Article 17 of the constitution abolishes the vice of untouchability in all its forms. It provides that,

“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.”

Insertion of Article 17

The anxiety of the Constitution framers in outlawing untouchability in all forms (without any reference to religion or community), resulted in its express manifestation as Article 17, wherein the expression “untouchability” was left undefined. The debates of the Assembly suggest that this was intentional.

B. Shiva Rao’s treatise[1] discloses that proceedings of the Sub-Committee on Fundamental Rights, which undertook the task of preparing the draft provisions on fundamental rights suggested a clause enabling for the abolition of “untouchability”- this was Clause 4(a) of Article III of K.M. Munshi’s draft of fundamental rights:

“Untouchability is abolished and the practice thereof is punishable by the law of the Union.”

And similarly, Article 11(1) of Dr Ambedkar’s draft provided that:

“any privilege or disability arising out of rank, birth, person, family, religion or religious usage and custom is abolished.”

Considerable deliberations took place since there was unanimity among all sections of representatives in the Constituent Assembly that the practice of untouchability (in all its forms) had to be outlawed. The Assembly bestowed its attention to the minutiae of what constitutes untouchability, whether its forms of practice in the Hindu religion alone qualified for prohibition, or also inter-communally, etc. Dr. Ambedkar, K.M. Munshi, Sardar Patel, and B.N. Rau, participated in all these deliberations.

Shiva Rao observes that the Committee came to the general conclusion that “the purpose of the clause was to abolish untouchability in all its forms— whether it was untouchability within a community or between various communities”

Attempts made to amend the article were deemed unnecessary due to the careful and extensive deliberations, and the unanimity amongst members; there was actually no change in the draft, which survived to become a part of the Constitution:

“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.”

The result was an all-encompassing provision which Article 17 is as it stands, outlawing untouchability in all its forms – by the State, individuals, and other entities. The reach and sweep of this provision – like Article 15(2) is wide; it is truly horizontal in its application.

 Supreme Court’s Observations

The social evil – of untouchability and its baleful effect of untouchability based discrimination was recounted by Supreme court, in State of Karnataka v. Appa Balu Ingale[2] :

“21. Thus it could be concluded that untouchability has grown as an integral facet of socio-religious practices being observed for over centuries; keeping the Dalits away from the mainstream of the society on diverse grounds, be it of religious, customary, unfounded beliefs of pollution etc. It is an attitude and way of behaviour of the general public of the Indian social order towards Dalits.

Though it has grown as an integral part of caste system, it became an institution by itself and it enforces disabilities, restrictions, conditions and prohibitions on Dalits for access to and the use of places of public resort, public means, roads, temples, water sources, tanks, bathing ghats, etc., entry into educational institutions or pursuits of avocation or profession which are open to all and by reason of birth they suffer from social stigma. Untouchability and birth as a Scheduled Caste are thus intertwined root causes.

Untouchability, therefore, is founded upon prejudicial hatred towards Dalits as an independent institution. It is an attitude to regard Dalits as pollutants, inferiors and outcastes. It is not founded on mens rea. The practice of untouchability in any form is, therefore, a crime against the Constitution. The Act also protects civil rights of Dalits. The abolition of untouchability is the arch of the Constitution to make its preamble meaningful and to integrate the Dalits in the national mainstream.”

The criterion for determining communities or castes as scheduled castes has been recognized as those who suffered on account of the practice of untouchability, and its pernicious effects, in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College & Ors.[3]:

“9. It appears that Scheduled Castes and Scheduled Tribes in some States had to suffer the social disadvantages and did not have the facilities for development and growth. It is, therefore, necessary in order to make them equal in those areas where they have so suffered and are in the state of underdevelopment to have reservations or protection in their favour so that they can compete on equal terms with the more advantageous or developed Sections of the community.

Extreme social and economic backwardness arising out of traditional practices of untouchability is normally considered as criterion for including a community in the list of Scheduled Castes and Scheduled Tribes….”

That SC communities are victims of the practise of untouchability, and the equality code was meant to provide them opportunities, and eliminate discrimination, was narrated in the earlier decision in Valsamma Paul & Ors. V. Cochin University & Ors[4]:

“7. […] The practice of untouchability, which had grown for centuries, denuded social and economic status and cultural life of the Dalits and the programmes evolved under Articles 14 15(2) 15(4) and 16(4) aimed to bring Dalits into national mainstream by providing equalitarian facilities and opportunities. They are designated as “Scheduled Castes” by definition under Article 366(24) and “Scheduled Tribes” under Article 366(25) read with Articles 341 and 342 respectively.

The constitutional philosophy, policy and goal are to remove handicaps, disabilities, suffering restrictions or disadvantages to which Dalits/ Tribes are subjected, to bring them into the national mainstream by providing facilities and opportunities for them…”

In Abhiram Singh and Ors. v. C.D. Commachen[5] the court again revisited the “central theme” of elimination of discrimination of SCs:

“118. […] The Constitution is not oblivious to the history of discrimination against and the deprivation inflicted upon large segments of the population based on religion, caste and language. Religion, caste and language are as much a symbol of social discrimination imposed on large segments of our society on the basis of immutable characteristics as they are of a social mobilisation to answer centuries of injustice. They are part of the central theme of the Constitution to produce a just social order…”

The Constitution Bench ruling in Indian Young Lawyers Assn. (Sabarimala Temple) v. State of Kerala[6] took note of the fact that the evil of untouchability, which kept out large swathes of Indian population in the thrall of caste-based exclusion, was sought to be dismantled, and real equality was sought to be achieved:

“386. The rights guaranteed under Part III of the Constitution have the common thread of individual dignity running through them. There is a degree of overlap in the Articles of the Constitution which recognise fundamental human freedoms and they must be construed in the widest sense possible.

To say then that the inclusion of an Article in the Constitution restricts the wide ambit of the rights guaranteed, cannot be sustained. Article 17 was introduced by the Framers to incorporate a specific provision in regard to untouchability. The introduction of Article 17 reflects the transformative role and vision of the Constitution. It brings focus upon centuries of discrimination in the social structure and posits the role of the Constitution to bring justice to the oppressed and marginalised.

The penumbra of a particular Article in Part III which deals with a specific facet of freedom may exist elsewhere in Part III. That is because all freedoms share an inseparable connect. They exist together and it is in their co-existence that the vision of dignity, liberty and equality is realised. As noted in Puttaswamy [K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1], “the Constituent Assembly thought it fit that some aspects of liberty require a more emphatic declaration so as to restrict the authority of the State to abridge or curtail them…”

The centrality of Article 17 and the constitutional resolve to eliminate untouchability in all forms to any debate on equality involving SC/ST communities is undeniable. Other provisions such as Article 15 (2), Article 23 and 24 also contain links to Article 17, because the constitution aimed not merely at outlawing untouchability, but ensuring access to public amenities and also guaranteeing that the stigma of caste discrimination should not result in exploitation.

Dr. Ambedkar put the issue very poignantly, saying that systematic caste discrimination was akin to slavery, since such subjugation “means a state of society in which some men are forced to accept from others the purposes which control their conduct”

In caste based hierarchal societies, which discriminated against a significant segment of society, the extent of deprivation – of choice was such that those born into those castes or communities were not part of the community and were termed “outcastes”. This exclusion was specifically targeted against, and sought to be eliminated, by the Constitution.

[1] B. Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration

(1968), at p. 202

[2] 1995 Supp (4) SCC 469

[3] (1990) 3 SCC 130

[4] (1996) 3 SCC 545

[5] (2017) 2 SCC 629

[6] (2019) 11 SCC 1