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constitutional_law:part-1:article-17

Abolition of Untouchability Under Indian Constitution

Untouchability, in its literal sense, is the practice of ostracising a minority group by segregating them from the mainstream by social custom or legal mandate. In other words, “Outcaste”.

The term is most commonly associated with treatment of the Dalit communities in the Indian subcontinent who were considered “polluting”, but the term has also been loosely used to refer to other groups, such as the Cagots in Europe, and the Al-Akhdam in Yemen. Traditionally, the groups characterized as untouchable were those whose occupations and habits of life involved ritually polluting activities, such as fishermen, manual scavengers, sweepers and washermen.

Untouchability in simple terms can be understood as a practice whereby a particular class or caste of persons are discriminated with on the ground of their being born in that particular caste or on the ground of their being members of those social groups involved in menial jobs. The discrimination can be in the form of physical or social boycott from the society. For instance: the members of so-called higher castes such as Brahmin, Kshatriyas etc would not dine or sit with a person of Bhangi class.

History

Dr.B. R. Ambedkar, an Indian social reformer and politician who came from a social group that was considered untouchable, theorized that untouchability originated because of the deliberate policy of the upper-caste Brahmanas. He believed that untouchability had existed at least as far back as 400 CE. According to him, the Brahmanas despised the people who gave up the Brahmanism in favour of Buddhism. However, later, many scholars have successfully refuted this theory.

Scholars such as Suvira Jaiswal, R. S. Sharma, and Vivekanand Jha characterize untouchability as a relatively later development after the establishment of the varna and caste system. Jha notes that the earliest Vedic text Rigveda makes no mention of untouchability, and even the later Vedic texts, which revile certain groups such as the Chandalas, do not suggest that untouchability existed in the contemporary society. According to Jha, in the later period, several groups began to be characterized as untouchable, a development which reached its peak during 600-1200 CE. Sharma theorizes that institution of untouchability arose when the aboriginal tribes with “low material culture” and “uncertain means of livelihood” came to be regarded as impure by the privileged classes who despised manual labour, and regarded associated impurity with “certain material objects”.According to Jaiswal, when the members of aboriginal groups were assimilated into the Brahmanical society, the privileged among them may have tried to assert their higher status by disassociating themselves from their lower-status counterparts, who were gradually branded as untouchables.

Untouchability is believed to have been first mentioned in Dharmashastra. According to the text, untouchables were not considered a part of the varna system because of their grievous sins, barbaric or unethical acts such as murder, harassment etc. Therefore, they were not treated like the savarnas (Brahmins, Kshatriyas, Vaishyas and Shudras).

Independence and Constitution

At the time of Indian independence, Dalit activists began calling for separate electorates for untouchables in India to allow fair representation. Officially labeled the Minorities Act, it would guarantee representation for Sikhs, Muslims, Christians, and Untouchables in the newly formed Indian government. The Act was supported by British representatives such as Ramsay MacDonald. According to the textbook, Religions in the Modern World, B. R. Ambedkar, who was also a supporter of the Act, was considered to be the “untouchable leader” who made great efforts to eliminate caste system privileges that included participation in public festivals, access to temples, and wedding rituals. In 1932, Ambedkar proposed that the untouchables create a separate electorate that ultimately led Gandhi to fast until it was rejected.

A separation within Hindu society was opposed by national leaders at the time such as Gandhi, although he took no exception to the demands of the other minorities. He began a hunger strike to protest this type of affirmative action, citing that it would create an unhealthy divide within the religion. At the Round Table Conferences, he provided this explanation for his reasoning:

I don't mind untouchables if they so desire, being converted to Islam or Christianity. I should tolerate that, but I cannot possibly tolerate what is in store for Hinduism if there are two divisions set forth in the villages. Those who speak of the political rights of the untouchables don't know their India, don't know how Indian society is today constituted and therefore I want to say with all the emphasis that I can command that if I was the only person to resist this thing that I would resist it with my life.”

Gandhi achieved some success through his hunger strike. Dalit activists faced pressure from the Hindu population at large to end his protest at the risk of his ailing health. The two sides eventually came to a compromise where the number of guaranteed seats for Untouchables would be reduced, but not totally eliminated.

India got Independence on 15th of August, 1947 after long and painful struggle of more than one hundred years. The struggle was not only against the foreign rule of British but it was also against the social evils such as untouchability prevailing from centuries. After Independence when great leaders of freedom struggle agreed to make our own Constitution, it was decided that there must be provisions under the Constitution regarding the abolition of social evils and upliftment of down-trodden castes and social groups etc.

Types of Discrimination Against Untouchables or Dalits

According to National Campaign on Dalit Human Rights (NCDHR), there are various forms of discriminations being practiced against Dalits in India, these are:

  • Prohibited from eating with other caste members,
  • Prohibited from marrying with other caste members,
  • Separate glasses for Dalits in village tea stalls,
  • Discriminatory seating arrangements and separate utensils in restaurants,
  • Segregation in seating and food arrangements in village functions and festivals,
  • Prohibited from entering into village temples,
  • Prohibited from wearing sandals or holding umbrellas in front of dominant caste members,
  • Prohibited from using common village pat,
  • Separate burial grounds,
  • No access to village’s common/public properties and resources (wells, ponds, temples, etc.),
  • Segregation (separate seating area) of Dalit children in schools,
  • Bonded Labor,
  • Face social boycotts by dominant castes for refusing to perform their “duties”.

Constitution

The Constitution of India does not recognise the caste disabilities and provides for securing political, economic and social justice to all the citizens of India and it has given them the liberty of thought, expression, belief, faith and worship. The Constitution has also guaranteed to all the citizens for equality of status and opportunity and it has recognized the principle of fraternity assuring the dignity of the individuals. The Constitution of India has laid down for a system which is based on the principle of social justice. Social justice, is now a days, a fundamental right of a citizen.

The Constitution has adopted a two line of action to deal with the problem of untouchability

  1. through the abolition of untouchability and,
  2. through promoting the interests of untouchables.

In view of this objective Article 17 was added to the Constitution; Article 17 reads as follows:

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.

Thus, Article 17 abolishes and forbids untouchability in any form. At the same time, it also makes it an offence punishable as per the law made by the Parliament. The main thrust of Article 17 is to liberate the society from blind and ritualistic adherence and traditional beliefs. It seeks to establish a new and ideal society. The disabilities to which Dalits were subjected, have been outlawed and subjecting them to those disabilities would be violative of the Part III and IV of the Constitution Article 17 does not stop with a mere declaration but announces that this forbidden “untouchability” is not to be, hence forth, practiced in any form. If it were so practised it shall be dealt with as an offence punishable in accordance with the law. In order to fulfill the mandate of Article 17 of the Constitution, the Parliament enacted the Untouchability (Offences) Act, 1955. It made several discriminatory practices punishable as offences, although the punishment provided were rather mild and in their actual application even milder.

Several lacunae and loopholes were found in the working of the Untouchability (Offences) Act, 1955 which compelled the Government to bring about a drastic amendment in the Act in 1976. The Act was revamped as the Protection of Civil Rights Act.

The Constitution of India, not only, abolished the untouchability and made it punishable, but has also given various rights to the depressed classes so as to remove discrimination to which they were subjected before the commencement of the Constitution. The following rights are, inter-alia, conferred to the untouchables via various Articles.

  1. Right To Freedom of Religion (Article 25(2)(b))
  2. Prohibition of Traffic in Human Beings and Forced Labour (Article 23 read with the Directives in Articles 39 (c), 41, 42)
  3. Right to Education Equally (Article 29)(2)
  4. Prohibition of Discrimination in Social Matters (Article 15)
  5. Freedom of Profession, Trade, Business (Article 19(1) (g)
  6. Right to Property (Article 300 - A)
  7. Uniform Civil Code: A projection of Equality for the Scheduled Castes
  8. To promote harmony and brother-hood (Article 51 - A)

Prospective Approach: In India where society has not advanced uniformly and certain sections like shudras remained weaker sections. So for the removal of economic and educational inequalities and rectifying the injustice resulting from the dealings or transactions between unequal in the society, the framers of the Constitution of India desired to have a society of equals. The idea behind enunciating this principle was to do something positive for the oppressed sections. The Constitution of India through Article 14 guarantees.

The state shall not deny to any person equality before law or equal protection of laws within the territory of India.”

The Constitution of India also contains many other provisions for securing “equality of status and opportunity” to all the citizens by uplifting the weaker sections.

  1. Promotion of Educational and Economic Interests of Dalits.
  2. Promotion of Education of Scheduled Caste etc. (Article 15,(4))
  3. Employment Opportunity (Article 16(1)(2)(4))
  4. Reservation of Seats in Legislatures.
    1. In Lok Sabha (Article 330)
    2. In State Legislatures (Article 332)
  5. National Commission For Scheduled Castes and Scheduled Tribes
  6. Reservation of Seats in the Panchayats (Article 243 D)
  7. Reservation of Seats in Municipalities (Article 243T).
  8. Equal Justice And Free Legal Aid (Article 39 A)
  9. Duty of State to Raise the Level of Nutrition and Standard of Living (Article 47)

Note: Article 17 of the constitution abolishes the practice of untouchability. Practice of untouchability is an offence and anyone doing so is punishable by law. The Untouchability Offences Act of 1955 (renamed to Protection of Civil Rights Act in 1976) provided penalties for preventing a person from entering a place of worship or from taking water from a tank or well. This act lays down that whatever is open to general public (or Hindus) should be open to the members of the scheduled castes. No shopkeeper can refuse to sell them, no person may refuse to render any service to any person on the ground of untouchability. The act made provision for imprisonment and fine.

Untouchability (Offences) Act, 1955

Some excerpts from THE Untouchability (Offences) Act, 1955 is mentioned below:

It extends to the whole of India. It Defines (a) 'hotel', (b) 'place', (c) 'place of public entertainment', (d) 'place of public worship', (e) 'person' It also defines the punishment for enforcing religious disabilities with a punishment with imprisonment which may extend to six months, or with fine which may extend to five hundred rupees, or with both, to whoever on the ground of “untouchability” who prevents any person

(a) from entering any place of public worship which is open to other persons professing the same religion or belonging to the same religious denomination or any section thereof, as such person; or

(b) from worshipping or offering prayers or performing any religious service in any place of public worship, or bathing in, or using the waters of, any sacred tank, well, spring or watercourse, in the same manner and to the same extent as is permissible to other persons professing the same religion, or belonging to the same religious denomination or any section thereof, as such person;

It further defines the punishment for enforcing social disabilities with imprisonment which may extend to six months, or with fine which may extend to five hundred rupees, or with both to whoever on the ground of “untouchability” enforces against any person any disability with regard to

  1. access to any shop, public restaurant, hotel or place of public entertainment; or
  2. the use of any utensils, and other articles kept in any public restaurant, hotel, dharmashala, sarai or musafirkhana for the use of the general public or of persons professing the same religion, or belonging to the same religious denomination or any section there of, as such person; or
  3. the practice of any profession or the carrying on of any occupation, trade or business; or
  4. the use of, or access to, any river, stream, spring, well, tank, cistern, water-tap or other watering place, or any bathing ghat, burial or cremation ground, any sanitary convenience, any road, or passage, or any other place of public resort which other members of the public, or persons professing the same religion or belonging to the same religious denomination or any section thereof, as such person, have a right to use or have access to; or
  5. the use of, or access to, any place used for a charitable or a public purpose maintained wholly or partly out of State funds or dedicated to the use of the general public, or persons professing the same religion, or belonging to the same religious denomination or any section thereof, as such person; or
  6. the enjoyment of any benefit under a charitable trust created for the benefit of the general public or of persons professing the same religion or belonging to the same religious denomination or any section thereof, as such person; or
  7. the use of, or access to, any public conveyance; or
  8. the construction, acquisition, or occupation of any residential premises in any locality, whatsoever; or
  9. the use of any dharmahala, sarai or musafirkhana which is open to the general public, or to persons professing the same religion or belonging to the same religious denomination or any section thereof, as such person; or
  10. the observance of any social or religious custom, usage or ceremony or taking part in any religious procession; or
  11. the use of jewellery and finery;

It additionally defines the punishment for refusing to admit persons to hospitals, etc., with imprisonment which may extend to six months, or with fine which may extend to five hundred rupees, or with both to whoever on the ground of “untouchability”-

(a) refuses admission to any person to any hospital, dispensary, educational institution or any hostel attached thereto, if such hospital, dispensary, educational institution or hostel is established or maintained for the benefit of the general public or any section thereof; or

(b) does any act which discriminates against any such person after admission to any of the aforesaid institutions; It further defines punishment for refusing to sell goods or render services to whoever on the ground of “untouchability” refuses to sell any goods or refuses to render any service to any person at the same time and place and on the same terms and conditions at or on which such goods are sold or services are rendered to other persons in the ordinary course of business shall be punishable with imprisonment which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

There is an additional definition of punishment for other offences arising out of “untouchability” with imprisonment which may extend to six months, or with fine which may extend to five hundred rupees, or with both to whoever that

(a) prevents any person from exercising any right accruing to him by reason of the abolition of “untouchability” under Article 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 practise “untouchability” in any form whatsoever;

It also provides an option for cancellation or suspension of licences in certain cases or resumption or suspension of grants made by Government of whoever is convicted of an offence under this Act. The act also defines punishment for abetment of offence as well as provides for enhanced penalty on subsequent conviction Where any act constituting an offence under this Act is committed in relation to a member of a Scheduled Caste as defined in clause (24) of Article 366 of the constitution, the court shall presume, unless the contrary is proved, that such act was committed on the ground of “untouchabililty“. Offences under the Act shall be cognizable and compoundable Save as otherwise expressly provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of any court or other authority. The enactments specified in the Schedule are hereby repealed to the extent to which they or any of the provisions contained therein correspond or are repugnant to this Act or to any of the provisions contained therein.

Recent Incidents

The Sabrimala Hearings and the Meaning of “Untouchability” under Article 17 of the Constitution The term ” untouchability“ under Article 17 has been used under the inverted comas. It is because the subject matter of Article 17 is not untouchability in its literal or grammatical sense, but the practice as it had, developed historically in this country and that the word “untouchability” is used in that sense under this Article.

The Constitution Bench of the Supreme Court commenced hearings in the Sabrimala case in 2018. The question before the Court was whether the Sabrimala temple is legally entitled to deny menstruating-age women access to the shrine. There are many nuanced and complex questions at the interface of Articles 25 and 26 which come up for decision. Additionally, however, in oral arguments, both the Intervener and the Amicus Curae invoked Article 17 (the prohibition upon untouchability).

Reports from the Courtroom indicate that the Bench was not very sympathetic to the argument. This is entirely understandable. “Untouchability” is a term of art and refers to the specific caste-based practice (and the entire social system that it has birthed), which has existed in India for a very long time. Furthermore, Article 17 puts the word “untouchability” within quotation marks, which suggests that its meaning is limited to its specific, historical sense. Consequently, while barring of menstruating age women from a temple is no doubt a practice of segregation, exclusion, and enforcement of hierarchies like untouchability, it is not “untouchability.”

The context is Chief Justice Sinha’s dissenting judgment in the Dawoodi Bohra case, where he applied Article 17 to the practice of religious excommunication among the Dawoodi Bohras – which, again, was not “untouchability” in its strict, historical sense: On what basis did Sinha CJ select the more expansive, abstract definition of untouchability? It is important to note that this choice was indicated not only by the text of the clause, which abolishes the practice of untouchability ‘in any form’, but also by the history of its framing. While the communities constituting ‘Untouchables’ had been specifically enumerated in the Government of India Act of 1935, the predecessor of the Indian Constitution, the Constitution itself, as Dr Ambedkar pointed out, had elected not to operate at that level of specificity. Indeed, an amendment moved by Naziruddin Ahmed to restrict the scope of the Article to untouchability only on account of ‘religion or caste’ was specifically rejected by Dr Ambedkar, and negatived by the Assembly when it went to vote. Furthermore, even though KM Munshi pointed to the fact that the word untouchability was contained within quotation marks, making it clear that the intention was to ‘deal with it in the sense in which it is normally understood’, many members called for providing a clearer definition of the term on the grounds of vagueness, and in fact, KT Shah specifically ‘warned’ that it might even be extended to cover women, who at various times had been treated in the manner of untouchables by the society.

Specifically, while some of the members of the Assembly undoubtedly understood untouchability in its narrow, concrete sense, they did not do so to the exclusion of its broader sense. Meanwhile, other members expressly linked the provision to Article 15(2), and repeatedly argued that their understanding of Article 17 included the right of everyone to enjoy ‘equal social conditions’, ‘equal rights’, ‘social equality’, the abolition of ‘social inequity, social stigma and social disabilities’, and as a remedial clause for ‘those who have been left behind in social and economic matters’. It therefore seems clear that between both the supporters and the opponents of Article 17 as it stood, there was agreement on the breadth of its meaning.

Consequently, Sinha CJ’s adoption of ‘untouchability’ in its broad sense, in the sense of social ostracism, had its foundation in both the text of the Constitution and the debates surrounding it. The purpose of the Act, he held, was to guarantee individual freedom, remove interferences with liberty, conscience and faith, and guarantee human dignity and freedom of choice. But this is the crucial question: freedom from what? Sinha CJ was not talking about state coercion and interference with freedom, in its classical liberal sense, in the sense that it is guaranteed by most Constitutions. Rather, he was talking about the coercive freedom-interfering acts of communities (such as social ostracism) against their members. In other words, as discussed above, Sinha CJ believed that Articles 25 and 26 not only guaranteed group-differentiated rights to religious denominations in the interests of preserving their integrity, but also provided for the rights of individuals against their groups, in the interests of individual freedom, liberty of conscience, and human dignity. It was in this context that the balance between group integrity and social reform, set out textually within the scheme of 25 and 26, was to be understood.

A broad reading of Article 17 means that not only the caste-based practice of untouchability falls within the ambit of the constitutional prohibition, but practices that bear a family resemblance to “untouchability” are captured as well. This requires the Court to ask whether a particular practice, like untouchability, is a practice of social subordination, exclusion, and segregation, based upon an idea that certain personal characteristics (whether caste, or gender, or menstruation) can justify relegating individuals to an inferior position in society. Under this framework, menstruation-based discrimination is a prime candidate to qualify under Article 17 (and it is no surprise that KT Shah was specifically worried about Article 17 being made to apply to women). It does not require detailed argument to show that, historically, and across the board, menstruation has been equated with impurity, and the idea of impurity, assigned to women qua women, is then used to justify their exclusion from key social activities (including, as in this case, the right of religious access).

Present Scenario

In our society there still exist feeling of superiority of caste and birth. We can experience the practice of untouchability in everyday life around us, especially in rural and semi-urban areas of the country. Also, in big metro cities, the inhuman practice of manual scavenging is still there. According to a news report of Press Trust of India (PTI), on January 3, 2014, four tea shop vendors were arrested by the Police in Karnataka for practicing untouchability while selling tea- they were serving tea in different types of cups to caste Hindus and SC/STs. The incidence shows that the evil practice is so deep rooted in Hindu society that even after 67 years of Independence is continuing in one form or other.

A recent study of a sample of households in India concludes that “Notwithstanding the likelihood of under-reporting of the practice of untouchability, 70 percent of the population reported not indulging in this practice. This is an encouraging sign.”

Our Constitution (as the Court has observed in some of its recent decisions) is a transformative Constitution. It is not only a charter for political independence from colonial rule, but also a document that aspires to overcome the social hierarchies that have riven Indian society. This transformative ambition of the Constitution is exhibited, in particular, through its horizontal rights provisions: Articles 15(2), 17, and 23, which directly target exploitative practices at the level of individuals and communities, and not the State. To give effect to the Constitution’s transformative purpose, therefore, a Court should read these clauses broadly. One example of this is IMA v Union of India, where the Court used the Constituent Assembly Debates to interpret the word “shops” in its broader sense of economic transactions and provision of services generally, and not in the limited sense of the physical shop-floor (discussed here).

However, it can therefore be said that things are slowly changing; the mind set of modern generation is also changing. Today’s youth with modern education and globalized outlook are viewing the social order from different perspective of equality and impartiality and not from the religious or traditional point of view.

Hopefully, the wicked practice of untouchability would be removed from the society sooner rather than later and our country would usher into a new era of social equality and brotherhood which will be the true India of Gandhi and Ambedkar

Created on 2021/01/31 23:40 by LawPage • Last modified on 2021/01/31 23:40 by LawPage