Parts 1 and 2 of this series delved into the debates about Article 17 in the drafting committees of the Constituent Assembly. In this part we dive into discussions about Article 17 on the floor of the assembly that occurred twice, in April of 1947 and then in November of 1948.
The draft article on the abolishment of untouchability was widely lauded by members of the Constituent Assembly for its moral position on untouchability.
However, some members of the assembly argued for clear definitions of untouchability and the nature of the abolishment. Speaking at the submission of an interim report of the SCFR to the assembly in April 1947, Promotha Ranjan Thakur noted that deliberations at the SCFR and SCM had been truncated and that the draft article ought to be reconsidered as it did not define untouchability. He also argued that since untouchability was a symptom of the caste system, the assembly ought to seek to do away with the caste system entirely instead of “tinkering with the problem of untouchability superficially”.[1] He was joined in his argument by Srijut Rohini Kumar Choudhury who attempted to provide a definition for untouchability as “any act committed in the exercise of discrimination on grounds of religion, caste, or lawful vocation”.[2] And S.C Bannerjee argued that abolishing “caste distinction” instead of untouchability would better strike at the root of the problem.[3] Dhirendra Nath Datta further argued that since untouchability took on different forms in different regions of the country, a provision that failed to define untouchability might leave too much in the hands of judges.[4]
Others thought the provision too limited, H.V. Kamath argued that “unapproachability” should also be included within the draft article, S Nagappa argued that not just the imposition but also the “observance” of untouchability should be regarded as an offence, and P. Kunhiram argued that the vague phrase of “is an offence” be substituted with “punishable by law” to ensure that the legislature was committed to making a penal law. These verbal amendments were rejected by Sardar Vallabhbhai Patel as unnecessary. He argued that the legislature drafting an anti-untouchability legislation could incorporate these changes after the constitution had been adopted.[5]
When the draft constitution was discussed in the assembly a year later, Naziruddin Ahmed introduced an amendment that stated that no one on account of “his religion or caste” should be treated as an untouchable. He argued that the draft article was vague and “untouchability in any form” covered many aspects of social life. He wanted to clarify that untouchability based on religion and caste was being abolished. The introduction of religion as a basis is curious, as perhaps the Muslim member had in mind discrimination faced by Dalit Muslims. In any case, Dr Ambedkar refused to accept the amendment. KT Shah raised similar concerns about the vagueness of the class in as much as it affected menstrual taboos and women, but Dr.Ambedkar declined to respond to him either.[6]
Dakshayani Velayudhan and Santanu Kumar Das both expressed doubts about the enforceability of untouchability laws. Velayudhan indicted provincial and central governments for not taking action on untouchability previously and argued that only “propaganda” work done by governments rather than penal legislation would work to eradicate untouchability.[7] Das charged the assembly thus : “ The fact is we merely want to enact laws about it and expect rural people to observe these laws. We must first ourselves observe the law…” He claimed that members of the assembly acted as “fifth columnists” by passing laws in legislatures but admitting in rural areas that these laws would not be enforced.[8]
Answering questions about the extent of the untouchability abolition provision in the assembly, Ambedkar made the ambit of the clause clear- to criminalise untouchability and to punish “interference” with Dalit Rights. He stated that the parliament, and not provincial legislatures, was entrusted with making a law to this effect as “any offence which deals with the Fundamental Rights should be uniform throughout” the country. He also, in this speech, rejected segregation of schools for Dalit children and suggested integration was required.[9]
At the adoption of the Constitution, several members of the assembly celebrated the adoption of Article 17. Some Dalit lawmakers, however, were more cautious. H.J. Khandekar, in his speech in the assembly argued that being an “untouchable” and a “practical man” himself, he was less optimistic than others celebrating the article. He stated that several anti-untouchability and temple entry legislations enacted by provincial governments had failed and “not an inch of untouchability had been removed by these laws”.
He pointed out that untouchability was still prevalent in villages and towns where Dalits lived in segregated ghettos. He expressed scepticism at a legal resolution to the untouchability problem, arguing that Hindus should change their “hearts and minds.”[10] He was joined in this scepticism by L.S. Bhatkar,[11] Jadubans Sahay,[12] S Nagappa[13] and others. V.I. Muniswamy Pillai drew upon evidence from the failure of anti-untouchability legislation in Madras to argue that penal laws alone could not combat untouchability still rampant in village parts. And that combating untouchability required special laws that entailed creation of special judicial and policing institutions.[14] Ajit Prasad Jain lauded the articles on the abolition of untouchability and equality of access to public spaces but stated that “untouchability is essentially an economic disease” that would require affirmative action in education and employment.[15]
Even Ambedkar, speaking on provision regarding the powers of the parliament recognized the challenges in enforcing untouchability laws. He argued that the union government should be able to enforce any laws they made regarding untouchability. Especially as these laws must include additional police, special judicial and administrative machinery, and funding for costs of prosecution as there might be resistance from states that were not keen on or able to enforce the law.[16]
Granville Austin states that Article 17 of the proposed Constitution was non-controversial and was “swiftly passed” by the Constituent Assembly and the Fundamental Rights Sub Committee.[17] This was not borne out by investigating the archives on the matter.
It is clear from the archives that a tense conflict on whether untouchability was to be dealt with as a religious question or as an issue of “group rights”, including criminal sanction and/or economic and social reforms, did play out in the SCFR and the SCM. It is also clear that even in early discussions, influential Dalit lawmakers, sceptical as they were of the legal system they considered to be captured by the wealthy and landed classes, nevertheless argued for the criminalisation of untouchability. At the same time, they also argued for a broad range of economic and land reforms to enable Dalit citizens to exercise their civil rights, diagnosing untouchability as an economic disease that cannot be treated solely through penal laws. There were also unresolved conflicts between lawmakers on whether or not non-Hindus could be subject to the abolishment of untouchability, and whether the abolishment signified the responsibility of the state to provide relief to victims, imposed a duty on the state to criminalise untouchability, or simply removed state sanction from the practice of untouchability.
Despite these unresolved conflicts, the proposed draft was adopted by the Constituent Assembly,[18] and Article 17 as it exists today was written into the constitution. It “abolishes any form of untouchability” without defining either untouchability or the nature of the abolishment. The assembly chose to leave that task to the parliament charged with enacting statutory law.
On 25th November 1949, Dr. Ambedkar spoke in the Constituent Assembly to state “ On January 26, 1950, we will have equality in politics and inequality in social and economic life, We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this assembly has so laboriously built up.” Drawing comparisons with the founding of the United States of America, he stated that India was not yet a nation in the social sense due to the existence of castes which he termed as “anti-national.” He called for the establishment of fraternity and equality in all spheres of life to prevent the disaster of a fractured nation. [19]
[1] Promotha Ranjan Thakur, Constituent Assembly Debates (Vol.3, 29th April 1947)400.
[2] Srijut Rohini Kumar Choudhury, Constituent Assembly Debates(Vol.3, 29th April 1947) 413.
[3] S.C. Bannerjee, Constituent Assembly Debates (Vol.3, 29th April 1947) 413.
[4] Dhirendranath Datta, Constituent Assembly Debates (Vol.3, 29th April 1947) 413.
[5] Constituent Assembly Debates, Vol.3, 29th April 1947, pp.434-435.
[6] Constituent Assembly Debates, Vol.7, 29th November 1948, pp.665,668-669.
[7] Constituent Assembly Debates, Vol.7, 29th November 1948, pp.667-669.
[8] Constituent Assembly Debates, Vol.7, 29th November 1948,pp.667.
[9] Constituent Assembly Debates, Vol 7. 29th November 1949, pp. 660-662.
[10] Khandekar, Constituent Assembly Debates, Vol. 9, 21st Nov. 1949 pp.736-738
[11] Bhatkar, Constituent Assembly Debates, Vol.9, 24th Nov. 1949,pp.915
[12] Jadubans Sahay, Constituent Assembly Debates, Vol.9, 22nd Nov 1949, pp.807.
[13] Constituent Assembly Debates, Vol. 9, 21st Nov. 1949, pp.754
[14] VI Muniswamy Pillai, Constituent Assembly Debates, Vol.VII, 8th November 1948, pp.308-309.
[15] Constituent Assembly Debates, Vol.9, 22nd Nov 1949, pp.807.
[16] Constituent Assembly Debates, Vol.7, 30th Dec 1948,pp.1139
[17] Granville Austin, Indian Constitution: Cornerstone of a Nation,63-64
[18] B Shiva Rao, Selected Documents, 300.
[19] Constituent Assembly Debates, Vol. 11, 25th November 1949.
The Article 17 Project 
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