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Justice B V Nagarathna: Women cannot be 'untouchables' for 3 days every month

April 08, 2026 5 min read Polity & Governance Social Issues Art & Culture GS Paper 1 (Social Issues) GS Paper 2 (Polity & Governance)
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What Happened

  • A nine-judge Constitution Bench of the Supreme Court, headed by Chief Justice Surya Kant, resumed hearing the Sabarimala reference case, which examines broader constitutional questions around religious freedom and gender equality arising from the 2018 Sabarimala verdict.
  • Justice B.V. Nagarathna — the sole woman on the bench — strongly criticised the historical practice of isolating menstruating women from places of worship, describing it as a form of "untouchability." She observed: "There can't be a three-day untouchability every month, and on the fourth day there is no untouchability."
  • The Solicitor General countered that the deity's unique "naisthika brahmacharya" (perpetual celibacy) attribute and the sincere faith of devotees should not be tested purely against gender equality standards.
  • The bench is examining whether practices of religious exclusion — including the Sabarimala ban, entry of Muslim women into dargahs, and female genital mutilation — constitute "essential religious practices" protected under Article 26.
  • The Kerala government has shifted its position ahead of state assembly elections, now opposing women's entry, while the Centre maintains that faith-based practices should remain beyond judicial review.

Static Topic Bridges

Article 17 — Abolition of Untouchability

Article 17 of the Constitution abolishes "untouchability" and makes its practice in any form a punishable offence. The term is not defined in the Constitution but courts have held it refers to the social disabilities historically imposed on persons by reason of birth into certain castes. The Protection of Civil Rights Act, 1955 (originally the Untouchability Offences Act) provides for criminal punishment for enforcing disabilities arising from untouchability. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 further strengthens enforcement.

  • Article 17 is a Fundamental Right under Part III of the Constitution, enforceable even against private individuals.
  • Supreme Court has held that when rights under Article 17 are violated by a private individual, the State has a constitutional duty to act.
  • The Protection of Civil Rights Act, 1955 was renamed from the Untouchability Offences Act, 1955 in 1976.

Connection to this news: Justice Nagarathna invoked the spirit of Article 17 to argue that menstrual exclusion constitutes a form of untouchability applied to women — a novel and significant constitutional reading that goes beyond caste-based untouchability.

Articles 25 and 26 — Freedom of Religion and Essential Religious Practices

Article 25(1) guarantees all persons the right to freely profess, practise and propagate religion, subject to public order, morality and health, and other Fundamental Rights. Article 26 gives religious denominations the right to manage their own affairs in matters of religion. The "Essential Religious Practices" (ERP) doctrine — developed by the Supreme Court in Commissioner, Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar (1954) — holds that only practices integral to a religion are protected; peripheral or superstitious customs are not.

  • Article 25(2) allows the State to regulate secular activities associated with religious practice and to legislate for social welfare and reform even if it affects religious practices.
  • The ERP test asks: Is the practice so fundamental that the religion would change its nature without it?
  • In the 2018 Sabarimala judgment (Indian Young Lawyers Association v. State of Kerala), a 4-1 majority held the exclusion of women of menstruating age was not an essential practice and violated Articles 14 and 25.
  • Justice Indu Malhotra dissented, holding that courts should not interfere in matters of faith deeply held by devotees.

Connection to this news: The nine-judge bench is re-examining whether the ERP doctrine appropriately balances Article 25 individual rights with Article 26 denominational rights, and whether biological characteristics can ever be a valid basis for religious exclusion.

Dr. B.R. Ambedkar distinguished between "constitutional morality" — adherence to the principles embedded in the Constitution — and "popular morality" — the prevailing social norms of a community. The Supreme Court in Navtej Singh Johar v. Union of India (2018) and other cases has held that constitutional morality must prevail over popular morality. This principle is central to cases where religious customs conflict with Fundamental Rights.

  • The concept of constitutional morality was articulated by Ambedkar in the Constituent Assembly debates.
  • In Navtej Singh Johar (2018), the Supreme Court struck down Section 377 IPC by applying constitutional morality over popular/social morality.
  • The Supreme Court in Joseph Shine v. Union of India (2018) struck down adultery law similarly.
  • Constitutional morality requires the State to protect minorities and individuals from majoritarian social norms that violate Fundamental Rights.

Connection to this news: The Sabarimala case is precisely a contest between constitutional morality (gender equality, non-discrimination) and popular/religious morality (faith-based customs of devotees). The nine-judge bench's ruling will clarify how far constitutional morality can override religious denomination rights.

Gender Equality and Non-Discrimination — Articles 14 and 15

Article 14 guarantees equality before the law and equal protection of the laws. Article 15(1) prohibits discrimination by the State on grounds including sex. Article 15(3) allows the State to make special provisions for women and children. These provisions have been read alongside Article 25 in cases involving gender-discriminatory religious practices.

  • Article 14's reasonableness test requires that any classification must be intelligible, have a nexus with the object sought, and not be arbitrary.
  • Menstruation-based exclusion has been argued to be an impermissible classification under Article 14 as it is based purely on biological characteristics peculiar to women.
  • Article 15(2) prohibits restricting women from access to shops, restaurants, hotels, and places of public entertainment — courts have debated whether temples of public resort fall within its ambit.
  • The right to worship has been derived from Article 25 read with Article 14 in multiple High Court decisions.

Connection to this news: Justice Nagarathna's framing of menstrual exclusion as "untouchability" effectively bridges Article 17 with Articles 14 and 15, creating a strong constitutional argument that such practices violate multiple fundamental rights simultaneously.

Key Facts & Data

  • The nine-judge Constitution Bench is led by Chief Justice Surya Kant and includes Justice B.V. Nagarathna as the only woman member.
  • The 2018 Sabarimala judgment was delivered 4-1 by a five-judge bench; the review was referred to a larger bench in 2019 by a 3-2 majority.
  • Article 17 (Abolition of Untouchability) is a Fundamental Right enforceable against private individuals, not just the State.
  • The Protection of Civil Rights Act, 1955 (amended 1976) and SC/ST Prevention of Atrocities Act, 1989 operationalise Article 17.
  • The Essential Religious Practices doctrine was first articulated in Commissioner, Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar (1954).
  • The nine-judge bench's ruling will also affect pending cases on Muslim women's entry into mosques and Parsi women's access to agiaries.