Article 17 of the Constitution knocks the entire problem of untouchability at the very bottom and throws it out lock, stock and barrel. The main aim of Article 17 is to liberate the society from blind and ritualistic adherence and traditional beliefs. It aims to establish a new and ideal society. It will be violative of the Part III and IV of the Indian Constitution to outlaw the provisions related to Dalits which will led them to disabilities. Article 17 doesn’t stop with a mere declaration but announces that this forbidden “untouchability” is not to be, hence forth, practiced in any form. If it were so practiced it shall be dealt with as an offence punishable in accordance with the law.
The word “untouchability” has neither been defined in Article 17 of the Constitution of India nor under the Protection of Civil Rights Act, 1955. A single judge of the Mysore High Court held untouchability as said by Deveraja with reference to the act, the social disabilities historically imposed on certain classes of 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. The word “Harijan” prime facie refers to an untouchable. Untouchability is an integral part of caste system and is not based on mens rea.
As people still do not like to mix with a ‘Dom’ or ‘Chamar’ as freely as they would do with a Brahmin or Kshatriya. The term “untouchability” was once known as “Depressed classes” which was held to include the act of preventing the certain class of people from entering a public temple. Not only this but the J&K High Courts in Janki Prasad held, “Where a person is refused admission in a temple on the ground of his being a Harijan, the refusal is presumed to be on the ground of untouchability.”
The significance of the declaration of Article 17 abolishing untouchability and forbidding in its practice in any form should not be underestimated. Even without any supporting legislation under the later part of the Article, abolition of untouchability and prohibition against its practice in any form has the effect of not only invalidating all laws, customs, usages, practices etc. directly or indirectly recognizing or encouraging the practice of untouchability but even also any sales, contracts or other private transactions having the effect of such recognition or encouragement.
The second part of Article 17 simply declares that the Act of compelling observation of any disability arising out of untouchability shall be an offence punishable in accordance with law and it does not make the enforcement, ipso – facto, punishable under the Article. All that, it does is to contemplate legislation making for declaring such practice punishable as an offence. So the later part of this Article should be read with Article 35 of the Constitution which enjoins 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 Parliament, thus, in the exercise of its power, so conferred by Article 35, enacted the Untouchability Offences Act, 1955 which was later named as Protection of civil Rights Act, 1955.
Discrimination and their remedies:
One of the disabilities that the depressed castes suffered was that they were denied access to Hindu temples. They were required to stop outside the temple proper in the compound and satisfy themselves that they had a glimpse of the idol of God. The movements to abolish this disability gained momentum in the thirties of 20th century. At a public meeting of the Hindus which was held in Bombay on September 25, 1932, following the signing of the Poona Pact on September 24, a resolution was adopted which, inter alia, called for early removal of all social disabilities imposed by custom on the so called untouchables including the restriction related to their admission to temples. This resolution was followed by a spurt in the activities on the part of caste Hindus to throw open temples to the untouchables. Satyagraha was also launched at different places for admission of untouchables to temples. When independence came in 1947, the exclusion of untouchables from Hindu temples was made a statutory offence throughout India. Article 25 of the Constitution made a great social reform in this respect.
- In terms, Clause 2(b) of Article 25 confers no right of temple entry, but enables the state to provide for this as a social reform and a welfare measure. Indeed no conferment of separate temple entry right is necessary as any opposition to temple entry to scheduled caste men must be an enforcement of disability arising out of untouchability.
- The right of untouchables to enter and worship in Hindu temples provides the acid-test to see whether untouchability which has been abolished by Article 17 of the Constitution and its practice made an offence punishable under Protection of Civil Rights Act, 1955, remains a mere paper declaration or has really brought about a change of hearts and a change of social attitude towards them.
- Explanation II of Article 25 of the Constitution has used the word ‘Hindu’ in broader sense and the term ‘Hindu’ includes Sikhs, Jains or Buddhists for the purposes of Article 25(2)(b). So religious institutions of public character are thrown open to all the sections of Hindus instead of being confined to the members of their own sects or denominations.
- Article 25(2)(b) has put all the classes and sections of Hindus on an equal footing for temple entry and the discrimination and irregularity has been removed from amongst the various sections of Hindu society. The Article only covers public religious institutions and not private endowments or institutions of the Hindus.
- Article 17 (Constitution of India)
- Article 25 (Constitution of India)
- Protection of Civil Rights Act 1955
- Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
Shree Venkataramnav. State of Mysore[i]
In this case Shree Venkataramna temple – an ancient temple was declared ‘Temple’ under Madras Temple Entry Authorization Act. Whereby entry to the temple became open to all Hindus – including so called ‘untouchables’ also. The trustees of the temple claimed the temple as a private denominational temple and challenged the order and it meant that ‘right of entry of untouchables’ was also challenged. It was alleged that the temple was originally founded for the benefit of the Gowda Sarswath Brahmins and the fact that other classes of Hindus had free access would not have the effect of enlarging the scope of dedication into one for public generally.
The Courtheld that Article 25(2)(b) of the Constitution prevails against the right of every religious denomination or any section thereof to manage its own affairs in the matter of religion. The Supreme Court proved itself as vigilant and did not over look the aspect of entry of untouchables involved indirectly in the claim of trustees and thereby frustrated their indirect attempt to deny social justice to untouchables.
Indian Young Lawyers’ Association v. State of Kerala (Sabrimala Temple Entry)[ii]
The Supreme Court with the majority of 4:1 held that the temple’s practice of excluding women is unconstitutional. It held that it violated the fundamental right to freedom of religion under Article 25(1) i.e., the abolition of the practice of female worshippers. Rule 3(b) of the Kerala Hindu Places of Public Worship Act was also held to be unconstitutional. Rule 3(b) allowed for Hindu denominations to exclude women from public places of worship, if the exclusion was based on ‘custom’.
State of Karnataka v. Appa BaluIngale[iii]
The Court held that the purpose of Article 17 of the Constitution of India is to establish new ideals for the society on the principle of egalitarianism.
P. S. Charyaand others v. State of Madras[iv]
The Court held that Article 17 of the Constitution of India is of prospective legislation and the law enforcement in the State before the commencement of the Constitution are specifically saved up to the extent they are not inconsistent with the provisions of the Constitution. These provisions continue to work until Parliament make any amendment, alteration or modification or is repealed by the Parliament.
The social exclusion of a gaggle of people grounded in ideas about purity and pollution, amounts to a manifestation of the type of “untouchability” that the Constitution seeks to prescribe. This does not mean that it is not caste-based untouchability that is at the heart of Article 17; nor does it seek to dilute the severity of that institution, or the Constitution’s commitment to wipe it out. What it does acknowledge, however, is that the same logic that is at the base of caste-based untouchability, also takes other forms and other manifestations. These manifestations might not be at the core of Article 17, but they deserve its protection.
It is obviously absurd to match the exclusion of girls from a temple with “untouchability”. The underlying basis of the exclusion in Sabarimala is something that goes far beyond, and permeates very layer of society: this is why he specifies that the thought of impurity justifies exclusion from “key social activities.” In other words, it’s not about exclusion from worship, but – once more – how that exclusion both reinforces and is reinforced by an existing and overarching set of discriminatory institutions and systems.
Even after many legislations and judgement provided in this regard, this practice is still continuing in our society on regular basis. Untouchability has been abolished by law but these laws are not effective on ground level.
A recent scenario regarding this has been held in Uttar Pradesh village were a teen aged dalit boy has been shot dead after five day of worshipping in the local temple. After he had prayed, he was thrashed to the ground by the upper caste villagers and after few days he was shot dead by revolver at his home. The accused have been charged with murder and violation of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.[v]
The Constitution of India contains several provisions in its Chapter on Fundamental Rights that emphasize complete legal equality of its citizens irrespective of their religion and creed and prohibit any kind of religion-based discrimination between them.The Constitution of India, not only, abolished the untouchability and made it punishable, but has also given various rights to the depressed classes so as to remove discrimination to which they were subjected before the commencement of the Constitution. The Constitution thus extends full legal and civic equality to them.
Ques. 1 Which article of the Constitution of India abolishes untouchability and forbids it’s practice in any from?
Answer: Article 17
Ques. 2 Which part of the Indian Constitution contains provisions related to untouchability and religion?
Answer: Part III
Ques. 3 When was Poona Pact signed?
Answer: September 24
Ques.4 What amendment was made to Untouchability Offences Act, 1955?
Answer: This amendment act was later named as Protection of Civil Rights Act, 1955
[ii] WRIT PETITION (CIVIL) NO. 373 OF 2006.
[iii] Cr. L. R. (1993) 72.