ARTICLE 17
The smouldering fire of the text of Article 17 compels one to cogitate over the facticity ( Kindly refer to the German equivalent Faktizutat – Johann Gottlieb Fichte ) of ‘caste’, as birth–based stratification, in its worst form, as it exists in different parts of the world, besides its multilayered forms in India. In this regard the history of ‘cagot’( pronounce KAGO) people needs to be explored even though it is presently obscure in Europe. Some researchers opine that such obscurity arises as it has been cautiously erased. The cagot descent in Eurpoe was treated as an accursed reality of blood-line. If family trees in anthropological and sociological treatises of Europe are searched the obscurity of caste system will vanish. In many villages or towns in Pyrenees (Western France and Northern Spain), such study would ipso facto reveal that caste of ‘cagots’ lived in France and since 13th century. As per documented facts this caste of ‘cagots’ was treated as ‘untouchables’. These castes were also referred to as Agotes, Gahets,capets ,Caquex and were treated inferior to peasantry in several ways. Traces of this are also available in the sociological landscapes of the day, such as, Campann or hagetman.These castes were socially coerced to live in ghettoes on the malarial side of rivers and their ghettoes were known as cagoteries.In the churches they had to use their own doors. At least 60 Pyrennean churches still bear the marks ‘cagot Doors’.They had their own fonts. They were given communion on the end of long wooden spoons. When a cagot came to a town he had to report their presence by shaking a rattle, just like the then practice for the lepers. They suffered highest form of apartheid. Some of the prohibitions on cagots were bizarre. They were not allowed to walk barefoot, like normal peasants of the day. They were not allowed to east alongside non-cagots, nor were permitted to share dishes. They were not allowed to touch parapets of bridges. Even the poetry of 16th and 17th century laments occasional but socially diasapproved misalliances (marriages between cagots and non- cagots were strongly opposed by society).In 18th century prosperous cagots in the Landes were caught using fonts of non cagots.- his hands were chopped off. The fields of cagots were verboten. In another documented case feet of a cagot were spiked with hot in for transgressing such social prohibition. Even today separate cemetery for cagots exists in Bentayoo Seree, a tiny village of Pau. References to such dark social reality are abundantly available in Franscisque Michel’s Hisotrie Des races maudites (History of the cursed races). The stark social realities of descent-based discrimination faces by ‘sami’ also known as Lapps across northern Sweden, Norway and Finland as well as by ‘Rusyns’ in Ukraine are also almost identical. Apart from Europe, African countries are socially afflicted by caste based discrimination.
Close-walled caste system also exists in Nepal, Pakistan, Srilanka, Indonesia, Philippines, China, Mangolia, Tibet, Korea, Iran, Yemen, Nigeria. Some historians and sociologists including Gerald D Berreman, W. Lloyd Warner also traced existence of caste system in United States of America.
Art 17. Abolition of of untouchability. “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “untouchablity” shall be an offence punishable in accordance with law.
Article 17 is enshrined in the constitution as a positive force to liberate the society from the blind and ritualistic adherence and traditional beliefs which lost all legal and moral foundation. It seeks to establish a new order for society –equality to Dalits, at par with the general public, absence of disabilities, restriction or prohibition on grounds of caste or religion, availability of opportunity and sense of being participant in the mainstream national life. (State Of Karnatka v Appa Ballu Ingale AIR 1993 SC 1126)
The word untouchability is used in the Article in inverted commas. This signifies that the said term is not used in its literal or grammatical sense, but means and signifies a practice as developed historically in India. However, in literal construction even lepers or patients of epidemic or contagious diseases, who also suffer pain of untouchability in the society, would fall in the classification. In this regard the judicial view expressed in Devarajiaah v Padmanama 1958 AIR Mys 84 elucidates the relevant aspects.
In Pavdai Goundeer v state 1973 AIR Mad 458, it was held that acquisition of land for construction of a colony for Harijans was not violative of Article 17.
In this article, the word untouchable has not been defined. A single judge of Mysore high court has held untouchability ‘as social disabilities historically imposed on certain classes of people by reason of their birth in certain castes and would not include instigation of social boycott by reason of conduct of a person’. (Devrajia v Padamma AIR 1961 Mad 35)
At the outset, the term ‘Dalit’ needs to be understood in its social and political connotation. This term Dalit was first used by Jyotirao Phule , an eminent social reformer, for the oppressed classes or untouchable castes of Hindus. However, Mahatma Gandhi chose Harijan, meaning children of God, as a descriptive term for oppressed classes or untouchable castes of Hindus.
This Article 17 is not only a post script of a social revolution which is aimed to culminate in a legalistic and constitutional burial of ‘untouchability’, but a clarion call to awakened citizenry to rise and act sleeplessly, on a war footing, by identifying and weeding out the toxic and hazardous ‘residue’ of the hydra-headed socio-cultural virus of “untouchability” from social and political landscapes.
Justice V.R Krishna Iyer, in State Of Karnaka v Shri Ranganatha Reddy (1977)4 SCC 471, meaningfully elucidated the concept of social revolution in his exalted prose as under;
“ in a country where the people are, by and large, illiterate, where social revolution is being pushed through by enormous volumes and variety of legislation and where new economic adventures requiring unorthodox jural techniques are necessitous, if legal drafting is to be equal to challenge of change, a radicalization of its methodology and philosophy and an ability for the legislative manpower to express themselves in streamlined, simple, project-oriented fashion is essential.”
In a recent judicial verdict(majority verdict of five judges, one dissenting ) in well known Sabrimala Case, the concept of ‘untouchability’ was dissected from its origins and painful, nay shameful, consequences. Thus in Indian young lawyers association and others v State of Kerala (2019) 11 SCC 1, the following dicta of the Bench clarifies relevant aspects of the ‘untouchability’ as a social issue ;
“346. Manual scavengers have been the worst victims of the system of “purity and pollution”. Article 17 was a promise to lower castes that they will be free from social oppression. Yet for the marginalized communities, little has changed. The list of the daily atrocities committed against Dalits is endless. Dalits are being killed for growing a moustache, daring to watch upper-caste folk dances, allegedly for owning and riding a horse and for all kinds of defiance of a social order that deprives them of essential humanity. The Dalits and other oppressed Sections of society have been waiting long years to see the quest for dignity fulfilled. Security from oppression and an opportunity to lead a dignified life is an issue of existence for Dalits and the other marginalized. Post-independence, Parliament enacted legislations to undo the injustice done to oppressed social groups. Yet the poor implementation of law results in a continued denial which the law attempted to remedy.
- Article 17 is a social revolutionary provision. It has certain features.
347.1.The first is that the Article abolishes “untouchability”. In abolishing it, the Constitution strikes at the root of the institution of untouchability. The abolition of untouchability can only be fulfilled by dealing with notions which it encompasses. Notions of “purity and pollution” have been its sustaining force. In abolishing “untouchability”, the Constitution attempts a dynamic shift in the social orderings upon which prejudice and discrimination were institutionalized. The first feature is a moral re-affirmation of human dignity and of a society governed by equal entitlements.
347.2. The second important feature of Article 17 is that the practice of “untouchability” is forbidden. The practice is an emanation of the institution which sustains it. The abolition of the practice as a manifestation is a consequence of the abolition of the institution of “untouchability”.
347.3. The third significant feature is that the practice of untouchability” is forbidden “in any form”. The “in any form” prescription has a profound significance in indicating the nature and width of the prohibition. Every manifestation of untouchability without exception lies within the fold of the prohibition.
347.4. The fourth feature of Article 17 is that the enforcement of disabilities founded upon “untouchability” shall constitute an offence punishable in accordance with law. The long arms of the criminal law will lend teeth to the enforcement of the prohibition.
- The Constitution has carefully eschewed a definition of “untouchability”. The draftspersons realized 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 practiced against women (and in the absence of a definition, the prohibition would cover all its forms), the expression was designedly left undefined. The Constitution uses the expression “untouchability” in inverted comas. The use of a punctuation mark cannot be construed as intent to circumscribe the constitutional width of the expression. The historical backdrop to the inclusion of the provision was provided by centuries of subjugation, discrimination and social exclusion. Article 17 is an intrinsic part of the social transformation which the Constitution seeks to achieve. Hence in construing it, the language of the Constitution should not be ascribed a curtailed meaning which will obliterate its true purpose. “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. 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 practiced and legitimized on notions of purity and pollution.
- Our society is governed by the Constitution. The values of constitutional morality are a non-derogable entitlement. Notions of “purity and pollution”, which stigmatize individuals, can have no place in a constitutional regime. Regarding menstruation as polluting or impure, and worse still, imposing exclusionary disabilities on the basis of menstrual status, is against the dignity of women which is guaranteed by the Constitution. Practices which legitimise menstrual taboos, due to notions of “purity and pollution”, limit the ability of menstruating women to attain the freedom of movement, the right to education and the right of entry to places of worship and, eventually, their access to the public sphere. Women have a right to control their own bodies. The menstrual status of a woman is an attribute of her privacy and person. Women have a constitutional entitlement that their biological processes must be free from social and religious practices, which enforce segregation and exclusion. These practices result in humiliation and a violation of dignity. Article 17 prohibits the practice of “untouchability”, which is based on notions of purity and impurity, “in any form”. Article 17 certainly applies to untouchability practices in relation to lower castes, but it will also apply to the systemic humiliation, exclusion and subjugation faced by women. Prejudice against women based on notions of impurity and pollution associated with menstruation is a symbol of exclusion. The social exclusion of women, based on menstrual status, is but a form of untouchability which is an anathema to constitutional values. As an expression of the anti-exclusion principle, Article 17 cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution. Article 17 cannot be read in a restricted manner. But even if Article 17 were to be read to reflect a particular form of untouchability, that Article will not exhaust the guarantee against other forms of social exclusion. The guarantee against social exclusion would emanate from other provisions of Part III, including Articles 15(2) and 21. Exclusion of women between the age groups of ten and fifty, based on their menstrual status, from entering the temple in Sabarimala can have no place in a constitutional order founded on liberty and dignity.”
This Article 17 awakens the nation to what may be described as a great blot on Indian society- untouchability – which through some unedited texts, attributed to a Papal authority of Hindu religion, named, Manu, mingled with riverine course of beliefs and myths in human life and continued to grow and spread as untreated ‘weed of toxicity’. Such toxicity spread across length and breadth of Hindu society in full public view, and gained deep roots as a ‘pathological disorder’ in Hindu Society. Perhaps it was the religious wrapping of these ‘beliefs and myths’ which benumbed the normal human curiosity and inquisitiveness for a long span of time to question the rationality and sanctity of untouchability in human society. Thus it appears that human mind remained aloof from any serious deliberation over this decadent layer of social stratification. One hopes that a rational evaluation of the stratification paradigm in the course of public debates, if initiated at the enlightened forums of ancient times, could effectively lead to critical questioning about the veracity of these misanthropic ‘beliefs and myths’ to save the society from the curse of the centuries. But it did not happen.
John Greenleaf Whittier, an American poet, rightly said;
“For all sad words of tongue or pen
The saddest are these: It might have been.”
This dark social reality has also been considered from the angle of social justice in the following judgments:
“Social Justice, equality and dignity of person are cornerstones of social democracy. The concept ‘social justice’, which the Constitution of India engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen. ‘Social justice’ is thus an integral part of ‘justice’ in the generic sense. Justice is the genus, of which social justice is one of its species.. The concept of social justice embeds equality to flavour and enliven practical content of ‘life’. Social justice and equality are complementary to each other so that both should maintain their vitality. Rule of law, therefore, is a potent instrument of social justice to bring about equality in results.
- Ramaswamy J. in Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42, 67 and 68, paras 18 and 19
“Probably, the injustice of the past, when suddenly set right by the equity of the present, puts on a molested mien and the beneficiaries of the status quo cry for help against injustice to them. The law, as an instrument of social justice, takes a longer look to neutralize the sins of history. Be that as it may, judicial power cannot rush in where even administrative feet to fear to tread.”
V.R. Krishna Iyer J. in T.N. Education Department Ministerial and General Subordinate Services Association. V. State of T.N. , (1980) 3 SCC 97, para 18.
A law existing at the time when the Constitution came into effect would be a law within the meaning of Article 17 (State v Banwari AIR 1951 All 614 (para5)). A person of higher class refusing professional service to a Harijan is punishable as an offence covered by Article 17.(State v. Kishan AIR 1955 MB 207 (paras 8, 9).
Articles 17 and 26- A fundamental distinction between excluding persons from temples open for purposes of worship to the Hindu public in general on the ground that they belong to the excluded communities and excluding persons from denominational temples on the ground that they are not within the benefit of the foundation. The former will be hit by Article 17 and the latter protected by Article 26.(Venkataramana Devaru v State of Mysore AIR 1958 SC 507 (para 24); 1958 SCJ 382)
Protection of Civil Rights Act 1955- object of Article 17. The thrust of Article 17 and the protection of Civil Rights Act 1955 is to liberate the society from blind and ritualistic adherence and traditional beliefs which lost all legal and moral base. It seeks to establish new ideal for society- equality to Dalits, at par with general public, absence of disabilities, restriction or prohibition on grounds of caste or religion, availability of opportunities and a sense of being a participant in the mainstream of national life. In interpreting the said Act the Judge should always keep in mind the constitutional goals and the purpose of the Act and interpret the provisions of the Act in the light thus shed to annihilate untouchability, to accord to the Dalits and the Tribes right to equality, social integration a fruition and fraternity a reality. Thus where the Harijans were stopped from taking water from well on the ground of their being untouchables on the threat of using gun; it was an offence under section 4 of the said Act. (state of Karnataka v Appa Balu Ingale AIR 1993 SC 1126 (paras 4, 35, 36, 38)A Negro was entitled by an injunction to purchase a house from a White who denied sale on the ground of colour and statute 42 USC Article 1982 would apply to both State and private acts of denial of equality. Denial of civil rights on ground of Negro segregation is actionable at law.( Joseph Lee Jones v Alfred H. Mayer Co. (1968) 20 Lawyers’ Ed 2d 1189; 392 US 409)
Purification of Harijans:- The practice of Harijans being permitted to enter the temple of Shri Shrinathji near Udaipur only after being purified by requiring them to wear ‘kanthimala’ and sprinkling them with ‘Gangajal’ (Ganges water) and given them tulsidal prior to entry in the temple amounts to practice untouchability and is held to be violative of Articles 14, 15 and 17. (Surya Narayan Choudhary v State AIR 1989 Raj 99 (para 10)).
The aforesaid judicial dicta carve out elevated paths for onward and forward march of the society towards ideals of egalitarianism. However, there is deeply entrenched ‘hesitancy’ across length and breadth of the society to move on these elevated paths. This hesitancy needs to be uprooted from the cultural beds and political discourses to enable the society to experience a state of happiness, which abides in bright patterns of human life and models of co-existence, without the toxic and polluting air of socio-cultural discrimination.