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”

Definition of Untouchability

The refusal of the Constituent Assembly to provide any definite meaning to “untouchability” (despite specific amendments and proposals voicing the need for a definition) indicates that the framers did not wish to make the term restrictive. The addition of the words “in any form” in the initial draft prepared by the Sub-Committee on Fundamental Rights is an unambiguous statement to the effect that the draftspersons wanted to give the term “untouchability” a broad scope.

A reconstruction of the proceedings of the Constituent Assembly suggests that the members agreed to the Constitutional Advisor’s insistence that the law which is to be enacted for implementing the provision on “untouchability” would provide a definition of the term.

The struggle for social emancipation with struggle for Independence

Besides the struggle for independence from the British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is the end product of both these struggles. It is the foundational document, which in text and spirit, aims at social transformation namely, the creation and preservation of an equal social order.

The Constitution represents the aspirations of those, who were denied the basic ingredients of a dignified existence. It contains a vision of social justice and lays down a roadmap for successive governments to achieve that vision. The document sets out a moral trajectory, which citizens must pursue for the realization of the values of liberty, equality, fraternity and justice. It is an assurance to the marginalized to be able to rise to the challenges of human existence.

The Constituent Assembly was enriched by the shared wisdom and experiences gathered by its members from the ongoing social struggle for equality and justice. In particular, as the Chairman of the Drafting Committee, Dr Ambedkar brought with himself ideas, values and scholarship, which were derived from the experiences and struggles which singularly were his own. He drew as well from other social reformers in their movements against social injustice. Some of these experiences and literature ought to be discussed in order to understand the vision behind the philosophy of the Constitution and, particularly, Article 17.

B.R. Ambedkar’s Struggle against Untouchability

Having himself faced discrimination and stigmatization, Dr Ambedkar had launched an active movement against “untouchability”. In 1924, he founded the Bahishkrut Hitkarani Sabha, aimed at advancing the rights of those who were neglected by society. Over the following years, Dr Ambedkar organised marches demanding rights for untouchables to drinking water from public resources, and their right to enter temples. These movements were part of the larger demand of equality for the untouchables.

In his profound work, “Annihilation of Caste”, while advocating the destruction of the caste system, Dr Ambedkar recorded some of the “untouchability” practices by which the Untouchables were subjected to inhuman treatment: “Under the rule of the Peshwas in the Maratha country, the Untouchable was not allowed to use the public streets if a Hindu was coming along, lest he should pollute the Hindu by his shadow. The Untouchable was required to have a black thread either on his wrist or around his neck, as a sign or a mark to prevent the Hindus from getting themselves polluted by his touch by mistake.

In Poona, the capital of the Peshwa, the Untouchable was required to carry, strung from his waist, a broom to sweep away from behind himself the dust he trod on, lest a Hindu walking on the same dust should be polluted. In Poona, the Untouchable was required to carry an earthen pot hung around his neck wherever he went—for holding his spit, lest his spit falling on the earth should pollute a Hindu who might unknowingly happen to tread on it.”

His autobiographical notes published after his death with the title “Waiting for a Visa”, contain reminiscences drawn by Dr Ambedkar on his own experiences with “untouchability”. Dr Ambedkar mentions several experiences from his childhood. No barber would consent to shave an untouchable. During his days as an Officer in Baroda State, he was denied a place to stay in quarters. In another note, which was handwritten by Dr Ambedkar and was later published with the title “Frustration”, he wrote:

“The Untouchables are the weariest, most loathed and the most miserable people that history can witness. They are a spent and sacrificed people… To put it in simple language the Untouchables have been completely overtaken by a sense of utter frustration. As Mathew Arnold says “life consists in the effort to affirm one’s own essence; meaning by this, to develop one’s own existence fully and freely… Failure to affirm ones own essence is simply another name for frustration… ”

Many people suffer such frustrations in their history. But they soon recover from the blight and rise to glory again with new vibrations. The case of the Untouchables stands on a different footing. Their frustration is frustration for ever. It is unrelieved by space or time. In this respect the story of the Untouchables stands in strange contrast with that of the Jews.”

In his writing titled “Slaves and Untouchables”, he described “untouchability” to be worse than slavery. In his words: “.. Untouchability is obligatory. A person is permitted to hold another as his slave. There is no compulsion on him if he does not want to. But an Untouchable has no option. Once he is born an Untouchable, he is subject to all the disabilities of an Untouchable… [U]ntouchability is an indirect and therefore the worst form of slavery… It is enslavement without making the Untouchables conscious of their enslavement.”

Dr Ambedkar’s thoughts and ideas bear an impact of other social reformers who preceded him, in particular Jyotirao Phule and Savitribai Phule. In 1873, in the preface to his book titled “Gulamgiri” (Slavery), Jyotirao Phule made a stinging critique on the cause of “untouchability”:

“[The] Sudras and Atisudras were regarded with supreme hatred and contempt, and the commonest rights of humanity were denied [to] them. Their touch, nay, even their shadow, is deemed a pollution. They are considered as mere chattels, and their life of no more value than that of meanest reptile… How far the Brahmins have succeeded in their endeavours to enslave the minds of the Sudras and Atisudras… For generations past [the Sudras and Atisudras] have borne these chains of slavery and bondage… This system of slavery, to which the Brahmins reduced the lower classes is in no respect inferior to that which obtained a few years ago in America.

In the days of rigid Brahmin dominancy, so lately as that of the time of the Peshwa, my Sudra brethren had even greater hardships and oppression practiced upon them than what even the slaves in America had to suffer. To this system of selfish superstition and bigotry, we are to attribute the stagnation and all the evils under which India has been groaning for many centuries past.”

Savitribai Phule expresses the feeling of resentment among the marginalized in form of a poem: “Arise brothers, lowest of low shudras wake up, arise. Rise and throw off the shackles put by custom upon us. Brothers, arise and learn… We will educate our children and teach ourselves as well. We will acquire knowledge of religion and righteousness. Let the thirst for books and learning dance in our every vein. Let each one struggle and forever erase our low-caste stain.”

The value of Article 17

The consistent discourse flowing through these writings reflects a longstanding fight against subjugation and of atrocities undergone by the victims of an unequal society. Article 17 is a constitutional recognition of these resentments. 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.

The Constitution has designedly left untouchability undefined. Any form of stigmatization which leads to social exclusion is violative of human dignity and would constitute a form of “untouchability”.

Reference

Justice Rohinton F. Nariman in Indian Young Lawyers Association v. Union of India (2018)

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