The Supreme Court on Tuesday witnessed a sharp exchange over the intersection of faith and fundamental rights, as Justice B V Nagarathna strongly criticised the social practice of treating menstruating women as “untouchables” for a few days every month. Her remarks came during hearings before a nine-judge Constitution bench examining complex legal questions arising from the Sabarimala temple entry issue.

The bench, headed by Chief Justice of India Surya Kant, has begun deliberations that are expected to revisit and clarify constitutional principles surrounding equality, religious freedom, and the scope of judicial intervention in matters of faith.

Menstruation And The Question Of Equality

Justice Nagarathna, who is in line to become India’s first woman Chief Justice next year, voiced her disagreement with practices that isolate women during menstruation. “As a woman, I do not agree,” she observed, questioning the rationale behind what she described as a form of periodic exclusion.

She further remarked that such customs effectively impose a recurring form of untouchability. “There cannot be three days of untouchability in a month for women, after which they are treated normal,” she said, underlining the inconsistency and discrimination embedded in the practice.

The observations came in the context of arguments challenging the 2018 Supreme Court verdict in the Indian Young Lawyers Association case, which had struck down the ban on entry of women aged 10 to 50 into the Sabarimala temple. The earlier ruling had tested the restriction against constitutional guarantees, including Article 17, which abolishes untouchability.

Centre Defends Unique Religious Practice

Solicitor General Tushar Mehta, appearing for the Centre, questioned the application of Article 17 to the Sabarimala issue. He argued that extending the concept of untouchability to such religious practices stretches constitutional interpretation beyond its intended scope.

Highlighting the broader status of women in India, Mehta said they hold top constitutional positions, including that of the President and Prime Minister, and that gender equality remains central to government policy. He maintained that the Sabarimala restriction is rooted in the unique nature of the deity, Lord Ayyappa, who is considered a “naistik brahmachari” or eternal celibate.

According to him, this distinctive characteristic forms the basis of the temple’s customs and should not be subjected to judicial scrutiny. “This unique attribute of the deity cannot be tested by the Supreme Court,” he argued, cautioning against applying a uniform equality standard to all religious practices.

Bench Weighs Faith Versus Constitutional Morality

The hearing also saw Justice M M Sundresh reflecting on the Centre’s argument that courts should refrain from examining practices intrinsically linked to faith and belief. Mehta reinforced this position by describing the Sabarimala tradition as “sui generis”, suggesting it is of its own kind and not comparable to other practices.

He drew parallels with customs in other religious spaces, such as requirements to cover one’s head in a mazhar or gurdwara, arguing that such norms may limit individual expression but are nonetheless accepted as part of religious observance.

The nine-judge bench is now tasked with addressing broader constitutional questions that go beyond Sabarimala, including the extent to which courts can intervene in religious practices and how to balance the right to equality with the right to freedom of religion.

As proceedings continue, Justice Nagarathna’s remarks have brought renewed focus to the lived realities of women and the enduring tension between tradition and constitutional guarantees in India’s legal landscape.

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