Caste, and the Abolition of Untouchability

In one line

Article 17 abolishes untouchability outright, without qualification, without a saving clause and without a State to enforce it against, because it operates against everybody.

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. Three features distinguish it from every neighbouring provision. It is ABSOLUTE, subject to no reasonable restriction and to no emergency saving of its own. It is HORIZONTAL, enforceable against private persons and not merely against the State. And it CONTEMPLATES ITS OWN STATUTE, the second sentence requiring that enforcement be made an offence, which by article 35 only Parliament may do. The statutes are the Protection of Civil Rights Act 1955 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989.

The article, read closely

"Untouchability" is in inverted commas, and the Constitution never defines it. The quotation marks are doing work, and the leading authority says so.

In Devarajiah v. B. Padmanna, AIR 1958 Mys 84; AIR 1958 Kant 84, decided on 10 September 1957. Facts. 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 the complainant, contrary to sections 3, 7 and 10 of the Untouchability (Offences) Act 1955. Held. The petition was dismissed. The conduct complained of 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. Why it matters here is that it 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: it does not mean every case of a person being kept at a distance, but the practice as it developed historically against certain classes by reason of birth in them.

"Abolished" and not "prohibited". The verb removes the institution, not merely a State practice of it. There is no clause permitting reasonable restrictions and no exception for religion; article 25(1) is expressly subject to the other provisions of Part III, so a claim that a caste exclusion is an essential religious practice cannot survive article 17.

"In any form" forecloses the argument from indirectness. Segregated seating, separate utensils, a bar on entering a street, refusal of a barber's or a washerman's service, and exclusion from a well are each a form.