“Untouchability” in any form is forbidden. The operation of the words used by the Constitution cannot be confined to a particular form or manifestation of “untouchability”. 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.
The provisions of Article 17 have been adverted to in judicial decisions.
Judicial decisions
In Devarajiah v B Padmanna (1958), a learned single judge of the Mysore High Court observed that the absence of a definition of the expression “untouchability in the Constitution and the use of inverted commas indicated that “the subject- matter of that Article is not untouchability in its literal or grammatical sense but the practice as it had developed historically in this country”. The learned single judge held:
“18.Comprehensive as the word ‘untouchables’ in the Act is intended to be, it can only refer to those regarded as untouchables in the course of historical development. A literal construction of the term would include persons who are treated as untouchables either temporarily or otherwise for various reasons, such as their suffering from an epidemic or contagious disease or on account of social observances such as are associated with birth or death or on account of social boycott resulting from caste or other disputes.”
In Jai Singh v Union of India (1993), a Full Bench of the Rajasthan High Court followed the decision of the Mysore High Court in Devarajiah while upholding the constitutional validity of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.
In State of Karnataka v Appa Balu Ingale (1995), a two judge Bench of Supreme Court traced the origins of untouchability. The court held that “untouchability is an indirect form of slavery and only an extension of caste system”. The court held:
“36. The thrust of Article 17 and the Act is to liberate the society from blind and ritualistic adherence and traditional beliefs which lost all legal or moral base. It seeks to establish a new ideal for society – equality to the Dalits, on a par with general public, absence of disabilities, restrictions or prohibitions on grounds of caste or religion, availability of opportunities and a sense of being a participant in the mainstream of national life.”
In Adi Saiva Sivachariyargal Nala Sangam v Government of Tamil Nadu (2016), a two judge Bench construed Article 17 in the context of exclusionary caste based practices:
“47. The issue of untouchability raised on the anvil of Article 17 of the Constitution stands at the extreme opposite end of the pendulum. Article 17 of the Constitution strikes at caste-based practices built on superstitions and beliefs that have no rationale or logic…”
Protection of Civil Rights Act 1955
While these judgments focus on “untouchability” arising out of caste based practices, it is important to note that the provisions of Article 17 were enforced by means of the Protection of Civil Rights Act 1955 [earlier known as the Untouchability (Offences) Act]. Clauses (a) and (b) of Section 3 penalise the act of preventing any person from entering a place of public worship and from worshiping or offering prayers in such a place. Section 3 reads thus:
“Section 3 – Punishment for enforcing religious disabilities: Whoever on the ground of “untouchability” prevents any person—
(a) from entering any place of public worship which is open to other persons professing the same religion of any section thereof, as such person; or
(b) from worshipping or offering prayers or performing any religious service in any place of public worship, or bathing in, or using the waters of, any sacred tank, well, spring or water- course [river or lake or bathing at any ghat of such tank, water-course, river or lake] in the same manner and to the same extent as is permissible to the other persons professing the same religion or any section thereof, as such person, [shall be punishable with imprisonment for a term of not less than one month and not more than six months and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees].
Explanation: For the purposes of this section and section 4 persons professing the Buddhist, Sikh or Jaina religion or persons professing the Hindu religion in any of its forms or developments including Virashaivas, Lingayats, Adivasis, followers of Brahmo, Prarthana, Arya Samaj and the Swaminarayan Sampraday shall be deemed to be Hindus.”
Section 4 contains a punishment for enforcing social disability:
“Section 4 – Punishment for enforcing social disabilities: Whoever on the ground of “untouchability” enforces against any person any disability with regard to—
(v) the use of, or access to, any place used for a charitable or a public purpose maintained wholly or partly out of State funds or dedicated to the use of the general public or [any section thereof]; or
(x) the observance of any social or religious custom, usage or ceremony or [taking part in, or taking out, any religious, social or cultural procession]; or [Explanation.–For the purposes of this section, “enforcement of any disability” includes any discrimination on the ground of “untouchability”.].”
Section 7 provides for punishment for other offences arising out of untouchability. Section 7(1)(c) criminalises the encouragement and incitement to the practice of untouchability in “any form whatsoever”.
Explanation II stipulates that: For the purpose of clause (c) a person shall be deemed to incite or encourage the practice of “untouchability”—
(i) if he, directly or indirectly, preaches “untouchability” or its practice in any form; or
(ii) if he justifies, whether on historical, philosophical or religious grounds or on the ground of any tradition of the caste system or on any other ground, the practice of “untouchability” in any form.]”
“Untouchability” as such is not defined. Hence, a reference to “untouchability” must be construed in the context of the provisions of the Civil Rights Act to include social exclusions based on notions of “purity and pollution”.
Reference
Indian Young Lawyers Association v. Union of India (2018)