Analysis of Article 17 of the Indian Constitution

Introduction:

Before 1947, in British India, our Indian society was full of orthodoxy which led to severe problems in the society which we can see even at the present time. Society was divided into higher-class people and backward class. People belonging to such backward classes were deprived of their basic rights. Even it has been practiced till now. ‘Dalits’ are still being regarded as cursed and their fundamental rights have been violated since an old time. We often hear news about higher castes refusing Dalits to enter into temples. So, we need to know the rights especially given to the backward classes for their protection and improvement in society. 

The Indian Constitution was adopted on 26^th November 1949 and it was enforced on 26^th January 1950.  At that time, the Indian constitution consisted of 395 Articles, 22 Parts, and 8 Schedules. At present, there are 448 Articles, 25 Parts, and 12 Schedules in the Constitution of India.

Part III of the Indian Constitution talks about the Fundamental Rights given to the citizens of India. Article 12 to 35 contains all these Fundamental Rights of the citizens. Article 14 to 18 gives us the right to equality which means no person shall be discriminated against on the ground of caste, sex, religion, race, and place of birth.

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 offense punishable in accordance with the law.

Meaning of Untouchability

The word “untouchability” has not been defined either in the Constitution or in the Act, because it is not capable of any precise definition. In State of Karnataka v. Appa Balu Ingale[1], it was held that abolition of untouchability in itself is complete and its effect is all-pervading applicable to state action as well as acts or omissions by individuals, institutions, a juristic body of persons.

Rajasthan High Court in the case of Jai Singh v. Union of India[2]  and Madras High Court in the case of Devarajiah v. B. Padmanna[3] stated that the word “untouchability” in Article 17 is used in inverted commas, which means we cannot make any literal or grammatical interpretation of this word rather we will define its meaning through its historical development or practices. Thus, “Untouchability” in Article 17 means caste-based discrimination.

The word “untouchability” gives us a social picture of discrimination against persons belonging to backward classes. Such persons were considered by the higher castes as “untouchables” which means even their physical touch is cursed. Even these persons were not allowed to sit with the so called higher castes, they were refused to use or consume water from the same pond or river where others used to come. 

Objects of Article 17

1. Article 17 strictly forbids “untouchability”;
2. Even after being forbidden by the Statute, if any person practices or preaches “untouchability”, then the person will be punished as per law.

Punishment for Practising Untouchability

Article 17 of the Constitution has a significant relation with Article 35. All the punishments prescribed in part III [Article 12 to 35] of the Constitution, are made through Article 35.

As a consequence, the parliament passed Untouchability (Offences) Act in 1955. But later it was observed that the punishments provided in this Act were not adequate. In 1965, a Committee on Untouchability, Economic and Educational Development of Scheduled Caste was created to make changes to the Act. Later on, in 1976, the Untouchability (Offences) Act was amended to fulfill the recommendations of the Committee and it was renamed as the Protection of Civil Rights Act, 1955.

Parliament has also enacted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The objects of this Act are:

1. To prevention the commission of atrocities against the members of the Scheduled Castes and Scheduled Tribes;
2. To provide for the creation of Special Courts for the trial of offenses under this Act;
3. To provide relief and rehabilitation of victims of such offenses and atrocities.

Specifically, the Directive Principles as stated in Articles 38 and 46, compel the State to provide socio-economic and political justice to Dalits and to improve the quality of their lives. “The abolition of untouchability is the arch of the Constitution to make the Preamble of the constitution meaningful and to integrate the Dalits in the national mainstream[4].”     

Salient Features of the Protection of Civil Rights Act

1. The punishments provided in the Protection of Civil rights Act, 1955 were enhanced.
2. All the offenses were made as ‘Non-Compoundable’ offenses.
3. According to this Act, it is the duty of the public servant to investigate the offenses relating to any matter under this Act. If any public servant voluntarily refuses to perform his duty, he will also be held liable as per law because this Act imposed some duties upon him to perform.
4. If untouchability is practiced or justified in any place of worship, then also it will be held as an offense punishable under this Act.
5. The State Governments of India are given the power to prescribe collective fines or punishment to any group of people who are practicing or preaching untouchability.

Acts or Omissions regarded as Offences under Civil Rights Act

The following acts are regarded as offenses:

1. To restrain any person from entering any premises of worship or restrain him from worshipping therein;
2. To refuse to admit a person in the hospital, educational institution, or hostels established for public benefit;
3. To preach or spread untouchability directly or indirectly;
4. To support or justify untouchability on religious grounds or any other grounds;
5. To refuse any kind of service which a person is entitled to get.

Case Laws

1. In People’s Union for Democratic Rights v. Union of India[5], it was held that the protections which are given under Article 15(2) and 17, are available not only against the State but also against any private individuals.
2. In the case of State of Karnataka v. Appa Balu Ingale[6], the Supreme Court held that the main objective of Article 17 is to end all the disabilities, restrictions, prohibitions imposed upon any person on the ground of religion or caste.
3. In the Indian Young Lawyers Association and Others v. The State of Kerala[7], it was observed that Article 17 includes untouchability based on social factors and it is wide enough to cover menstrual discrimination. Untouchability in Article 17 open-textured was to abolish all practices based on the notion of purity and pollution. This Article prescribes untouchability in any form is prohibited which resultantly leads to violation of this Article.
4. Safai Karamchari Andolan v. Union of India, in this case, the petitioners filed a writ petition at the Supreme Court of India under Article 32. The petitioners i.e., the manual scavengers wanted the enforcement of the Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 by the Central Government, State Governments, and Union Territories. The Court issued several directions in favor of the petitioners:
   • Rehabilitation will be given to all the manual scavengers;
   • The children of manual scavengers are entitled to get scholarships;
   • One member of their family should be given skill training;
   • If any sewer dies, his family will be provided with compensation of 10 lakh rupees.

Conclusion

To conclude this topic in a nutshell we can see that the Legislature, as well as the Government, has taken so many measures to curb the practice of untouchability in our society. But we have to remember that only giving punishment to the offender is not adequate, we all should be well aware of these orthodox practices and also, we should change our way of thinking as well as mentality. If we see any person being deprived because of untouchability, we should assist them and educate them about the laws through which he or she can get proper justice. Only we as a part of society can bring the change.

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References:

[1] State of Karnataka v. Appa Balu Ingale, AIR 1993 SC 1126

[2] Jai Singh v. Union of India & Ors, 1997 AIR 898

[3] Devarajiah v. B. Padmanna, AIR 1961 Mad 35, 39

[4] K Ramaswamy J in Appa Balu Ingale

[5] People’s Union for Democratic Rights v. Union of India, 1982 AIR 1473

[6] State of Karnataka v. Appa Balu Ingale, AIR 1993 SC 1126

[7] Indian Young Lawyers Association & Ors. V. The State of Kerala & Ors. 2018