Are legal guarantees insufficient in abolishing untouchability? - The HinduPublished - October 09, 2026 12:02 am ISTCongress National President Mallikarjun Kharge addresses a public rally, in Haldwani, Uttarakhand, on August 8, 2026. | Photo Credit: PTIIn August this year, the performance of a “purification” ritual by certain Hindu groups in Uttarakhand, at the location where Congress President Mallikarjun Kharge, who belongs to a Dalit community, addressed a public rally, led to a national conversation on the practice of untouchability. This discourse was shaped as Opposition Congress leaders accused the ruling Bharatiya Janata Party (BJP) dispensation of practising caste discrimination. The Uttarakhand BJP chief defended the ritual, saying that it was meant to “cleanse” the area of the ideas that Mr. Kharge was espousing at the rally. After a sustained campaign from Opposition leaders and civil society actors, an FIR was registered in the matter. So, are legal guarantees insufficient in abolishing untouchability? Valerian Rodrigues and Disha Wadekar discuss the question in a conversation moderated by Abhinay Lakshman. Edited excerpts: Is the law sufficient to address caste-crimes such as untouchability or practices that uphold the purity-pollution paradigm?Valerian Rodrigues: I feel that legal guarantees are necessary, but not adequate. Two dimensions to untouchability have emerged over time — one is that of Baba Saheb Ambedkar’s, that it is necessary to abolish untouchable practices; and the other is the one argued by Mahatma Gandhi, that social conscience needs to change. After Independence, the legal regime has come but the social conscience in India remains frozen.Disha Wadekar: Approaching this a little differently, the answer lies in understanding the nature of law itself — what it can and cannot do. Starting with whether the law is sufficient assumes that formal law is some embodiment of perfection meant to rectify an imperfect society. But that is not the case. Social laws have been in place for thousands of years. We should start by asking ourselves about the law of caste and how it has been in operation for thousands of years. There is this concept of legal consciousness, which is shaped by the everyday experience of the law. Law is also very contextual, and so is its experience. It can be individualistic; it can be social. I think we need to first bring the law down from that pedestal that we have given it, and see its social interaction with the structures of caste, patriarchy, and Brahmanism. It is important to note that this does not mean that modern law is not important. The only break to the law of caste has been that of the formal rule of law. When the British brought that to us, from an anti-caste perspective, for Dalits, this rule of law regime was emancipatory. It is extremely important. But is it sufficient to annihilate caste? That is probably the question that we should be asking ourselves. Clearly, India has, from its inception, tried to wield the Constitution and the law to deal with these social behaviours. What have these laws achieved thus far?Valerian Rodrigues: We need to extend the regime of law beyond what is formally stated in the legislation and in the Constitution. But I would still make that distinction between social practices to which I would not ascribe the legal norms as strongly as to the formal legal regime. The legal regime in India against untouchability has done two things. One, it has checkmated, to a great extent, much wider and obvious practices of untouchability. Secondly, it has provided instruments to conscious sections of Dalits and non-Dalits to fight against practices of untouchability, even though the resources are extremely limited and the odds they confront are huge. The legal regime in India stands by the rights of Dalit communities as compared to, let’s say 100 years ago, from the time of the Poona Pact. You will find that certain obvious practices of untouchability such as preventing people from taking the water of wells in public places, access to public places, access to public institutions, and the kind of violence that was let loose on Dalit workers in the countryside —that has declined a lot. We do not know what would have taken place if this was not the case. Even though this progress is visible, how does one look at the ways in which discrimination itself has evolved since the legal regime came into being?Disha Wadekar: Over the years, the evolution of discriminatory practices can be categorised into two sections. One is the more traditional forms of atrocities, which Mr. Rodrigues was referring to earlier. The other, in my opinion, would be a reactionary form of atrocity. And that is where social mobility has to be considered. The Dalits’ social mobility has increased after the Constitution came into force, and that mobility has led to discontent amongst oppressor communities. One instance of that can be seen in the Reservation Hatao Andolan that has come up. And then there are newer forms of atrocities that are happening, which come from a sentiment of “how dare you sit next to me?” or “how dare you share the same privilege as me?” or “how dare you socially mobilise?”Also read | Untouchability and the idea of ‘purity’ So then, how does one analyse this interplay between the law being emancipatory but also its use becoming the trigger for such reactionary atrocities?Valerian Rodrigues: Practices of untouchability in India are not merely social practices; they are embedded strongly in our social norms. Dr. Ambedkar somewhere calls it “notions in the mind”. This is a notion that is instilled in the mind both in Dalits and non-Dalits. How do you get out of it? I feel that we have not embraced practices which I think were tried out from 1939 to 1949, to some extent, of reopening Indian society and making this an internal value. Now, how do you convert these values into social practices? In a country like India, it is an extremely complex question. We should have adopted institutions and practices which do not allow such notions to take root in children at all. There is very little, even in urban spaces, mixture and intermingling across castes. Practices such as inter-dining and inter-marriages have disappeared from public spaces in India. We need to intervene with very different instrumentalities, and this is a task the state needs to encourage, but it is also beyond the state. Non-state actors need to be made alive to this particular problem. And the setting in India today is not conducive to that kind of social reopening.Disha Wadekar: There is an argument to be made that the answer is outside of the uniform carceral potential of the law. But before we even go there, I believe there also needs to be a reimagining of what we can do within the law. There is a lot of scholarly material that shows that using criminal law for stricter punishments, whether in cases of gender crimes, caste crimes, or other social crimes, does not have the result that one would presume. The reason is that the people adjudicating these cases are not just judicial actors but also social actors. The criminal law regime, which was superimposed, does not change the mindset of the judges. So, it has actually become counterproductive. And we are going to have to deal with these real questions. Not to say that all of this needs to be changed. But increasingly we are seeing across the world that marginalised communities are not relying on carceral regimes. The argument here is that there is an inherent requirement in criminal law, that if something needs to be punished, it must be proved beyond a reasonable doubt. This is needed, of course; we shouldn’t try to undo that. And even though such criminal law provisions have a huge deterrence value as we have seen, is it 100% going to eliminate atrocities? It’s not. Is it going to eliminate some form of atrocities? In some instances, probably yes. But beyond criminal law, can we look at civil law and civil remedies?There is this entire arena of civil law, civil regime and civil punishments that we have not explored, where the burden is not that high to prove a form of discrimination whether it’s caste-based discrimination or gender-based discrimination. The POSH Act has done it. And we need to look at really localised forms of dispute resolution mechanisms, examples of which can be seen in certain types of Sharia adalats (courts), which Muslim women have felt empowered to approach when they felt they couldn’t go to court, or in the ways in which Gram Sabhas have become centres for dispute resolution at the local levels. How do we move towards making Indian society more conducive for the kind of social reopening that you spoke of?Valerian Rodrigues: In the way India has dealt with this, we forgot that there is something called the “common” that we need to reinforce. There are institutions that can do this but we have not explored those. For instance, our textbooks, can be changed a great deal, our teacher training at the lowest level can be changed, and this concept of the “common” can be established in urban planning as well, where we tend to see that often Dalits are made to congregate into certain spaces.This normalcy of ‘Dalits should have their own Anganwadis, or their own water taps, etc’, has to be broken, if we are ever going to make an assault on untouchable practices.Listen to the conversationValerian Rodrigues is Former Professor at Mangalore University and Jawaharlal Nehru University and currently Professor Emeritus, St Aloysius (Deemed to be) University, Mangalore. Disha Wadekar is Supreme Court litigator with over 10 years of experience in constitutional, criminal and civil law. A Fulbright Scholar and LL.M. graduate of Columbia Law SchoolPublished - October 09, 2026 12:02 am ISTSign in to unlock member-only benefits!Access 10 free stories every monthSave stories to read laterAccess to comment on every storySign-up/manage your newsletter subscriptions with a single clickGet notified by email for early access to discounts & offers on our products${ ind + 1 } ${ device }Last active - ${ la }