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Yesterday, the Constitution Bench of the Supreme Court commenced hearings in the Sabrimala case. Recall that the question before the Court is whether the Sabrimala temple is legally entitled to deny menstruating-age women access to the shrine. On this blog, we have previously covered the constitutional issues that the Court should consider – and decide – in this case. There are many nuanced and complex questions at the interface of Articles 25 and 26 which come up for decision. Additionally, however, in oral arguments today, both the Intervener and the Amicus Curae invoked Article 17 (the prohibition upon untouchability).

Reports from the Courtroom indicate that the Bench was not very sympathetic to the argument. This is entirely understandable. “Untouchability” is a term of art, and refers to the specific caste-based practice (and the entire social system that it has birthed), which has existed in India for a very long time. Furthermore, Article 17 puts the word “untouchability” within quotation marks, which suggests that its meaning is limited to its specific, historical sense. Consequently, while barring of menstruating age women from a temple is no doubt a practice of segregation, exclusion, and enforcement of hierarchies like untouchability, it is not “untouchability.”

That is an intuitively plausible view, but as with many other intuitively plausible views about our Constitution, the moment we go deeper into the matter, all is not what it seems. Like the use of the word “shops” in Article 15(2), there exist good historical arguments in favour of reading the word “untouchability” in a broad sense, going beyond the specific caste-based practice, and includes all practices of social ostracism and exclusion that have their bases in ritual ideas of purity/pollution and hierarchy/subordination.

I made a detailed argument for this “broad reading” in a paper published a couple of years ago, and here I extract the most relevant paragraphs. The context is Chief Justice Sinha’s dissenting judgment in the Dawoodi Bohra case, where he applied Article 17 to the practice of religious excommunication among the Dawoodi Bohras – which, again, was not “untouchability” in its strict, historical sense:

On what basis did Sinha CJ select the more expansive, abstract definition of untouchability? It is important to note that this choice was indicated not only by the text of the clause, which abolishes the practice of untouchability ‘in any form’, but also by the history of its framing. While the communities constituting ‘Untouchables’ had been specifically enumerated in the Government of India Act of 1935, the predecessor of the Indian Constitution, the Constitution itself, as Dr Ambedkar pointed out, had elected not to operate at that level of specificity. Indeed, an amendment moved by Naziruddin Ahmed to restrict the scope of the Article to untouchability only on account of ‘religion or caste’ was specifically rejected by Dr Ambedkar, and negatived by the Assembly when it went to vote.Furthermore, even though KM Munshi pointed to the fact that the word untouchability was contained within quotation marks, making it clear that the intention was to ‘deal with it in the sense in which it is normally understood’,many members called for providing a clearer definition of the term on the grounds of vagueness, and in fact, KT Shah specifically ‘warned’ that it might even be extended to cover women, who at various times had been treated in the manner of untouchables by the society.

Specifically, while some of the members of the Assembly undoubtedly understood untouchability in its narrow, concrete sense, they did not do so to the exclusion of its broader sense. Meanwhile, other members expressly linked the provision to Article 15(2), and repeatedly argued that theirunderstanding of Article 17 included the right of everyone to enjoy ‘equal social conditions’, ‘equal rights’, ‘social equality’, the abolition of ‘social inequity … social stigma and … social disabilities’,  and as 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.

Consequently, Sinha CJ’s adoption of ‘untouchability’ in its broad sense, in the sense of social ostracism, had its foundation in both the text of the Constitution and the debates surrounding it. What, however, did that choice entail? To answer this question, let us look again at the first two strands of his argument. The purpose of the Act, he held, was to guarantee individual freedom, remove interferences with liberty, conscience and faith, and guarantee human dignity and freedom of choice. But this is the crucial question: freedom from what? Sinha CJ was not talking about state coercion and interference with freedom, in its classical liberal sense, in the sense that it is guaranteed by most Constitutions. Rather, he was talking about the coercive freedom-interfering acts of communities (such as social ostracism) against their members. In other words, as discussed above, Sinha CJ believed that Articles 25 and 26 not only guaranteed group-differentiated rights to religious denominations in the interests of preserving their integrity, but also provided for the rights of individuals against their groups, in the interests of individual freedom, liberty of conscience, and human dignity. It was in this context that the balance between group integrity and social reform, set out textually within the scheme of 25 and 26, was to be understood.

While I do not have the space here to develop the argument in full (interested readers can consult the paper), the basic point is this: our Constitution (as the Court has observed in some of its recent decisions) is a transformative Constitution. It is not only a charter for political independence from colonial rule, but also a document that aspires to overcome the social hierarchies that have riven Indian society. This transformative ambition of the Constitution is exhibited, in particular, through its horizontal rights provisions: Articles 15(2), 17, and 23, which directly target exploitative practices at the level of individuals and communities, and not the State. To give effect to the Constitution’s transformative purpose, therefore, a Court should read these clauses broadly. One example of this is IMA v Union of India, where the Court used the Constituent Assembly Debates to interpret the word “shops” in its broader sense of economic transactions and provision of services generally, and not in the limited sense of the physical shop-floor (discussed here).

A broad reading of Article 17 means that not only the caste-based practice of untouchability falls within the ambit of the constitutional prohibition, but practices that bear a family resemblance to “untouchability” are captured as well. This requires the Court to ask whether a particular practice, like untouchability, is a practice of social subordination, exclusion, and segregation, based upon an idea that certain personal characteristics (whether caste, or gender, or menstruation) can justify relegating individuals to an inferior position in society. Under this framework, menstruation-based discrimination is a prime candidate to qualify under Article 17 (and it is no surprise that KT Shah was specifically worried about Article 17 being made to apply to women). It does not require detailed argument to show that, historically, and across the board, menstruation has been equated with impurity, and the idea of impurity, assigned to women qua women, is then used to justify their exclusion from key social activities (including, as in this case, the right of religious access).

This does not, of course, settle the issue in Sabrimala. The Court may, on an examination of the facts, find that the exclusion in this case is not motivated by the reasons described above. In such a situation, Article 17 will not apply (although Articles 14, 15, and 25 might). However, that is a question of application; on the constitutional question of the interpretation of Article 17, the Constitution Bench has a rare chance to lay the foundations for an Article 17 jurisprudence that – for the first time in our constitutional history – will be truly faithful to the Constitution’s transformative purpose.