RELIGIOUS PRACTICES AND EVOLVING JURISPRUDENCE OF ARTICLE 17 OF INDIAN CONSTITUTION

Profile of the Author: Bhakti Vakil is a student of Prestige Institute of Management and Research, Department of Law, Indore pursuing B.A. LL. B (Hons.) 5th year. Her areas of interest include constitutional law, civil law, corporate law and intellectual property law.

INTRODUCTION

Article 17 of the Indian Constitution, perhaps the only Constitution in the world that declares discrimination based disability an offence. It provides that “untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of ‘untouchability’ shall be offence punishable in accordance with law”.[1] In all the cases wherein the court has to decide what constituted under ‘Untouchability’, it always look to be caste based disability. The definition of Untouchability was clarified by a Single judge of Mysore High Court (now Karnataka high Court) in Devarajjah V. B. Padmanna[2] that it refers to the social disabilities historically imposed on certain classes of people by reason of their birth in certain cases. So, in general sense, untouchability earlier only includes social boycott but excommunication. Socially boycotted involves a person who is declared inferior or impure by the rest of the community. Whereas excommunication involves cutting off of a person from religious places of worship and fellow worshippers, a social boycott need to do so.[3]

ARTICLE 17: A SPECIFIC ACKNOWLEDGMENT

In spite of equality and anti-discrimination guarantees prescribed in the Constitution, Article 17 is inserted to specifically acknowledge and remove the social stigma associated with certain castes. The entire federal scheme is suspended by Article 35 which endows Parliament alone with the power, coupled with a duty to make a law for constitutional offences. From the first sentence of Article 17, it forbids untouchability, there is no way for the judges to say that the freedom of religion under Article 25 is not at all affected by the commandment of equality in Article 17.

To fulfil the mandate provided by Article 17 and 35, the parliament passed the Untouchability Offences Act, 1955 which includes punishment for untouchability. But later government found these provisions inadequate and hence in 1976 the previous Act of 1955 was incorporated as ‘The Civil Rights Protection Act, 1955’. In State of Karnataka V. Appa Balu Ingale[4] the apex court said that the objective of Article 17 is to remove all forms of disability, restrictions and disability on the sole basis of caste and religion. Since the definition of Untouchability has not been defined, it is difficult to interpret what it includes but with changing scenario, the judiciary broadened the concept of Untouchability.

JUDICIAL ROLE IN LEGISLATION

Unlike most fundamental rights under Part III of the Constitution, Article 17 is enforceable against everyone- the State, groups, individuals, legal person and entities. This right can be enforced directly by moving either to the Supreme Court and High Court. At this stage, the constitutional courts can issue directions with a view to enforce fundamental right which may be perceived as legislative in nature[5].

The entire crux of Article 17 is to forbid Untouchability, and no other fundamental rights except for Article 17 provides for a criminal offence. After Sabarimala case, a practice which has been declared as violative of Article 17 and which has not been declared as offence up till the point by the appropriate legislature, the Supreme Court can issue directives which may be in the nature of criminal offence. In fact, directives will be in the nature of social emancipation and these does not require the elements of mens rea. Justice Chandrachud in Sabarimala case evolved principle of ‘purity-pollution to be the essential institution of Untouchability, which Article 17 strikes against.

WAY FORWARD IN THE LIGHT OF SABRIMALA CASE

In Indian Young Lawyers Assn. V. State of Kerala[6] the petitioners have argued that discrimination based on biological reasons is not permissible going by the constitutional schemes. While the opposition in support of the ban said that it is age-old custom. The interesting factor here is, petitioners highlighted that exclusion of women is form of ‘Untouchability’ since it is solely based on impurity and purity.

There is two approach[7] to look Article 17, first being the ‘original intent’ approach which is based on the intent of framers of the constitution when they drafted the text. As at that time, constitution makers had on mind the interest of backward classes, they didn’t envision that women would include in such category. If relied on the literal interpretation, it would mean becoming too rigid and inflexible. In B.C. Motor Vehicle Reference[8], the Canadian Supreme Court while rejecting original concept, said that such method would mean that, “the rights, freedom and values embodied become frozen in the time to the moment of adoption with little or no possibility of growth, development and adjustment of changing societal needs”. The second approach the ‘living tree’ doctrine, rooting in Canadian Jurisprudence. It involves understanding the Constitution to be an evolving and organic instrument. Here, in the doctrine what matters is how the Constitution can be interpreted to contain rights in their broadest realm.

In 2017, a welcome step was taken by the Maharashtra legislature by enacting The Maharashtra Prohibition of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016 [Maharashtra Boycott Prohibition Act] to curb the practice of Social boycott, becoming the first state in India to make it a criminal offence. The provisions read together with the statement on legislative intention to make it very clear that the Act is not limited to caste-based social boycott only and includes religious social boycott as well.

CONCLUSION

Individuals’ social traits and gender are regarded by the Constitution as ‘accident of birth’; no matter what religious cosmologies may want to say, biology does not trump human rights. Justice Chandrachud has rightly recognised Article 17’s significance as, “it is a provision which has a paramount social significance both in terms of acknowledging the past and in defining the vision of the Constitution for the present and fro the future”. In fact, Article 17 along with Article 15(2)(b) and 25(2)(b) will prove to be golden triangle of freedom from exclusion and discrimination, much like Article 14, 19 and 21 which are said to be ‘golden triangle of liberty’.

FREQUENTLY ASKED QUESTIONS (FAQs)

1. Does Article 17 contradict Article 25 which deals with Freedom of practice, propagation of religion?

No, Article 17 forbids Untouchability with reference caste, religion, sex so on. Article 25, on the other hand give freedom to practice any religion and in no manner it allows to prohibit any section of society to follow their religion. Article 17 read with Article 25 give power to the citizen to take action against such discrimination.

1. Does Sabarimala Case succeeded in interpreting Article 17, as the exclusion of women were considered to be form of Untouchability?

Untouchability, not defined in the Constitution gives vague view as to what matters cold be included in such broad concept. As at the time of making Constitution, nobody was aware of such circumstances wherein women will be included in such category. But now they did, leading to think out of the box. It gives teeth to the criminal law to add Untouchability as serious criminal offence.

[1] INDIAN CONSTITUTION, Art. 17

[2] Devarajjah V. B. Padmanna (1957) SCC Online Kat 16 :AIR 1958 Mys 84

[3] Alok Prasanna Kumar, Social boycott Act constitutional validity and Article 26, Economic and Political Weekly. (21 May 2016)

[4] State of Karnataka V. Appa Balu Ingale, 1995 Supp (4) SCC ; 1994 SCC (Cri) 1762, [481]

[5] Subhash Kashianth Mahajan V. State of Maharashtra, (2018) 6 SCC 454

[6] Indian Young Lawyers Assn. V. State of Kerala 2018 SCC Online SC, 1690

[7] Thulasi K. Raj, ‘Ways to read the Constitution’, The Hindu (India, 28 Aug 2018)

[8] Re BC Motor Vehicle Act [1985] 2 SCR 486.

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