'There Can't Be Untouchability For 3 Days A Month', Justice Nagarathna On Article 17 Application In Sabarimala Case

During the hearing of the Sabarimala reference, Justice B.V. Nagarathna of the Supreme Court, on the issue of application of Article 17, remarked that a woman cannot be treated as "untouchable" for three days in a month and then cease to be considered untouchable on the fourth day.

Justice Nagarathna made this comment when Solicitor General of India Tushar Mehta criticised the observation in the 2018 Sabarimala judgment that the exclusion of women in the age group of 10-50 years from the temple was a form of 'untouchability', violating Article 17 of the Constitution. Article 17 prohibits the practice of untouchability in any form.

In the Sabarimala case, Justice DY Chandrachud's judgment held that the bar on women entry on the notion of menstrual impurity was a form of untouchability, which was prohibited by Article 17.

Taking strong exception to this line of reasoning, the SG said, "One opinion in Sabrimala says Article 17 applies to women- you are treating them as untouchables- I have a very strong objection to it."

"India is not that patriarchal or gender stereotyped in the way that the West understands," he added.

Justice Nagarathna, the lone woman on the bench, then expressed doubts about the application of Article 17 in the case. She said that Article 17 was made a fundamental right in the context of the long history of untouchability.

She added,  "Article 17 in the context of Sabarimala, I don't know how it can be argued. Speaking as a woman, there can't be a three-day untouchability every month, and on the fourth day, there is no untouchability."

The Solicitor General Tushar Mehta then clarified that he was not on the issue of menstruation. Justice Nagarathna then reiterated her observation, "Speaking as a woman, Article 17 can't apply for 3 days and on 4th day, there is no untouchability."

SG Mehta submitted that the bar on women entry in Sabarimala temple was not related to menstruation, and stated that the bar was only on the basis of age group. "I will defend Sabarimala in my own different way; it does not mean 4 days, it means a particular age group."

The SG added that Lord Ayyappa temples all over the world were open to women, and Sabarimala was a "sui generis" temple having a unique custom. He submitted that denominational practices must be respected. When a person visits a Mazar or a Gurudwara, they have to cover their heads. They cannot claim that the practice violates their dignity or bodily autonomy, the SG submitted.

A 9-judge bench of the Supreme Court today commenced the hearing of the constitutional issues referred by the 5-judge bench in 2019 during the hearing of the review petitions challenging the 2018 verdict permitting the entry of women into the Sabarimala temple.

The bench observed today that it was not going into the merits of the Sabarimala judgment, and will confine itself to the broader Constitutional questions.

Opening the arguments today, SG Tushar Mehta took the bench through the Constituent Assembly Debates pertaining to Articles 25 and 26. He argued that the judicially evolved 'essential religious practices' test was flawed, and that it was not for the Courts to determine the essentiality of any religious practice.

As per the Constitution, it was for the legislature to make law for reform in any religion, in terms of Article 25(2)(b), the law officer of the Centre added.

The arguments are ongoing. Live updates can be followed here.