The symptom was addressed, the disease remains

The Indian Constitution does not satisfy itself simply by declaring that all are equal before the law (Article 14). It also imposes a duty on governments to ensure that everyone enjoys the equal protection of law. It also imposes a duty on citizens not to discriminate against each other in matters of public spaces (Article 15). Not only that, it also goes further and mandates that citizens cannot practice untouchability in any form whatsoever, and doing so would be an offence under the law. While the Constitution wants people to be free to lead their own lives without interference from the government, it is not oblivious to Indian history and the need for social reform. Untouchability is not just immoral, but also criminal.

Untouchability is one of three constitutionally prohibited offences -- the other two being chattel slavery and child labour. The government is required by the Constitution to impose legal penalties for the commission of these offences. Of the three, the abolition of untouchability is perhaps the most important, given the widespread nature of the caste system and its pernicious effects.

That untouchability could not be abolished with the stroke of a pen is something that members of the Constituent Assembly were well aware of. The Protection of Civil Rights Act, 1950, which was replaced by the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1987, attempts to fulfill the mandate of Article 17. However, a cursory glance through any newspaper shows the incompleteness of this exercise -- not just in rural areas but also in urban areas, where untouchability takes the form of occupational segregation (making Dalits clean dangerous sewers) and housing segregation (confining them to slums and poorly developed areas).

But how did the members of the Constituent Assembly hope to address the challenge of abolishing untouchability? The speeches of the members when discussing the subject are revealing.

Dakshayini Velayudhan, the only woman Dalit member of the Constituent Assembly, credits both Ambedkar and Gandhi for the clause abolishing untouchability, but in different capacities. The former in his capacity as the Chairman of the Drafting Committee, and the latter for his social work in changing the outlook of ‘caste Hindus’ to make this possible. In doing so, she says something that was later expanded upon by scholar D R Nagaraj in The Flaming Feet and Other Essays. Nagaraj argues that pitting Ambedkar against Gandhi, no matter their political disagreements, was futile. Rather, the fight against caste needs both Gandhi and Ambedkar, as formal abolition needs to go hand in hand with social reform to change the minds of ‘caste Hindus.’

H J Khandekar, a Dalit leader, in a long speech about the significance of the clause spoke about how the Manusmriti forbade Shudras from even naming their children as they pleased and had to give them ugly and harsh names. He alluded to the significance of introducing this clause in a pithy and memorable way:

“Now today, Sir, we are enacting a law of Independent India under the genius of Dr Ambedkar…If I may do so, Sir, I call this Constitution the ‘Mahar law’ because Dr Ambedkar is a Mahar and now when we inaugurate this Constitution on the 26th of January 1950, we shall have the law of Manu replaced by the law of Mahar, and I hope that unlike the law of Manu, under which there was never prosperity in the country, the Mahar law will make India virtually a paradise.”

While no one objected to the inclusion of the clause itself, there was much nit-picking (by ‘upper caste’ members) about what untouchability actually meant. Eminent speakers like K T Shah, Naziruddin Ahmed and others wondered, using all sorts of bizarre examples, how to legally define “untouchability” and whether the clause would cause confusion in the minds of law enforcers. Suffice it to say that no one with real experience of untouchability, least of all Ambedkar, saw any merit in their quibbles, and the clause passed unamended.

Perhaps the most interesting critique of the clause came from Promatha Ranjan Thakur, a Dalit member of the Assembly from Bengal, right at the beginning on April 29, 1947, when the interim report of the Advisory Committee on Fundamental Rights was first taken up. He wondered why the clause abolishing untouchability was in the part of the Constitution relating to the fundamental rights. After all, he argued, untouchability was only a symptom of the caste system and this clause, at best, addressed a symptom rather than the deeper disease itself. While he did not propose any amendment to the clause or objected to its existence in the Constitution, his astute observation should give us pause to think about what it really means to annihilate caste in India.