Article 17 abolishes "untouchability", and its practice in any form is made an offence punishable under the law. No article in the Constitution was adopted with such unanimity and so great an acclamation and enthusiasm as this article.
It was the only one which had the special distinction of having been adopted with cries of "Mahatma Gandhi Ki Jai". Some critics of the Constitution ask the question: "What is the right that is created by this article?" It is true that is does not create any special privileges for anyone.
Yet, it is a great fundamental right, a charter of deliverance to one-sixth of the Indian population from perpetual subjugation and despair, from perpetual humiliation and disgrace. We have already seen, while discussing the nature of fundamental rights, that a right is a remedy against a disability.
The abolition of untouchability becomes a right in that sense. The custom of untouchability had not only thrown millions of the Indian population into abysmal gloom and despair, shame and disgrace, but it had also eaten into the very vitals of the nation. There could be no better sign of the determination to eradicate the evil than incorporating this Article into the chapter on Fundamental Rights in the Constitution.
It may not be inappropriate in this context to recall what Gandhi feelingly said on one occasion on the subject. He said: "I do not want to be re-born, but if I am re-born, I wish that I would be reborn as a Harijan, as an untouchable, so that I may lead a continuous struggle against the oppression and indignities that have been heaped upon these classes of people".
Again, it may not be inappropriate to recall here that it was an irony of fate that a man who was driven from one school to another, who was forced to take his lessons outside the classroom and who was thrown out of the hotels in the dead of night, all because he was an untouchable, was entrusted with the task of framing the Constitution which embodies this Article and which dealt the death-blow to this pernicious social custom. That person was no other than Dr. B.R. Ambedkar, the Chairman of the Drafting Committee of the Constitution.
With the epic fast of Mahatma Gandhi in 1932 in protest against the "communal award" by which the Scheduled Castes were to be given a separate electorate, a vigorous movement against untouchability was launched on a national basis. Solemn pledges were taken by many members of the Indian National Congress and others that untouchability would no longer find any asylum in the country.
The movement brought forth some good results. Many temples were thrown open, and the rigours of untouchability had become a thing of the past at least in the urban centers of the country. But the evil of untouchability still lingered in many forms and in many parts of the country. Speaking on the Untouchability Offences Bill, which was passed into an Act in 1955, the then Home Minister of India G.B. Pant said?
"This cancer of untouchability has entered into the very vitals of our society. It is not only a blot on the Hindu religion, but it has created intolerance, sectionalism and fissiparous tendencies. Many of the evils that we find in our society today are traceable to this heinous monstrosity.
It was really strange that Hindus with their sublime philosophy and their merciful kind-heartedness even towards insects should have been party to such intolerable dwarfing of manhood. Yet, untouchability has been there for centuries and we have now to atone for it. The idea of untouchability is entirely repugnant to the structure, spirit and provisions of the Constitution."
The Untouchability Offences Act came into force in June 1955. In one sense it may be said to be an expansion of Article 15 of the Constitution. The Act intended to make the enforcement of any disability against the Scheduled Castes illegal.
It provided that when the victim is a member of a Scheduled Caste, the commission of the forbidden act should be presumed to have been done on the ground of untouchability. It has lain down that whatever is open to the general public or to Hindus generally should be equally open to members of the Scheduled Castes also.
Thus, for example, no shop may refuse to sell and no person may refuse to render any service to any person on the ground of untouchability. Every person is entitled to such services on the terms on which they may be obtained in the ordinary course of business by any other person.
Any refusal on that ground entails cancellation of any license required in respect of such profession. Any act which interferes in any manner with the exercise of such rights by any person was made an offence punishable with imprisonment for six months or a fine up to Rs. 500 or both. A subsequent offence is punishable with both imprisonment and fine. All offences under the Act are cognizable and may be compounded with leave of the Court.
The Untouchability Offences Act was amended in 1976 making its penal clauses more stringent. The Act has been also renamed as the Protection of Civil Rights Act. One significant new provision of the Act is that a person convicted of an untouchability offence will be disqualified for contesting the elections. It was for the first time that such a provision became a law in the history of elections in India.
In spite of the constitutional provisions, the operation of the Untouchability Offences Act and judicial pronouncements, India cannot yet claim to have rooted out the evil of untouchability completely. In the fight against social evils, legislation is only one of many weapons.
To adopt an article in the Constitution against untouchability and make it a fundamental right, or pass an Act of Parliament making its practice an offence, and then expect overnight to have a society devoid of this centuries- old evil, would be too optimistic.
There is no room for complacency in spite of the existence of these enactments. Legislation is a poor remedy for prejudices. The battle against every form of untouchability and social discrimination has to be carried to the hearts and minds of prejudiced people through mass contact, the mustering of public opinion and social action. Simultaneously, there must be a vigilant watch over offenders with a view to punishing every aggressive manifestation of caste discrimination.
Untouchability is a menace and social evil associated with traditional Hindu society. It is being practiced since times immemorial and despite various efforts made by social reformers such as Dr. B. R. Ambedkar; and despite there being provision on abolition of untouchability in our Constitution under Article 17, the evil is still in practice in our country.
What is Untouchability
Untouchablity in simple terms can be understood as a practice whereby a particular class or caste of persons are discriminated with on the ground of their being born in that particular caste or on the ground of their being members of those social groups involved in menial jobs. The discrimination can be in the form of physical or social boycott from the society. For instance: the members of so-called higher castes such as Brahmin, Kshatriyas etc would not dine or sit with a person of Bhangi class.
It was believed that people of higher castes could become impure even if a shadow of an untouchable person touches him and to re-gain his purity he had to take a dip into holy waters of the Ganga.
Who Are Untouchables in India?
According to traditional Hindu ‘Varna System’, a person is born into one of the four castes based on karma and ‘purity’. Those born as Brahmans are priests and teachers; Kshatriyas are rulers and soldiers; Vaisyas are merchants and traders; and Sudras are laborers.
Untouchables are literally outcastes. They do not directly figure into any of the traditional ‘Varna System’ of Hindus. According to Dr. B. R. Ambedkar, untouchables form an entirely new class i.e. the fifth varna apart from the existing four varnas. Thus, untouchables are not even recognized under the caste system of Hindus.
However, historically persons born in lowest castes and classes of persons doing menial jobs, criminals, persons suffering from contagious diseases and tribals living outside the so-called civilized world were considered as untouchables. Their exclusion from the mainstream society was based on the belief that they are impure and harmful and it was necessary to ostracized them for the overall benefit of the society.
Untouchability was also practiced as a form of punishment to the law-breakers and criminals; they were socially boycotted for their misdeeds.
Who are the Dalits?
Untouchables are also known as depressed classes, harijans etc; but today they are more frequently referred to as ‘Dalits’. In modern times, ‘Dalit’ refers to one’s caste rather than class; it applies to members of those so-called menial castes which are born with the stigma of “untouchability” because of the extreme impurity and pollution connected with their traditional occupations. They are considered impure and polluting and are therefore physically and socially excluded and isolated from the rest of society.
Today members of Schedule Castes and Schedule Tribes (SC/ST) are considered as ‘Dalits’ and they are subjected to various forms of discrimination in the society. Especially, Schedule Castes such as Chamars, Passi, Bhangis and Doms etc are known as ‘Dalits’; these people are generally associated with menial jobs such as tanning, skinning of hides, works on leather goods, sweeping, scavenging etc.
Types of Discrimination against Untouchables or Dalits
According to National Campaign on Dalit Human Rights (NCDHR), there are various forms of discriminations being practiced against Dalits in India, these are:
- Prohibited from eating with other caste members,
- Prohibited from marrying with other caste members,
- Separate glasses for Dalits in village tea stalls,
- Discriminatory seating arrangements and separate utensils in restaurants,
- Segregation in seating and food arrangements in village functions and festivals,
- Prohibited from entering into village temples,
- Prohibited from wearing sandals or holding umbrellas in front of dominant caste members,
- Prohibited from using common village pat,
- Separate burial grounds,
- No access to village’s common/public properties and resources (wells, ponds, temples, etc.),
- Segregation (separate seating area) of Dalit children in schools,
- Bonded Labor,
- Face social boycotts by dominant castes for refusing to perform their “duties”
Abolition of Untouchability under Indian Constitution
India got Independence on 15th of August, 1947 after long and painful struggle of more than one hundred years. The struggle was not only against the foreign rule of British but it was also against the social evils such as untouchability prevailing from centuries. After Independence when great leaders of freedom struggle agreed to make our own Constitution, it was decided that there must be provisions under the Constitution regarding the abolition of social evils and upliftment of down-trodden castes and social groups etc.
In view of this objective Article 17 was added to the Constitution; Article 17 reads as follows:
“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.”
Thus, Article 17 abolishes and forbids untouchability in any form. At the same time, it also makes it an offence punishable as per the law made by the Parliament.
In order to fulfill the mandate of Article 17 of the Constitution, the Parliament enacted the Untouchability (Offences) Act, 1955. It made several discriminatioray practices punishable as offences, although the punishment provided were rather mild and in their actual application even milder.
Several lacunae and loopholes were found in the working of the Untouchability (Offences) Act, 1955 which compelled the Government to bring about a drastic amendment in the Act in 1976. The Act was revamped as the Protection of Civil Rights Act.
However, the menace of untouchability continued and ‘dalits’ were still being treated in a discriminatory way, their socio-economic conditions remained vulnerable, they are denied a number of civil rights and were subjected to various offences, indignities and humiliations.
Therefore, to counter theses atrocities meted out to so-called ‘Dalits’ section of society, the Parliament passed ‘Scheduled Caste and Scheduled Tribes (Prevention of Attrocities) Act, 1989. The Act provided more comprehensive and punitive measures to deal with and to prevent discrimination and atrocities against ‘dalits’. The ultimate objective of the Act was to help the social inclusion of Untouchables/Dalits into the mainstream Indian society.
These above mentioned Acts were made with good intention and with positive objective of removing discriminatory practices against untouchables/dalits but in actual practice, these Acts have failed to live upto their expectations.
Untouchability: Present Scenario
In our society there still exist feeling of superiority of caste and birth. We can experience the practice of untouchability in everyday life around us, especially in rural and semi-urban areas of the country. Also, in big metro cities, the inhuman practice of manual scavenging is still there. According to a news report of Press Trust of India (PTI), on January 3, 2014, four tea shop vendors were arrested by the Police in Karnataka for practicing untouchability while selling tea- they were serving tea in different types of cups to caste Hindus and SC/STs. The incidence shows that the evil practice is so deep rooted in Hindu society that even after 67 years of Independence is continuing in one form or other.
However, it can be said that things are slowly changing; the mind set of modern generation is also changing. Today’s youth with modern education and globalized outlook are viewing the social order from different perspective of equality and impartiality and not from the religious or traditional point of view.
Hopefully, the wicked practice of untouchability would be removed from the society sooner rather than later and our country would usher into a new era of social equality and brotherhood which will be the true India of Gandhi and Ambedkar.
Social Reformers of India