Supreme Court on Tuesday questioned menstrual taboos while hearing on the Sabrimala case, noting that a woman cannot be considered “untouchable” for three days each month and then regarded as untouchable-free on the fourth.
Supreme Court judge Justice BV Nagarathna made the remark while responding to Solicitor General of India Tushar Mehta, who had criticised the 2018 Sabarimala judgment. That verdict held that the exclusion of women aged 10-50 from the temple constituted a form of untouchability, prohibited under Article 17 of the Constitution, Live Law reported.
In that case, Justice DY Chandrachud had ruled that barring women on the grounds of menstrual impurity amounted to untouchability. The Solicitor General strongly objected, stating, “One opinion in Sabarimala 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.”
Justice Nagarathna, the sole woman on the bench, countered, “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, no untouchability.” When Mehta clarified that his objection was not about menstruation, she reiterated, “Speaking as a woman, Article 17 cannot apply for three days and on the fourth day, there is no untouchability.”
The Solicitor General further submitted that the ban on women’s entry at Sabarimala was not linked to menstruation but to a specific age group. He emphasised that Lord Ayyappa temples worldwide are open to women and described Sabarimala as a “sui generis” temple with a unique custom. He added that denominational practices must be respected, drawing parallels with other religious sites such as Mazars or Gurudwaras, where head coverings are mandatory.
A nine-judge bench of the Supreme Court commenced the hearing on constitutional issues referred by a five-judge bench in 2019. These relate to review petitions challenging the 2018 verdict permitting women’s entry into Sabarimala. The bench clarified that it would not revisit the merits of the original judgment but would instead focus on broader constitutional questions.
Opening arguments, Mehta cited Constituent Assembly debates on Articles 25 and 26, arguing that the judicially evolved “essential religious practices” test was flawed and that courts should not determine the essentiality of any religious practice. According to him, reforms within any religion fall under the legislature’s purview, as per Article 25(2)(b).
