Article 17 of the Constitution of India: Abolition of Untouchability

Topic 4: Article 17 of the Constitution of India: Abolition of Untouchability?

“First they came for the socialists, and I did not speak out — because I was not a socialist.

Then they came for the trade unionists, and I did not speak out — because I was not a trade unionist.

Then they came for the Jews, and I did not speak out — because I was not a Jew.

Then they came for me—and there was no one left to speak for me.”

- Martin Niem?ller

Background:?

History remains a silent spectator as the practice of untouchability has become entrenched in the social fabric of India. Individuals, deemed as having inherited a “lower” caste identity, have been subject to marginalisation and a blanket denial of human rights, with no accessible recourse. The Dalit community is no stranger to the exclusionary practices of inter alia access barriers to public places and remaining confined to menial labour.?

The incorporation of Article 17 of the Constitution of India not only abolished the practice of untouchability, but also made its enforcement punishable, reflecting the proactive stance of the Constituent Assembly (Durga. Das Basu, Commentary on the Constitution of India, Calcutta, S.C. Sarkar and Sons Ltd., 1956). Under the authority of Article 17, the legislature passed the Untouchability (Offences) Act in 1955, subsequently renamed as the Protection of Civil Rights Act, 1955. The Act prescribes penalties for preventing a person from entering a public place or from enjoying any benefit intended for the public on the ground of untouchability.

The term “untouchability” remains undefined in the Constitution, with its meaning inferred from the Constituent Assembly's intent and subsequent judicial interpretation. Judicial decisions like Devarajiah v P. Padmanna (AIR 1958 Kant 84) have clarified that untouchability does not cover temporary social boycott, but addresses the historical practice of caste-based discrimination.?

The Sabarimala Effect:

The Sabarimala judgment (India Young Lawyers Association v The State of Kerala, (2019) 11 SCC 1) marked a significant shift in understanding untouchability. The case revolved around the constitutionality of restricting menstruating women from entering the Sabarimala Temple. Chandrachud J., in his decision, expanded the term's scope, associating caste discrimination with menstrual stigmatisation. The Court held that Article 17 aimed to protect victims of discrimination and social exclusion, not only to abolish social hierarchy.

However, Indu Malhotra J., in her dissent, argued that "untouchability" solely connoted the disabilities imposed on socially excluded sections along caste lines. She opined that a common legal remedy for the exclusion of Dalits in public spaces and women from temples was misconceived.

Scope:

While the traditional understanding of the Article was limited to caste-based discrimination, recent interpretations have broadened its scope, making it a versatile safeguard against more covert and insidious forms of social ostracism.

The essence of Article 17 lies in its adaptability and relevance in contemporary times. The Madras High Court, in a landmark judgment of Elephant G Rajendran v The Registrar General and others, (2023 SCC OnLine Mad 4095) , provided a fresh perspective on the scope of the Article. The Court observed that untouchability encompasses a broader spectrum, including all forms of social exclusion that find their roots in ritualistic ideas of purity, hierarchy, and subordination.?

Conclusion:

The interpretation of Article 17 of the Constitution of India over the years reflects the changing societal norms and a holistic understanding of discrimination. While the traditional notion of untouchability was intrinsically linked with caste, the modern interpretation, backed by judicial pronouncements, has broadened to cover a wider range of social ostracism. For Article 17 to be truly effective, the enforcement hurdles must be systematically addressed, coupled with initiatives for societal reform. The apex court of India, has in the case of State of Karnataka v Appa Balu Ingale and Others, (AIR 1993 SC 1126), has observed? that social transformation cannot be brought about without the active participation of society. With the passage of time, it becomes imperative to reassess and redefine the boundaries of fundamental rights. This ensures that they remain relevant, effective, and true to the spirit of the Constitution, which envisions an India free from the shackles of prejudice.

This article is written by article Ms. Afreen T. , our Attorney at Vis Legis Law Practice, Advocates .