By: Uttara Vijayakumar

Editor’s Note:

In the final part of this two-part series concerning the inadequacy of purity-pollution analysis of untouchability, the author examines how the prohibition of discrimination based on race and place is underwritten by notions of supremacy and inferiority.

INTRODUCTION

In the previous post, we examined the relationship between Article 15(2) and Article 17 as traced from the Constitutional Assembly debates (hereinafter ‘CAD’) and concluded that the scheme of Article 15(2) is pertinent in defining the bounds of untouchability under Article 17. Hence, it was noted that the ejusdem generis prompted from the prohibited grounds of discrimination under Article 15(2) shall be a factor that attracts Article 17, in addition to its applicability in social exclusion based on the grounds expressly laid out in Article 15. An attempt was made to cull out the ejusdem generis prompted from the prohibited grounds of discrimination under Article 15(2), at which it was found that the notion of supremacy-inferiority is the common thread linking the social exclusion based on religion, race, and sex. This post attempts to examine how the prohibition of discrimination based on race and place of birth is also underwritten by notions of supremacy and inferiority, thus culling out notions of supremacy and inferiority as the scheme of Article 15(2). Finally, this post analyses how social exclusion based on notions of supremacy-inferiority as untouchability is reflected in Article 17 as well.

EJUSDEM GENERIS DERIVABLE FROM ARTICLE 15(2) – EXAMINING THE GROUNDS OF RACE AND PLACE OF BIRTH

Social exclusion based on race is concurrently based on the idea of supremacy as well as purity. Racial purity was sought to be achieved in Nazi Germany, due to the perception of physiological superiority of the Aryan race against other races, and the fear of loss of that superiority if the race is polluted by sexually intermingling with other races. Similarly, apartheid entailed maintenance of racial purity due to the arbitrary perception of superiority of the white men against the black. The presence of black men in the areas reserved for the white was prohibited due to the polluting, filthy nature of the people belonging to the black race. From the idea of pollution stems the perception of the inferiority of black men, much like the caste system of India.

In India, racial discrimination and social excommunication on the basis of race are predominantly observed against two communities — first, the people belonging to the Mongoloid race from the north-eastern parts of India, and second, persons from Africa belonging to the Negroid race. The first group finds itself socially excluded due to the discrimination in access to basic goods like housing, shelter and dignified living. Ostracisation by means of denial of housing, transport and even medical treatment, arbitrary denial of employment opportunities, propagating stereotypes that have the effect of stripping the dignity of individuals, physical and verbal assault, are rampant in the mainland. These instances point to the social exclusion as being based on an arbitrary, constitutionally unviable sense of inferior citizenship being attributed to individuals of the racial group, due to their distinct features. The assumption of inferiority towards individuals of the racial group is evident from haste and lack of hesitance in the conduct of acts of physical assault, and unequal denial of access to opportunities based on the unconstitutional notion that persons of the said racial group are lesser Indians. However, these instances and assumptions of inferiority are not based on the notion of purity and pollution, as the existence of a narrative portraying persons of the said racial groups as dirty, unclean or impure, is absent in the practice of exclusion.

Social ostracisation of Africans in India also stems from the consideration of inferiority arbitrarily attributed to them, based on stereotypes not associated with purity and pollution, but on stereotypes portraying Africa as underdeveloped, and hence undertaking “debased livelihood means such as drug-peddling and prostitution.” The inferiority ascribed is one of being deemed a lesser human due to the economically underdeveloped nature of African society, which has caused normalisation of certain activities deemed inappropriate in the Indian context; and not through attributing traits of uncleanness, dirt or impurity to Africans, unlike in the case of apartheid. While this forms an argument to elucidate that the social exclusion based on the idea of supremacy can be independent of the notion of purity, it is impossible to miss the strong chord that is struck with caste-based discrimination. Caste-based discrimination is tied to the idea of pollution stemming from the hierarchical and hereditary caste system, wherein, members of lower castes are destined to perform menial jobs and deemed polluted, and polluting upon coming in contact with members of upper castes. While coming into contact with Africans is not directly deemed as polluting, it may be noted that the presence of the Africans stereotype to have “debased livelihood means such as drug-peddling and prostitution” is considered as polluting the Indian culture. Thus, social exclusion is concurrently and disjunctively based on arbitrarily assumed supremacy of Indians over Africans, stemming from the notion of purity and pollution, as well as outside of it. This would mean that the sense of supremacy is the root cause of all forms of untouchability and that the notion of purity and pollution is only one of the many manifestations of the notion of supremacy and inferiority.

Social exclusion based on place of birth would mean exclusion from access to social goods based on one’s birthplace, as opposed to ethnicity. CAD recognise local patriotism to be one of the two driving forces behind social exclusion based on place of origin. The notion of purity and pollution, interestingly, is never acknowledged as a cause for social exclusion in the CAD. However, it can be noted that local patriotism resonates with an intent to bring about a homogenous society based on birth status. Purity can mean both the absence of dirt and the unclean, as well as indicate homogeneity. Viewed from this lens, it is easy to make an argument that social exclusion based on local patriotism is essentially based on notions of purity and pollution. However, purity associated with acts of untouchability is historically based on the idea of dirt and uncleanliness. The fact that local patriotism is not compared to the notion of purity and pollution in the CAD further substantiates that homogeneity as purity does not find a place in the constitutional scheme against social exclusion.  Further, the rest of the grounds laid down in Article 15 do not resonate to the idea of homogeneity as purity, but rather subscribe to the historical understanding of purity as clean. While Article 16 proscribes exclusion based on grounds that resonate with purity and homogeneity, it substantiates that social exclusion based on homogeneity as purity is specifically excluded from the scheme of Article 15 and thus, not envisioned under Article 17.

The second driving force behind social exclusion based on place of origin that the constitution acknowledges is of supremacy-inferiority. Advocating for Article 16 to read that no citizen shall be discriminated on the basis of place of birth in India, instead of merely place of birth, Hon’ble Member KT Shah reasons that exclusion of persons born outside of India is essential due to the unfortunate inferior treatment towards Indians met out in the Commonwealth and the sense of supremacy with which the colonial rules carry on the exploitatory and discriminatory treatment.  Thus, exclusion based on place of birth is historically associated with notions of supremacy and inferiority sans its manifestations as purity and pollution.

Thus, the scheme of Article 15 is the prohibition of social exclusion on the basis of an unscientific, arbitrary sense of supremacy. Nevertheless, all social exclusion based on supremacy and inferiority does not find a place in the scheme of Article 15; social exclusion based on supremacy and inferiority in an intrinsic, immutable trait that is prohibited solely under Article 15. Article 16 prohibits discrimination on grounds that are not only intrinsic traits, while these non-intrinsic traits do not find mention in Article 15, only substantiates this analysis. Hence, the scheme that can be culled out from Article 15 is that of the prohibition of social exclusion based on an arbitrary sense of supremacy and inferiority attached to the different manifestations on an intrinsic trait.  Since social exclusion based on the scheme of Article 15 can amount to untouchability under Article 17, social exclusion based on an arbitrary sense of supremacy and inferiority attached to the different manifestations on an intrinsic trait amounts to untouchability proscribed under Article 17 as well.

In any case, Article 17 attempts to bring forth an equal social order by replacing the traditional and hierarchical social order; individuals and groups that would otherwise have remained at society’s bottom or edges are brought to the mainstream of society. Justice Chandrachud himself acknowledges that the purpose of Article 17 is intended to eliminate the feudal social order that causes inequality in the society of today. This indicates that social exclusion based on the notion of supremacy and inferiority, the touchstone of feudal social order, constitutes untouchability under Article 17.

CONCLUSION

It is thus the contention that the progressive understanding that Justice Chandrachud advocates on Article 17 is not entirely adequate. Article 17 attempts to change the unequal social order into an inclusive and egalitarian one, which can be achieved if the root of inequality — a position of arbitrarily attributed sense of supremacy and inferiority — is struck down. All and any reason for arbitrary social exclusion boils down to the perception of supremacy and inferiority. It is only unfortunate that an artificial distinction is created between the constitutionally flawed perception of supremacy based on notions of purity and pollution, and similar perception of supremacy based on other factors when ultimately, all of it concurrently contributed to the unequal social order that has historically denied opportunities and dignity to the marginalised individuals. Hence, in order to attain the noble goals that underlie Article 17, the understanding of untouchability has to account for social exclusion based on all forms of arbitrarily perceived ideas of supremacy and inferiority. Hopefully, this aspect shall be noted in the review petition, which shall then help the State to usher in a new dawn of egalitarian concern.

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