'Untouchability' Not Merely Caste-Based; Includes All Forms Of Social Exclusion Based On Idea That Certain Persons Are Inferior : Madras High Court

“Going beyond the specific Caste-based practice, 'untouchability' includes all practices of social ostracism and exclusion that have their bases in ritual ideas of purity/pollution and hierarchy/subordination.”

The High Court made these significant observations while dealing with the membership rules of the Madras Bar Association, which were questioned as elitist and exclusionary.

Justice SM Subramaniam highlighted that a broad reading of Article 17 of the Constitution (which prohibits the practice of untouchability)  would make it clear that not only the caste-based practice of untouchability was constitutionally prohibited but all such practices which bore a resemblance to it. Thus, the court noted that what had to be looked into was whether the practice was one of social subordination, exclusion, and segregation.

“A broad reading of Article 17 means that not only the caste-based practice of untouchability falls within the ambit of the constitutional prohibition, but practices that bear a family resemblance to “untouchability” are captured as well. This requires the Court to ask whether a particular practice, like untouchability, is a practice of social subordination, exclusion, and segregation, based upon an idea that certain personal characteristics (whether caste, or gender, or menstruation) can justify relegating individuals to an inferior position in society."

"This requires the Court to ask whether a particular practice, like untouchability, is a practice of social subordination, exclusion, and segregation, based upon an idea that certain personal characteristics can justify relegating individuals to an inferior position in society"

The court was hearing a plea filed by Senior Advocate Elephant G Rajendran against the Madras Bar Association claiming that the association had prevented his son, a non-member from drinking water at the MBA Hall. He also alleged that the Association was trying to create an elite class by making its membership in such a way that ordinary practicing lawyers found it difficult to get a membership.

While Rajendran had alleged that the Association was engaging in Caste discrimination, the court elaborated on the concept and noted that it was class discrimination. The court also held that even class discrimination would come within the facet of untouchability when it is based on economic status.

“Now the writ petitioner though raised the ground of practicing untouchability in the Madras Bar Association, the said allegation cannot be considered in the perspective of Caste discrimination. It is to be construed in the perspective of class discrimination, which is also to be construed as untouchability, if it is practiced on the ground of economic status, dignitaries or non availability of proposer or second proposer as per Bye-Laws of the Madras Bar Association.” the court observed.

The court also discussed how the Constituent Assembly had rejected an amendment to restrict the scope of untouchability to Religion or Caste and had noted that untouchability had to be understood in a broader sense. The court noted that while some members of the assembly understood untouchability in its narrow sense, they did not do so to the exclusion of the broader sense. The court noted that some members of the Assembly also understood Article 17 as being interlinked to the provisions of Article 15 thus including a right to enjoy equal social conditions.

“Meanwhile, other members expressly linked the provision to Article 15(2), and repeatedly argued that the understanding of Article 17 included the right of everyone to enjoy ‘equal social conditions’, ‘equal rights’, ‘social equality’, the abolition of ‘social inequity, social stigma and social disabilities’ and as a remedial clause for ‘those who have been left behind in social and economic matters’.” the court observed.

The court added that the Constitution was not only a charter for independence from colonial rule, but also a document which helped to overcome the social hierarchies existing in the society. Thus, the court added that the courts should read these clauses broadly to give effect to the Constitution’s transformative purpose.

GOOD REPUTATION A FACET OF ARTICLE 21

During the discussion, the court also added that an injury to one’s reputation was a personal innury and that good reputation was an element of personal security which was protected by the Constitution along with the right to enjoyment of life, liberty etc.

“A good reputation is an element of personal security and is protected by the Constitution equally with the right to enjoyment of life, liberty and property and as such, it has been held to be a necessary element in regard to right to life of a citizen under Article 21 of the Constitution of India” the court said.

The court highlighted that Lawyers, per se enjoyed a reputation which was also a revenue generator for the present and future.

“A Lawyer, per se, enjoy social status by virtue of his capacity as a Lawyer. Such reputation, which the Lawyer gains in the Society is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is a revenue generator for the present as well as for the posterity. Personal rights of a human being include the right of reputation.”

Also Read. - 'No Elite Society Of Lawyers At Public Cost' : Madras High Court Directs Madras Bar Association To Give Membership Without Any Discrimination

Case Title: Elephant G Rajendran v The Registrar General and others

Citation: 2023 LiveLaw (Mad) 171