UNTOUCHABILITY AND ARTICLE 17: A HISTORICAL ANALYSIS
Author: Sakshi Soni, III year of B.A.,LL.B.(Hons.) from School of Law, NMIMS Indore
“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 the society.”
-Justice D.Y. Chandrachud
Untouchability, an ancient form of discrimination based upon caste, is a complex and pervasive problem within India, although its practice is not limited to India alone. The discrimination is so inhumane that it made the Dalits to believe that they are responsible for their own exclusion and suffering, internalizing the beliefs that they perpetuate the practice untouchability. The practice of untouchability has marginalised, terrorized and relegated a sector of Indian society to a life larked by the violence, humiliation and indignity. The biggest paradox of the world’s largest democracy is that a particular section of society i.e. dalits are still fighting for their equal rights. The practice of untouchability and caste discrimination remains a stark contrast to the idea of India. Untouchability a “hidden apartheid” remains an extremely sensitive issue within country which never fully defines, never fully explored and thus, never fully understood. Since 2001, with the United Nations World Conference against Racism held in Durban, South Africa the caste- based discrimination and untouchability had become an extremely sensitizing issue for the world. United Nations has consistently raised awareness on every kind of human right violation. Article 1 of the Declaration of Human Rights adopted by the U.N.O. declares that “All the human beings are born free and in equal dignity and rights, they are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”.
Despite the increasing domestic and international concern over untouchability, a constitutional prohibition against it, laws that implement this constitutional prohibition and international human rights watch, the life of many Dalits seems unchanged. The discriminatory regime of untouchability remains unshakable.
From the time immemorial, Untouchables have been deprived even of their basic human rights. Dr Ambedkar the Chief Architect of the Indian Constitution was elected as chairman of the Drafting Committee for preparing a draft Constitution of India on August 30, 1947. In his closing speech on the Draft constitution delivered on November 25, 1949 he said: “What we must do is not to be attained with mere political democracy; we must make our political democracy a social democracy as well. Political Democracy cannot last unless there lies on the basis of it as social democracy.” Further in his speech he said “Social democracy means a way of life which recognizes liberty, equality and fraternity as principles of life.” They are not separate items in a trinity but they form union of trinity. To diverse one from the other is to defeat the very purpose of democracy. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things.” The disabilities to which Dalits were subjected have been outlawed and subjecting them to those disabilities would be violative of the Part III and IV of the Constitution.The main thrust of Article 17 is to liberate the society from blind and ritualistic adherence and traditional beliefs. It seeks to establish a new and ideal society.
DEFINITIONAL ASPECT: ‘UNTOUCHABILITY’
Article 17. Abolition of Untouchability: - “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.The word ‘Untouchability’ has not been defined in this article. Similar is the case with the Protection of Civil Rights Act, 1955, in which ‘Untouchability’ is nowhere defined. However, Mahatma Gandhi in ‘My Philosophy of Life’ stated that ‘untouchability means pollution by the touch of certain persons by reasons of their birth in a particular state of family. It is a phenomenon peculiar to Hinduism and has got no warrant in reasons or sastras.”According to Dr Ambedkar, “The untouchability is the notion of defilement, pollution, contamination and the ways and means of getting rid of that defilement. It is a permanent hereditary stain which nothing can cleanse.”
ORIGIN OF UNTOUCHABLES
When discussing the practice of untouchability, it is very important to trace its origin and how the stigma of being ‘untouchable’ get attached with a particular section of the society. Based on Hindu beliefs, Principle of Varna-Ashrama-Dharmastructured the Indian society into four castes called Brahmans, Kshatriya, Vaisyas, and Shudras and one additional caste called the Untouchable. The principle of Chaturvarna is first mentioned and elaborated in the Purusha Sukta, the tenth and last Hymn of the Rig Veda. The glimpses of this concept can also be seen in the Atharva Veda and the Yajur Veda. According to the Purusha Sukta, when the God Prajapati created the world, he divided Purusha, a comic man who is immortal and diffused everywhere over things and universe, into many parts and from each part, a category of people was produced. As Ambedkar also stated, “The Brahmans were his mouth; the Rajanya were his arms; the being called the Vaisyas were his thighs; and the Shudras sprang from his feet.”Brahmans were recognized as the superioramong all castes, the Kshatriyas were placed next in the hierarchy, the Vaisyas lower than the Kshatriyas, and the Shudras were given lowest place. This hierarchy of castes had been supported and propagated by the sutra writers and finally laid down in the Law of Manu. Manusmriti, the main architect of the Hindu society, confirmed the divine injunction of what had been set out in the Purusha Sukta and enunciated the duties of each caste specifically, as follows:
For the Brahmins, he mentioned teaching, study, sacrifices and sacrificing (as priests) for others, also giving and receiving gifts.
For the Kshatriyas, he ordered defence of the people, sacrifice, study and absence of attachment to object of sense.
Tending of cattle, giving (alms, sacrifice, study, trade and agriculture) for Vaishyas.
Only one duty was assigned to Shudras, serve to those classes without grudging.
On the basis of origin and by particular sacrament, these four castes are distinguished. The first three castes i.e. Brahmans, Kshatriya and Vaishya are called Dvija, twice born whereas the last caste, the Shudras does not the sacraments, so they are non- Dvija or once- born. The nature of caste system is vey rigid, as it based on birth and unalterable. The caste system established the superiority of Brahmans and provided them the title of ‘God on earth’. Shudras were given the lowest position in this social hierarchy. Hindu civilization has further produced a fifth varna or panchama called the Untouchables who are excluded from the caste system and excluded from the society whose touch are enough to cause impurity. Both Shudras and Untouchables belong to non- Dvija. The only distinction marked between the Shudras and Untouchables is that, Shudras are still considered as human beings whereas untouchables are not even recognized as humans and receive sub- human status. The term Untouchable is essentially derived from the notions of defilement, pollution, and contamination.
Jawahar Lal Nehru in Discovery of India, stated that Indian social structure had degraded a mass of human beings and given them no opportunities to get out of that condition- educationally, culturally and economically.
STRUGGLE FOR IDENTITY
“Raidas ek boond saun, tabhi machau vichaar,
Moorakh hain jo karat hai, baran- abaran vichar.”
(Ravidas says that it is foolish to know about caste of a person, as human being is a small unit created by the God. He compares him with a small drop.)
Saints of medieval period of Indian history are known for cultural protest. The saints like Ravidas, Kabir, Malukdas and Navaldas raised their voices against slavery, untouchability, exploitation, caste system, blind faiths, idolatry and prohibition of entry of dalits in public places. The Untouchables referred as one of the Depressed Classes by the Indian government from the middle of 19th century. In 1935, the Government of India Act introduced the term “Scheduled Castes” which incorporated the untouchables in the scheduled (list) of castes which provided for reserved seats throughout the British Administered provinces. Ambedkar also wanted to give the untouchables a nomenclature of the Avarna or ‘Protestant Hindus’. However, it is evident that he often used ‘ Scheduled Castes’ in writing and oral statements like in Simon Commission 1928, Round Table Conferences of 1930- 1932 and in many more summits. More, often than not, he preferred to address them as the Untouchables to remind them of their plight as dehumanised people.
Gandhi gave another dimension of their identities. He called them ‘Harijans’ or ‘Children of God’ however many studies revels that this term is not accepted by the people of this section because Mahatma Gandhi advocated the caste system. In addition, they did not like the word ‘Harijan’ because it is also used to refer to the fatherless children of temple prostitutes. Untouchables started to address themselves Dalits. The term Dalit is rooted in Marathi language which means ‘suppressed and exploited people.’ Dr Ambedkar also used this to represent the Untouchables. They were also called as Pariahs or outcastes who had been excluded by the Caste Hindus from the Varna System.
However, Dalit gained greater recognition with the establishment of the Dalit Panther Political Party founded by Namdev Dhasal, J.V Pawar and others in April 1972 in Mumbai. Dalit Panthers were ideologically aligned with the Black Panthers Party, a social organisation fighting against racism in United States. They gained prominence during the 70’s and 80’s after the Republican Party founded by Dr B.R. Ambedkar split into multiple factions. In 1984, with the emergence of the Bahujan Samaj Party (BSP), the more inclusive term Bahujana came to refer the Scheduled Castes, Scheduled Tribes and the other Backward Castes to the Untouchables. The Untouchables were also addressed by many other names such as Dasa, Dasyu, Chandala, Panchama and Adisudra. Despites the various names and labels given to Untouchables, their lives remain still oppressed, deprived and disabled.
CONSTITUTIONAL RIGHT AND CONSTITUTIONAL VISION: ARTICLE 17
“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, Constitution of India
Article 17 firstly makes a declaration for the abolition of untouchability and prohibits its practice in any form.
Secondly, it declares that the enforcement of any disability arising out of untouchability is to be an offence punishable in accordance with the law. This part of the article should be read with Article 35 of the Constitution which empowers the Parliament to make appropriate laws punishing as offence every act of individuals or groups which tantamount to applying disability arising out of untouchability.
The main thrust of Article 17 is to liberate the society from blind and ritualistic adherence and traditional beliefs. It seeks to establish a new and ideal society. The disabilities to which Dalits were subjected, have been outlawed and subjecting them to those disabilities would be violative of the Part III and IV of the Constitution.
However, the term “Untouchability” is nowhere defined. Article 17 of the Constitution is on the lines of the provisions of Article 2 of the Universal Declaration of Human Rights. It is a very important and significant provision from the point of view of equality before law. It guarantees social justice and dignity of man, the twin privileges which were denied to a vast section of the Indian society for centuries together. According to Dr Durga Das Basu Article 17 is one of the few anomalous provisions included in Part III of our Constitution. The reasons cited by him are:
1. Firstly, Untouchability arises out of the conduct of private individual and can hardly be committed by the State. Article 17 is practically levelled against private conduct and has little place in public law. Of course, it envisages a law to implement and the Article to be made by the Parliament [Art. 35 (a) (ii)] but that is only enabling provision. The only justification for its inclusion in Part III as against State action may be that any law made before the Constitution which might be inconsistent with the abolition of untouchability would be void under Art. 13 (1).
2. Secondly, Article 17 does not establish any right in favour of the person against whom untouchability have been practised but merely, forbids an action on the part of the wrongdoer and prescribes namely that he will be punishable according to a law to be made by Parliament.
In Deverajia v Padmanna, hon’ble court observed that untouchability refers to the social disabilities historically imposed on certain classes of the people by reason of their birth in certain castes and would not include an instigation of social boycott by reason of the conduct of certain persons. Therefore, the term “untouchability” under Article 17 has been used under the inverted comas because the subject matter of Article 17 is not untouchability in its literal or grammatical sense, but the practice as it had developed historically in this country and that the word “untouchability” is used in that sense in this Article.
Article 17 is a prospective legislation and laws in force in the state before the commencement of the constitution are specifically saved, up to the extent they are not repugnant of this Article, and are to continue until altered, repealed or modified or amended by the Parliament.
THE PROTECTION OF CIVIL RIGHTS ACT
With an eye to eradicate pervasive discrimination practised against scheduled caste members, the Central Government of India enacted the Protectionof Civil Rights Act, 1955 (PCR Act) to enforce the abolition of “untouchability” under Article 17 of the constitution. The PCR Act punishes offences that amount to the observance of “untouchability”. These include, inter alia, prohibiting entry into places of worship, denying access to shops and other public places, denying access to water supply, prohibiting entry into hospital, refusing to sell goods or water services, and insulting someone on the basis of his or her caste.
PREVENTION OF ATROCITIES ACT, 1989
In 1989 the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was enacted to prevent and punish caste- based abuses, to establish special courts for the trial of such offences and to provide for victim relief and rehabilitation. The enactment of this act acknowledged the fact that abuses in their most violent and degrading form were still perpetrated against Dalit’s decades after independence. The offences which are made punishable by this act depicts the retaliatory and customarily degrading treatment Dalits faced in daily lives. The offences include : forcing members of a scheduled caste to drink or eat any inedible or obnoxious substance; dumping excrement, waste matter, carcasses or any other obnoxious substance in their premises or neighbourhood; forcibly removing their cloths and parading them naked or with painted face or body; interfering with their rights to land; compelling a member of a scheduled caste into bonded labours; corrupting or fouling the water any spring, reservoir or any other source ordinarily used by scheduled castes; denying right of passage to a place of public resort; and using a position of dominance to exploit a scheduled caste woman sexually.
HON’BLE COURTS JURISPRUDENCE ON UNTOUCHABILITY
Ambedkar said “If Untouchability is a sinful and immoral custom in the view of the Depressed classed it must be destroyed without any hesitation even if it was acceptable to the majority. This is the way in which all customs are dealt with by Courts of Law, if they find them to be immoral and against public policy.” The courts of India, have always followed the above dictum of Dr Ambedkar in order to deal with the cases related to untouchability.
In Surya Narayan Choudhary v State of Rajasthan, Rajasthan High Court strongly disapproved the prevailing practice of purification of Dalits alone before permitting them to enter into the temple for worship by making them wear ‘Kanthimala’, sprinkling ‘gangajal’ over them and giving them ‘tulsidal’. The court ordered that the practice shall be discontinued as it violates the Article 14, 15, and 17 of the Constitution. C.J J.S. Verma in this case observed that “It is tragic that on the eve of Gandhi Jayanti we are debating a Harijans right to enter a public temple for worship as an equal; and directions of the Court be needed for enforcement of this right to equality. All men are born equal and the classification between them thereafter is manmade and artificial against the divine dictate. To present them as unequal before God is, therefore, injustice and an insult to our Maker besides being contrary to the guarantee and mandate of equality in our constitution and basic human right.”
J. Subba Rao, in Basheshar Nath v Commissioner of Income Tax Delhi & Rajasthan, observed that “Article 17 illustrates the evil repercussion of the doctrine of waiver in its impact on the fundamental rights. That article in express terms forbids untouchability; obviously a person cannot ask the State to treat him as an untouchable.”
Rajasthan High Court in Jay Singh v Union of India discussed that Article 17 of the Constitution is similar to the 13th Amendment of the Constitution of the United States of America which abolished slavery. The Supreme Court in People’s Union for Democrat Rights v Union of India held that the fundamental right under Article 17 of the constitution is available against private individual and it is the duty of the state to ensure that this fundamental right does not get violated. In Bangalore W.C and Silk Mills v Mysore State, the high court held that imposition of ‘untouchability” has no relation to the cause s which regulate certain classes of people beyond the pale of Caste estimate.
Dr Ambedkar captured,the Dalit struggle as, “is a battle not for wealth or for power. It is a battle for freedom. It is a battle for the reclamation of human personality.”
Faced with abject poverty, oppression, exploitation and fear of the higher castes from whichthey earn their livings, Dalits have a very difficult time reporting atrocities, or otherviolations of law, and realizing their constitutional right to non-discrimination.The law as a mechanism for achieving social change has fallendrastically short of delivering on its paper promise of ensuring equality.Among Dalits, the “Haves” are few and the “Have-Nots” aregreat. Regardless of class status, none have escaped the confiscation oftheir very persona or realized their right to self- determination in the mostprofound sense of the term: they remain stateless in their own countryand robbed daily of human dignity.The failure to address the inadequacies of the legal and reservation system implicate theGovernment of India’s human rights obligations.India’s remarkable affirmation of Dalit rights throughconstitutional privileges and legislative protections is a double-edgedsword. On the one hand, it lays the foundation for real socialtransformation. On the other hand, it masks the daily reality of de factosegregation, exploitation, and other forms of abuse by discouragingfurther scrutiny into the condition of Dalits.Despite a large body of legislation andadministrative agency mandates assigned exclusively to deal with theoppression of scheduled castes, the laws have benefited few anddevelopment programs and welfare projects designed to improveeconomic conditions for Dalits have generally had little effect.Growing movements by Dalits to claim their basic humanrights and their human dignity are increasingly met with large-scaleviolence and attempts to further remove Dalits from economic self-sufficiency. However, it can be said in no uncertainty that The Constitution truly reflects the vison of welfare state with a view to ameliorating a historical injustice perpetrated on Scheduled Castes or Dalits.While replying to the debate during the third (and final) reading of the Constitution on November 25, 1949, Dr Ambedkar made an eloquent and spell -binding speech in which he also reflected about the future. He said: “On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.”This is high time we pay a heed to these prophetic words in the interest of Indian democracy.
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