Article 17, and What Abolition Means

The relationship between them. The 1955 Act addresses untouchability as a practice; the 1989 Act addresses violence and humiliation directed at the persons on whom the practice fell. They overlap, and both are alive.

Why abolition has not delivered

Three reasons, and they should be given without either exaggeration or apology.

Because a practice embedded in social relations does not end when a law says it has. The article changed the legal status of untouchability in 1950 and did not change the conduct.

Because the offence has to be reported, registered, investigated and tried, and each of those steps involves an institution the complainant is disadvantaged in front of.

And because the practice has changed form. Overt exclusion from a well is easier to prosecute than a refusal of tenancy, a segregated seating arrangement at a school meal, or the silent operation of a marriage market. The statutes were written for the visible form.

Article 17 and the international texts

The Racial Discrimination Convention's article 1 lists descent as a prohibited ground, and the Committee reads descent as covering caste. India disagrees. [Caste, Descent, and the Racial Discrimination Convention] sets both positions out.

Article 4 of the Universal Declaration, on slavery and servitude, is not the right analogue; article 7's equal protection against any discrimination is closer, and article 5 of the Racial Discrimination Convention, which guarantees the right of access to any place or service intended for use by the general public, is closest of all.

Worked example

Her Q1, and any question on the Scheduled Castes.

Give the article verbatim, because it is short and quoting it is worth marks.

Give the three unusual features: abolition, horizontality, and an offence created by the Constitution.

Name the four horizontal provisions in Part III: articles 15(2), 17, 23 and 24.

Give the two statutes and the relationship between them.

Give the three reasons abolition has not delivered, and say plainly that the article changed the status and not the conduct.

What it does NOT mean

It does not mean untouchability is defined. It is not, deliberately.

It does not mean any social exclusion is caught. The article addresses the historical practice attached to caste.

And it does not mean the offence is self-executing. It is punishable in accordance with law, which required Parliament to legislate, and Parliament did in 1955 and again in 1989.

Quick revision

• Article 17: untouchability is abolished and its practice in any form is forbidden; enforcement of any disability arising out of it is an offence punishable in accordance with law.
• Three unusual features: it abolishes rather than prohibits, the language of an institution; it binds private persons; and it creates an offence in the Constitution.
• The four horizontal provisions in Part III: articles 15(2), 17, 23 and 24.
• Undefined on purpose. It reaches the historical practice attached to caste, and is not confined to physical contact: exclusion from a temple, well, shop, school, burial ground or restaurant is within it.
• Two statutes: the Protection of Civil Rights Act, 1955, addressed to untouchability as a practice; and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, addressed to violence and humiliation, with its section 3 catalogue and section 14 Special Courts. Both are alive.
• Three reasons abolition has not delivered: social practice does not end by declaration; the offence must pass through reporting, registration, investigation and trial; and the practice has changed form into things the statutes were not written for.

Test yourself

1. What does article 17 provide, and what is unusual about it? It 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 are unusual. The verb is abolished, which is the language used of an institution rather than of an act, so untouchability is not merely made unlawful but declared to have ceased to exist as a status the law will recognise. The article is addressed to nobody in particular, which means it binds private persons as well as the State, unlike most of Part III, which article 12 confines to the State; together with articles 15(2), 23 and 24 it is one of the four horizontal provisions in Part III, and being able to name all four is worth a mark. And its closing words create an offence in the Constitution itself, requiring that enforcement of a disability arising out of untouchability shall be an offence punishable in accordance with law, which obliges Parliament to legislate; the Constitution does not ordinarily create offences.

The article does not define untouchability, and that was deliberate: a definition would have invited argument at the margins about what fell inside it. Two propositions about its scope are nonetheless settled. It refers to the historical practice attached to caste and to persons regarded as impure by birth, so a social boycott imposed for some other reason is not its subject, though it may be an offence under other law. And it is not confined to physical contact: exclusion from a temple, a well, a shop, a school, a burial ground, a barber or a restaurant is untouchability in the article's sense, which is why the statutes that follow list exactly those things.

2. Which statutes carry article 17, and how do they differ? Two. The Protection of Civil Rights Act, 1955, originally called the Untouchability (Offences) Act, is the statute Parliament passed under the closing words of article 17. It makes it an offence to enforce a disability in relation to entry into and worship at a place of public worship, access to a shop, a public restaurant, a hotel or a place of public entertainment, the use of a well, a tank, a bathing ghat or a road, and the practice of any profession or the carrying on of any occupation, trade or business. It makes such offences non-compoundable and provides for the cancellation of licences and the resumption of grants made out of public funds.

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 goes considerably further and is the modern instrument. It does not merely forbid the enforcement of a disability but creates a catalogue of atrocities in section 3, provides for Special Courts and Exclusive Special Courts in section 14, imposes on the State a duty to take measures under section 12, and since 2018 has contained in section 15A one of the strongest sets of victim and witness rights in Indian criminal law. The relationship between the two is that the 1955 Act addresses untouchability as a practice while the 1989 Act addresses the violence and humiliation directed at the persons on whom the practice fell. They overlap and both remain in force.

3. Why has abolition not delivered? For three reasons, and an answer should give them without exaggeration and without apology. First, a practice embedded in social relations does not end because a law says it has: article 17 changed the legal status of untouchability with effect from 1950 and did not change the conduct, and no constitutional provision could have. Second, the offence has to be reported, registered, investigated, prosecuted and tried, and every one of those steps requires the complainant to deal with an institution in front of which they are already disadvantaged; the 1989 Act's section 4, which makes wilful neglect of duty by a public servant an offence, exists precisely because that chain is where cases are lost. Third, the practice has changed form, and the statutes were written for the visible form: overt exclusion from a well is far easier to prosecute than a refusal of tenancy, a segregated seating arrangement at a school meal, or the silent operation of a marriage market, and the modern manifestations are mostly of the second kind.

Internationally, the closest analogues are article 7 of the Universal Declaration, which guarantees equal protection against any discrimination, and article 5 of the Racial Discrimination Convention, which guarantees the right of access to any place or service intended for use by the general public. Whether caste falls within that Convention at all is the one standing disagreement between India and a treaty body, and it turns on the word descent in its article 1.