Articles 17 and 18: Untouchability and Titles

It is also the article that explains why enforcement is the hard part. The right is absolute, the offence is created, the statutes exist, and the practice persists, which is the gap Module III is about.

And it supplies the strongest Indian answer to the argument that human rights are a Western import. Nothing in the American, Irish or English constitutional tradition produced article 17; it comes from Indian social reform politics and from the demands recorded in [The Pre-Constitutional Demand for a Bill of Rights].

Article 18

18(1). No title, not being a military or academic distinction, shall be conferred by the State.

18(2). No citizen of India shall accept any title from any foreign State.

18(3). No person who is not a citizen shall, while holding any office of profit or trust under the State, accept any title from any foreign State without the consent of the President.

18(4). No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.

Its purpose is the abolition of artificial distinctions of rank. The colonial honours system had created a hierarchy of titles carrying precedence, and article 18 ends it.

The national awards are not titles on the accepted view, because they are decorations that are not to be used as prefixes or suffixes to the recipient's name; the point has been litigated and the distinction is between an award and a title of nobility.

A candidate should note the honest position: article 18 is the least litigated article in Part III, it carries no remedy of its own, and its practical significance is symbolic. Saying so is better than inflating it.

The international correspondence

Article 1 of the Universal Declaration: all human beings are born free and equal in dignity and rights.

Article 2: entitlement without distinction of any kind, including birth or other status.

And the Racial Discrimination Convention's inclusion of descent among the prohibited grounds is what connects article 17 to India's international obligations, and the connection is contested, which [The Racial Discrimination Convention, and the Disagreement About Caste] takes in full.

Worked example

A question on equality, or on the Indian contribution to human rights.

Quote article 17 in full, because it is short and the wording carries the argument.

Give the four features: binds private persons, creates an offence, no exception, undefined term read historically.

Name the legislation and article 35.

Say what it shows: a human right addressed to social power, and the clearest case where the law is complete and the practice persists.

Give article 18 briefly and honestly, four clauses and a symbolic function.

Close with the argument that article 17 is the answer to the import objection, because it is a right no borrowed model supplied.

What it does NOT mean

It does not mean untouchability is defined in the Constitution. It is not, and the courts read it in its historical caste sense.

It does not mean article 17 has abolished the practice. It abolished its legal recognition and made its enforcement an offence.

And it does not mean article 18 forbids the national awards. They are decorations, not titles, provided they are not used as prefixes or suffixes.

Quick revision

• 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 offence punishable in accordance with law.
• Four unique features: binds private persons; creates an offence; admits no exception whatever; and the term is undefined, read in its historical caste sense.
• The legislation: the Protection of Civil Rights Act 1955 (originally the Untouchability (Offences) Act 1955) and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989.
• Article 35: only Parliament may prescribe punishment for acts declared offences under Part III.
• Article 18: (1) no title conferred by the State, not being a military or academic distinction; (2) no citizen to accept a foreign title; (3) a non-citizen holding office of profit or trust needs the President's consent; (4) no present, emolument or office from a foreign State without that consent.
• National awards are decorations, not titles, provided they are not used as prefixes or suffixes.
• Article 17 is the answer to the import objection: no borrowed model supplied it.

Test yourself

1. What makes article 17 unique in Part III? Four features. It binds private persons, because the article is not addressed to the State at all: it says that untouchability is abolished and its practice in any form is forbidden, so any person who practises it breaches the Constitution directly. That places it with articles 15(2), 23 and 24 in the small group of horizontally operating fundamental rights. It creates an offence, which no other fundamental right does, by providing that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law, a constitutional mandate to Parliament to legislate rather than a mere prohibition.

It admits no exception whatever. Every other substantive article in Part III carries qualifications: reasonable restrictions in article 19, the public order and health and morality provisos in article 25, the preventive detention carve-out in article 22. Article 17 carries none. And the operative term is undefined. The Constitution does not say what untouchability means, and the quotation marks around the word signal that a term of art is intended; the courts have read it in its historical sense as the practice grounded in caste, rather than as any exclusion of any person from any place, which keeps the article from becoming a general guarantee of access.

2. What legislation did article 17 produce, and why is article 35 relevant? The constitutional mandate to punish was carried out first by the Untouchability (Offences) Act 1955, later renamed and substantially strengthened as the Protection of Civil Rights Act 1955, which makes the enforcement of disabilities arising out of untouchability an offence. It was carried much further by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, which defines a schedule of offences of atrocity, imposes a duty on public servants and creates Special Courts and Exclusive Special Courts to try them, together with Special Public Prosecutors and a bar on anticipatory bail. That Act is the working Indian example for a question about Special Courts in the protection of human rights.

Article 35 is relevant because it reserves the power. It provides that Parliament shall have, and the legislature of a State shall not have, power to make laws prescribing punishment for those acts which are declared to be offences under Part III. So the criminal law implementing article 17 is exclusively Parliament's, which is why the statutes are central rather than State enactments, and why the failure of enforcement is a failure of a national scheme rather than of a patchwork.

3. What does article 18 do, and how should its significance be described? Article 18 abolishes titles in four clauses. The State may confer no title other than a military or academic distinction. No citizen of India may accept any title from any foreign State. A non-citizen holding an office of profit or trust under the State may not accept a foreign title without the consent of the President. And no person holding such an office may accept any present, emolument or office of any kind from or under any foreign State without that consent. Its purpose was to end the colonial honours system, which had created a hierarchy of titles carrying precedence, and so to remove artificial distinctions of rank from Indian public life.

Its significance should be described honestly rather than inflated. It is the least litigated article in Part III, it carries no remedy of its own, and its practical effect is largely symbolic. The one recurring question is whether the national awards offend it, and the accepted answer is that they do not, because they are decorations rather than titles of nobility, provided they are not used as prefixes or suffixes to the recipient's name. An answer that treats article 18 as a major operative guarantee is overstating it; an answer that omits it from a discussion of equality has missed the Constitution's stance on inherited hierarchy, which is what it shares with article 17.