The Case of Caste-Based Discrimination in Indian Prisons: A New Constitutional Right to Overcome Prejudice?

Sarthak Gupta

Supreme Court of India

On October 3, 2024, the Supreme Court of India (SCt), in Sukanya Shantha v. Union of India, held that caste-based discrimination within the prison system is unconstitutional for violating equality principles (i.e., Articles 14-16 of the Constitution) along with other fundamental rights. In its rationale, the Court also identified the ‘right to overcome caste prejudices’ as part of the right to life (Article 21) for individuals from marginalized communities. In this post, first I examine the Court’s reasoning on the discriminatory provisions, the language of exclusion, and the expansion of the prohibition against the practise of untouchability and denotified tribes in India. I argue that if Chandrachud CJ’s constitutional creative interpretation of the right to overcome caste prejudices is used objectively, based on a collective reading of Articles 14 (equality before law) and 21 (right to life), it could be used for future constitutional litigation concerning other marginalized communities.

From Journalism to Constitutionalism

In India, the practice of untouchability is a system of social exclusion and discrimination based on caste, where certain groups are considered impure and segregated from mainstream society. Similarly, the denotified tribes are communities that were considered ‘born criminals’ during Colonial Rule and were notified under the Criminal Tribes Act. While Article 17 of the Indian Constitution abolished untouchability, caste-based discrimination remained (and remains) deeply rooted in the social fabric of Indian society. In 2020, the petitioner, Sukanya Shantha, a journalist, wrote an op-ed article highlighting caste-based discrimination in the country’s prisons. The op-ed took the shape of a public interest litigation challenging various prison manuals of different States (impugned provisions, see pg. 89-104), which stipulated the allotment of work inside prisons based on prisoner’s caste and nature of work; segregation of barracks; and the differential treatment of prisoners identified as belonging to denotified tribes and habitual offenders.

The SCt found the challenged provisions unconstitutional for violating Articles 14, 15, 17, 21, and 23 of the Constitution and directed all States and Union Territories to revise their prison manuals. It also mandated the removal of ‘caste’ references in prisoner registers, addressed definitions of habitual offenders, and initiated suo motu oversight on prison discrimination, with compliance reports to be submitted.

SCt’s Interpretation of the Language of Exclusion

On the question of how the impugned provisions discriminate against marginalized castes and denotified tribes, the SCt identifies both direct and indirect forms of discrimination. It held that they directly discriminate by ‘assigning cleaning and sweeping work to the marginalized castes while allowing the high castes/upper caste to do cooking.’ [¶171] It also recognized indirect discrimination through the use of seemingly neutral phrases like ‘menial’ jobs to be performed by castes ‘accustomed to performing such duties,’ which disproportionately affect marginalized communities. The SCt emphasized that such provisions ‘reinforce stereotypes against the marginalized castes’ and ‘perpetuate the stereotype that people from these communities are either incapable of or unfit for more skilled, dignified, or intellectual work.’ Finally, it stated that even if caste is not explicitly mentioned, phrases like ‘menial’ and ‘accustomed’ indirectly uphold traditional caste roles and ‘disproportionately harm marginalized castes, perpetuate caste-based labour divisions, and reinforce social hierarchies.’ [¶172]

On the Denotified Tribes and Untouchability

The SCt identified that prison manuals across multiple States perpetuate colonial-era discrimination against denotified tribes by stereotyping them as having a ‘strong natural tendency to escape’ or being ‘habitual criminals’. [¶174-175] The Court found that these manuals allow for the classification of denotified tribe members as habitual criminals without prior convictions, solely based on their community identity. This stereotyping legitimizes discrimination and excludes these communities from meaningful social participation, violating the constitutional prohibition of caste-based discrimination under Article 15(1). The Court made a significant expansion of Article 17’s scope by drawing a parallel between the treatment of denotified tribes and practices of untouchability. [¶183]

The Court reasoned that labelling entire communities as ‘criminal by birth’ and treating them as inherently dishonest represents a form of untouchability. This is because it assigns negative traits to specific groups based on their identity, leading to their systematic marginalization and exclusion. This interpretation is particularly noteworthy as the Court recognized that untouchability is not limited to traditional caste-based practices but extends to any system that institutionalizes the dehumanization and exclusion of communities based on their identity. [¶184] The SCt also highlighted how this discrimination is reinforced through hierarchical views of ‘superior modes of living’ in prison classifications, which perpetuate caste-based power structures and keep marginalized groups trapped in cycles of discrimination.

Creation of the New Constitutional Right?

The SCt held that Article 21 implicitly includes the right to overcome caste prejudices as part of the right to life for individuals from marginalized communities. While criticizing the challenged provisions that assign work based on caste, it stated that these provisions reinforce ‘occupational immobility’ and ‘antiquated notions of fitness of a particular community for a certain designated job’. The SCt asserted that these practices violate the right to life by hindering personal growth and opportunities for reformation for inmates from marginalized communities. The Court emphasized that Article 21 should guarantee individuals the freedom to ‘break free from these traditional social restrictions’ and ‘flourish in an environment of equality, respect, and dignity’. [¶185-188]

The interpretation to create the ‘right to overcome caste prejudices’ marks a significant expansion of constitutional rights. This approach intertwines the right to life with principles of equality and dignity, creating a new multi-faceted constitutional safeguard against caste-based discrimination. By framing the ability to overcome caste barriers as an essential aspect of personal development and dignity, the SCt has broadened the scope of Article 21 and reinforced the intersectionality of constitutional provisions. This interpretation places and additional positive obligation, apart from existing obligations, on the State to create conditions that enable individuals to break free from caste-based constraints.

‘Past & Prejudice’ in the Future

Is the ‘right to overcome prejudices’ limited to caste-based discrimination, or can it be molded to address other forms of prejudice and discrimination? The Court is silent on this. While the right emerged from the context of caste prejudices in prisons, its underlying principle - that the right to life includes the freedom to break free from traditional social restrictions and flourish in an environment of equality - can be extended to address other forms of prejudice and discrimination. This interpretation also opens up several avenues for future constitutional litigation, such as challenging discriminatory practices in various institutional settings, justifying affirmative action policies, and demanding proactive measures from the government to combat caste discrimination.

One instance wherein the SCt can use this interpretation of the ‘right to overcome prejudices’ is in addressing societal prejudices in disability law litigation. For instance, if any public examination denies positions to candidates with visual impairments based on prejudiced assumptions about their inability to work effectively, despite technological aids being available, this could be challenged not just under the Indian Disability Rights Law but as a violation of their Article 21 right to overcome prejudices. This interpretation would require institutions to actively create enabling environments that help persons with disabilities overcome societal prejudices about their capabilities, rather than merely providing basic accommodations.

Similarly, in the context of queer rights, this interpretation could be powerful in addressing discrimination beyond the basic right to equality. For example, if medical institutions continue to practice conversion therapy or deny gender-affirming healthcare based on prejudices about gender identity and sexual orientation, this could be challenged as violating queer individuals’ fundamental right to overcome prejudices and their freedom to express and live with ‘absolute autonomy’. The right would require institutions to actively create supportive environments that help queer individuals overcome societal prejudices, including the mandatory integration of queer perspectives in curricula, gender-neutral facilities, and comprehensive anti-discrimination policies.

However, the application and adjudication of this interpretation remain to be seen. If used objectively rather than subjectively, this interpretation has the potential to create a progressive approach to constitutional law with far-reaching implications for addressing deep-rooted social issues in India. If not, it would limit the potential of this constitutional interpretation. Such a narrow reading would create an artificial distinction between different forms of prejudice and discrimination, potentially leaving other marginalized groups without similar constitutional protections.

Sarthak Gupta is a Judicial Law Clerk-cum-Research Associate at the Supreme Court of India, currently working under Hon’ble Justice Sandeep Mehta. Previously, he clerked for Hon’ble Justice Rajesh Bindal. He was not involved in the case in any capacity, and all views expressed are his own, not those of the Court.

Suggested citation: Sarthak Gupta ‘The Case of Caste-Based Discrimination in Prisons: A New Constitutional Right to Overcome Prejudice?’ IACL-AIDC Blog (5 December 2024) The Case of Caste-Based Discrimination in Indian Prisons: A New Constitutional Right to Overcome Prejudice? — IACL-IADC Blog