Criminal Law Can Punish Untouchability; Only Civil Remedies and Shared Commons Can Dissolve It

Punishment Is Not Enough: Untouchability Needs a Civil Remedy and a Shared Commons

TAN's position is clear: criminal law can punish untouchability, but it cannot dissolve it. India needs a second legal layer of civil remedies, alongside a deliberate effort to rebuild shared public spaces.

What happened and what it shows In August, a "purification" ritual was performed at the Haldwani Ramlila ground in Uttarakhand, where Congress President Mallikarjun Kharge, who belongs to a Dalit community, had addressed a rally. Opposition leaders called it caste discrimination. The state BJP chief said the ritual was meant to cleanse the area of Kharge's ideas. An FIR under the SC/ST (Prevention of Atrocities) Act was registered only after a sustained campaign. This is the pattern in miniature. The criminal law worked, but only after pressure and only after the act had already sent its message.

The reasoning The scholar Valerian Rodrigues puts the starting point well: legal guarantees are necessary, but not adequate.

India's legal regime has, in his view, checked many obvious practices, such as denying Dalits water from public wells and given Dalits and their allies tools to fight back. Yet social conscience, he argues, has stayed "frozen". The Supreme Court litigator Disha Wadekar explains why criminal law alone hits a ceiling:

• The standard of proof is high. Criminal guilt must be proved beyond reasonable doubt. That is right in principle, but it makes everyday, subtle discrimination very hard to punish.
• Adjudicators are social actors. Judges and officials share the society they judge. Stricter criminal punishment, she notes, does not by itself change their mindset.
• Discrimination has changed shape. Alongside traditional atrocities, she describes a newer, reactionary form, aimed at Dalits who rise socially, rooted in resentment at sharing space and privilege. A ritual to "cleanse" a site after a Dalit leader has spoken there is exactly this kind of act: symbolic, deniable and poorly suited to a beyond-reasonable-doubt prosecution. Wadekar's alternative is a civil track, with a lower burden of proof, modelled on the POSH Act's internal committees and with localised dispute resolution. Rodrigues adds a social track: rebuilding the "common" through textbooks, teacher training and urban planning and ending the normalcy of separate anganwadis and water taps.

The strongest objection The most serious objection is that the SC/ST Act's strength is its criminal force.

It was built because softer remedies failed. Any move towards civil remedies could be read as treating untouchability as a lesser wrong and local civil forums could be captured by the very dominant groups they are meant to restrain.

Why the

position holds That objection is right about deterrence, which is why TAN does not propose replacing criminal law. Atrocities must stay crimes. The civil layer would add reach to the everyday discrimination that criminal law cannot touch. With independent members on its forums, as the POSH model already requires, it can be guarded against capture.