– Karthik Rai*
In Justice K.S. Puttuswamy (Retd.) v. Union of India and Ors., the oft-stated line that the Constitution ‘lives’ for its people was stressed upon (paragraph 31). The usage of the word ‘lives’ indicates that the reconceptualization of constitutional ideals in light of the ethos of each time period is the Constitutional function – essentially, it is a living and breathing document. Over the last few years, the idea of transformative constitutionalism has gained mileage, manifesting in recent judgements on privacy, LGBTQ+ rights, etc. The Indian Young Lawyers’ Association v the State of Kerala and Ors. case (hereinafter referred to as Sabarimala) was one such forum for the judges to utilize the living tree aspect to arrive at a pro-woman, as against a pro-custom, decision. Inter alia, the transformative aspect formed a matter of conflicting opinions between the judges of the Supreme Court, when they differed on the interpretation of the word “untouchability” as provided under Art. 17.
The Chief Justice of India recently stated that a nine-judge bench of the Supreme Court, would be constituted to adjudicate on seven issues concerning, inter alia, the freedom of religion. The issues were framed in the order passed in relation to Kantaru Rajeevaru, which is the review order concerning the Sabarimala judgement. One of the issues in Kantaru Rajeevaru concerns the interplay between the freedom of religion and “other provisions in Part III” (paragraph 2). Therefore, the meaning of “untouchability” might once again be deliberated upon by the judges, because this would determine the scope of Art. 17 when it is juxtaposed against the freedom of religion.
In Sabarimala, Justice Chandrachud accepted the arguments in favour of extending Art. 17 to include women. Through this article, I describe briefly Justice Chandrachud’s judgement on Art. 17, and later juxtapose this with my own viewpoint. The arguments I have provided are primarily premised on the Constituent Assembly Debates (‘CADs’) on Art. 17. Since the understanding of Art. 17 would reflect how the physiological discrimination women face is looked at, I have used a feminist perspective, to analyse why Justice Chandrachud’s opinions were justified. In the concluding section, to understand how a word is to be interpreted in a situation possibly not envisaged before, I have utilized the jurisprudential exchanges between Prof. Hart and Prof. Fuller on the same. I shall then apply their opinions to the meaning of “untouchability” under Art. 17.
Justice Chandrachud’s Decision: An Analysis
The petitioners argued that the denial of entry to women into the temple was constitutive of “untouchability”, thereby violating Art. 17 of the Constitution (paragraph 247). They submitted that this “untouchability” cast an exclusionary stigma even on women of menstruating age, thus impacting them. Additionally, they asserted that the phrase ‘in any form (emphasis mine)’ in Art. 17, included untouchability determined by social factors (paragraph 32). Only two judges engaged with the arguments on Art. 17 – Justice D.Y. Chandrachud and Justice Indu Malhotra (in the order in which their opinions appear in the judgement). Reportedly, the other judges did not address the Art. 17 argument, probably indicating that they preferred the status-quoist interpretation of the provision, i.e., as applicable to the Schedule Castes, Tribes, etc.
Justice Chandrachud began with how the definition of “untouchability” was left deliberately undefined (paragraph 249). He referred to Professor K.T. Shah’s proposal that the word must cover within its ambit the various instances of untouchability, at times even extending to women “at certain periods.” Dr. Ambedkar’s silence on the same was sought to be explained by Chandrachud, J., by an insight into his works (paragraph 251). In paragraphs 252 and 255, he provides what seems to be the primary rationale behind his judgement:
“Locating the basis of Article 17 in the protection of dignity and preventing stigmatization and social exclusion, would perhaps be the apt answer to Professor KT Shah’s unanswered queries. The Constitution has designedly left untouchability undefined. Any form of stigmatization which leads to social exclusion is violative of human dignity and would constitute a form of “untouchability”. [paragraph 252]
Article 17…has certain features. The first is that the Article abolishes “untouchability”. In abolishing it, the Constitution strikes at the root of the institution of untouchability… Notions of purity and pollution have been its sustaining force. In abolishing “untouchability”, the Constitution attempts a dynamic shift in the social orderings upon which prejudice and discrimination were institutionalized.” [paragraph 255]
All forms v. Any form?
Justice Chandrachud then examined the phrase “in any form”, as present in Art. 17. He states here, that the words merit a broad reading, including, thereby, “[E]very manifestation of untouchability” (paragraph 255). It is this part of his judgement that I seek to analyse. In light of the CADs, I submit that such a reading of the phrase “in any form” may not be sustainable.
There were several proposals obtained to make changes in the definition of “untouchability” during the article’s formulation. One such proposition was that the words “in any form” be replaced with “in all forms”. However, Sardar Vallabhbhai Patel rejected this, saying that the definition of untouchability does not need any further addition. The usage of the word ‘addition’, and the rejection of the proposition, seem to merit the question: What is the difference, if any, between any form and all forms?
2 reasons indicate that there would have been a change or a further inclusion of something, had there been a substitution of the words any with all:
- In my opinion, there is a ‘species-vs-genus’ distinction that is created. The usage of ‘any form’ seems to divert attention to the word ‘untouchability’ rather than to ‘any’. Thus, it restricts ‘untouchability’ to its traditionally-utilized specie: as applicable to the Scheduled Castes/Tribes, etc. ‘Any’, then, would seem indicative of different manifestations of the same specie of ‘untouchability’, i.e., one that is meted out to the backward castes in various ways, like restricting access to public shops, referring to someone spitefully with their caste-name, ill-treating lower castes, etc. However, the latter’s usage seems to focus on ‘forms’, thus synonymizing ‘forms’ with ‘types’, thus paving way for the inclusion of new forms/species of untouchability within an overarching genus of Art. 17.
To exemplify my argument, I take two statements:
- “American Muslims participating in an election is a form of taghut, an idolatrous offence against Allah as it suggests that someone else can make legislation. It seems to be a very strong rejection of positive lawin all forms” (it could be American Law, English Law, or any other law, within the broader genus of positive law).
- “Most jurisdictions ban tobacco advertising in any form” (i.e., via billboards, tv ads, etc., all of which manifest the same species, i.e., tobacco advertising).
In attributing this meaning to ‘any form’, I differ from Justice Chandrachud, who interprets ‘any form’ as every type of manifestation of untouchability (paragraph 255). This analysis rests on the assumption that the usage of ‘addition’ seems to indicate that there would have been a difference between ‘all forms’ and ‘any form’. In fact, Justice Chandrachud, while stating how a transformative approach is required in this case, refers to the transformative character of the South African Constitution, which states that discrimination has to be eliminated (paragraph 276). However, what Justice Chandrachud seems to overlook, is that the passage cited by him talks of eliminating ‘forms’ of inequalities, and doesn’t refer to ‘any form’.
- Previously, there was another proposition that was rejected by Sardar Patel, which had sought to insert ‘punishable by law’ after ‘offence’. Sardar Patel rejected it, saying that there would be no change in meaning if such an inclusion is effected [the relevant parts of the CAD have been captured succinctly by Justice Chandrachud in paragraph 249]. However, the words ‘any form’ and ‘all forms’ were intended to have the same meaning, then this proposition should have elicited a similar response from Sardar Patel, i.e., that insertion/replacement wouldn’t cause any difference.
The legal definition of “untouchability”
The absence of a clear legal definition of “untouchability” is what makes the issue problematic. Moreover, judgements predating Sabarimala seem to lead to contradictory conclusions on what the legal meaning of “untouchability” is. I wish to draw attention to the case of State of Karnataka v Appa Bapu Ingale, where Justice Kuldip Singh mentions the same problem, but goes on to interpret “untouchability” as covering acts against Dalits in various guises (paragraph 18).
However, in Adi Saiva Sivachariyargal Nala Sangam and Others vs Government of Tamil Nadu and Anr., the judges opined on the practice of entry into the sanctum sanctorum of a temple based on social denominations. They upheld what can be called the ‘uniform exclusion criterion’ – that is, the fact that the exclusion extended even to Brahmins, thereby evincing that it wasn’t an exclusion based on “caste, birth or pedigree” – to conclude that there was no “untouchability” under Art. 17 (paragraph 40). This Brahmin-centric determination of the issue of “untouchability” seems to give Art. 17 a caste hue. However, the uniform exclusion criterion could lead to conflicting interpretations in Sabarimala. For instance, it could be argued that the Sabarimala uniformly excludes entry of all women during the menstrual period, Brahmins included. However, on the contrary, it simultaneously excludes women by virtue of their birth as women.
In light of these conflicting opinions and confusions, we could look at what legal analysts/scholars have opined on the meaning of “untouchability”. Marc Galanter specifically addresses the constitutional meaning of “untouchability”, and divides the meaning into three senses – in the broadest sense, he says, “untouchability” comprised all instances where aspects of purity and pollution were included. He includes menstruating women specifically, in this category, and states, “But it was not intended to make observance of such temporary or expiable states of untouchability subject to the constitutional ban.”
Sardar Patel’s rejection of the proposal to include “all forms” instead of “any form” included a statement that the usage of “untouchability”, followed by “any form” indicates a legal phraseology. When this is read along with Marc Galanter’s statement, the legal meaning of the word seems to be restricted to its narrow sense.
M.C. Jain Kagzi defines it specifically as the “caste action” or the segregation wherein in non-touching is practiced by the upper caste Hindus over the “lowest caste Hindus”, and this is a “liability” due “only” to birth in low castes. In fact, Dr. Ambedkar himself has specifically used the word ‘permanent’ to characterize “untouchability”. Admittedly, the religious disability menstruating women face is during the entire period of menstruating age. However, this exclusion, though extremely long, wouldn’t be permanent. Besides, said disability is only during a period notified by the Travancore Devaswom Board (paragraph 301, Sabarimala).
Moreover, one of the factors Justice Chandrachud heavily bases his decision on, is the non-answer to Professor K.T. Shah’s request for having a well-defined frontier for “untouchability” during the creation of Art. 17 – otherwise, Prof. Shah stated, it could be exploited by “busy bodies and lawyers”, as there were instances when women were treated as untouchables. However, how much can this be relied upon, is doubtful. Prof. Shah’s speech betrayed an intention not to facilitate, but to prevent an expansive scope for “untouchability” (Professor Shah asks, “Will you make the practice of their religion by the followers of the Prophet an offence?”). Thus, Justice Chandrachud’s inference doesn’t seem to be anything more than that – a mere inference in a transformative vein.
In conclusion, though Justice Chandrachud’s interpretation is transformative in light of promoting gender equality, it seems that there has been a significant reading into Art. 17. Such an interpretation, therefore, might appear jurisprudentially questionable. However, since the Sabarimala issue discusses an important issue regarding the rights and status of women, a feminist observation on the rationale may be useful in understanding why the reasoning provided by Justice Chandrachud is morally in the right direction. Therefore, in the next part in this two-part series, I provide a feminist analysis of this issue to bolster the expansive interpretation of Art. 17.
* Karthik Rai is a 2nd year undergraduate at the National Law School of India University, Bengaluru. He would like to thank the editors of the National Law School of India Review for their invaluable comments and suggestions on the previous drafts of this article.
 Dr. B.R. Ambedkar, The Untouchables (first published 1948, Siddharth Books 2008) 38.