Article 17 occupies a unique position in our constitutional scheme. The Article, which prohibits a social practice, is located in the chapter on fundamental rights. The framers introduced Article 17, which prohibits a discriminatory and inhuman social practice, in addition to Articles 14 and 15, which provide for equality and non-discrimination. While there has been little discussion about Article 17 in textbooks on constitutional law, it is a provision which has a paramount social significance both in terms of acknowledging the past and in defining the vision of the Constitution for the present and for the future.
Provision of Article 17
Article 17 provides:
“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.”
Article 17 abolished the age old practice of “untouchability”, by forbidding its practice “in any form”. By abolishing “untouchability”, the Constitution attempts to transform and replace the traditional and hierarchical social order. Article 17, among other provisions of the Constitution, envisaged bringing into “the mainstream of society, individuals and groups that would otherwise have remained at society’s bottom or at its edges”
Constitutional promise of equality and justice
Article 17 is the constitutional promise of equality and justice to those who have remained at the lowest rung of a traditional belief system founded in graded inequality. Article 17 is enforceable against everyone – the State, groups, individuals, legal persons, entities and organised religion – and embodies an enforceable constitutional mandate. It has been placed on a constitutional pedestal of enforceable fundamental rights, beyond being only a directive principle, for two reasons-
First, “untouchability” is violative of the basic rights of socially backward individuals and their dignity.
Second, the framers believed that the abolition of “untouchability” is a constitutional imperative to establish an equal social order. Its presence together and on an equal footing with other fundamental rights, was designed to “give vulnerable people the power to achieve collective good.
Article 17 is a reflection of the transformative ideal of the Constitution, which gives expression to the aspirations of socially disempowered individuals and communities, and provides a moral framework for radical social transformation. Article 17, along with other constitutional provisions, must be seen as the recognition and endorsement of a hope for a better future for marginalized communities and individuals, who have had their destinies crushed by a feudal and caste-based social order.
Drafting of the Article 17
The framers of the Constitution left the term “untouchability” undefined. The proceedings of the Constituent Assembly suggest that this was deliberate. B Shiva Rao has recounted[1] the proceedings of the Sub-Committee on Fundamental Rights, which was undertaking the task of preparing the draft provisions on fundamental rights. A clause providing for the abolition of “untouchability” was contained in K M Munshi’s draft of Fundamental Rights.
Clause 4(a) of Article III of his draft provided:
“Untouchability is abolished and the practice thereof is punishable by the law of the Union.”
Clause 1 of Article II 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.”
While discussing the clause on “untouchability” on 29 March 1947, the Sub-Committee on Fundamental Rights accepted Munshi’s draft with a verbal modification that the words “is punishable by the law of the Union” be substituted by the expression “shall be an offence”.
Reflecting on the draft, the constitutional advisor, B N Rau, remarked that the meaning of “untouchability” would have to be defined in the law which would be enacted in future to implement the provision. Bearing in mind the comments received, the Sub- Committee when it met on 14 April 1947 to consider its draft report, decided to add the words “in any form” after the word “Untouchability”. This was done specifically in order “to make the prohibition of practice of “untouchability” comprehensive”.
Subsequently, on 21 April 1947, the clause proposed by the Sub-Committee on Fundamental Rights was dealt with by the Advisory Committee, where Jagjivan Ram had an incisive query. While noting that ordinarily, the term “untouchability” referred to a practice prevalent in Hindu society, he queried whether the intention of the committee was to abolish untouchability among Hindus, Christians or other communities or whether it applied also to ‘inter-communal’.
Shiva Rao has recounted 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”.
In the proceedings, K M Panikkar elaborated the point by observing that the clause intended to abolish various disabilities arising out of untouchability, irrespective of religion. He remarked:
“If somebody says that he is not going to touch me that is not a civil right which I can enforce in a court of law. There are certain complex of disabilities that arise from the practice of untouchability in India. Those disabilities are in the nature of civil obligations or civil disabilities and what we have attempted to provide for is that these disabilities that exist in regard to the individual, whether he be a Christian, Muslim or anybody else, if he suffers from these disabilities, they should be eradicated through the process of law.”
Rajagopalachari suggested a minor amendment of the clause, which sought to make “the imposition of any disability of any kind or any such custom of ‘untouchability’” an offence. Taking note of the suggestions and views expressed, the clause was redrafted as clause 6 in the Interim Report of the Advisory Committee as follows:
““Untouchability” in any form is abolished and the imposition of any disability on that account shall be an offence.”
B Shiva Rao has remarked that Panikkar’s reference was to the depressed classes who had been converted to Christianity in Travancore-Cochin and Malabar.
Discussion of Report by Constituent Assembly
The Interim Report was moved before the Constituent Assembly by Vallabhbhai Patel on 29 April 1947. Commenting on Clause 6, one member, Promatha Ranjan Thakur, observed that “untouchability” cannot be abolished without abolishing the caste system, since “untouchability” is its symptom. Srijut Rohini Kumar Chaudhury, SC Banerjee and Dhirendra Nath Datta sought a clarification on the definition of the term “untouchability”.
Chaudhary even suggested the following amendment to define the term “untouchability”:
“‘Untouchability’ means any act committed in exercise of discrimination on, grounds of religion, caste or lawful vocation of life mentioned in clause 4.”
Opposing the amendment, K M Munshi stated that the word “untouchability” has been “put purposely within inverted commas in order to indicate that the Union legislature when it defines ‘untouchability’ will be able to deal with it in the sense in which it is normally understood”.
Subsequently, only three amendments were moved. H V Kamath sought to insert the word “unapproachability” after the term “untouchability” and the words “and every” after the word “any”. S. Nagappa wanted to substitute the words “imposition of any disability” with the words “observance of any disability”. P Kunhiraman wanted to add the words “punishable by law” after the word “offence”. Vallabhbhai Patel, who had moved the clause, considered the amendments to be unnecessary and observed:
“The first amendment is by Mr. Kamath. He wants the addition of the word ‘unapproachability’. If untouchability is provided for in the fundamental rights as an offence, all necessary adjustments will be made in the law that may be passed by the Legislature. I do not think it is right or wise to provide for such necessary corollaries and, therefore, I do not accept this amendment.
The other amendment is by Mr. Nagappa who has suggested that for the words “imposition of any disability’’ the words “observance of any disability’’ may be substituted. I cannot understand his point. I can observe one man imposing a disability on another, and I will be guilty I have observed it. I do not think such extreme things should be provided for. The removal of untouchability is the main idea, and if untouchability is made illegal or an offence, it is quite enough.
The next amendment was moved by Mr. Kunhiraman. He has suggested the insertion of ‘punishable by law’. We have provided that imposition of untouchability shall be an offence. Perhaps his idea is that an offence could be excusable, or sometimes an offence may be rewarded. Offence is an offence; it is not necessary to provide that offence should be punishable by law. Sir, I do not accept this amendment either. Then, it was proposed that for the words ‘any form’, the words ‘all forms’ be substituted. Untouchability in any form is a legal phraseology, and no more addition is necessary.”
After Patel’s explanation, HV Kamath and P Kunhiraman withdrew their amendments, while the amendment moved by Nagappan was rejected. Clause 6 was adopted by the Constituent Assembly. However, in the Draft Constitution (dated October 1947) prepared by the constitutional advisor, B N Rau, the third amendment moved by Kunhiraman was adopted in effect and after the word “offence” the words “which shall be punishable in accordance with law” were inserted.
On 30-31 October 1947, the Drafting Committee considered the “untouchability” provision and redrafted it as article 11. It was proposed by Dr Ambedkar before the Constituent Assembly 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.”
In response to comments and representations received on the Draft Constitution, B N Rau reiterated that Parliament would have to enact legislation, which would provide a definition of “untouchability”.
When the draft Article 11 came for discussion before the Constituent Assembly on 29 November 1948, one member, Naziruddin Ahmad, sought to substitute it by the following Article:
“No one shall on account of his religion or caste be treated or regarded as an ‘untouchable’; and its observance in any form may be made punishable by law.”
The amendment proposed would obviously restrict untouchability to its religious and caste-based manifestations. Naziruddin Ahmad supported his contention by observing that draft Article 11 prepared by the Drafting Committee was vague, as it provides no legal meaning of the term “untouchability”. Stressing that the term was “rather loose”, Ahmad wanted the draft Article to be given “a better shape”.
Professor KT Shah had a similar concern. He observed: “… I would like to point out that the term ‘untouchability’ is nowhere defined. This Constitution lacks very much in a definition clause; and consequently we are at a great loss in understanding what is meant by a given clause and how it is going to be given effect to. You follow up the general proposition about abolishing untouchability, by saying that it will be in any form an offence and will be punished at law. Now I want to give the House some instances of recognised and permitted untouchability whereby particular communities or individuals are for a time placed under disability, which is actually untouchability. We all know that at certain periods women are regarded as untouchables. Is that supposed to be, will it be regarded as an offence under this article? I think if I am not mistaken, I am speaking from memory, but I believe I am right that in the Quran in a certain ‘Sura’, this is mentioned specifically and categorically. Will you make the practice of their religion by the followers of the Prophet an offence?
Again there are many ceremonies in connection with funerals and obsequies which make those who have taken part in them untouchables for a while. I do not wish to inflict a lecture upon this House on anthropological or connected matters; but I would like it to be brought to the notice that the lack of any definition of the term ‘untouchability’ makes it open for busy bodies and lawyers to make capital out of a clause like this, which I am sure was not the intention of the Drafting Committee to make.”
Dr Ambedkar neither accepted Naziruddin Ahmad’s amendment nor replied to the points raised by KT Shah. The amendment proposed by Ahmad was negatived by the Constituent Assembly and the draft Article as proposed by Dr Ambedkar was adopted. Draft Article 11 has been renumbered as the current Article 17 of the Constitution.
[1] B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration (1968), at page 202