper castes society of the country. The untouchability has been abolished and any practice of it is an offence under Article 17 of Indian Constitution.

Article 35(a)(ii) provides that only the Parliament shall have the power to make law for prescribing punishment for those acts which are declared to be offences under Part-III. Thus only Parliament is empowered to make laws in respect of offence of untouchability as mentioned under Article17 which is to ensure uniformly throughout the country.

The Parliament passed the Untouchability (Offences) Act 1955, an improved version of the Untouchability Order,

1950, in order to give effect to provision under Article 17.

Object of the Untouchability (Offences) Act 1955.

1. To give effect to the provision under Article 17 of Indian Constitution under which untouchability in any form has been abolished and any practice of it has been made an offence.
2. To prescribe punishment for preaching and practice of Untouchability, for the enforcement of any disability arising therefrom and for matters connected therewith.

Constitutionality of State Legislations.

Even before the enactment of the Act, a number of states and Union territories had anti-disabilities laws in force between such as the Removal of Disabilities Act, Removal of Social Disabilities Act and Temple Entry Acts.

Many of these Acts were challenged as being unconstitutional on the ground of lack of legislative competency of the states in the light of Article 35 of the Constitution that empowered only the Parliament to enact laws in relation to Part III. 

In State v. Kishan (AIR 1955 MP 207), the Indore Bench of the Madhya Pradesh High Court held that the powers of state legislatures to make laws prescribing punishment for those acts that were declared to be offences under
Article 17 were withdrawn by Article 35. Such power is now vested only in the Parliament. However the provision has a prospective application and it saved only laws in force in the State before the commencement of the Constitution, until they are altered, repealed or modified or amended by Parliament.
Similarly, state laws have been upheld in P.S Charya v. State of Madras (AIR 1956 Mad. 541) and State of U.P. v. Gulab Singh (AIR 1953 All.483).

Definition of Untouchability.

Neither Article 17 nor the Act defines the term "untouchability". However, broadly speaking, it refers to any social practice, which looks down on certain depressed classes, solely on account of their birth and disables them from having any interaction with people from the so called
higher castes or classes on equal footing.
The National Human Rights Commission (NHRC) in its Report on Prevention of Atrocities Against Scheduled Castes (Saxena Committee Report), has defined it as the practices evolved as social restrictions in sharing food, access to public places and denial of access to drinking water sources etc.

Recently, in the case of Indian Young Lawyers Association vs The State Of Kerala (2018 SCC OnLine SC 1690), the honourable apex court expounded the ambit of Article 17 and observed that "the social exclusion of women, based on menstrual status, is but a form of untouchability which is an anathema to constitutional values".

Punishments under the Act.

The Act:

1. provided punishment for enforcing certain religious, social and other kinds of disabilities on grounds of untouchability.  
2. provided penalties for the refusal of rendering services to Scheduled Castes and 
3. made provision for the use of public places by Scheduled Castes without any distinction of caste.

1976 Amendment

The 1976 Amendment was made due to following reasons:

• 
  

  The Act was not very effective in the eradication of untouchability and giving rise to dissatisfaction as the legislation failed to serve the purpose for which it was enacted.
• The punishments awarded under the Act were inadequate. 
• Few cases had been filed under the Act.
• The compoundable nature of the offences resulted in compromises and the punishments were small.
• Mostly the victims were reluctant to lodge complaints for fear of social reprisal and harmful economic consequences at the hands of their landlords, money lenders and rural oligarchies who would not give them work or full wages for the work done by them.

The Government of India, therefore, appointed a committee in 1965 under the chairmanship of Shri Elayaperumal to study, inter alia problems of untouchability vis-à-vis the working of the Act and to suggest changes therein. The Committee found that:

1. when a Scheduled Caste wanted to quit the traditions of performing menial jobs, he was often confronted with social and economic boycott.
2. the punishments imposed under the Act were too light and without any minimum requirements.
3. instances where cases had been purposely delayed to cause hardship to complainants so that they would not have either the energy or the resources to pursue the case.
4. the upper castes enjoyed the support of law enforcement officials like the police and magistrates, and that the Scheduled Castes would not get any protection from them.
5. Apathetic attitude of magistrates who do not trust the evidence of Scheduled Castes on the ground that they are interested witnesses.
6. there was very little awareness and wide ignorance about the provisions of the Untouchability Offences Act. It also found that distribution of copies of the legislation had been faulty. The Committee noted the ignorance of various officials and authorities about the existence of the Act.

The 1955 Act was comprehensively amended in 1976 on the recommendation of the Elayaperumal committee and its name changed to Protection of Civil Rights Act,1955.

Source

Nisha Priya Bhatia v. Union of India: On Sexual Harassment and Legality of Rule 135 of RAW Rules.

The SC in the present judgment dealt with the constitutionality of Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975.

Rule 135 of the RAW (Recruitment, Cadre and Services) Rules, 1975 gives power to the Central government to voluntary retire RAW Officers whose identity is exposed or compromised.

In the present case, an ex-female employee of RAW was compulsorily retired after she made allegations of sexual harassment against two senior officials of RAW.

Constitutionality of the Impugned Rule.

Appellant argued that Rule 135 is in direct contravention of Article 311 of the Constitution, which deals with “dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or the State”. The court held the Rule 135 of the RAW (Recruitment, Cadre and Services) Rules constitutional, because:

1. Until and unless the action taken against a public servant is in the nature of punishment, the need for conducting an inquiry coupled with the grant of an opportunity of being heard, as envisaged under Article 311, does not arise at all.

1. The Rule has been carved out as a special provision and is premised on the doctrine of necessity. It forms a small subset of the genus of Article 309 deals strictly with cases of “exposure” of “intelligence officers” who become unemployable in the Organisation for reasons of security.”

The Court concluded that the effect of any action taken under Rule 135 does not entail any penal consequence for the employee and, therefore, it cannot be put at the same pedestal as an action of dismissal or removal, and no inquiry or opportunity of hearing as envisaged under Article 311 is required while taking an action under this Rule.

Order for Compensation for Violation of Fundamental Rights.

The bench ordered the Respondent, (Union of India) to pay compensation worth Rs.1,00,000/-­ to the Petitioner for violation of her fundamental rights to life and dignity caused by improper handling of her complaint of sexual harassment.

The bench observed that time taken to process the stated complaint and improper constitution of the first Complaints Committee (intended or unintended) in violation of the Vishaka Guidelines, constituted undignified treatment and violation of the fundamental rights of the petitioner, more particularly Articles 14 and 21 of the Constitution.

Widening the ambit of law regarding sexual harassment, the bench observed that apart from the actual commission of acts of harassment, the approach of law also covers situations wherein the woman employee is subjected to prejudice, hostility, discriminatory attitude and humiliation in day to day functioning at the workplace. 

Important Legal News: April 2019.

• Unregulated Deposit Schemes Ordinance 2019.

• Objective: To ban Unregulated Deposit Schemes and to protect the interest of the depositors.
• It aims to prevent such unregulated deposit schemes (not registered with any government regulators like RBI or SEBI) or arrangements at their inception.
• It also makes soliciting, inviting or accepting deposits pursuant to an unregulated deposited scheme as a punishable offence.

• Wildlife First & Ors. Vs. Ministry of Environment & Forests & Ors. 


• SC ordered eviction of nearly one million persons from forest lands across states, who failed to establish their claims as forest-dwellers under the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act 2006(Forests Rights Act).

International Financial Services Centres Authority Bill, 2019.

• Objective: to set up a unified authority to regulate all financial services in IFSCs in the country.
• An IFSC caters to customers outside the jurisdiction of the domestic economy. Such centres deal with flows of finance, financial products and services across borders. 
• The authority will exercise powers and perform functions of RBI, SEBI, IRDAI And PFRDA.

Govt of NCT of Delhi v. Union of India.

• The SC held following: 
1. Control of services: bench differed. Hence decided to refer it to a larger bench.
2. Power of Anti-Corruption Bureau (ACB): ACB is under exclusive authority of LG & Delhi government has no power in this regard.
3. Appointment of Special Public Prosecutor: LG is bound by aid and advise of Council of Ministers.

New legislation for Persons with Disabilities.

The Central Government is all set to introduce a new legislation replacing the law of 1995. Known as the  Rights of Persons with Disabilities Bill, 2014, seeks to repeal the Persons with Disabilities Act of 1995 and to replace it with a comprehensive rights based law in accordance with the provisions of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). The timeline of this bill is as follows:

1. 2007: India signed UNCRPD.
2. 2010: Ministry of Social Justice & Empowerment had, through its OM (PDF) constituted a Committee under the chairpersonship of Dr. Sudha Kaul, Vice Chairperson, Indian Institute of Cerebral Palsy, Kolkata, to draft a new legislation for persons with disabilities, replacing the present Persons with Disabilities (Equal Protection of Rights and Full Participation) Act, 1995.
3. 2011: The above Committee submitted its Report including a draft bill called The Rights of Persons with Disabilities Bill, 2011 and a note on its financial implications to the Ministry.
4. 2012: The Ministry released a Draft Bill in 2012, (which are both on the Ministry’s website). But this Draft Bill of 2012 is not as comprehensive and inclusive as the 2011 one, and there were certain serious issues raised before the Ministry on the notification of the 2012 Draft Bill.
5. 2013: Some version of this Bill was cleared by Cabinet in December 2013. Thereafter, organizations of persons with disabilities, confident that the 2012 Draft was intact, began protests for the speedy introduction and passage of the Bill. 
6. February 2014: Bill was criticised to be not in consonance with the UNCRPD.

Reason behind the present legislation.

The need for bringing about amendments was soon felt after its enactment in December 1995. Amendments Recommended by High Level Committee 1999 was constituted by the Government under the chairmanship of Prof. Amita Dhanda to suggest appropriate amendments in the Act. The Committee, accordingly, submitted its report to the Government and thereafter the report gathered dust in the government offices. The Government revived the amendment process around 2006 , when UNCRPD was being negotiated, but yet not adopted by the UN General-assembly.

The government organised series of a few consultative meetings which were conducted by the Government before the ratification of the UNCRPD, and only one (in Goa) post ratification were merely symbolic, ritualistic, and of no use at all. They lacked informed and systematic participation of persons with disabilities. While requests calling for suggestions were posted on its website by the Ministry of Social Justice and Empowerment, Government of India, this is far from being enough, more particularly, in the face of the fact that not too many persons with disabilities have access to websites.

It goes without saying that the UNCRPD, particularly, vide its Article 4.3 enjoins it upon the states parties to consult and actively involve persons with disabilities in respect of making any laws and policies, and also in respect of any matter which affects their lives, or which concerns them. Hence, active participation by persons with disabilities is amongst the core and non-negotiable principles which the UNCRPD envisages. It is therefore of paramount importance that the Government honours and respects the compulsions which was undertaken for fulfilment.
The PDA has been constructed by adopting a medical perspective wherein disability is perceived as an individual deficit which has to be socially compensated. UNCRPD looks not individual impairments but social discrimination that results from disability. This therefore mandates the State to formulate policies and law by adopting the social model of disability.

Provisions in the Bill.

• Broadening the ambit of disability from seven to 19 sub-categories such as sickle cell disease, thalassemia and muscular dystrophy besides autism, spectrum disorder, blindness, cerebral palsy, chronic neurological conditions, mental illness and multiple disabilities.
• Increasing reservation for the disabled in public sector jobs from only 3% in the ratio of 1% each for the physically, visually and hearing-impaired persons to 5% (extend the quota by 2%, covering two new additional categories - mentally disabled and people with multiple disabilities).
• The Bill also provides for setting up National Commission for Persons with Disabilities, which will have statutory powers and also for establishing a dedicated National Fund for Persons with Disabilities.
• Besides making provisions to prevent people with disabilities from harassment while getting disability certificates, the proposal legislation also provides for stringent punitive measures under which anyone violating the provisions could face from six months to five years of imprisonment and a fine from Rs 10,000 to five lakhs.

(PDF file that opens in a new window)(PDF file that opens in a new windo

Rights of Persons with Disabilities Bill, 2014

SOMETHING FOR MOOT COURT: MEMORIAL FOR THE MOOT COURT

MEMORIAL FOR THE MOOT COURT by LEX 47