Article 17 and Untouchability: Purity, Pollution & Caste Discrimination

Subject: GS Paper 2: Indian Constitution

Context: The shuddhikaran (purification) ritual at Haldwani’s Ramlila Ground following a rally addressed by Mallikarjun Kharge has raised the legal question of whether purifying a public place after its use by a Dalit person constitutes “untouchability” under Article 17, even in the absence of denial of entry.

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What is ‘Untouchability’ under Indian Law?

• Untouchability refers to caste-based discrimination or social exclusion arising from notions of ritual purity and pollution, including disabilities imposed on a person because of their caste or touch
• Article 17: Abolishes untouchability and prohibits its practice “in any form”.
  • The Constitution does not define untouchability.
  • Parliament enacted the Untouchability (Offenses) Act, 1955, later renamed the Protection of Civil Rights Act, 1955, to give effect to Article 17.
  • The Act penalizes the practice, preaching, and enforcement of disabilities arising from untouchability.
• It covers practices such as:
  • Denial of entry into places of worship.
  • Social disabilities and discrimination in access to public facilities.
  • Insulting or attempting to insult an SC member on the ground of untouchability under Section 7(1)(d).
• Article 17 can operate against private individuals as well as the State.

Supreme Court on ‘Purity and Pollution’

• Surya Narayan Choudhary v. State of Rajasthan (1988): The case concerned discrimination against Dalit devotees at the Shrinathji Temple, Nathdwara.
  • Dalit devotees were reportedly required to undergo purification before entering the temple.
  • The Rajasthan High Court held that Dalit devotees could not be subjected to a caste-based condition for equal access to temples.
  • It directed the discontinuation of the purification practice and held it violative of Articles 14, 15, and 17.
• Sukanya Shantha v. Union of India (2024): The Supreme Court linked untouchability to caste-based notions of “purity and pollution”.
  • Such notions reinforce caste hierarchy and influence social interaction.
  • Article 17 must cover the various manifestations of untouchability, rather than be limited to traditional forms of exclusion.
  • The Court emphasised that “There cannot be any stigma attached to the existence, touch or presence of any person.”

Challenges in Enforcing Article 17

• Absence of Definition: The Constitution does not expressly define “untouchability”, requiring judicial interpretation of newer forms of discrimination.
• Proving Caste Nexus: Establishing that a ritual was motivated by caste-based notions of purity and pollution can be difficult when it is defended as a religious or customary practice.
• Distinguishing Ritual from Discrimination: Not every purification or cleaning practice necessarily constitutes untouchability under Article 17.
• Evidence of Intent: Determining the purpose behind the act may depend on statements, surrounding circumstances, and conduct.
• Deep-Rooted Social Practices: Persistent social acceptance of caste-based notions can limit the effectiveness of legal prohibition.

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