ORDER
1. Petitioner arraigned on an indictment for violation of S. 7 of the Protection of Civil Rights Act, 1955 (Act No. 22 of 1955) (hereinafter referred to as the 'Act'), has sought (i) to declare it as void and ultra vires in so far as it categorises certain acts as offences arising out of untouchability and (ii) to quash criminal proceedings including F.I.R. etc.
2. Petitioner and fifth respondent are in the services of K.E.B. working at Mulabagal. Dissatisfaction on the transfer of fifth respondent from Mulabagal to Malur and/or delayed handing over of charge appears to have resulted in some altercation on 21-7-1982; it is alleged that petitioner and four others used abusive language calling fifth respondent as 'Holiya', Madiga' and so on, as detailed in F.I.R. (Annexure-D). Fourth respondent on receipt of the complaint from the fifth respondent has registered a case under Section 7 of the Act.
Petitioner pleads innocence, and denies the incident. Petitioner contends that it is a false, vexatious and frivolous complaint out of spite or ill-will as amongst office bearers of the Union. It is in this context, the petitioner has questioned the validity of S. 7 of the Act.
3. Grounds of challenge are -
(i) S. 7 has assumed the status of a constitutional law; (ii) Section cripples petitioner's freedom of speech and expression, equality, and personal liberty guaranteed under Arts. 14, 19 and 21 of the Constitution and tarnishes his official career, and (iii) Section confers absolute and unguided power on the State and its Officers to initiate criminal proceedings, geninue or otherwise. Alleged Slanderous Statement contained in F.I.R. is an abuse of process of law to wreak vengeance and to achieve personal ends.
4. The object of the Act, as indicated in the preamble, is to prescribe punishment for the preaching and practice of Untouchability, for the enforcement of any disability arising therefrom and for matters connected therewith. 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 vide Art. 17. Article 17 which makes the practice of untouchability an offence must be read with Art. 35(a)(ii) which confers upon Parliament exclusive power to make laws prescribing punishment for those acts which are declared to be offences under Part III of the Constitution of India.
5. Untouchability is neither defined in the Act nor in the Constitution. 'Art. 17 does not deal with untouchability in its literal and grammatical sense, but with the practice as it developed historically in India'. Whenever, a provision is challenged as ultra vires, it is necessary to bear in mind the object and scope of the Act. Impugned provision cannot be read in isolation. The Act sets out in detail forms or the manner in which enforcement of disability may arise for the purpose of providing punishment. Various sections in the Act encompass different categories or types of offences that may arise in the course of enforcement of disability. To illustrate, S. 3 states that whoever on the ground of 'untouchability' prevents, any person from entering any place of public worship, from worshipping or offering prayers in the manner and to the same extent as is permissible to the other persons professing the same religion or any Section thereof, shall be punishable with imprisonment and fine. Whoever on the ground of 'untouchability' enforces against any person any disability with regard to access to any shop, public restaurant or public places shall be punished - vide S. 4. Under S. 5, whoever on the ground of 'untouchability' refuses admission to any person to any hospital, dispensary, educational institution, hostel etc., shall be punished. Under S. 6 whoever on the ground of 'untouchability' refuses to sell any goods or render service to any person at the same time and place and on the same terms and conditions at or which, such goods are sold, shall be punished. S. 7 whose validity is challenged reads thus :-
"7. (1) Whoever -
(a) Prevents any person from exercising any right accruing to him by reason of the abolition of 'untouchability' under Art. 17 of the Constitution; or
(b) molests, injures, annoys, obstructs or causes or attempts to cause obstruction to any person in the exercise of any such right or molests, injures, annoys or boycotts any person by reason of his having exercised any such right; or
(c) by words, either spoken or written, or by signs or by visible representations or otherwise, incites or encourages any person or class of persons or the public generally to practice 'untouchability' in any form whatsoever; or
(d) insults or attempts to insult, on the ground of 'untouchability' a member of a Scheduled Caste."
6. Offences mentioned in Cls. (a) to (d) of sub-section (1) of S. 7 of the Act are various forms of enforcement of disability arising out of untouchability. Likewise S. 7-A states that whoever compels any person, on the ground of 'untouchability', to do any scavenging or sweeping or to remove any carcass or to flay any animal or to remove the umbilical cord or to do any other job of a similar nature, shall be deemed to have enforced a disability arising out of 'untouchability'.
7. The ideal of Constitution is to forbid untouchability in any and whatever form, it is practised. In order to achieve this object, Parliament under Art. 35(a)(ii) of the Constitution is conferred with exclusive power to legislate on this subject. The Act, with a view to give effect to sentiments of the Constitution, enumerates or details, manifold forms in which the disability arising out of untouchability is enforced and practised and prescribes punishment for different offences. Hence, there is no substance in the plea that Parliament, in exercise of its constituent power, should not have declared various forms of enforcement of disability, arising out of untouchability, as an offence. S. 7 or, as a matter of fact, any other Section of the Act has not assumed the status of or as characterized by petitioner 'arrogated itself' to be a constitutional law.
8. The next point is whether S. 7 of the Act infringes fundamental rights of the petitioner guaranteed under Arts. 14, 19 and 21 of the Constitution.
The petitioner while challenging the validity, after a lapse of three decades, has failed to notice that there is no fundamental right to do a forbidden act in the very same Chapter. It is with a view to forbid such contention, a new chapter is introduced in the Constitution i.e., Chapter VA, imposing certain duties on citizen, one amongst others is : "to promote harmony and the spirit of common brotherhood amongst at all people of India transcending religious, linguistie and regional or sectional diversities, to renounce practices derogatory to the dignity of women"; - vide Art. 51A. The above Article not merely enjoins a citizen to abide by the ideals of the Constitution, but also to promote harmony and the spirit of common brotherhood amongst all the people of India. The practice of untouchability is antithesis of common brotherhood.
9. 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.
Supreme Court in Kochuni v. States of Madras and Kerala, held thus :-
"It may also be that an Article embodying a fundamental right may exclude another by necessary implication, but before such a construction excluding the operation of one or other of the fundamental rights is accepted, every attempt should be made to harmonise the two Articles so as to make them co-exist, and only if it is not possible to do so, one can be made to yield to the other."
Supreme Court in Madhu Limaye v. S. D. M. Monghyr, has held thus :-
"In this Court the preferred position doctrine has never found ground although vague expression, such as 'the most cherised rights', the inviolable freedoms sometimes occur. But this is not to say that any one Fundamental Right is superior to the other or others. Art. 19 contains a hierarchy."
10. The cardinal rule of harmonious construction is that one Article of the Constitution cannot be used to defeat the object of other, unless it is impossible to reconcile both and to the extent possible avoid repugnancy. Applying the ratio enunciated in the above two cases, this contention has to be rejected as devoid of merit.
11. Preamble of the Act read with various definitions conceive of various forms of enforcement of disability arising out of untouchability. Hence, it is not possible to accede to the contention that it confers unguided and arbitrary power on respondents to initiate criminal cases. Regarding the plea that it is a guise adopted to wreak vengeance, better not to express any opinion, lest it may prejudice the trial.
For the reasons stated above, this writ petition is dismissed.
12. Petition dismissed.