Untouchability, and the Act That Abolished It

In one line

Article 17 abolished untouchability in one sentence and left the word undefined, and the Act of 1955 is everything Parliament did about it.

In the wording a student can write in an exam: article 17 provides that untouchability is abolished and its practice in any form is forbidden, and that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. It is one of the very few fundamental rights that operates against private persons as well as against the State, and it is subject to no exception, no limitation and no reasonable-restriction clause. The word untouchability is not defined; in Devarajiah v. B. Padmanna the Mysore High Court held that it is not used in a literal or general sense but refers to the historical practice against certain classes by reason of their birth. The law contemplated by the second sentence of article 17 is the Untouchability (Offences) Act 1955, renamed the Protection of Civil Rights Act by the amendment of 1976.

Article 17

The text. "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.

Four things about it.

It is absolute. No public order, morality or health limitation; no reasonable restrictions; no enabling clause; no exception for religion. It is the only fundamental right in Part III with no qualification of any kind.

It binds everybody. A private person practising untouchability breaches a fundamental right directly, which almost no other article does.

The word is in inverted commas in the Constitution itself. The framers put it in quotation marks precisely because they were using it in its Indian sense and not in a literal one.

And its second sentence contemplates a statute. Article 17 does not itself create an offence; it declares that the enforcement of a disability arising out of untouchability shall be an offence punishable in accordance with law, and the law is the Act of 1955.

What "untouchability" means

Facts. Devarajiah v. B. Padmanna, AIR 1958 Mys 84, decided 10 September 1957 by the Mysore High Court. A complaint alleged that the accused had asserted that the complainant, a Jain, had no right to worship in or enter a Jain temple and should be prevented from doing so, and that the accused was encouraging untouchability by instigating Jains not to have social or religious intercourse with him, contrary to sections 3, 7 and 10 of the Untouchability (Offences) Act 1955.

Held. The petition was dismissed. The conduct related to the position of a person within his own community and to the religious or social observances of that community, and had no relation solely to their origin in a particular class; conduct of that character does not come within the mischief of the Act. The judgment is the principal authority for the proposition that "untouchability" in article 17 and in the Act is not used in a literal or general sense, but refers to the practice as it developed historically against certain classes by reason of their birth in them.