Kerala Chief Minister Pinrayi Vijayan confirmed on Wednesday that two women of menstrual age had offered prayers at the Sabarimala temple, three months after the Supreme Court lifted the traditional ban on women between the ages of 10 and 50 from entering the hill shrine.
However, shortly after this progressive development, the temple shut its doors so that a purification ritual could be performed since it had, in their view, been sullied by the entry of the women.
On the face of it, the action of the temple authorities would seem to violate Article 17 of the Constitution, which prohibits untouchability. In its judgement in the Sabarimala case on September 28, the court made it clear that devotion cannot be subjected to any form of discrimination.
In his elaborate opinion, Justice DY Chandrachud referred to debates in the Constituent Assembly to buttress his contention that the definition of untouchability cannot be confined to caste-based discrimination alone.
“Article 17 is a social revolutionary provision. It has certain features. The first is that the Article abolishes “untouchability”. In abolishing it, the Constitution strikes at the root of the institution of untouchability. The abolition of untouchability can only be fulfilled by dealing with notions which it encompasses. Notions of “purity and pollution” have been its sustaining force. In abolishing “untouchability”, the Constitution attempts a dynamic shift in the social orderings upon which prejudice and discrimination were institutionalized.
The first feature is a moral re-affirmation of human dignity and of a society governed by equal entitlements. The second important feature of Article 17 is that the practice of “untouchability” is forbidden. The practice is an emanation of the institution which sustains it. The abolition of the practice as a manifestation is a consequence of the abolition of the institution of “untouchability”. The third significant feature is that the practice of untouchability” is forbidden “in any form”.
The “in any form” prescription has a profound significance in indicating the nature and width of the prohibition. Every manifestation of untouchability without exception lies within the fold of the prohibition. The fourth feature of Article 17 is that the enforcement of disabilities founded upon “untouchability” shall constitute an offence punishable in accordance with law. The long arms of the criminal law will lend teeth to the enforcement of the prohibition.
The Constitution has carefully eschewed a definition of “untouchability”. The draftspersons realized that even a broadly couched definition may be restrictive. A definition would become restrictive if the words used or the instances depicted are not adequate to cover the manifold complexities of our social life through which prejudice and discrimination is manifest.
Hence, even though the attention of the framers was drawn to the fact that “untouchability” is not a practice referable only to the lowest in the caste ordering but also was practiced against women (and in the absence of a definition, the prohibition would cover all its forms), the expression was designedly left undefined.
The Constitution uses the expression “untouchability” in inverted comas. The use of a punctuation mark cannot be construed as intent to circumscribe the constitutional width of the expression. The historical backdrop to the inclusion of the provision was provided by centuries of subjugation, discrimination and social exclusion. Article 17 is an intrinsic part of the social transformation which the Constitution seeks to achieve.
Hence in construing it, the language of the Constitution should not be ascribed a curtailed meaning which will obliterate its true purpose. “Untouchability” in any form is forbidden. The operation of the words used by the Constitution cannot be confined to a particular form or manifestation of “untouchability”.
The Constitution as a constantly evolving instrument has to be flexible to reach out to injustice based on untouchability, in any of its forms or manifestations. Article 17 is a powerful guarantee against exclusion. As an expression of the anti-exclusion principle, it cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution.
The caste system has been powered by specific forms of subjugation of women. The notion of “purity and pollution” stigmatizes the menstruation of women in Indian society. In the ancient religious texts114 and customs, menstruating women have been considered as polluting the surroundings. Irrespective of the status of a woman, menstruation has been equated with impurity, and the idea of impurity is then used to justify their exclusion from key social activities.
Article 17 certainly applies to untouchability practices in relation to lower castes, but it will also apply to the systemic humiliation, exclusion and subjugation faced by women. Prejudice against women based on notions of impurity and pollution associated with menstruation is a symbol of exclusion. The social exclusion of women, based on menstrual status, is but a form of untouchability which is an anathema to constitutional values.
As an expression of the anti-exclusion principle, Article 17 cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution. Article 17 cannot be read in a restricted manner. But even if Article 17 were to be read to reflect a particular form of untouchability, that article will not exhaust the guarantee against other forms of social exclusion.
The guarantee against social exclusion would emanate from other provisions of Part III, including Articles 15(2) and 21. Exclusion of women between the age groups of ten and fifty, based on their menstrual status, from entering the temple in Sabarimala can have no place in a constitutional order founded on liberty and dignity.”