Article 17 abolishes "untouchability", and its practice in any form is made an offence punishable under the law. No article in the Constitution was adopted with such unanimity and so great an acclamation and enthusiasm as this article.
It was the only one which had the special distinction of having been adopted with cries of "Mahatma Gandhi Ki Jai". Some critics of the Constitution ask the question: "What is the right that is created by this article?" It is true that is does not create any special privileges for anyone.
Yet, it is a great fundamental right, a charter of deliverance to one-sixth of the Indian population from perpetual subjugation and despair, from perpetual humiliation and disgrace. We have already seen, while discussing the nature of fundamental rights, that a right is a remedy against a disability.
The abolition of untouchability becomes a right in that sense. The custom of untouchability had not only thrown millions of the Indian population into abysmal gloom and despair, shame and disgrace, but it had also eaten into the very vitals of the nation. There could be no better sign of the determination to eradicate the evil than incorporating this Article into the chapter on Fundamental Rights in the Constitution.
It may not be inappropriate in this context to recall what Gandhi feelingly said on one occasion on the subject. He said: "I do not want to be re-born, but if I am re-born, I wish that I would be reborn as a Harijan, as an untouchable, so that I may lead a continuous struggle against the oppression and indignities that have been heaped upon these classes of people".
Again, it may not be inappropriate to recall here that it was an irony of fate that a man who was driven from one school to another, who was forced to take his lessons outside the classroom and who was thrown out of the hotels in the dead of night, all because he was an untouchable, was entrusted with the task of framing the Constitution which embodies this Article and which dealt the death-blow to this pernicious social custom. That person was no other than Dr. B.R. Ambedkar, the Chairman of the Drafting Committee of the Constitution.
With the epic fast of Mahatma Gandhi in 1932 in protest against the "communal award" by which the Scheduled Castes were to be given a separate electorate, a vigorous movement against untouchability was launched on a national basis. Solemn pledges were taken by many members of the Indian National Congress and others that untouchability would no longer find any asylum in the country.
The movement brought forth some good results. Many temples were thrown open, and the rigours of untouchability had become a thing of the past at least in the urban centers of the country. But the evil of untouchability still lingered in many forms and in many parts of the country. Speaking on the Untouchability Offences Bill, which was passed into an Act in 1955, the then Home Minister of India G.B. Pant said?
"This cancer of untouchability has entered into the very vitals of our society. It is not only a blot on the Hindu religion, but it has created intolerance, sectionalism and fissiparous tendencies. Many of the evils that we find in our society today are traceable to this heinous monstrosity.
It was really strange that Hindus with their sublime philosophy and their merciful kind-heartedness even towards insects should have been party to such intolerable dwarfing of manhood. Yet, untouchability has been there for centuries and we have now to atone for it. The idea of untouchability is entirely repugnant to the structure, spirit and provisions of the Constitution."
The Untouchability Offences Act came into force in June 1955. In one sense it may be said to be an expansion of Article 15 of the Constitution. The Act intended to make the enforcement of any disability against the Scheduled Castes illegal.
It provided that when the victim is a member of a Scheduled Caste, the commission of the forbidden act should be presumed to have been done on the ground of untouchability. It has lain down that whatever is open to the general public or to Hindus generally should be equally open to members of the Scheduled Castes also.
Thus, for example, no shop may refuse to sell and no person may refuse to render any service to any person on the ground of untouchability. Every person is entitled to such services on the terms on which they may be obtained in the ordinary course of business by any other person.
Any refusal on that ground entails cancellation of any license required in respect of such profession. Any act which interferes in any manner with the exercise of such rights by any person was made an offence punishable with imprisonment for six months or a fine up to Rs. 500 or both. A subsequent offence is punishable with both imprisonment and fine. All offences under the Act are cognizable and may be compounded with leave of the Court.
The Untouchability Offences Act was amended in 1976 making its penal clauses more stringent. The Act has been also renamed as the Protection of Civil Rights Act. One significant new provision of the Act is that a person convicted of an untouchability offence will be disqualified for contesting the elections. It was for the first time that such a provision became a law in the history of elections in India.
In spite of the constitutional provisions, the operation of the Untouchability Offences Act and judicial pronouncements, India cannot yet claim to have rooted out the evil of untouchability completely. In the fight against social evils, legislation is only one of many weapons.
To adopt an article in the Constitution against untouchability and make it a fundamental right, or pass an Act of Parliament making its practice an offence, and then expect overnight to have a society devoid of this centuries- old evil, would be too optimistic.
There is no room for complacency in spite of the existence of these enactments. Legislation is a poor remedy for prejudices. The battle against every form of untouchability and social discrimination has to be carried to the hearts and minds of prejudiced people through mass contact, the mustering of public opinion and social action. Simultaneously, there must be a vigilant watch over offenders with a view to punishing every aggressive manifestation of caste discrimination.