On 28 September 2018, the Supreme Court allowed women of all ages to enter the Sabarimala temple, thus putting an end to a centuries old tradition. The case related to the women of menstruating age (10-50), not being allowed to enter the Temple. The ban was imposed by Travancore Devaswom Board, which is responsible for the administration of the temple. Till now, women of menstruating age were not allowed have a darshan of Lord Ayappa. However, this judgment has ended the ban. The verdict is significant in more ways than one. The 4:1 majority verdict was delivered by a five-judge Constitution bench. The bench comprised Chief Justice of India Dipak Misra and Justices R. F. Nariman, A. M. Khanwilkar, D. Y. Chandrachud and Indu Malhotra. The dissenting judgment was delivered by Justice Indu Malhotra. Another reason why this decision is historic is that the Constitution Bench, in its verdict, took a stand against the beliefs of Hinduism, which endorses patriarchy.
The most important was the judgment of Justice D. Y. Chandrachud, who is a Brahmin by caste. He referred to the views of Jotiba Phule, Savitribai Phule and Dr. Ambedkar. He also mentioned Article 17 of the Indian Constitution (Abolition of Untouchability) and elaborated on how this ban amounts to “untouchability”. Amicus Curiae Raju Ramachandran had told the Bench that the practice of restricting entry of women into temples is tantamount to untouchability and hence, comes under the purview of Article 17.
Justice Chandrachud concurred with Raju Ramachandran’s argument. He said that today, the right to life was not limited to just being allowed to live, but it encompasses living a life with dignity. Recently, another decision of the Supreme Court had pushed this idea forward. A judgment by a Constitution bench of the country’s top court declared section 377 as unconstitutional. This judgment upheld the right to privacy and the right of the LGBTQIA+ community to live with dignity and respect.
Justice Chandrachud’s judgment in Sabarimala case adds a new dimension to the discourse on the caste system and untouchability. Article 17 and the laws promulgated to enforce it have not been able to end the caste system. Bringing Sabarimala case within the ambit of Article 17 is unquestionably a welcome step.
By drawing Article 17 into this debate, the court, and especially Justice Chandrachud, has not only drawn the attention of the country but also of the whole world towards the scourge of caste system, which persists even 70 years after the Constitution declared it unlawful. Caste system coming in the way of the building of a new society should not only be a cause for worry for the marginalized, but also for society at large. This is very important for a society which is aspiring to become the fastest growing economy in the world. The problem is that Indian society wants to develop and prosper while remaining a caste-based society. And it is developing! Even if we brand such a society as retrograde, what difference does it make? Whenever a person achieves any success, courtesy of the advantage accruing to him due to the caste system, his casteist arrogance knows no bounds. He does not find the caste system inhuman. His social and human morality is lost in the dazzle of success. His belief in casteism and untouchability does not hurt his social status.
The court had appointed Raju Ramachandran as amicus curiae in the Sabarimala case. During the hearing, Ramachandran described the ban on entry of women on the basis of certain customs in the Sabarimala temple as “untouchability”. According to him, this practice was violative of Article 17. His argument was objected to on the ground that Article 17 pertains to untouchability due to caste system, and not due to gender. Justice D. Y. Chandrachud elaborated on the historical background of Article 17.
Article 17 says, “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.”
Article 17 abolished inequality and promised equality and justice to all. Article 17 can be applied against a person, a legal entity or organized religions. It is a reflection of the transformational model of the Constitution that expresses the aspirations of socially disadvantaged groups and provides ethical framework for fundamental social change.
In his judgment, Justice Chandrachud said that the framers of the Indian Constitution did not define “untouchability” and it was done deliberately. Reflecting on the draft of the Article, the constitutional advisor, B N Rau, remarked that the meaning of ‘untouchability’ would have to be defined. Subsequently, the clause proposed by the sub-committee on Fundamental Rights was dealt with by the Advisory Committee, where Jagjivan Ram had an incisive query. He queried whether the intention of the committee was to abolish untouchability among Hindus, Christians or other communities or whether it applied also to ‘inter-communal untouchability. Shiva Rao has recounted that the Committee came to the general conclusion that “the purpose of the clause was to abolish untouchability in all its forms— whether it was untouchability within a community or between various communities.”
Justice Chandrachud recalls in his judgment that the interim report was moved before the Constituent Assembly by Vallabhbhai Patel on 29 April 1947. One member, Promatha Ranjan Thakur, observed that “untouchability” cannot be abolished without abolishing the caste system, since untouchability is its symptom. Some members sought a clarification on the definition of the term untouchability.
The draft was moved by Dr Ambedkar before the Constituent Assembly. Dr Ambedkar neither accepted Naziruddin Ahmad’s amendments to the draft of the Article nor replied to the points raised by K.T. Shah. The amendment proposed by Ahmad was negatived by the Constituent Assembly and the draft Article as proposed by Dr Ambedkar was adopted. Draft Article 11 has been renumbered as the current Article 17 of the Constitution. The refusal of the Constituent Assembly to provide any definite meaning to untouchability indicates that the framers did not wish to make the term restrictive, he said.
Justice Chandrachud said that reading Dr Ambedkar compels us to look at the other side of the Independence movement. Besides the struggle for independence from the British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights.
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Dr Ambedkar brought with himself ideas, values and scholarship, which were derived from the experiences and struggles which singularly were his own. Some of these experiences and literature ought to be discussed in order to understand the vision behind the philosophy of the Constitution and, particularly, Article 17. Having himself faced discrimination and stigmatization, Dr Ambedkar had launched an active movement against untouchability. In 1924, he founded the Bahishkrut Hitkarani Sabha, aimed at advancing the rights of those who were neglected by society. Over the following years, Dr Ambedkar organised marches demanding rights for untouchables.
Justice Chandrachud also quoted Jotirao Phule and Savitribai Phule in his judgment. He also referred to Jotirao’s book Gulamgiri. Chandrachud has also quotes a famous poem of Savitrib
“Arise brothers, lowest of low shudras
wake up, arise.
Rise and throw off the shackles
put by custom upon us.
Brothers, arise and learn…
We will educate our children
and teach ourselves as well.
We will acquire knowledge
of religion and righteousness.
Let the thirst for books and learning
dance in our every vein.
Let each one struggle and forever erase
our low-caste stain.”
By abolishing “untouchability”, Article 17 protects them from a repetition of history in a free nation. The background of Article 17 thus lies in protecting the dignity of those who have been victims of discrimination, prejudice and social exclusion. The practice of untouchability, as pointed out by the members of the Constituent Assembly, is a symptom of the caste system. He also said that the idea of purity and pollution constitute the core of caste. Dr Ambedkar’s rejection of privileges associated with caste, in Annihilation of Caste, is hence a battle for human dignity. Dr Ambedkar perceived the caste system to be violative of individual dignity. It is for this reason that Article 17 abolishes untouchability, which arises out of caste hierarchies. Article 17 strikes at the foundation of the notions about purity and pollution
Justice Chandrachud said that the notions of purity and pollution, entrenched in the caste system, still continue to dominate society. Though the Constitution abolished untouchability and other forms of social oppression for the marginalized and for the Dalits, the quest for dignity is yet a daily struggle. The conditions that reproduce untouchability are still in existence. Seventy years after independence, a section of Dalits has been forced to continue with the indignity of manual scavenging.
According to Justice Chandrachud, Article 17 was a promise to lower castes that they will be free from social oppression. Yet for the marginalized communities, little has changed. The list of the daily atrocities committed against Dalits is endless. Dalits are being killed for growing a moustache, daring to watch upper-caste folk dances and allegedly for owning and riding a horse The poor implementation of laws results in a continued denial of the right which the law attempts to protect. We are still not able to provide them with rights they deserve.
He pointed out four important characteristics of Article 17:
1} Moral re-affirmation of human dignity and of a society governed by equal entitlements.
2} Abolition of untouchablity.
3} Untouchability is forbidden in any form
4) Enforcement of disabilities founded upon “untouchability” shall constitute an offence
Justice Chandrachud said that Constitution of India is an evolving document and it must be flexible so that an action can be taken against any kind of injustice born out of untouchability. He also asserted that women, who face injustice, cannot be placed out of the pale of Article 17.
Justice Indu Malhotra, wrote a dissenting note in this verdict against majority. She disagreed with Justice Chandrachud that Article 17 of India Constitution has any relevance for the case and that it can be referred to.
(Translation: Lokesh Kumar; copy-editing: Amrish Herdenia)
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