Author : Amishreya Gupta
Introduction
The ubiquitous influence of religion in our country fostered one of the most vicious incessant customs of all time; untouchability. The ancient Indian system of segregation of people based on their Varna in the name of religion continues to be a tormenting practice for many people even today. The archaic caste-system that one sees today was initially introduced with the aim to preserve purity, establish an order which would avoid chaos, and hamper encroachment concerning one's duties. While there were several privileges bestowed upon the higher class, the ones lower in the hierarchy only received repression in the form of sanctions along with a long road full of agony and struggle. Society's paradigm of an ideal civilization predominantly referred to the one with a concrete social construct that was divided into Brahmana, Kshatriya, Vaishya, and Shudra. Depending upon the Varna several duties were inflicted upon people who were eventually bound to follow them. Shudras particularly were believed to be humans who were born for servitude to higher classes. They were not only allotted menial work for low wages but also ostracized from society and compelled to live in deplorable conditions. Shudras were not only forbidden from accessing temples and common village but also considered to be 'untouchables’.
Many believed that the concept of the ideal society was merely a façade to protect the superiority of the higher class and thus it was always condemned for being regressive and unjust. Even during the British Era, the sporadic incidents of discrimination faced by the lower caste only amplified.
Understanding Legal History
The makers of independent India’s Constitution knew that this practice of untouchability was not only inhuman but also something that would hinder our country’s social development. As a result of which Article 17 was enshrined in the Constitution to abolish the practice of untouchability and any disability arising out of it. Even though the word ‘untouchability’ was not defined in the Article; according to Dr. BR Ambedkar, ‘untouchability is the notion of defilement, pollution, contamination and the ways and means of getting rid of that defilement. It is a permanent hereditary stain which nothing can cleanse.’[1]
The rights under Article 17 are not only available against the state but also private individuals. The Article confers a duty on the State to ensure that the rights enshrined under it are not getting violated since untouchability often arises due to private conduct.
Article 17 must be read with Article 35 (a) (ii) which deliberates power to the Parliament to enact laws that would prescribe punishments for the offenses under Part III of the Constitution of India. For instance, The Untouchability (Offenses) Act, 1955 by the parliament was created under the power deliberated to it under Article 35 of the Constitution. This Act provides provisions for penalties for the offense of untouchability in any form such as preventing access to public temples/ places of worship and preventing drawing water from sacred lakes, tanks, wells, etc. Any person guilty under this Act can be sentenced to imprisonment up to six months or a fine of 500 or both in case of a subsequent offence.
The Rajya Sabha on September 2, 1976, passed the Bill was known as the Untouchability (Offences) Act and Miscellaneous Provision Bill which aimed to amend the Untouchability (offences) Act, 1955. After the Amendment Bill, the title of the Act was then changed to Protection of the Civil Rights Act 1955. The main reason why this Amendment Bill was passed by the Rajya Sabha was to expand the scope of the Act and to make the penal provisions more stringent.
The Bill sought to make willful negligence by the investigating officers of complaints relating to untouchability tantamount to abatement. It also bought under its purview the privately owned places of worship along with lands and subsidiary shrines and such places used for public worship. The act of directly or indirectly preaching of untouchability or its justification on historical, philosophical, or religious grounds was made an offence under the Act after the Amendment Bill. It envisages setting up of committees for proper implementation of the Act and grant of adequate facilities to persons who were subjected to untouchability.
Not only this the Government of India to curb the problem of untouchability also instituted propaganda against untouchability throughout India. “Harijan weeks and Harijan day” were observed all over the country.
Discrimination Glazed on Safety
It's been 70 years since then but very little has changed. Stigmatization, violence, and caste-based unfair treatment have been a constant in our country, and even during the pandemic, it hasn't ceased to exist.
The filing of a letter petition by a lawyer in the Supreme Court stating that the term “Social Distancing” should not be used due to the tradition of Untouchability in India has once again highlighted the deep-rooted practice of untouchability in India. History bears testimony to the fact that unlike the world, India is not new to the practice of social distancing. The practice of Social Distancing and Physical Distancing has been historically entrenched in various forms of isolation by the upper caste. It was in 1992 that the first case relating to Untouchability, i.e. State of Karnataka Vs Appa Balu Ingale was recorded in the Supreme Court of India, in which the respondents were held guilty by the Apex Court on the ground of using force to prevent Dalits from drawing water from the wells. The Supreme Court relying on Article 17 of the Indian Constitution which abolishes and makes the practice of untouchability an offense and giving importance to the statement of Harijans reversed the judgment of the High Court, which had held respondents not- guilty on the ground of inconsistency or non-clarity in the statements of the 4 Harijans.
Though it has been 28 years since the first case was recorded in India, still India as a whole has not been able to evolve from the practice of Untouchability to a more progressive nation as envisioned by our freedom fighters or constituent assembly. Even in the present time when the whole world is suffering from Coronavirus words such as 'Social Distancing' are being used as means to commit discriminatory acts towards the lower caste. Even though, the virus does not see race, religion, color, caste, creed, language, or borders before striking, numerous incidents have been recorded involving differential treatment meted out to the people because of their caste.
Understanding the Current Scenario
Case Study 1 :
Recently being found Corona positive after getting tested 5 people belonging to a village in Uttar Pradesh, were quarantined in a primary school. Out of the 5 people, it was reported that 2 people walked every morning and evening to their home to get food, as the food prepared at the school was by a lower caste woman. The persons stated that they had never eaten food cooked by a lower caste person, so they wouldn’t touch this food either. This led to an investigation being launched against the accused persons and they were told that they need to follow the guidelines of the quarantine facility otherwise legal action would be taken against them.
This incident depicts the temperament of some people in India, where they are ready to put their lives and the lives of their loved ones at stake by roaming around despite having the virus but not eating the food prepared by a lower caste woman. It is due to this type of mentality or approach on part of people that it is essential to use words such as “Safe Distancing” or “Physical Distancing” in place of “Social Distancing”.
Case Study 2 :
Another incident that highlights the severity of the problem which we are dealing with in the case of a 9-months old pregnant woman who had to walk a long distance to the grocery store in secrecy to feed her 4 young children at home. The woman belonging to a lower caste was forbidden to buy essential items from the grocery store amidst the pandemic. As a result of which she was compelled to buy the items in secrecy and each time she was caught, she was not only subjected to discrimination but forced to go back empty-handed.
This type of cruel treatment is meted out to the woman because she belongs to a community of waste pickers and drain cleaners and the higher class of the village believes that the lower class might be the hub of spreading diseases and consequently should be kept away.
This incident is a clear violation of Articles 15 and 17 of the constitution. Article 15 of the constitution prohibits discrimination based on race, religion, caste, sex, and place of birth. By the virtue of Article 15(2), any citizen of India shall not be denied access to public places and public goods.They should be provided with equal opportunities in all spheres of life to ensure holistic development and well-being. Article 15 works as a shield against discrimination on the basis of the caste system. The ordeal that the pregnant woman was facing was not only inhumane but also violated her fundamental rights under Article 14 and 15 of the Constitution. Article 15 is a mere extension of Article 14. It was stated in the case of Indra Swahney v. Union of India [2], that Article 15 derives its power from Article 14. Article 14 of the Constitution talks about “equality before law” and “equal protection of the law". The article states that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The Right to Equality is one of the core features of India which extends to both citizens and non-citizens. Thus, Articles 14 & 15 when read together aim at eradicating discriminatory behavior from society.
Role of Article 21
The Yadani community (waste picker and drain cleaning community) of Andhra Pradesh were barred from purchasing essentials such as food and medicine by their upper-caste locales and the children of the Musahar community of Varanasi were compelled to sustain on the grass. Regardless of the noble intent, the lockdown was not just a preventive lockdown, for many it was a lockdown from access to food, water, shelter, medicines, livelihood, and employment.
Every person has a fundamental right to have access to food, water, shelter, medicines, and livelihood, and restricting these basic amenities from one's life is a violation of Article 21. Article 21 of the Constitution states, "No person shall be deprived of his life or personal liberty except according to the procedure established by law."
The Article does not restrict its definition to the mere physical act of breathing but has a wide sense of things under its ambit. The right to life is not only the right to exist but also includes aspects of life that make it worth living.
The Supreme Court in Francis Coralie v. Union Territory of Delhi [3], observed that: "The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, clothing, and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings and must include the right to necessities the necessities of life and also the right to carry on functions and activities as constituting the bare minimum expression of the human self." Similarly, in the landmark case of Naz Foundation V. Government of NCT and others [4], the apex court observed that “the Constitutional protection of human dignity requires us to acknowledge the value and worth of all individuals as members of our society”.
Amid the pandemic when everyone around the globe is fighting the same enemy; restricting someone’s access to basic necessities is simply cruel. The pandemic in some ways has extended opportunity in the hands of the so-called higher caste people to exploit the lower caste community during this time. The fact that lower caste people are being shunned and ostracized even during these hard times shows how much we as a society have yet to accomplish.
Conclusion
Thus, it is quite clear that despite the present legislation and development, India still suffers from its inherent problem of untouchability. Services that once the lower caste community was forced to take up are now being considered as an 'essential service' by the Government since maintaining sanitation at this time is of utmost importance. Our society would undoubtedly collapse without the help of these essential workers and yet they are facing discrimination and maltreatment.
It is high time that the difference between the upper caste and the lower caste ceases to exist and that there is equality of opportunity and availability of services to every citizen of India so that we can take steps towards a more progressive India.
References :
[1] Edited by A.T. Hingorani, 1961 Edn. at p. 146, cited in Jagdish Swarup, "Constitution of India", L.M. Singhvi, Vol. I, P. 771, 3rd Edition, Thomson Reuters, New Delhi, 2013.
[2] (1992) Supp. (3) SCC 217[2]
[3] 1981 AIR 746, 1981 SCR (2) 516
[4] NCT DRJ 1 (2009) 111