By: Uttara Vijayakumar

Editor’s Note:

This blog post is the first in the forthcoming two-part series concerning the inadequacy of the purity-pollution analysis of untouchability. In the first post, the author discusses the need to include social exclusion based on arbitrary notions of supremacy and inferiority under Article 17.

INTRODUCTION

The entry of young women in Sabarimala has piqued the interest of the legal fraternity on the issue of untouchability that is not caste-based. While the rest of the majority refrained from analysing the issue in Indian Young Lawyers v. State of Kerala (hereinafter ‘Sabarimala’), the concurring opinion of Justice Chandrachud, that holds any social exclusion based on the notion of purity and pollution to be untouchability, has been widely hailed as a progressive interpretation of the law. This article attempts to analyse the inadequacy of restricting the definition of untouchability to only those instances of social exclusion based on purity and pollution, and consequentially the need to include social exclusion based on arbitrary notions of supremacy and inferiority under Article 17. Constitutional arguments that purport to such effects have been analysed in detail.

SOCIAL EXCLUSION BASED ON SUPREMACY–INFERIORITY AS UNTOUCHABILITY

Social exclusion based on purity and pollution has been identified as amounting to untouchability proscribed by the Constitution. It merits the analysis of whether social exclusion based on purity alone is what constitutes untouchability under Article 17. This scepticism stems from one of the alternate arguments raised in Sabarimala, which unfortunately was not delved in by the Bench as keenly. The entry of young women was restricted on the paternalist, and hence manifestly arbitrary ground, that women are physically incapable of undertaking the pilgrimage, due to the tough trek and fasting that ensues; this was an alternate argument presented in justifying the restriction on the basis of impurity associated with menstruation. Such an argument subscribes to the regressive notion of women being deemed subordinate and inferior to men, who decide for women their capabilities and consent. Thus, the alternate argument perpetuates social exclusion based on notions of supremacy and inferiority. Whether social exclusion based on an unscientific sense of inferiority attributed to an individual or group amounts to untouchability under Article 17 requires exploration. In other words, it is sought to be understood, whether social exclusion based on purity and impurity alone constitutes untouchability; or rather, it is the case that social exclusion based on other factors, in this case unscientific, arbitrary sense of supremacy, can amount to untouchability under Article 17.

Glancing through the Constituent Assembly debates helps in resolving the conundrum. In response to the amendment brought in by Mr. Tahir to criminalise contravention of Article 15(2), Dr. Ambedkar points out to its irrelevance, noting that the purpose of the proposed amendment is carried out by Article 17 that specifically deals with untouchability. Thus, Dr. Ambedkar points out that all grounds of discrimination (caste, religion, race, sex) identified in Article 15 can be grounds of untouchability under Article 17 as well. This is an extension of the argument that untouchability under Article 17 is not limited to caste-based untouchability. Article 17 finds application even in those cases where untouchability, i.e. social, economic, cultural or political exclusion, is based on sex, race, religion, or place of birth, which are grounds of discrimination proscribed under Article 15.

This would mean that if prohibition of discrimination causing social, economic, cultural or political exclusion (hereinafter ‘social exclusion’) on the basis of unscientific and arbitrary sense of supremacy can be culled out from the scheme of Article 15, then such exclusion shall necessarily fall within the ambit of untouchability proscribed under Article 17. In other words, since social exclusion on the basis of any of the grounds laid out in Article 15 can amount to untouchability under Article 17, the scheme of Article 15 shall be helpful in defining the bounds of untouchability under Article 17. Untouchability under Article 17 is of a wide ambit and intends to bring about an equal social order, hence the ejusdem generis prompted from the grounds in Article 15 shall be a factor that Article 17 shall have applicability in, in addition to its applicability on social exclusion based on the grounds expressly laid out in Article 15.

Ejusdem Generis Derivable from Article 15

Clearly, social exclusion on the basis of caste stems from the notion of unscientific purity and pollution — clean and unclean. At the same instance, this notion of purity also brings to life an arbitrary sense of the supremacy of the upper-castes. Thus, the notion of purity gives birth to the arbitrary idea of the supremacy of the upper-castes, and inferiority of the lower; and the both of these ideas concurrently form roots to caste-based social exclusion.

Social exclusion on the basis of religion, while at times at least, is based on the notion of purity and pollution, however, this is not always the case. Rather, it is an arbitrary sense of superiority that, more often than not, is the root cause of such social exclusion. For instance, the Muslim population finds itself poorly represented in the workforce due to a stereotype, propagated largely by Hindu communalists, portraying the community as fanatic. The stereotypical narrative resulting in an imbalance of opportunities and access to basic goods for Muslims causes an arbitrary sense of inferiority to be attached to the Muslim religion against any other religion, while the other religion proclaims itself to be superior. Thus, the contemporary social exclusion experienced by Muslims is largely due to an arbitrary notion of the supremacy of another religion against the Muslim religion. A practitioner of the Muslim religion is consequently deemed inferior because of his religion, in contrast to a person belonging to any other religion; and hence is socially excluded by denial of public goods. Evidently, notions of purity and pollution do not govern this form of untouchability.

While in Sabarimala, the exclusion was predominantly based on the notion of impurity associated with menstruation. As illustrated earlier, there exists a definitive argument for restriction on the entry of women based on an unscientific sense of inferiority attributed to them. It requires attention that women are not in general deemed impure, unlike the Dalits, but are rather treated as impure only during the days of menstruation. This is evident from the fact that women are subjected to exclusion from homes, kitchens, or centres of worship only during the days of menstruation. Yet, women are denied access to public/basic/social goods, not merely during the period of menstruation. Women have constantly been denied employment opportunities, and, at least in rural areas, access to centres of entertainment and other public spaces. This social exclusion of women stems from the skewed paternalist approach the society nurtures against women, largely sponsored by physiological features, in deeming women the weaker sex incapable of deciding and consenting for themselves or undertaking demanding tasks that are traditionally assigned to men, and thus establishing the supremacy of the male sex. Thus, the social exclusion of women from access to basic goods is predominantly based on the arbitrary sense of supremacy attached to the opposite sex; that is not in all circumstances in reference to notions of purity and pollution.

Thus, notions of supremacy and inferiority as the common element in the grounds of discrimination proscribed under Article 15(2) can be seen slowly rising outside of the shadow of the notion of purity and pollution that was masking it as the common element. In the next post, other grounds of discrimination proscribed under Article 15(2) — race and place of birth — shall be analysed to determine whether the prohibition of discrimination on race and place of birth is underwritten by notions of supremacy-inferiority as well; if that is the case, then the essence of the scheme of Article 15(2) is proscription of social exclusion based on notions of supremacy and inferiority, and not notions of purity and pollution. Further, social exclusion based on notions of supremacy–inferiority as untouchability is reflected in Article 17 itself shall be discussed as well.

(Uttara is a graduate from National Law University, Jodhpur. She is currently a law researcher to Justice Endlaw, High Court of Delhi.)