Previously on this blog, we have discussed the judgment of the Supreme Court in Venkataramana Devaru (constitutional validity of temple-entry legislation), and the dissenting opinion of Chief Justice Sinha in Sardar Saifuddin (constitutional validity of prohibiting excommunication). What unites these two opinions is not merely their upholding laws designed to recalibrate the relationship between religious communities and their members in more equitable directions, but their invocation of Article 17 of the Constitution (prohibition of untouchability) to do so. In Venkataramana Devaru, the Supreme Court read Article 25(2)(b) of the Constitution alongwith Article 17, in order to have it prevail over the contrary injunction of Article 26(b). And in Saifuddin, Sinha CJ understood Article 17 to contain a broad prohibition of outcasting and a constraint upon the ability of communities to treat one of their own as a “pariah”.
There is an immediate objection here. The word “untouchability”, understood as a term of art, does not include every practice of exclusion engaged in by a group against a members. Rather, it is limited to a practice prevalent within the Hindu caste system, at the heart of which is the prohibition of physical contract with those deemed “untouchables”, and its consequent spillover into the realms of economic, political and social subordination. Was it therefore justified for the Court in Devaru, and Sinha CJ in Saifuddin, to use “untouchability” in this broader sense?
Let us start by observing that Article 17 itself provides for the abolition of untouchability “in any form“, thus lending textual credence to the broader interpretation. And now consider the history of the constitutional framing. In the Government of India Act of 1935, “Untouchables” were limited to a set of specifically enumerated (Hindu) castes. Article 17 of the Constitution, however, contained no such qualification. Indeed, for this reason, many members of the Assembly – at many stages of the drafting process – drew attention to the capacious, even vague, nature of the simple word “untouchability”. Some members asked rhetorically whether the constitutional prohibition would extend to cover persons suffering from infectious diseases, or whether it would allow for the suppression of Islam, given that on some interpretations of that religion, women were metaphorically treated as “untouchables”. In response to this, K.M. Munshi argued that in the draft Constitution, the word “untouchability” had been placed within quotation marks – thus making it clear that the ideas was to “deal with it in the sense in which it is normally understood” (i.e., the narrow, specific sense). Despite this, however, many Constituent Assembly members continued to call for the narrowing down of the definition – for instance, Naziruddin Ahmed moved an amendment seeking to limit Article 17 to issues of “religion or caste“. Dr. Ambedkar categorically refused to accept the amendment, and the Assembly then voted it down.
While some of the debates in the Assembly focused on the specific caste-centred understanding of untouchability (in particular, speeches by Harijans), none of these exchanges set up the narrow definition in opposition to the broader one. In fact, other members drew a connection between Article 17 and 15(2), arguing that Article 15(2)‘s prohibition of horizontal discrimination in access to shops, hotels, public restaurants etc. was redundant, in light of Article 17. Notice, however, that Article 15(2)’s grounds of discrimination were broad, and included – in addition to religion and caste – sex, race and place of birth. A narrow reading of Article 17 could not have been reconciled with the position that it already covered the field of Article 15(2). And in fact, other members specifically argued that the prohibition upon untouchability meant the right of everyone to enjoy “equal social conditions”, “equal rights”, “social equality”, the abolition of “social inequity… social stigma and… social disabilities”, and a remedial clause for “those who have been left behind in social and economic matters.” It therefore seems clear that between both the supporters and the opponents of Article 17 as it stood, there was agreement on the breadth of its meaning.
There is, therefore, strong warrant in the constitutional text and drafting history for the broad reading advanced in Venkataramana Devaru and by Justice Sinha in Saifuddin. Elsewhere, I have called this the “anti-exclusion principle“: the Constitution forbids the exercise of group or community power in a manner that excludes its constituents and blocks their access to the basic goods required in order to sustain a dignified human life. Indeed, when we read Justice Sinha’s understanding of Article 17 along with the interpretation of Article 15(2) advanced in IMA v Union of India, and Justice Bhagwatis’s reading of the prohibition of “forced labour” under Article 23 to include a guarantee to a minimum wage in a hostile market (in PUDR v Union of India), what emerges is a radical vision of the Constitution. The three horizontal rights in Part III (Articles 15(2), 17 and 23) are not simply narrow, specific entitlements, but speak to a reality in which private power (whether exercised through communities or corporations) can have as deep and profound an effect on individual liberty and freedom as public or State power; and these three judgments demonstrate advance a principled interpretation of the Constitution in order to constrain private power in service of individual liberty – “transformative” constitutional interpretation in its truest sense.