The Constitution abolished untouchability, so why does law still need spectators?

On November 25, 1949, as India stood on the verge of giving itself a Constitution, BR Ambedkar warned the Constituent Assembly that the country was about to enter “a life of contradictions.” In politics, India would recognise equality. In society, inequality would continue to structure everyday life. Political democracy, he cautioned, could not survive unless it rested upon social democracy.

More than 75 years later, that contradiction continues to shape Indian constitutional law in unsettling ways.

The Supreme Court’s recent decision in Gunjan @ Girija Kumari v State (NCT of Delhi) (2026) may initially appear to be a narrow ruling on statutory interpretation. The Court quashed proceedings under Sections 3(1)(r) and 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 after holding that the alleged caste abuse took place inside a private residential space and, therefore, failed to satisfy the statutory requirement that the offence must occur “within public view.”

Legally, the reasoning follows an existing line of precedent interpreting the phrase "within public view" under the Act. Criminal courts cannot disregard statutory ingredients merely because allegations appear morally serious.

And yet, the judgment leaves behind a constitutional discomfort far larger than the facts of the case itself. Because the real issue is not whether courts should insist upon statutory ingredients. The deeper issue is what Indian courts increasingly understand caste humiliation to mean.

Over time, anti-atrocity jurisprudence appears to have developed a troubling dependence on visibility. Humiliation becomes legally legible when it is public, witnessed, exposed and capable of satisfying evidentiary comfort. But caste has never survived only through visible acts of degradation.

Article 17 abolished untouchability absolutely. But its enforcement increasingly depends on whether humiliation was visible enough to law. That distinction may appear technical. In reality, it goes to the heart of how constitutional democracy understands dignity itself.

The Supreme Court’s jurisprudence on “public view” did not emerge irrationally. In Swaran Singh v State (2008), the Court clarified that “public place” and “place within public view” were not identical concepts. Even a private space could qualify if outsiders or members of the public were capable of witnessing the occurrence. The judgment recognised something socially important: caste humiliation does not always unfold in formally public locations.

But the jurisprudential atmosphere gradually began to shift.

In Hitesh Verma v State of Uttarakhand (2020), the Court held that allegations of caste abuse inside a building failed to satisfy the statutory requirement because no member of the public was present. The judgment, however, did something more significant than interpret location. It introduced a recurring judicial anxiety that ordinary civil disputes and personal conflicts were increasingly being converted into prosecutions under the SC/ST Act.

That anxiety has since shaped the interpretive direction of the anti-atrocity law itself.

In case after case, the language of judicial caution has become increasingly visible: “abuse of process,” “vague allegations,” “false implication,” “civil dispute,” “misuse” and “harassment.” In Rabindra Kumar Chhatoi (2024), proceedings were quashed because the alleged abuse occurred in the backyard of a house and the labourers present were not treated as constituting “public view.” In Karuppudayar v State (2025), the Court reiterated that an incident occurring “within the four corners of the wall” without public presence would fail to satisfy the statutory threshold.

And now, in Gunjan @ Girija Kumari, the Court once again treats public visibility as a sine qua non for criminal prosecution under Sections 3(1)(r) and 3(1)(s) of the SC/ST Act.

Individually, these judgments may appear doctrinally defensible. Collectively, however, they reveal a deeper jurisprudential movement: the anti-caste law is increasingly being filtered through procedural suspicion rather than interpreted through the social realities that produced the legislation itself.

That movement matters because caste humiliation in contemporary India rarely survives in the forms law appears most comfortable recognising.

Untouchability was never sustained only through dramatic public acts. It survived through social arrangements so ordinary that they became invisible: the refusal to share utensils, the segregation of seating spaces, exclusion from temples, denial of tenancy, coded insults in classrooms, silence inside institutions, informal ostracism within workplaces and the constant awareness of social location within supposedly private spaces.

Modern caste often survives most effectively where law struggles most to see it.

A Dalit student isolated within a university department, an employee humiliated privately by caste name inside an office cabin, a family threatened during a property dispute in language carefully shielded from outsiders, or a tenant quietly denied accommodation after revealing a surname are not spectacular acts of untouchability. They are controlled, deniable, intimate forms of caste power. Precisely because they are intimate, they frequently evade the evidentiary expectations of law.

The danger, therefore, is not that courts insist upon procedural safeguards. Constitutional democracies cannot function without procedural fairness. False implication, if established, is a serious concern in any criminal justice system. Courts cannot become indifferent to abuse merely because legislation carries a social justice purpose.

But there is another danger that constitutional adjudication rarely acknowledges with equal seriousness: when suspicion itself becomes the dominant interpretive lens through which anti-caste legislation is approached, constitutional protection slowly begins to transform into constitutional scepticism.

The National Crime Records Bureau (NCRB) 2024 data exposes the scale of this contradiction. India recorded 55,698 cases of crimes against Scheduled Castes and 9,966 cases against Scheduled Tribes in a single year. But the significance of the NCRB data lies not merely in the number of registered offences. It lies in the institutional story the data quietly reveals.

Volume II of the NCRB report documents not only registration of cases, but also the long architecture of delay surrounding them: investigation pendency, delayed disposal, acquittals and institutional attrition. Even after constitutional abolition, caste atrocity cases continue to move through a justice system where recognition itself remains uncertain and delayed.

This is what makes the present judicial trend constitutionally significant.

At the very moment the State continues to record caste violence as a persistent social reality, anti-atrocity jurisprudence increasingly revolves around procedural filtering: whether the FIR was sufficiently specific, whether the witnesses qualify as public, whether the humiliation occurred in visible enough circumstances, whether the dispute appears “personal” and whether the allegations risk misuse.

The consequence is subtle, but serious. The law begins to recognise caste humiliation only when it appears in forms comfortable to legal proof. But caste rarely survives in comfortable forms. It survives quietly, structurally and, often, privately - precisely where constitutional law struggles to see it.

This is the contradiction Ambedkar feared when he warned that political democracy without social democracy would remain fragile. The Constitution recognised caste not merely as interpersonal prejudice, but as a structure of graded inequality embedded within social life itself. Article 17 was, therefore, never intended to operate only against visible ritual acts of untouchability. It represented a constitutional commitment to dignity against an entire social order organised around humiliation.

That commitment becomes difficult to sustain when adjudication increasingly approaches anti-caste legislation through the narrow grammar of procedural individualism.

The challenge before Indian constitutional law today is, therefore, not simply whether statutory ingredients are technically satisfied. The deeper challenge is whether courts can continue to recognise caste oppression even when it no longer appears in the visible forms law historically expected.

Because caste has changed. And unless constitutional interpretation evolves alongside that reality, India risks preserving the language of anti-caste constitutionalism while steadily narrowing its social imagination.

Sahil Hussain Choudhury is an advocate and constitutional law researcher.