By- Pandit Aradhana Swanand, School of Law, Christ (Deemed to be University).

Introduction

“Untouchability”, the age-old practice of discrimination against the avarnas, or untouchables, who performed menial tasks that were considered physically and ritually “polluting”, denied them the right to education and property, keeping them socially and economically backward.[1] With degrading caste-dictated occupations being generationally transmitted, the practice perpetuated for centuries, manifesting even today in the form of humiliating and violent acts against lower castes.

Article 17 of the Constitution of India abolishes the practice of “untouchability” and forbids its practice in any form, declaring that the enforcement of a disability arising from this practice is a punishable offence under the  law. It effectuates the principles of equality of status and opportunity and social justice enshrined in the Preamble, and is a testament to the vision of the Constituent Assembly to liberate society from blind adherence to traditional superstitious beliefs that are lacking in reason and rationality.[2] However, while there is a general understanding of the meaning of “untouchability”, nowhere in the Constitution has the term been defined.

This article explores the legal understanding of “untouchability” as can be inferred from Constituent Assembly Debates and judicial pronouncements, and the drastic shift in this understanding after the Sabarimala verdict of 2018.[3] It analyses the various amendments proposed to define the practice and why they were rejected and the subsequent judicial interpretations of the term as caste-based discrimination. It examines Chandrachud J.’s recent expansive interpretation of the term to include any form of social exclusion founded on notions of purity and the viability of such an interpretation.

Defining “Untouchability”

Untouchability under Article 17 has been quoted within double inverted commas and though outlawed, has not been defined. Its meaning is inferred from the intent of the Constituent Assembly during the drafting of the provision and the judicial pronouncements on its construction.

While framing the provision, concerns were raised before the Constituent Assembly regarding the need for clarification on how “untouchability” would be defined. S.C. Banerjee and D.N. Dutta observed that due to the lack of consensus and uniformity with reference to the meaning of the term, owing to its various aspects and manifestations, it needed to be clearly defined so that it could be appropriately identified and penalised by the judiciary.[4] It was also proposed that the term “caste-distinction” be used, rather than “untouchability”,[5] and an amendment, defining “untouchability” as discrimination based on grounds of religion, caste or the lawful vocation of life was also tabled.[6] However, K.M. Munshi expressed that “untouchability” should not be defined thus, as it would leave room for wider interpretation as discrimination based on sex, or various other things.[7] He stated that the reason untouchability was mentioned in inverted commas was that it could be later defined by the Union Legislature appropriately. Therefore, it was decided that it would remain undefined and within the inverted commas for the Union Legislature to define. However, the Legislature failed to provide any clarification on the matter.

Nevertheless, the judiciary has shed light on the scope of “untouchability” under Article 17. In the case of Devarajiah v. P. Padmanna,[8] it was held that the term “untouchability” is not to be interpreted in its literal or grammatical sense, but rather in its historical sense. A literal understanding of the term would include in its purview even those persons who are treated as untouchables temporarily or otherwise due to them suffering from an epidemic or contagious disease or due to social observances or on account of social boycott for various reasons. “Untouchability” in Article 17 refers to the historically evolved social practice of caste-based discrimination and the disabilities certain sections of society endure by virtue of their birth into a particular caste, and not by virtue of their conduct.[9] This position was further clarified in State of Karnataka v. Appa Balu Ingale,[10] where it was stated that “untouchability” under Article 17 was intended to liberate society from blind adherence to traditional beliefs and practices that had no rational, moral, or legal basis. It was meant to put the lowest and excluded section of society, i.e., the Dalits, on the same ground as all other citizens and provide them with the same treatment and opportunities as mainstream individuals.

The various manifestations of untouchability have been outlined and penalised through the enactment of The Protection of Civil Rights Act, 1955 and The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, given that Article 17 is enforceable against not just the State, but also private persons.[11] It can thus be inferred from Constituent Assembly Debates, Parliamentary enactments, and judicial decisions that Article 17 abolishes only caste-based untouchability.

The Effect of the Sabarimala Judgement

While the general consensus regarding the meaning of “untouchability” under Article 17 was with reference to a caste-based distinction, this view changed when Chandrachud J. delivered his decision in the case of Indian Young Lawyers Association v. The State of Kerala[12](‘Sabarimala’). The matter before the Apex Court was regarding the constitutionality of the practice of restriction on females between the ages of 10 and 50 from entering the Sabarimala Temple. Since this exclusion was based on menstruation and notions of purity, it was contended that it amounted to “untouchability”. In his concurring opinion, Chandrachud J. stated that while Article 17 was inserted in the Constitution to put an end to the historic struggle against social hierarchy and exclusion, it was grounded in notions of equality. He drew attention to Professor K.T. Shah’s speech before the Constituent Assembly, expressing concern regarding the absence of a definition for “untouchability”, as untouchability was practiced not just against a certain section of society, but against women during certain periods of time as well.[13] Relying on this statement, and the fact that the Constituent Assembly refrained from defining “untouchability”, only stating that its practice “in any form” was forbidden, Chandrachud J. observed that “untouchability” was meant to be interpreted in a broader sense.[14] He found that the basis of the Article was not limited to the abolition of a social hierarchy but rather the protection of the victims of discrimination, prejudice, and social exclusion. Reading Articles 17, 15(2) and 25(2) together, he stated that “untouchability” connoted the broader notions of stigmatisation and exclusion, based on notions of “purity” and “pollution”.[15] With these conceptions as a basis, he associated caste discrimination with the stigmatization of menstruation of women, and the restriction on Dalits from entering temples to the restriction on women from entering the Sabarimala Temple.[16] He concluded that practices which impose disabilities on women or legitimise menstrual taboos are exclusionary, discriminatory, and a violation of dignity, thus being prohibited under Article 17. He stated that Article 17 could not be read to exclude the social exclusion faced by women and be limited to caste-distinctions.

Indu Malhotra J., however, in her dissent, takes the opposing view that all forms of exclusion do not amount to “untouchability” under Article 17. In her opinion, based on the numerous judicial pronouncements on the interpretation of the term, “untouchability”, whether interpreted literally or historically, was never understood in reference to women as a class but rather to the socially excluded sections of society, or the Dalits.[17] She finds that the analogy between exclusion of Dalits and women from entering temples is wholly misconceived as “untouchability” solely only connotes the disabilities imposed on excluded sections of society, like Dalits.

Conclusion

The practice of untouchability persists, even today, almost seven decades since the adoption and enforcement of the Constitution of India. The insertion of Article 17 as a fundamental right by the Constituent Assembly signifies the commitment of the law-makers to put an end to this form of illogical, unfounded discrimination and to establish an egalitarian social order. After being denied basic human rights, being treated as “impure” and being alienated from society, Article 17 of the Constitution and the subsequent legislative enactments have been efficacious safeguards awarded to the lower castes to ensure their inclusion in society and enjoyment of fundamental liberties to the greatest extent so they may be uplifted, both socially and economically.

It can be conclusively determined from the Constituent Assembly Debates and the judicial decisions that “untouchability” refers to the practice of imposing disabilities and exclusions based on caste-differences. A departure from this well-established understanding in the Sabarimala case by Chandrachud J., therefore, seems spurious and reduces the impact and efficacy of the provision. “Untouchability” under Article 17 does not include discrimination against women, irrespective of whether or not it is based on notion of “purity”. The provision is for the special protection of the excluded castes and should not be interpreted expansively so as to include other forms of discrimination. There are sufficient safeguards in the Constitution, namely Article 14 and 15, to ensure that women are treated equally and are not discriminated against by virtue of their sex. To rectify such an expansive interpretation, it is vital that the Legislature define “untouchability” as it is generally understood, like the framers of our Constitution intended it to be.


 

Citations

[1] Amit Thorat & Omkar Joshi, The Continuing Practice of Untouchability in India, 2 EPW 36, 37 (2011).

[2] N. Adithayan v. Travancore Devaswom Board, (2002) 8 SCC 106.

[3] Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors., 2018 (8) SCJ 609.

[4] LOK SABHA SECRETARIAT, CONSTITUTIONAL ASSEMBLY DEBATES, Apr. 29, 1947, speech by S.C. Banerjee.

[5] Id.

[6] LOK SABHA SECRETARIAT, CONSTITUTIONAL ASSEMBLY DEBATES, Apr. 29, 1947, speech by K.M. Munshi.

[7] Id.

[8] AIR 1958 Kant 84. See also, Jai Singh and Ors. v. Union of India and Ors., AIR 1993 Raj 177.

[9] AIR 1961 Mad 35.

[10] AIR 1993 SC 1126.

[11] People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235.

[12] MANU/SC/1094/2018.

[13] LOK SABHA SECRETARIAT, CONSTITUTIONAL ASSEMBLY DEBATES, May 25, 1949, speech by K.T. Shah.

[14] Supra note 12 at 249.

[15] Id at 257.

[16] Id at 258.

[17] Id at 311.

 

Analyzing the Scope of “Untouchability” under Article 17

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