This article has been written by Anwesha Pati. The article deals with Article 17 of the Indian Constitution, which prohibits the discriminatory practice of untouchability prevalent in Indian society for centuries. The article also traces its historical development and the steps taken by the government for its eradication.
Table of Contents
Introduction
Untouchability refers to a form of discrimination practised against certain sections of society who are shunned on the basis of their caste. The term lacks a clear definition, but several scholars have expressed their views about it. According to Marc Gallanter, it is the practice of rendering someone inferior and unclean because of their affiliation with a low caste by birth. Mahatma Gandhi refers to untouchability as pollution that is caused by coming into contact with people who are considered impure by virtue of belonging to a particular state of family. The makers of our Constitution, being well aware of the social divide that permeates Indian society, considered it necessary that there be a legal provision prohibiting untouchability. Thus, Article 17 was introduced in the Constitution of India as a means to curb this oppressive practice and conform to the principles of justice, equality and fraternity laid down in the Preamble. However, despite positive efforts by the government to end this menace, it is evident that the practice of untouchability is still deeply ingrained in our societal structure.
History of untouchability in India
In order to have a clear understanding of the origin of untouchability, it is necessary to trace its development since the Vedic Period, which gave birth to the idea of the Varna system, which segregated people on the basis of the kind of work they did for sustenance. According to the Purush Shukta, a hymn contained in the Rig Veda, the Brahmins emerged from the face of the “Virat Purush,” the Kshatriyas from his hands, the Vaishyas from his thighs and the Shudras from his feet, leading to the inception of the four main varnas – Brahmins (the thinkers), Kshatriyas (the warrior clan or kings), Vaishyas (the traders) and Shudras (the servants of men). However, there is no mention of untouchability in the Vedic period. After the Vedic Age came the age of the Smritis, which was compiled by sages and contained laws and rules in written form. In this context, Manusmriti is of particular importance as it has extensively dealt with the laws governing the four chief varnas and other sub-castes, but it still makes no mention of untouchability. It merely categorises the “Chandals” as impure but does not make any reference to untouchability. Untouchability in its real sense can be seen to be in practice in the mediaeval period, which saw a decline in Buddhism and advocacy for Brahmin supremacy.
The records of Chinese travellers like Fa Hien and Yuan Chung mention that butchers, executioners, fishermen, and scavengers had to live outside the city. Thus, with the passage of time, Chandals, along with certain other castes who continued with beef-eating, were treated as untouchables or “avarnas.” It can be rightly said that the practice of untouchability gained traction during the beginning of the mediaeval ages and reached its pinnacle after the 9th century when it spread across the country. Since then, the practice has become aggravated, with several restrictions being forced upon the untouchable community, like non-entry in places of worship, forcing them to live in a separate territory outside the villages, restricting them from using public amenities like wells or common transport facilities, and forcing them to engage in lowly tasks like cleaning toilets, killing animals, etc.
Concept of untouchability
Although most scholars equate the concept of untouchability as a byproduct of the caste system, with time, it has also become intermingled with poverty, illiteracy and a sense of impurity. According to Dr. B.R. Ambedkar, untouchability is distinct from caste-based discrimination because a person observing the caste system keeps his distance from the people of those castes who are inferior to him. Therefore, a Brahmin is merely following the rules of the caste system by keeping a distance from any non-Brahmin, but in cases of untouchability, people are segregated on the basis of purity. In ancient times, Buddhists, as well as people who ate beef, were considered to be casteless and, as such, impure. Thus, it is quite evident from a historical point of view that the caste system has its basis in the Vedas and Smritis. It was in practice several years before the inhumane practice of untouchability sprung up and since subsequently the concept of impurity of touch became a common ground for both practices, they came to be associated as corollaries of each other.
An important aspect of the practice of untouchability is that it is a permanent trait of a person’s existence. A person who is born into a caste that falls under the category of “untouchables” will continue to remain so for the rest of their lives, and such impurity cannot be eliminated by performing ceremonies. According to Manusmriti, impurity can stem from several factors, like impurity from sex, meaning women and eunuchs were considered impure with respect to the performance of rituals or reciting the Vedas. Similarly, impurity could also arise from one’s occupation. For example, actors, singers, oilmen, sellers of meat, and gamblers were considered unfit to take part in sacrificial ceremonies. Artisans, basket weavers, goldsmiths, musicians, physicians, carpenters, and leather cutters were branded as impure, and it was forbidden to accept food from such persons. Also, people who engaged in immoral activities like adultery, prostitution or marriage outside their caste were considered impure. Conversion to another religion was also considered a form of impurity among Hindus.
Thus, untouchability is different from impurity as it creates a divide between persons of low caste and high caste, a divide that is ever present and can never be erased. Meanwhile, impurity is an ephemeral concept that is observed with respect to certain persons at specific times, like during the performance of rituals or sacrifices. Impurity can be cured by performing penance, or it automatically ceases after an efflux of time. Hence, it follows that untouchability is a much wider concept that brings under its purview an entire caste, having a permanent impact.
Need for introducing Article 17 of the Indian Constitution
Article 17 forms part of the fundamental rights provided under Part III of the Constitution of India. It provides for a legal framework under which any person can seek protection from discriminatory practices perpetrated by the State or any private individual. Since it is a fundamental right, citizens have the right to have recourse to Article 32 of the Constitution of India to fight against any caste-based discrimination. Apart from being a legal sanction against untouchability, the following reasons can be attributed for introducing Article 17 in our Constitution:-
- On attaining liberation from the torment of British governance, the leaders of our nation envisaged an India that was built on the foundations of justice and equality. The term justice is not confined to political justice alone but transcends to social justice as well. Social justice involves treating all people with respect and dignity. It means that people in India have the right to live a life free of discrimination and prejudice. Thus, Article 17, by providing for the abolition of untouchability, incorporates the idea of social justice.
- In Dr. B.R. Ambedkar’s words, India should strive to achieve democracy not only in the political sense but also in social democracy. Social democracy means a democracy that thrives on the principles of liberty, equality and fraternity, where all three of them must coexist in balance with each other. Such balance is necessary because if there is liberty without equality, the ones wielding more power will try to subjugate the weak. Similarly, if there is equality without liberty, it would act as an impediment to individual choices and aspirations. Equality and liberty without fraternity would breed chaos and disharmony among people. Thus, the coexistence of these three principles is necessary for the proper functioning of a democracy in the truest sense of the term and Article 17 bolsters these principles.
- Article 17 has been introduced as it embodies the principle of equality. Our constitutional values enjoin a duty on the State to treat its citizens equally. Article 15 of the Constitution of India prohibits the State from engaging in any discrimination on the basis of caste, creed, sex, religion or place of birth. Untouchability that perpetuates caste-based discrimination strikes at the heart of the principle of equality; hence, the inclusion of Article 17 is a just provision to prevent its practice in any form by the State.
- A far more important reason for including Article 17 is that it upholds the concept of human dignity. Human dignity is an intrinsic part of a man’s existence, and he cannot be stripped of this right by the government or society. Article 1 of the Universal Declaration of Human Rights states that all persons have been bestowed with freedom and equal rights since birth and are entitled to live a life with dignity. They are also bestowed with reason, conscience and a sense of brotherhood amongst themselves. Thus, Article 17 incorporates this basic human right to live a dignified life, free from any degrading treatment or being subjected to discrimination for belonging to a particular class.
Untouchability : an issue of the right to life
The right to life is enshrined under Article 21 of the Constitution of India, which provides that every person has the right to lead a dignified life and to be held in respect. Article 21 has wide connotations and incorporates within it the right to livelihood, health, education and reputation. The issue of untouchability is to be seen not only from the viewpoint that people who belong to low castes are looked down upon, but they are also denied the basic respect and dignity that all human beings are entitled to from birth. Further, people belonging to such castes are forced into a vicious cycle of degrading treatment. It amounts to a violation of their right to life, as they are precluded from accessing quality education and employment opportunities. This caste-based discrimination goes against the ethos of the principles contained in Article 21, which endorse the spirit of individuality, personal liberty and dignity. Thus, Article 17, by prohibiting untouchability, indirectly furthers the principles on which Article 21 rests.
Article 17 of the Indian Constitution and its scope
Article 17 of the Indian Constitution, which forms part of the Fundamental Rights, provides that all forms of untouchability are abolished in the country, and if they are practised in any form, they can become the basis for legal action. The word “in any form” is used in an inclusive way, meaning that any and every form of untouchability is forbidden. Thus, not only is treating the untouchable community with disgrace, such as forcing them to live in separate areas, prohibited but also, the ceremonies of purification that were observed for coming into contact with such people should be abolished.
Article 17 also states that any form of disability that has its roots in the practice of untouchability is prohibited by law, and enforcing it would amount to an offence. This means that a person cannot be subjected to any kind of restriction, disqualification, insult or harassment merely because he happens to belong to the untouchable community. There are several provisions in the Constitution that have been incorporated to ameliorate the socioeconomic conditions of the untouchable class. Article 15(4) provides the State with the power to make special provisions specifically for the advancement of the Scheduled Caste, Scheduled Tribes and other socially and educationally backward classes. Article 46 enjoins upon the State that it shall promote the educational and economic interests of the Scheduled Castes and Scheduled Tribes and also provide them protection from social injustice and exploitation. Article 332 provides reservation of seats to Scheduled Castes and Tribes in every State Legislative Assembly so that their community is properly represented and their voices heard in the State’s law-making body. Articles 338(1) and 338A(1) of the Constitution provide for the formation of separate National Commissions for Scheduled Castes and Scheduled Tribes, respectively. Certain other safeguards include Section 110(f) of the Criminal Procedure Code, which provides power to an Executive Magistrate to obtain a bond for good behaviour from habitual offenders or those who abet the commission of any offence under the Protection of Civil Rights Act, 1955. Section 8 of the Representation of the People Act, 1951, provides for the disqualification of any person who has been convicted of an offence committed under the Protection of Civil Rights Act, 1955.
It would also be pertinent to have a cursory view of the various legislations that were in force in the various states to end untouchability as envisioned by our social reformers like Dr. B.R. Ambedkar and Gandhiji since the pre-independence era. The following table lists down some of the State laws which were passed pertaining to temple entry and removal of disability arising out of untouchability:-
| State / Union Territories | Temple Entry Act | Anti- Disabilities Act, |
| Bihar | _ | The Bihar Harijan (Removal of Civil Disabilities) Act 1946 |
| Bombay | The Bombay Harijan Temple Entry Act, 1947 | The Bombay Harijan (Removal of Social Disabilities) Act, 1946 |
| Orissa | The Orissa Temple Entry Authorisation and Indemnity Act, 1947 | The Orissa Removal of Civil Disabilities Act, 1946 |
| Hyderabad | The Hyderabad Harijan Temple Entry Regulation, 1858 | The Hyderabad Harijan (Removal of Social Disabilities) Regulation, 1858 |
| Mysore | The Mysore Temple Entry Authorisation Act 1948 | The Removal of Civil Disabilities Act, 1943 |
| West Bengal | _ | The West Bengal Hindu Social Disabilities Removal Act, 1948 |
| Uttar Pradesh | _ | The United Provinces Removal of Social Disabilities Act, 1947 |
| Coorg | The Coorg Temple Entry Authorisation Act, 1949 | The Coorg SC (Removal of Civil and Social Disabilities) Act, 1949 |
By virtue of Article 35 of the Indian Constitution, the Parliament has been vested with the power to make laws prescribing punishment for practising untouchability, and accordingly, the Untouchability (Offence) Act, 1955, was implemented to alleviate the plight of the downtrodden class. The aforesaid Act has been renamed the Protection of Civil Rights Act, 1955 (hereinafter referred to as the Act). The purpose for renaming the Act was to be in consonance with and reinforce the object for which it was passed, as well as instil the idea in the minds of the people that the said Act has been brought into force to protect the civil rights of the citizens and to ensure that the lower castes are treated equally as the rest of society. Section 3 of the said Act provides punishment for preventing any person from entering any place of worship, offering prayers or performing any religious service on the grounds of untouchability.
The word “place of worship” denotes a public place of worship that is open to all persons and does not include those areas of the temple that are meant for private usage or where entry is restricted, for example, the garbhagriha where the idol of the deity is placed. It is also not necessary that, to constitute an offence under Section 3, a person be prevented by means of physical force from observing his religious rights. It is enough if, by word of mouth or by any other indication or gesture, a person is prevented; an offence under the said section would be complete. Section 4 of the Act provides punishment for enforcing social disabilities on the ground of untouchability, like –
- Preventing access to shops, restaurants, or hotels.
- Preventing any person from carrying on any profession, trade or occupation.
- Preventing any person from having access to any river, stream, spring, well, burial ground, road, passage, etc.
- Preventing access to any benefit arising from a charitable trust that has been created for public benefit.
- Preventing access to any public transportation.
Section 4 gives effect to Articles 17 and 25 (2) of the Constitution, and an offence committed under them would attract punishment of imprisonment for a term of not less than one month, but it should not exceed six months, along with a fine of not less than one hundred rupees but not exceeding five hundred rupees. Section 5 of the Act provides the punishment for refusing admission into hospitals, dispensaries, educational institutions or any hotel that has been established for public benefit on the ground of untouchability. Section 5 has its basis in Articles 15, 29 and 46 of the Constitution. Section 6 of the Act provides for punishment for refusing to sell goods or render services or imposing terms or conditions on the sale of goods to any person on the ground of untouchability. Section 7 of the Act provides for the punishment of untouchability and the different forms in which it can manifest. It also provides for an appropriate mechanism to enforce the rights of persons against whom untouchability is practised through various modes like insulting, molesting, boycotting, obstructing or preventing any person belonging to the lower caste from exercising rights that have accrued to him. Section 7A of the Act, while giving effect to Article 23 of the Constitution, provides that compelling persons belonging to lower castes to perform jobs like scavenging, sweeping, flaying of animals, removal of dead bodies of animals and other menial acts would amount to an offence. Thus, the Protection of Civil Rights Act, 1955, has holistically dealt with the issue of treatment on the basis of caste.
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is also an important piece of legislation enacted by the Parliament that deals with untouchability. It stipulates stringent punitive measures against persons committing atrocities against the Scheduled Castes and Scheduled Tribes. It was implemented to fill the loopholes existing in the Protection of Civil Rights Act and provide for a robust and efficient procedure to stall the injustices committed against them. However, the said Act has also been subjected to much criticism for being overly zealous in its approach, leading to the persecution of innocent persons.
Case laws dealing with untouchability after enactment of Article 17 of the Indian Constitution
Devarajiah vs. Padmanna (1957)
In this case, a complaint was made before the Bangalore City Magistrate that the accused had printed a pamphlet that was propagating the practice of untouchability by preventing the complainant from entering Jain temples and was therefore guilty under Sections 3, 7 and 10 of the Untouchability (Prevention) Act, 1955. The Magistrate admitted the case under Section 500 of the Indian Penal Code, 1860, against which a revision application was made to the Karnataka High Court. The High Court, while dismissing the revision petition, directed that the case be taken up before the learned Magistrate under the Untouchability Act and obtain a decision.
The Learned Magistrate after hearing the case, dismissed it on the ground that no offence was made out. Thereafter, a petition was filed by the complainant in the Karnataka High Court. The High Court held that the alleged pamphlet contained the grievances of the accused person regarding the way Jain temples were being administered, which resulted in the infiltration by non-Jains. The allegations did not show any proof as to the fact that the accused was instigating members of the Jain community to boycott the complainant and contained mere statements that the complainant, being a non-Jain, should not be allowed in their temples or their community as it would amount to a violation of their strict rules. According to the Court, the word untouchability has not been defined in the Untouchability Act; hence, it has to be construed as referring to the differential treatment meted out to lower castes. The act complained of in the present case can be termed a social boycott based on religious grounds and has no relation to caste-based discrimination; therefore, an offence under the Act has not been committed, and accordingly, the petition was dismissed.
Surya Narayan Choudhary vs. State of Rajasthan (1988)
This case arose in the backdrop of a discriminatory practice that was in vogue in the Shri Shrinathji temple at Nathdwara, Udaipur, where Harijans were allowed to enter the temple premises only after observing certain purification ceremonies like being made to wear “Kanthi Mala” and having Gangajal sprinkled upon them and being given “tulsidal”. According to the petitioner, who was himself the learned advocate in the case, such practices amounted to the propagation of the practice of untouchability against the Harijans and were a violation of the constitutional mandate, which expressly prohibits such practice.
The Rajasthan High Court, while taking cognizance of the matter, expressed its disappointment that untouchability still continues to be prevalent in our society despite several measures taken by the government and efforts made by social reformers to erase the heinous concept of discriminating against persons on the basis of caste. The Court pointed out that simply enacting laws against untouchability will not serve its purpose when we ourselves do not believe in the saying that “all men are born free and equal”. It is high time that we discard such an orthodox mentality and embrace the citizens of our country with equality and a sense of brotherhood. The High Court directed the State Government in this matter to ensure that all persons, including Harijans, are granted access to the Shri Shrinathji temple. It also ordered that Harijans should be allowed to enter the temple without requiring any special rituals to be observed by them that are not applicable to other devotees. The Shrinathji temple, being a place of public worship, cannot impose any discriminatory practices that are to be made applicable to the Harijans exclusively, as it would be violative of Articles 14, 15 and 17 of the Constitution.
State of Karnataka vs. Appa Balu Ingale (1992)
In this case, the Trial Court convicted the accused, Appa Balu Ingale and four other persons for committing the offences under Sections 4 and 7 of the Protection of Civil Rights Act, 1955. The decision was upheld by the Additional Sessions Judge in appeal. However, the Karnataka High Court passed an order of acquittal in favour of all the accused persons in revision, and subsequently, the Karnataka State Government filed a special leave petition in the Supreme Court against the order. The accused persons had forcefully restrained the complainant from drawing water from a freshly dug bore well and had threatened him and other Harijans who were present at the sight of the excavation with a gun. The trial court had rightly convicted the accused persons, as their offence was proved beyond reasonable doubt on the basis of the statements of the prosecution witnesses. However, the Karnataka High Court took a different course while re-appreciating evidence and completely disbelieved the testimony of the prosecution witness on the ground that it contained infirmities and was not admissible for the purpose of establishing the guilt of the accused persons. The Supreme Court held that the conviction by the trial court was well-founded and that the Karnataka High Court had erred in its decision by acquitting them.
Jai Singh vs. Union of India (1993)
In this case, the constitutional validity of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, came into question. The Court perused at length the historical facts that led to the enactment of the aforementioned Act. The teachings of Swami Vivekananda and the opinions expressed by Pandit Jawaharlal Nehru and Mahatma Gandhi, who have tirelessly fought for the rights of the lower caste people, were also referred to justify the reasons and objects for implementing the said Act.
The Protection of Civil Rights Act was found to be inadequate to solve the injustices faced by the Scheduled Castes and Tribes. There had been a rise in the atrocities committed against such classes despite proper legislation being in force. Hence, the said Act was brought into force to give effect to the provisions of Article 17 of the Constitution. Another contention of the case was that Section 438 of the Criminal Procedure Code is kept out of the purview of Section 18 of the Act. This means that a person cannot apply for anticipatory bail if he is under the apprehension that he may be arrested on the ground of an offence under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and this amounts to a violation of Article 21 of the Constitution.
The Court held that the said Act is special legislation whose purpose is to minimise the hostility and humiliation suffered by the untouchable community for centuries. The right to anticipatory bail is not derived from Article 21, which talks about the right to life and personal liberty. The Parliament has been vested with powers by the Constitution of India to make any law, provided they do not infringe upon the Fundamental Rights. Hence, it is at liberty to decide whether Section 438 of the CrPC will apply to a special Act or not. The petitioners had also contended that the said Act was incapable of fulfilling its purpose of putting an end to the atrocities against the Scheduled Castes and Schedule Tribes, regarding which the Court held that if powers have been vested on Parliament to make laws relating to any matter or issue, it will not be a correct discourse to question the intention and wisdom of the Parliament. Hence, the Hon’ble Court, while dismissing the writ petition, upheld the validity of the Act.
Indian Young Lawyers’ Association vs. State of Kerala (2018)
The Sabarimala Temple Entry case paved the way for a wider interpretation of Article 17 of the Constitution of India. One of the major contentions of this case was that denying entry to women aged between 10 – 50 years amounted to a violation of Article 17 as it indirectly gave effect to untouchability. Pursuant to Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, women who were of menstruating age were prohibited from entering the Sabarimala Temple as part of their longstanding custom. The Travancore Devaswom Board, which is the governing authority of the Sabarimala Temple, contended that the rule only excludes women of a particular age from entering the temple. There is no discrimination against women as a whole class, and those who fall outside this age bracket can enter the temple. The basis of this rule is that the principal deity of the temple, Lord Ayappa, is worshipped in his celibate, yogi form and allowing menstruating women to enter would be strictly against their religious practices.
Justice D.Y. Chandrachud opined that untouchability was based on the notions of purity and pollution. Since the ancient period, women were considered impure when they were menstruating and were forbidden to perform religious ceremonies during such periods. This concept of rendering women who are of menstruating age impure is against our constitutional values, which uphold the right to equality. Menstruation is a biological process and part of a woman’s privacy. Subjecting women to differential treatment on the basis of their menstrual status is a violation of their dignity, as is tethering them to narrow social customs and restricting their social presence. The very fact that the word untouchability has been put in inverted commas in the Constitution of India indicates that the Legislature intended that it should be interpreted in a wide manner and not merely be confined to caste-based discrimination. Thus, exclusion from temple entry results in giving effect to a form of untouchability based on religious custom and violates Article 17, which prohibits the practice of untouchability in all its forms.
It is true that untouchability still continues to be practised in our society indirectly, as we hear news of Dalit men facing humiliation and violence in society and honour killings taking place for marrying in lower castes, which makes us ponder whether the enactment of laws and a constitutional mandate prohibiting untouchability has really borne any fruitful result. In the end, it is the society that has to transform and imbibe feelings of equality and undertake a humanitarian approach towards these disenfranchised classes that will result in the abolition of untouchability in the truest sense.
Conclusion
Untouchability emerged at a time when people were blinded by a parochial mindset stemming from religious bigotry. At the juncture of the 21st century, it is important for us to realise that the immoral practice of untouchability is a blot on the progress of a civilised society and leading a dignified life, free of prejudices that are perpetuated by baseless societal norms. Creating barriers amongst ourselves on the basis of caste not only erodes the social fabric but negatively impacts the lives of people who have faced centuries of ostracisation because of sheer fate. Discriminating people on the basis of caste results in cruel and inhumane treatment. They are subjected to marginalisation, which deprives them of receiving education and other basic amenities. A modern state that espouses the principles of equality and justice and upholds the protection of human rights would be a failure if untouchability is allowed to continue. Even though it is not practised in the literal sense at present, such practice has insidiously crept up in our social hierarchy. Thus, it is pertinent that in order to eradicate untouchability completely, merely implementing stringent laws would not yield results. However, change in our perspective is needed, and for this cause, the State and its people must come forward unanimously.
Frequently Asked Questions ( FAQs)
What is the meaning of untouchability?
Untouchability is a form of discrimination that has its roots in the Varna system, which categorised people belonging to lower castes as impure and forced them to do menial jobs. Their touch was considered to be impious, and hence, they were subjected to seclusion from society.
Who are regarded as the Untouchables?
The Untouchables generally include Dalits, Harijans, Scheduled Castes and Scheduled Tribes. Article 341 of the Constitution provides power to the President to specify by public notification the particular castes, races, and tribes that are to be deemed to be Scheduled Castes in a State or Union Territory and in the case of a State, the prior consultation of the Governor is required before such notification. Similarly, Article 342 provides the same power to the President to designate particular tribes, tribal communities or groups within tribes as Schedule Tribes. Under Articles 341(2) and 342(2), the Parliament also has the power to exclude or include any caste, race, tribe, or tribal community from the list of Scheduled Castes or Scheduled Tribes published through notification and any kind of inclusion or exclusion has to be made through amendment.
What are the legal provisions that deal with untouchability in India?
Article 17 of the Indian Constitution explicitly prohibits the State and any other private individual from practising untouchability. Additionally, the Protection of Civil Rights Act, 1955 and the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, have also been enacted to combat the evil of untouchability.
References
- https://ijalr.in/volume-1/issue-3-2/article-17-abolition-of-untouchability/
- Untouchability in India: Implementation of the Law and Abolition, R. K Kshirsagar, 1989
