Sabarimala: Uses of the word “Untouchable” in Judgment
Differential standing points of the Sabarimala Bench with respect to questions of untouchability.
Progressive commentators hailed the Sabarimala judgment for extending the ambit of untouchability to include forms of gender discrimination. However, the Bench did not in fact reach a decision on the issue of interpreting Article 17. Two Justices did not even address the issue.
The five judge Sabarimala Bench produced a total four opinions. Indu Malhotra J dissented.
|1. D Misra
(+ AJ Khanwilkar)
|2. R Nariman
3. DY Chandrachud
|4. I Malhotra|
Only DY Chandrachud and Indu Malhotra JJ made rulings on the issue of untouchability. While Chandrachud J broadly interpreted Article 17, Malhotra J adopted a narrow interpretation. Meaning, he said untouchability can be gender-based, while she said it is restricted to caste. Interestingly, they both relied on the Constituent Assembly Debates to arrive at their diametrically opposed conclusions.
One way of illustrating how only Chandrachud and Malhotra JJ produced rulings on the interpretation of Article 17, is to simply count the number of times each Justice’s Opinion uses words/phrases relating to untouchability. See Graph 1.
DY Chandrachud J’s Opinion uses the word “untouchable”, or related words (e.g. “untouchability”), a total of 150 times. This is more than four times the combined total for all the three other Opinions. Further, his Opinion uses the phrase “Article 17” 60 times, which is more than twice the combined total for the other Opinions. See Graph 2.
Malhotra J’s Opinion uses the word “untouchable” and related words 24 times. This is more than double the number of times Misra CJI ’s and Nariman J’s Opinions use such words. In addition, her Opinion uses the phrase “Article 17” 16 times. By contrast, the other Opinions in combination (not including Chandrachud’s), only use the phrase 11 times. See Graph 3.
As aforementioned, both Chandrachud and Malhotra JJ interpret Article 17 with reference to the Constituent Assembly Debates (CADs). In fact, they both proportionally spend a similar number of pages analyzing the CADs. This can be illustrated by answering a question such as the following: How many times does the phrase “Constituent Assembly” occur on pages where the word “untouchable” (or related words) has occurred? In Chandrachud J’s Opinion, the phrase “Constituent Assembly” occurs on 28.57% of pages that contain the word “untouchable” (or related words). For Indu Malhotra J, this percentage is 22.50%.