Article 17 of the Constitution 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.”
This provision has a special place in the Constitution. It puts an end to the socially discriminatory practice of “untouchability”.
The Consequences of Untouchability Practice
Dr Ambedkar described the impact of “untouchability” as follows:
“The word untouchable is an epitome of their ills and sufferings. Not only has untouchability arrested the growth of their personality but also it comes in the way of their material well-being. It has also deprived them of certain civil rights… The untouchable is not even a citizen.”[1]
Untouchability and caste discrimination led to “severe social and economic disabilities and cultural and educational backwardness” of the untouchables.[2]
Throughout history, “the oppressive nature of the caste structure has denied to those disadvantaged castes the fundamentals of human dignity, human self-respect and even some of the attributes of the human personality”.
As a system, it enforced “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.”[3]
Article 17 is a constitutional sanction against discrimination. It “strikes at caste-based practices built on superstitions and beliefs that have no rationale or logic.”[4]
Components of Article 17
Article 17 has several components.[5] It abolishes the practice of “untouchability”. At the same time, it prohibits “its practice in any form”. Furthermore, “enforcement of any disability” arising out of “Untouchability”” is a criminal offense as per the “law”. The meaning of “law” is any legislation enacted to tackle any practice or disability arising out of “untouchability”.[6] It is a provision that can be implemented both against the State and non-state actors such as the citizens.[7]
Moreover, the framers of the Constitution did not refer to any religion or community in the text of the provision.[8] “The injunction against untouchability under Article 17” is further “strengthened by taking away the subject-matter from State domain and placing it as an exclusive legislative head to Parliament.”
In his concurring opinion in State of Karnataka v. Appa Balu Ingale,[9] Justice K. Ramaswamy discussed the basis of Article 17. “The thrust of Article 17”, it was held, “is to liberate the society from blind and ritualistic adherence and traditional beliefs which lost all legal or moral base”.
Furthermore, Article 17 “seeks to establish a new ideal for society — equality to the Dalits, on a par with general public”, which would give them “a sense of being a participant in the mainstream of national life”.
Constitutional vision behind Article 17 and its impact
The constitutional vision behind Article 17 and its impact was extensively discussed in the concurring opinion authored by Justice DY Chandrachud in Indian Young Lawyers Association v. State of Kerala.[10] It was held that Article 17 was made a part of fundamental rights to fulfil the constitutional mandate of equality:
“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… 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.” The judgment stated that “untouchability” is “a symptom” of the “caste system” and the interconnected notions of “purity and pollution”, which are rejected by Article 17. It was noted:
“While the top of the caste pyramid is considered pure and enjoys entitlements, the bottom is considered polluted and has no entitlements. Ideas of “purity and pollution” are used to justify this distinction which is self-perpetuality. The [so-called] upper castes perform rituals that, they believe, assert and maintain their purity over lower castes. Rules of purity and pollution are used to reinforce caste hierarchies. The notion of “purity and pollution” influences who people associate with, and how they treat and are treated by other people.”
Article 17 rejects such notions of purity and pollution. It strikes at the heart of the caste system, which manifests in discriminatory practices based on the notions of purity and pollution. It was further held:
“The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries’ old struggle of social reformers and revolutionaries. It is a move by the Constitution makers to find catharsis in the face of historic horrors. It is an attempt to make reparations to those, whose identity was subjugated by society. Article 17 is a revolt against social norms, which subjugated individuals into stigmatised hierarchies. By abolishing “untouchability”, Article 17 protects them from a repetition of history in a free nation.
The background of Article 17 thus lies in protecting the dignity of those who have been victims of discrimination, prejudice and social exclusion. Article 17 must be construed from the perspective of its position as a powerful guarantee to preserve human dignity and against the stigmatization and exclusion of individuals and groups on the basis of social hierarchism.”
The concurring opinion examined the Constituent Assembly Debates to conclude that the framers deliberately left the term “untouchability” in Article 17 undefined, as they wanted to give the provision a broad scope:
“The Constitution has carefully eschewed a definition of “untouchability”. The draftspersons realised that even a broadly couched definition may be restrictive. A definition would become restrictive if the words used or the instances depicted are not adequate to cover the manifold complexities of our social life through which prejudice and discrimination is manifest.
Hence, even though the attention of the Framers was drawn to the fact that “untouchability” is not a practice referable only to the lowest in the caste ordering but also was practised against women (and in the absence of a definition, the prohibition would cover all its forms), the expression was designedly left undefined…
The Constitution as a constantly evolving instrument has to be flexible to reach out to injustice based on untouchability, in any of its forms or manifestations. Article 17 is a powerful guarantee against exclusion. As an expression of the anti-exclusion principle, it cannot be read to exclude women against whom social exclusion of the worst kind has been practised and legitimised on notions of purity and pollution.”
Article 17 was interpreted broadly to declare that the practice of excluding menstruating women from visiting the temple is based on the notions of purity and pollution, which arise from the caste system, and the practice was thus unconstitutional.
Summing Up
Article 17 enunciates that everyone is born equal. There cannot be any stigma attached to the existence, touch or presence of any person. By way of Article 17, our Constitution strengthens the equality of status of every citizen.
From time to time, to implement the mandate of Article 17, Parliament has enacted several legislations such as the Untouchability (Offenses) Act, 1955 (later renamed as Protection of Civil Rights Act, 1955), Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter “PoA Act”), Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, and Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013.
Supreme Court, in a number of cases, has upheld the validity of these laws. The laws enacted under Article 17 aim to provide dignity to the affected individuals.
Reference
Sukanya Shantha v. Union of India (2024)
[1] B.R. Ambedkar, “Evidence Before the Southborough Committee”, in Dr Babasaheb Ambedkar: Writings and
Speeches, Vol. 1, p. 256
[2] Soosai v. Union of India, 1985 Supp SCC 590
[3] State of Karnataka v. Appa Balu Ingale, 1995 Supp (4) SCC 469
[4] Adi Saiva Sivachariyargal Nala Sangam v. State of Tamil Nadu, (2016) 2 SCC 725
[5] Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1 [Justice Chandrachud]
[6] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
[7] Kaushal Kishor v. State of Uttar Pradesh, (2023) 4 SCC 1
[8] Janhit Abhiyan v. Union of India, (2023) 5 SCC 1 [Dissenting opinion of Justice Ravindra Bhat on behalf of Chief
Justice Lalit and himself]
[9] 1994 SCC (Cri) 1762
[10] (2019) 11 SCC 1