IN-DEPTH MEANING OF UNTOUCHABILITY UNDER ARTICLE 17 AND CONSTITUTIONAL SCHEMES RELATING TO PROHIBITION OF UNTOUCHABILITY UNDER PART III

Introduction

Article 17[1] of the Indian Constitution deals with “Untouchability”. The framers of the Indian Constitution have not defined ‘Untouchability’ anywhere in the constitution, and this measure was deliberately taken by the constituent assembly in the year 1948. Untouchability is prevalent in India, for ages, be it before the British period or after them, be it before independence or after independence, it was always there among us. Before Independence, there were no specific laws for it but after independence, the members of the drafting committee brought up Untouchability under article 17 of the Indian Constitution and abolished it in any form. The members of the drafting committee deliberately put “Untouchability” in inverted commas so that parliament can interpret and define it in any manner they want. It was said in Devaraijah that, ‘according to the law and the meaning of Untouchability is not just confined to the literal or grammatical meaning of the word but it has a much wider ambit.’[2] Article 17 intends to give a broad sweep to theming of Untouchability, by talking about the practice in any form and by prohibiting disabilities that arise out of Untouchability.

Article 17 tries to prohibit Untouchability in its widest amplitude. Abolition of Untouchability tries to mainstream the group of people who were always at the bottom and faced Untouchability for example Dalits or people from the minority community. Untouchability can be literal; it can be stereotypical notions of purity and pollution and thus this attaches a kind of stigma to the physical bodies of the certain group of people who faces Untouchability and thus, they face indignity, humiliation, and several other ritual forms of exclusion. Literal Untouchability can be the ritualistic, stereotypical exclusion to the physical body of certain groups of people. Untouchability in terms of social exclusion from civic rights is not only because somebody is accorded a higher or lower status, but the consequences of this accordance of status are very real and material, in terms of distributing rights, privileges, resources, or access to resources in society.

Precedents

In the Indian Young Lawyers Association, it was mentioned that one of the members of the constituent assembly, Promatha Ranjan Thakur, observed that “untouchability” cannot be abolished without abolishing the caste system, since “untouchability” is its symptom.”[3] The very root cause of untouchability was the caste system, which was and that still is being followed in India. People are not viewed equally; they are separated due to the caste system.

Dr. B R Ambedkar’s viewpoint

Dr. B R Ambedkar in his “Annihilation of Caste” referred to the idea of graded inequality. He said that we have a gradation of caste in the caste system, those at the top have uniform privileges and enjoy entitlements and the ones at the bottom have uniform disadvantages and have no entitlements and thus face a violation of their dignity. In Caste System the rights and privileges, advantages, and disadvantages are distributed in a graded manner, according to the location that the one occupies in the caste hierarchy. Therefore, U as exclusion from civic rights like housing, water, livelihood, marketplaces, wells, rivers, hospitals, temples, and many more are provided only to the privileged ones and are denied to others according to the graded society.

Not only social exclusions but also social exclusion from social relationships is faced by the people. According to the caste order, the family relationships, marital relationships, friends are arranged in such a manner that castes become an enclosed unit, where two persons from different caste cannot marry each other there is a lack of interaction with those who do not belong to our caste. There was always a clash between thinking of Ambedkar and Gandhi on caste, untouchability. On one hand, Gandhi used to say that nobody should be considered to be impure, nobody should be stigmatized but he also sees, merit in the caste system, he referred to the caste system as a scientific division of labor within society. But Ambedkar used to say that the problem is not just Untouchability, but the problem is the whole caste system, which brought up the problem of humiliation and stigmatization faced by people in form of Untouchability.

On what basis does the caste system divide people?

It divides people based on birth. If the caste system was based on individual merit, then there would have been mobility among castes, it would be possible for somebody whose father is a carpenter to then join the priests. But this doesn’t happen. In Ambedkar’s article “Annihilation of Caste” he said that there should be open examinations for the priest, why should be it based on your birth, it should be based on an individual’s merit. So, in Ambedkar’s vision the problem is not because of Untouchability, he possesses a radical alternative of destroying the caste system. In the Sabrimala judgment, it was said that Untouchability is a practice that stigmatizes certain bodies based on notions of purity and pollution, which inflicts humiliation and social exclusion groups of people, and is inherently opposed to human dignity.

Article 17 is abolishing social exclusion from civic rights, it talks about something broader than literal Untouchability, it talks about the disabilities arising out of Untouchability, like civil rights and obligations. Untouchability is not defined Article 17 intends to give a broad sweep to theming of Untouchability, by talking about the practice in any form and by prohibiting disabilities that arise out of Untouchability. It’s not simply our ritualistic literal sense but extended to covering issues of civic and religious rights. According to Ambedkar, the caste system is not ritualistic but it has civic consequences, it has consequences on rights, dignity, and fraternity. Ambedkar said that the caste system and Hindu society are antithetic to the fraternity.

  • Article 15(2)[4] addresses exclusions from civil rights.
  • Article 23(1)[5] addresses economic rights (right against exploitation).
  • Article 25(2)(B)[6] addresses religious or ritualistic exclusions.

Hence, Article 15(2), Article 23(1), Article 25(2)(B) forms a new golden triangle against social exclusions.

Untouchability faced by manual scavengers in India

Article 17 while saying that Untouchability in any form means, that we have to cover the widest amplitude of the practice. Then further it means that Untouchability is not simply the ritualistic idea of purity and pollution, but the disabilities it causes liabilities, constraints, or restrictions that arise out of Untouchability.

Prohibition of Employment as Manual Scavengers and their Rehabilitation Act,2013[7]– An Act that is made for the prohibition of employment as manual scavengers, rehabilitation of manual scavengers and their families, and for matters connected therewith or incidental thereto. The act forbids the employment of any person performing as a manual scavenger. Manual Scavengers are people who handle human excreta in an insanitary latrine or an open drain or pit. Besides all these things manual scavenging still exists in India and has always been a caste-based exercise, majorly practiced by Dalit people throughout India, it is not a practice that is willingly taken by them but is forced by the higher system. Manual Scavenging not being a caste-based exercise but still indirectly has become a caste-based exercise, performed by lower caste Dalit people. If a person who belongs to a Dalit community is a manual scavenger, then it becomes their family tradition that after father and mother, the son and daughter will carry on the same thing and become manual scavengers soon due to lack of other options, and severe barriers to mobility. The story does not stop here. Dalit people are manual scavengers and face untouchability too at the same point which is also illegal in India. Untouchability is being abolished in India, manual scavenging is being abolished in India but both of these things are still being faced by Dalit people. What an irony is this!

Conclusion

If we abolish Untouchability, in all forms we will be able to transform the traditional and hierarchical social order into a modern, more approachable, and more open environment. It will open up the way for recognition of the marginalized communities and individuals, who suffer a lot because of untouchability and the caste system.

Author(s) Name: Kavya Shukla (OP Jindal Global University, Sonipat)

References:

[1] Constitution of India, 1950, art. 17

[2]Devarajiah v B. Padmanna AIR 1958 Kant 84

[3]Indian Young Lawyers Assn. v State of Kerala 2018 SC 1690

[4] Constitution of India, 1950, art. 15(2)

[5] Constitution of India, 1950, art. 23(1)

[6] Constitution of India, 1950, art. 25(2) (B)

[7] Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013