Dr Ambedkar was also cognizant of the evolving nature of untouchabilityinmodern times He took note of colonial documents reporting the relaxation of casterules in urban centres, where a certain degree of social intercourse (working in thesame mill, for example was unavoidable Based on the same, he reasoned thatuntouchabilityin the notional sense persisted, in terms of not partaking in foodprepared byuntouchables or sitting at the same table, or smoking from the samehookah.

In 21st century India, these practices continue in the formof preventingmarginalised castes from accessing education in common schools, preventing entryinto “cleaner” occupations, denying landownership, preventing construction ofdignified dwellings, wearing decent clothes or keeping moustaches or riding a horseduring wedding processions.

Indian courts have played an instrumental role incrafting, defining, and entrenching coreconstitutional values insociety Thejurisprudence evolved by the courts has been amongst the defining features of thestory of Indian constitutional democracy.

This robust judicial role can beunderstood as the institutional response of the courts to changing social realities andthe realisation of a duty to participate in this transformation.

Article 17 is the primary Article in the Constitution that deals directlywithuntouchability.

It states that untouchability isabolished and practising it in anyform is forbidden In this context, the interpretive role of Article 17 assumesimportance because it is one of the elements of Part III of the Constitution thatrecognises horizontal rights.

A horizontal right can be enforced against fellow

Article 17, along with Articles 23 and 24, mandate the prohibition of a socially corrosivepractice, as an essential element of the Fundamental Rights chapter This right canbe exercised against fellow citizens as well This “explicit guarantee offundamentalrights”manifesting in a constitutionaldeclaration that “untouchability is henceforthillegal”,forms the bedrock of “transformative law” in the Indian social context.

Through the identification ofhumiliatingand exclusionar y castebased practices as a punishable constitutional tort, Article 17 signifies the resolve to create accountabilityagainst socialtyrannypractised against marginalised groups under an unjust socialorder.

Symbolically-., Article 17 isstronglyassociated with Dr BR. Ambedkar”s legacyand finds a place in various anticaste articulations.

The Constituent Assemblyconsciously leftthe definitionof “untouchability” to thestatute thatwould be enactedin compliance with this Article.

However, PK. Tripathi observed that even in theabsence of legislation, Article 17 “will have the effect ofinvalidating not onlyall laws, customs, usages, practices etc., directly orindirectly recognising or encouraging thepractice of untouchability, but even any sales, contracts, covenants orother privatetransactions having the effect ofsuch recognition or encouragement”.

This must be read with Article 35(ai i which confers upon the Parliamentexclusive power to make lawsprescribing punishment for those acts which are declaredto be offences under Part III of the Constitution.

In line with Dr Ambedkar”s insistence that “rights are no good withoutremedies-.”, the Indian Parliament took uponitself the task to enforce criminal accountability for violation of civil rights of A Study of Caste-Sensitive Judicial Reasoningƒ

Thus, the Parliament enacted the Untouchability (Offences Act, 1955 whichwas later amended and renamed in 1976 as the Protection of Civil Rights Act, 1955, (Civil Rights Act and supplemented by Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Ac t, 1989 (Atrocities ActThe object of these enactments was toensure that persons are not deterred fromexercising any right accruing to them by reason of the abolition of “untouchability” by Article 17.

However, the sheer persistence and evolution of discriminatory practices meansthere is a needto reassess the framework of and jurisprudence on theseenactments.

Realisation of the protections ofthese enactments by the victimisedand marginalised communities has been hindered bymaterial, social, political, linguistic and ideological barriers to accessing the criminal justice system.

The persistence of such practices and barriers is especially relevant when itcomesto judicial interpretation of the various statutes enacted to protect the rights of thosefrom marginalised castes Though the exercise of legal interpretation is generallyconsidered an objective and logically deductive exercise thatoperates within thedisciplinary rules of an interpretativecommunity that is the legal fraternity.,thepresence of social dynamics and prejudices amongst lawyers and judges puts thisobjectivity to question.

How does the judiciary appreciate the complex socialcontext in cases under the Atrocities Act? How does itnavigate the protective baragainst anticipatory bail in the Atrocities Act? Does the judiciary consider powerimbalances between dominant and subordinate castes as contextual factors whilegranting procedural reliefs like quashingcriminal proceedings against the dominant

In some cases, judges are cognisant ofsome of the complex nuances of casteand untouchability which are brought out through their reasoning,but in manyothers, the formalistic and strict application of the law is often accompanied by straycomments which demonstrate their ignorance of social reality.

In this chapter, we argue that in some cases, the judiciary uses Article 17 in veryinteresting ways that engage with the sociohistoricalcontext of caste discrimination.

We submit that such an approach can potentially serve asthe bridge betweenequality on paper and in reality In the first section, we select an illustrative sampleof cases in which the judges have engaged with the historicaland social contextsurrounding Article 17, the Civil Rights Act, and the Atrocities Act We demonstrate that in these cases, the judges, byrelying onstatistics, academicwriting, political activism, history, and sociological literature, read Article 17 in a veryexpansive and casteconscious manner In the second section, we select two caseswith similar fact situations, both dealing with the issue of anticipatory bail for anoffence under the Atrocities Act One case explicitly uses Article 17 inits reasoningto arrive at the final outcome, while the other does not We use this case study toillustrate how the application of Article 17 can lead to a more sensitive and nuanced A Study of Caste-Sensitive Judicial Reasoningƒ

Article 17 as the Catalyst for Ca steConscious Judicial Reasoning Enumerating Equality through Article 17

Therefore, our broadsubmission is that the judiciary has used Article 17, the Civil Rights Act, and Atrocities Act to arrive at castesensitive judicial reasoning.

The resultantjurisprudence strives to achieve the idea ofan egalitarian society as enshrined in the Constitution and as visualised by anticaste activists and reformers However, weacknowledge the reality of those judgments which are casteinsensitive in theirreasoning and only erode the constitutional mandate of equality..

In this subsection, we select a few casesand analyse them in detail to show how thecourts have used Article 17 along with constitutional concepts and historical, sociological, and academic writing in their judicial reasoning We submit that thisreasoning is castesensitive and aims to further the constitutional mandate of anequal and inclusive society We discuss cases under two categories— The Supreme Court had occasion touse its criminal appeal jurisdiction to expoundon the constitutional visionbehind Article 17 inAs per the Court”s record, “this was the first time after 42 years of the Constitution coming into force thata case has come up to this Court to consider theproblem” of caste discrimination.

In this case, four accused were tried under Sections. 4 and 7 of the Civil Rights Act for forcefully restraining the complainantand other Dalit persons, from taking water from a newly dug borewell on theone, judgments that engage with Article 17 visavis other constitutional values, and two, judgments that engage with Article 17 visavis regional history and sociology State of Karnataka vAppa Balu Ingale.

The trial court and the appellate courtconvicted the accused, holding that the charge against them was proved beyondreasonable doubt.

However, the Karnataka High Court, in the second appeal, had expressed doubtabout the testimony of four Dalit prosecution witnesses of the culprits” acts ofrestraining the complainant “by show of force from taking water from a newly dugup borewell (sicon the ground that they were untouchables”.

The High Courtdisplaced the lower courts” finding that Sections 4 and 7 of the Civil Rights Act wereviolated, on the basis of this testimony andheld that “their evidence was not uniformin regard to actual words uttered by the accused persons and the manner theyprevented the complainant party from taking water from the well”.

While allowing the appeal against the acquittal of the accused under the Atrocities Act, the Supreme Court critiqued the high burden of proof imposed on the prosecution in the case Justice KRamaswamy criticised the Karnataka High Court for having “found doubt when none exists”. The Court observed that “reasonable doubt does not mean the mindof a doubting Thomas, nor vacillation., A Study of Caste-Sensitive Judicial Reasoningƒ

The Court found fault with the High Court”s undueconcentration on the “absence of parrot like repetition” by illiterate witnesses, whilealso critiquing the judicialindifference towards “the effect [that the accused”s wordsand actions] produced in preventing ƒ Dalits to exercise the right to draw waterfrom public borewell”.

The Court also appreciated a broad rangeof sociological literature about thestatus of Scheduled Castes andthe need for the Atrocities Act.

Even though the Atrocities Act was not attracted here, the Court commented on how it is absolutelyessential for such a special legislation to govern criminaloffences against Scheduled Caste and Scheduled Tribe members It noted how despite the preambular promiseof fraternity and dignity and the enactment of strong laws, “[Untouchability] isbeing practiced with impunity more in breach More than 75% of the cases underthe Act are ending in acquittal at all levels”.

The Court categorically highlightedjudicial apathyand “lack of proper perspectives even by the courtsin tackling thenaughty problem”.

It further heldthatuntouchability was a “crime against the Constitution”, as itwas rooted inan attitude that considers Dalits as “pollutants, inferiors andoutcastes”.

Hence, the Court concluded that it was “not founded onIt also provided substance toconstitutionalguarantees provided to marginalisedsections of the population by emphasising the constitutional visionIn particular, itexpressed the vision behind Article 17 of the Constitution as follows: mens rea ”.

The thrust of Article 17 and the [Civil Rights ] Act is to liberate the society from blindand ritualistic adherence and traditional beliefs which [have] lost all legal or moralbase It seeks to establish a new ideal for societyequality to the Dalits, at par with [the] general public-., absence of disabilities, restrictions or prohibitions on grounds ofcaste or religion, availability of opportunities and a sense of being a participant in themainstream of national life.

The Court proceeded to articulate the considerationsthatjudgesshouldbe mindfulof It urged them to “always keep at the back of his/her mindthe constitutional goalsand the purpose of the [Civil Rights] Act and interpret the provisions of the [Civil Rights] Act in the light thus shed toannihilate untouchability; toaccord to the Dalitsand the Tribes right to equality; social integration a fruition and fraternity a reality”.

This can be characterised as an instancewhere the Supreme Court used its highpublic office to drive home a social message to ensure effective implementation of thespecial legal safeguardsof Scheduled CastesThe Court showed judicial sensitivitytowards the weaponisation of “legal registers and legal aesthetics.” as “defensive shieldsagainst the demands of historically marginalizedgroups.”, thereby reinscribing “thevery structural inequalities antidiscrimination laws are intended to address”.

The Court thus conducted extensiv e analysis of data and historicalcontext surrounding Article 17 to frame a cogent narrativ e for furtheringsocial justice.

The concern that accompanies cases involving caste discrimination is about howthe police respond to these complaints in the first instance The Supreme Court hasaddressed this concern in the case ofthus diluting the bar onanticipatory bail placed by the Atrocities Act Following this, the Parliamentamended the Atrocities Act by introducing Section 18A which affirmed the bar A Study of Caste-Sensitive Judicial Reasoningƒ Prathvi Raj Chauhan vUnion of India in 2020. The Atrocities Act prevents the accused from being granted anticipatory bail, that is, bail for an impending arrest In 2018, the Supreme Court had held that there was no absolute bar against the grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out,

He further relied on the constitutionalprohibition of untouchability and all “direc t and indirect. (but virulent, neverthelessforms of caste discrimination” through Article 17 to underline the constitutionalsalience of the Civil Rights Act and the Atrocities Act.

While affirming theamendment, he explained that the legislative removal of direct and indirect castebased practices furthered the constitutional goal of a casteless society that valuedequality and fraternity.

He also took note of the National Human Rights Commission”s report, which showedthat “despite enacting stringent penal measures, atrocities against [S]cheduled [C]ast e and [S]cheduled [T]ribe communitiescontinued; even law enforcement mechanisms had shown a lackadaisical approach in the investigation and prosecution of such offences”.

Most importantly, hehighlighted the grim reality of persistent caste atrocities in the report of the National Crime Records Bureauto stress the need to “keep oneself reminded thatwhilesometimes (perhaps mostly in urban areasfalse accusations are made, those are notnecessarily reflective of the prevailingand widespread social prejudices againstmembers ofthese oppressed classes”.

Using these sources, the Supreme Court inthis instance upheldthe validity of Section 18A of the Atrocities Act.

Therefore, Chauhan, the constitutional validity of this amendment was challenged The case in Chauhan provided anopportunity for the Court to comment on the bar against granting anticipatory bail Quoting Kabir and Guru Nanak, Justice Ravindra Bhat stressed the long struggle against caste oppression Ingale and Chauhan can be read as complementary judgments, which emphasise the need for caste consciousness and sensitivity, both from the police and the judiciary, when it comes to dealing with issues of caste discrimination By emphasising onsuch a value, these judgments also further the goals of equality and inclusivity as enumerated by the Constitution, thus locating Article 17 within these broader goals.

Locating the NonExclusion Principle in Article 17

In one of the most recentjudgments on Article 17, Justice Chandrachud referenced Dr Ambedkar inand noted that the Constitution of India is the endproduct of the struggle for social emancipationagainst an unequal social order.

According to him, it is the foundational documentthat aims at social transformation and the creation of an equal society This sets thebase for the antiexclusion principle.

Justice Chandrachud notes that at the rootof untouchabilitymentioned in Article 17 is the exclusion of certain individuals from the social order and equality.

The basis ofthis exclusion is the puritypollution binary, which refers to social hierarchies createdon the basis of whatis considered pollution—for example, the physical touch oflowercaste persons Therefore, untouchability isthrust upon them by social compulsionandforcible exclusion frommost aspects of sociallife Justice Chandrachud holds thatifthis principle is extrapolated, Article 17 can stretch beyond caste untouchability tocover untouchability based onother forms of exclusion— for example, menstruation, as was the case inIn this case, a Constitution Bench of the Supreme Court, by a 4-1 majority, ruledin favour of women”s entry into the Sabarimala temple.

Justice Chandrachud heldthat excluding menstruating women from the temple constitutes a form ofuntouchability under Article 17.

He referred to the Constituent Assembly Debateswhere the members were not in favour of restricting the way “untouchability” wasmeant to be read.

When a member of the Assembly sought to introduce anamendment that explicitly mentioned that the “untouchability” referred to in Article 17 was due tocaste or religion, the Assembly rejected it, as they feltthat it wouldlimit the scope of this Article.

Justice Chandrachud adopted an expansive A Study of Caste-Sensitive Judicial Reasoningƒ Indian Young Lawyers Association vState of Kerala Indian Young Lawyers Association.

Thus, an “antiexclusion” principle was laid down, whichcharacterised “any form of social exclusion of identities” to be “constitutionallysuspect”-..

Therefore, Article 17 enabled the judge to go beyond the textof the Constitutionand draw constitutional principles and values from the history of Indian society Theorigins of untouchability and its association with the rigidity of the caste systemwere explored in the judgment to unearth the basis of such exclusion.

Article 17 recognises the subjugation of certain groupsthrough forced exclusion and strives toeliminate such practices and reimagine society as inclusive of such groups.

This case has farreaching implications and has spurred progressive legaldecisions InThis is again rooted in the antiexclusion principle, which takescognizance of the fact that women areexcluded fromtouching drinking water, vessels, cooking, entering the kitchen and sleeping quarters, entering places ofworship, and are forced to stay in isolation, away from their family whilemenstruating.

These practices are based on the puritypollution binary, whereinmenstruating women are thought of as dirty, unclean, and impure presenting a contaminating threat to traditionally “pure” areas and activities, such as the kitchenin any form” in Article 17. “The in any formŽ prescriptionhas a profound significance inindicating the nature and width of the prohibition”, wrote Justice Chandrachud, observing, “[e]very manifestation of untouchabilitywithout exception lies within the fold of the prohibitionƒ”. Nirjhari Mukul Sinha, the High Court of Gujarat relied on Justice Chandrachud”s reasoning in Indian Young Lawyers Association to holdthat women have fundamental rights which would preven t and prohibit any exclusionary practice against them on the basis oftheir menstrual status Any activitythat does so would violate Article 17.

Article 17 in the Context of R egional History and Sociology

The Gujarat High Court recognised that this not onlyhas an effect ontheir daily work but also has a huge impact on their mental health due to the stigmaarising from menstruation and the consequent exclusion of women.

Therefore, the Gujarat High Court passed directions to prohibit the social exclusion ofwomen fromall places, whether public, private, religious, or educational, by grounding theseprescriptions under the mandate of Article 17. It also instructed the Government, NGOs, and private parties to conduct awareness campaigns on menstruation andhygiene from a scientific perspective This judgment is important because it addressesthe private and insidious nature of exclusion., even withinone”s own home.

Therefore, we can see that Article 17 has farreaching implications not just for theissue ofcaste untouchability., but plays a huge role inaddressing instances of socialexclusion based on the puritypollutionbinary This is important, as it clearlyenumerates the basis ofan egalitarian society—fraternityand antiexclusion—which both are logical extensions of the law against untouchability.

Article 17 cannot be read as a provision in isolation It is always situated within a certain historical context, which takes different forms in different regions This subsection will discuss two cases of caste discrimination and will analyse themThe chariot procession of the Mariamman Temple was not taken through the colony of the Adi Dravidars residingin that village.

The petitioners argued that thisamounted to untouchability The respondents arguedthat the specific route of the procession was a longstanding custom that followed the Agama Shastras, thus protected under the right to religion in Article 25.

Theyarguedthat the law could not be used as a weapon to change that custom.

The Court relied onM.NSrinivas” concept of Sanskritisation to say that it ishighly unlikely that a regional, subcultural deity peculiar to South India like Mariamman and the instant temple would have been built according to the Agama A Study of Caste-Sensitive Judicial Reasoningƒ visavis the regional history and politics of the concerned place The Board of Trustees Arulmi ghu Poottai Mariamman Temple vRevenue Divisional OfficercumExecutive Magistrate is a case that dealt with a temple procession deliberatelyavoiding a Dalit colony.

Shastras.

The Court also cited Dr AK. Perumal”s work which analyses the “urbanisation and brahmanisation” of folk gods.

This argument follows a corpus ofwork that links the integration of Vedic Brahmanismand tribal culture to theestablishment of the caste system.

As Brahmins started establishing their superiorityin the Indiansubcontinent, many regionaldeities and folk gods were coopted intothe Brahmanical religious fold over time.

The Court notes that the rituals andorthodox practices associatedwith sanskritised temples also began to be applied toregional deities and temples housing folk gods.

This observation by the Court is important as it stresses upon the unique regionalhistory of the Indian subcontinent The “urbanisation of folk gods ” referred to by the Court addresses the integration and superimposition of Brahmanic culture on tribalcultures, which means that the tribes areactually the natives of India, with a legitimate claimto the landand equal participation in all societal activities.

The Court is using the history of folk temples in South India to legitimise the claims of the Adi Dravidars to equally participate inreligious activities Article 17 acts as a bridge in this case between history and thelaw resulting in a specific interpretationthat furthers the mandate of this constitutional provision.

Hence, the Court heldthat the Agama Shastra rituals would not be endemic to the Mariamman Temple and the processionbased on such Shastras cannot beprotected by Article 25. The Court, citingreiterated that the claim of the longstanding custom of the chariot procession of the Mariamman Temple being taken through a particular route was explicitly rejectedby the Hindu Religious and Charitable Endowments Departmentof Tamil Nadu in Pinnaiyakal vDistrict Collector,

Pinnayakal The attempt by the Trustees toprevent the Dalits from taking the templecar to the Colony during the Temple Car festival heldduring the month of Aadi cannot be acceptedby this Court Any suchorderin their favour will amount toperpetuating untouchabilitywhich has been specifically prohibited by Article 17 of the Constitution of Indiaƒ The Government cannot be a spectator in denying the rights of the Dalits of the colony and theconstitutional mandate will have tobe enforced throug h all legal means.

Therefore, thiscase is important as it uses and locates Article 17 to understandthe regional history and validate the claims of Adi Dravidars to both land and theright to be equally included in religious practices.

Another case that incorporates regional history and state politics in a similar wayisThere were several overlappingissues here The first issue was that the reservation scheme was not being followed in the appointment of Anganwadi workers in a district of Tamil Nadu The petitionersargued that this violated Article 17. However, the state relied ona letter from the Ministry of Human Resource Development and the Department of Women and Children that stated that Anganwadi workers were merely “honorary workers from the local communities” and not holders of a civil post, as they were not statutoryauthorities or employees Therefore, reservations would not be applicable to them.

The second issue was that Anganwadi workers were discriminating against Dalitchildren inhealthcare by treating them as “untouchables”-.. They did not touch themto serve foodor medicines, made them sit separately, spoke to them harshly, andserved them food last The state did not offer any response to this The Court rejected the state”-.s contention that Anganwadi workers were honoraryworkers and that there was no statutory mandate for reservation The Court referredto the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutionsand of Appointments or Posts in the Services under the StateAct, 1993 (1993 Act which explicitly provided forreservations in posts of public service The Court held that the term “services under A Study of Caste-Sensitive Judicial Reasoningƒ. Therefore, the Court reasoned that since there was no proof of a longstanding custom and given that this clai m was explicitly reje cted by the state authorities, Article 25 would not even be attracted here as there is noreligious right to protect Therefore, the attempt of Caste Hindus to deny the rights of the Dalits amounts to plain untouchability in thiscase, violating Article 17. The Court held as follows: Pothumallee vDistrict Collector This case was one that dealt with issues relating to Anganwadi workers in the State of Tamil Nadu.

Therefore,-. it was held that the 1993 Act imposesthe mandate ofreservation even in such posts.

The Court also drew a link between untouchabilityand segregated dining The Court recognised that in villages, the schools and Anganwadi centres are set up inupperclass hamlets and are likely to bedominated by uppercaste individuals.

Therefore, the criteria for choosing honorary workers from “local communities” would make itimpossible for Dalits to be employed in such centres and schools.

If there was no reservation, upper caste families would not allow Dalit cooks andhelpers to be a part of the centres as they did not want Dalits to feed their children.

The Court held that such apprehension and discrimination by caste Hindus whenthey did not want Dalits to feed their children is a form of apartheid.

Thisreasoning directlydraws from Periyar and Ambedkar”s arguments ontheprohibition of intermarriage and interdining being a prominent way to maintainrigid caste hierarchies.

EV. Ramasamy or Thanthai Periyar, as he is known in Tamil Nadu, is the Father of the Dravidian MovementHe was a politicianand an anticasteactivist who campaigned andintroduced sociopolitical reforms in Tamil Nadu tobreak down Brahmanical hegemony He writes on interdining, “Even the Adidravidasare disinterested in the welfare of their society It isbecause the Dravidians and evenamongst the Adidravidians one set of people do not dine with others They are nowseparated into innumerable castes unnecessarily People of one caste do not dine withthose of other castes They do not have one common policy or religion”.

Similar to Ambedkar, he rooted casteisminthe principle of exclusion and hierarchies, enforcedthrough restrictions on marriage and dining, two of the mostimportant aspects of social life The Court makes an explicit reference to Periyar, “EV. Ramasamy (knownas Periyar opposed the practice of separate dining arrangements for Brahmin and thenonBrahmin students in CheranmadeviGurukulam”.

By recognising this line of reasoning, the Court reestablished this strand of socialreform by incorporating it into judicial reasoning and state policy on the reservation.

By reading these aims into the 1993 Ac t, the Court interlinks Article 17,

The Interpretive Impa ct of Article 17

Thisshows the impact of the constitutional mandate which is implemented throughvarious entry points into the law.

The Court proposed that Dalit cooks be hired, stating that “communal feastingand food being served to various groupsby engaging cooks from underprivilegedsociety will remove instantaneously some form of untouchabilityand will be a milestone in our march to an egalitarian society”.

This judgment recognises theimportance of interdining for the social integration of “untouchables” into society.

Its reliance on history and anticaste activism in Tamil Nadu grounds Article 17 insuch a way that the reasoning reflects judicial sensitivity to local culture and politics.

This section illustrates the impact of Article 17 on judicial reasoning and outcomeswhile interpreting provisions of the Atrocities Act This section will compare twocases—-.one of the cases has used Article 17 and the goals inherent inthat provisionin the judicial reasoning, while the other judgment has not We submit thatjudgments that substantially engage with Article 17 when deciding cases under the Atrocities Act, the Civil Rights Act, and connected issues, such as bail., usually arriveat more castesensitive outcomes than ones that do not.

While making this claim, we are cognizant of the fact thatengagementwith Article 17 does not alwayscorrespond with castesensitive reasoning, and various factors remain relevant to thestudy of judicial decisionmaking.

However, Article 17 and its constitutionalmandate appear to play a substantial role in judicial decisionmaking.

Before discussing these cases, it isimportant tonote that the Indianjurisprudencehas predominantly read the rights of theaccused “in a manner that narrows the fieldof limitation, and expands the power of the State, in the interests of public order” while expressing “disenchantment with procedural technicalities and niceties”.

In this context, it is interesting to analyse how this conventional logic operates incriminal proceedings under the Atrocities Act.

The two cases which are analysed in this section areandBoththese casesinvolve the adjudication ofanticipatory bail applications in cases of caste insultsagainst women from Dalit communities Section 18 of the Atrocities Act, 1989 places a bar on the gran t of anticipatory bailfor the accused in offences under the Atrocities Act Under ordinary criminal law, anticipatory bail can be sought under Section 438 of the Criminal Procedure Co de, 1973 by persons apprehending arrest, and is granted on the basis of the person.”s criminal background, ability to escapefrom justice, and the likelihood of committing similar offences However, Section 18 bars the grant of anticipatory bail in cases under the Atrocities Act to the accusedin order to protect the complainant from victimisation by the accused.

Thisprovision has been a source of judicial and political controversy, leading to a numberof decisions of the constitutional court.

As described before, Parliament inserted Section 18A in the Atrocities Act which reiterates that “[t]he provisions of Section 438 of the [Criminal Procedure] Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court”.

Danish Khan vState (Govtof NCT of Delhi Manju Devi vOnkarjit Singh Ahluwalia.

However, despite the reiteration of the constitutionality of Section 18 in a number of cases, its application remains inconsistent.

was a case involving genderbased violenceand caste slurs against a woman from a Scheduled Caste Asper the statement ofthecomplainant, the accused obtained her consent for sex on the false promise ofmarrying her When she asked him to follow through with his promise, he verballyabused her and refused marriage.

Criminal charges were framed against the accused. This harassment continued from 2013 to 2020.

Citing an incident that happened on 8 February 2020, the complainant submitted an additional statement thatwhensherefused romantic advances from the accused, he abused her with her caste names anddenigratedher for expecting him to marry a “lowcaste” person.

Based onthis additional statement, the prosecution added charges under Section 3(2(v of the Atrocities Act in 2021. This Section stipulates a higher punishmentfor the commission of grave offences under the Indian Penal Code against personsbelonging to the SC/ST community.

It isimportant to mention that this Sectionwas subject to many conflicting judgmentsregarding the intention of the accused tocommit the offence A Study of Caste-Sensitive Judicial Reasoningƒ Danish Khan vState of NCT of Delhi, solely on the basis of caste.-. Prior to the 2015 amendment of the Atrocities Act, Section 3(2v provided for a greater penalty to culprits who committed such serious offences against SC/ST persons “on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe”. Since the restrictive

This means thatmere knowledge that the victim isfrom the SC/ST community is enough to attract Section 3(2(v of the Atrocities Act There isno need to demonstrate that theaccused has committed such an offenceThe Delhi High Court granted anticipatorybail to the accused While allowing theapplication for anticipatory bail under Section 438 of the CrPC, the Delhi High Courtheld in 2021 that the offence would not attract the Atrocities Act as the crime was notcommittedApplying this standard forThis case goes against the general principles ofgranting anticipatory bail as wellonly on the basis of the victim”s caste This amendment, thus, makes the judicial regime sensitive to the kind of evidence that is likely to be generated in such cases”. solely on the basis that the woman belonged to the SC/ST community The Delhi High Court rejected the textual interp retation of Section 3(2v which considers knowledge of the caste status of the compla inant to be sufficient for the offence Therefore, contrary to the letter and spiritof the Section 3(2v, the Delhi High Court heldthat “For an IPC offence toattract Section 3(2v of the SCST Act [Atrocities Act], it is necessary that the offender”s action is impelled by the consideration that the victim is a member of a Scheduled Caste or a Scheduled Tribe ƒsince this Special Act was enacted with a view to making more stringent provisions for punishment ƒ of offences under the IPC which target persons belonging to a Scheduled Caste or a Scheduled Tribe by reason of their caste status” (emphasis addedmens rea, which was explicitly barred by the 2015 amendment to the Atrocities Act, the Court did not considerthe accused”s knowledge of the complainant”s caste status and limited its factual analysis to the delayed inclusion of the Section to the FIR Further, the general law on anticipatory bail requires that such a remedy is granted sparingly in appropriate cases with due care and caution Circumstances under which it may be granted included sp ecial cases indicating that the accused may be arrested on baseless ground or that the accusations have been made with a dishonest or malicious motive.

The Court inTherefore, the Courtgranted anticipatory bail to the accused as “the question of Section 18 or Section 18A(2 of the SCSTAct [Atrocities Act] getting triggered does not arise”.

Notably, in this case, where the Court granted thissignificant pretrial remedy, the order didnot mention or consider Article 17.

This can be contrasted withthe Supreme Court decision in the case ofThus, the question was similar to the one inThe Court observed that It is undoubtedly true that Section 438 of the Code, which isavailable to an accusedin respect of offences under IPC, is notavailable in respect of offences under the SC/ST Act The offences enumerated under the SC/ST Act fall into a separate andspecial class Article 17 of the Constitution expressly deals with abolition of “untouchability” and forbids its practicein any form and also provides thatenforcement of any disabilityarising outof “untouchability” shall be an offencepunishable in accordance with law.

The Court reasoned that the bar on anticipatory bail needs to be appreciated in the context of this constitutional prohibition and existing social conditions It explained that the purpose of Section 18 of the Atrocities Act is toprevent theaccused from intimidating and threatening the complainant.

It emphasised theexistence of “everypossibility” that the accused would “terrorise” the complainant A Study of Caste-Sensitive Judicial Reasoningƒ Danish Khan concluded that “the offences under section 376/354D/506-. IPC, alleged to have been committed for the period between 2013 and 2019, had no reference to the prosecutrix”s caste”.. Manju Devi vOnkarjit Singh Ahluwalia The Supreme Court was hearing an appeal in a case where the Patna High Court had denied anticipatory bail to the accused who had allegedly offended the modesty of a Scheduled Caste domestic worker, and hurled caste slurs at her Danish Khan —whether the bar under Section 18 would prevent the accused from seeking anticipatory bail Contraryto Danish Khan, the Court did not engage in the pretrial determination of the merits of the case and did not grant the statutorily forbidden anticipatory bail remedyto the accused The Supreme Court used Article 17 asa judicial toolto emphasise that the Atrocities Act was enacted to prevent and punish a special class of constitutionallyforbidden acts and practices arising out of untouchability..

Conclusion

This possibility of existing caste hierarchies, subordination, and victimisation was not considered by the Delhi High Court in In this chapter, we argued that the courts-.” reasoning and judicial outcomes improve incases where Article 17 has beenused-.. First, we demonstrated that Article 17 embodiesthe content of various constitutional goals and principles beyondthe annihilation ofuntouchability, which contribute to a richjurisprudence of social protection Article 17 enables the courts to look beyond the notion of formal equality and analyse societalpractices to grapple with modern and nuanced forms of caste oppression It also servesas an umbrella remedy to strike downsuch oppressive practices Second, weillustrativelyanalysedtwo cases with similar fact situations involving an application of a specific section of the Atrocities Act.

We found that Article 17, its history andobjectives were only explored in detail in one ofthecases, and this enabled the Courtto reach anequitable and castesensitive outcome inthatjudgmentThiswascontrasted with the other case in which Article 17 was not explored or taken to itslogical conclusion-., where the court rendered judgmenteffectively diluted anticastejurisprudence Thus, we submit that Article 17 can be used as a positive tool toprovide context to special legislations-., suchasthe Civil Rights Act and the Atrocities Act, and read the protection’s thereof ina broad manner This is desirable, as the Danish Khan The juxtaposition of the reasoning and outcome in Danish Khan and Manju Devi illuminates the impact of substantive engagement with Article 17 in judicial decisionmaking It is worth mentioning that the prosecution had relied upon the Manju Devi case in Danish Khan but the High Court of Delhi failed toapply the holding in Manju Devi Not only did the reference to Article 17 in Manju Devi underscore the constitutional imperative behind Section 18 of the Atrocities Act but it also placed such cases in the reality of caste as socially sanctioned subordination and dominance which requires proactive State measures to balance social power dynamics The analysis of Article 17 enabled a nuanced and sensitive appreciation of the power imbalance between the complainant and accused in cases under the Atrocities Act, leading to a reasoning that affirmed the ba r against anticipatory bail On the other hand, the analysis of the High Court of Delhi inDanish Khan diluted the pretrial safeguards afforded to complainants by the Atrocities Act.

However, even though Article 17 can serve as a useful tool in judicial reasoning, we acknowledge that a major challenge isthat sometimes, the judiciary does notconsider itwhile adjudicating cases that a ttract its application. This often results ininequitable outcomes.

For example, inthe judiciary readdown the broad protection granted by the Atrocities Act bymisapplying the test in a previous judgment,Theynarrowed down the meaning given to offence or insult delivered in a “place withinpublic view” (Section 3(1x of the Atrocities Act, which A Study of Caste-Sensitive Judicial Reasoningƒ Hitesh Verma vState of Uttarakhand, Swaran Singh vState Swaran Singh clearly held would encompass private spaces if members of the public other than relatives and friends were present In Hitesh Verma, the victim was the subject of castebased insults delivered around the presence of labourers who were working on the construction of her house, but the Court reasoned that since the abuse happened “within the four walls of the house”, itwould not be a “place within public view”. This judgmentfailed to take note of the objects and reasons of the Atrocities Act and its linkwith Article 17. While a judgmentsuch as Nirjhari Mukul Sinha expanded the scope of Article 17 to even private spaces bycondemning exclusionary practices against menstruating women within the household, Hitesh Verma failed to carry forward such jurisprudence which attacks discriminationand stigma at its roots, covering as many situations as possible Even as we recognise that cases such as Hitesh Verma leave much to be desired from judicial interpretation., the preceding discussion has illustrated how the judiciary has interpreted Article 17 in ma ny cases to enumerate and actualise the

We thus believe and conclude that if usedeffectively by the judiciary, Article 17 is a constitutional provision that has greatpotential and can pave the way forward for transforming social relations in society.

— Hitesh Verma can be avoided if the judiciary merely draws from precedent and carries forward the rich Indian jurisprudence behind Article 17 thathas been developed over time Thiswould enable them to adapt and invoke Article 17 to prohibit modern forms of untouchability and use it asa tool to address the dynamics of caste in society, as was its conceptualisation in the Constitution.