What Happened
- During the nine-judge Constitution Bench hearing on the Sabarimala reference, Justice V. Nagarathna made a pointed observation about the nature of the exclusion
- She stated: "A woman can't be treated as an 'untouchable' for three days (of menstruation) every month and then treated normally — untouchability cannot be periodic"
- The observation sharply questions whether menstrual-based temple exclusion can be constitutionally valid if it amounts to treating women as ritually impure/untouchable on a recurring basis
- The Solicitor General of India, appearing for the Union, argued that India does not follow a patriarchal tradition and that women are held in high regard in Indian culture
- The bench is examining whether the 2018 five-judge verdict on Sabarimala — which allowed women of all ages to enter — was correctly decided, and broader questions about religious exclusion and constitutional rights
Static Topic Bridges
Article 17 — Untouchability and Its Constitutional Scope
Article 17 is a unique constitutional provision that abolishes "untouchability" and prohibits its practice "in any form." Unlike most fundamental rights, it creates a duty enforceable against private individuals, not just the State.
- Article 17 is enforceable against private individuals — the Protection of Civil Rights Act, 1955 criminalises untouchability practice
- The Constitution does not define "untouchability" — this deliberate omission allows courts to interpret it broadly
- Originally conceived to address caste-based discrimination (against Dalits/Scheduled Castes), courts have debated whether it extends to gender-based ritual exclusion
- Justice DY Chandrachud (2018 Sabarimala concurrence): treating women as "polluted" during menstruation is a form of untouchability
- Supreme Court in Saifuddin case (1962) held that religious denominations cannot impose social disabilities on members
Connection to this news: Justice Nagarathna's observation points to the logical inconsistency of periodic untouchability — if a woman is "impure" three days a month but "pure" the rest of the time, it suggests the exclusion is a social construction, not a divine imperative.
Women's Right to Equality and Dignity
Articles 14, 15, and 21 form the trinity of equality rights in the Constitution, with Article 21's right to life including the right to dignity.
- Article 14: Equality before law and equal protection of laws
- Article 15(1): Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth
- Article 21: Right to life and personal liberty — includes right to live with dignity
- Menstrual taboos are widely documented across cultures; the Indian Supreme Court has progressively expanded gender rights
- The NALSA judgment (2014), Triple Talaq judgment (2017), and Navtej Singh Johar judgment (2018) represent the court's evolving approach to dignity and equal citizenship
- The Vishaka judgment (1997) established that constitutional rights of women must be enforced even in the absence of specific legislation
Connection to this news: The nine-judge bench's examination of whether women can be constitutionally excluded on the basis of biological characteristics sits at the intersection of religious freedom and gender equality — a defining constitutional question for India.
Essential Religious Practice Test
The Supreme Court uses the "essential religious practice" (ERP) test to determine which religious practices receive constitutional protection under Articles 25 and 26.
- A practice receives Article 25/26 protection only if it is essential and integral to the religion — not merely incidental or optional
- Test originated in Shirur Mutt case (1954): courts must examine whether a practice constitutes the core of a religious belief
- The ERP test has been criticised for making courts arbiters of religious orthodoxy
- In Sabarimala 2018, the majority held that excluding women is not essential to the Ayyappa deity's worship; the lone dissent held that courts cannot override genuine religious belief
- The nine-judge bench is expected to reconsider whether courts should apply the ERP test at all, or defer to religious communities on internal matters
Connection to this news: Justice Nagarathna's observation about "periodic untouchability" implicitly applies the ERP test — if the exclusion is based on cyclical physical characteristics rather than theological necessity, it cannot be an "essential" religious practice.
Judicial Role in Religious Reform
India's constitutional history shows the Supreme Court has played an active role in religious reform, sometimes over the objections of religious communities.
- Article 25(2)(b) explicitly empowers the State to enact laws for "social welfare and reform" affecting religious institutions
- Temple entry movements predated independence — leading to the Temple Entry Proclamation (Travancore, 1936) for Dalit entry
- Post-independence: Untouchability Offences Act (1955), Prevention of Atrocities Act (1989)
- Courts have intervened in: Haji Ali Dargah (women's entry, Bombay HC 2016), Shani Shingnapur (women's entry to inner sanctum, 2016)
- The question is whether judicial reform of religion is consistent with the secular state's non-interference principle
Connection to this news: The Sabarimala nine-judge bench will potentially set a landmark precedent on how far courts can go in reforming religious practices in the name of constitutional rights — a question with implications for all religions in India.
Key Facts & Data
- Justice V. Nagarathna is the only woman judge on the nine-judge Constitution Bench
- The nine-judge bench is hearing questions referred from the 2019 review of the 2018 five-judge verdict
- 2018 verdict (4:1): struck down the 1991 rule barring women aged 10–50 from Sabarimala
- Article 17: "Untouchability is abolished and its practice in any form is forbidden"
- Protection of Civil Rights Act, 1955: criminal penalties for practising untouchability
- The bench is led by CJI Surya Kant
- Article 25(2)(b): State can throw open Hindu religious institutions to all classes/sections
- The reference questions go beyond Sabarimala to cover exclusionary practices in all religions