SC casts doubt on using ‘untouchability’ to test Sabarimala entry ban

THe sublime margaret court on tues indicated that the conception of “untouchability” may non be an appropriate ground to test the validity of restrictions on the entry of menstruating women into Kerala’s Sabarimala temple, with the nine-judge bench observing that Article 17 (prohibiting untouchability) cannot be stretched to cover a practice that operates for a limited period each month.“Untouchability has its own history in India and to get over that Article 17 was made a fundamental right. But Article 17 in the context of Sabarimala…we don’t know how it will be argued,” the bench, headed by Chief Justice of India Surya Kant, remarked during the hearing.In a pointed observation, Justice BV Nagarathna , the only woman judge on the current bench, added that there cannot be “three days of untouchability every month and on the fourth day no untouchability,” underscoring the difficulty in equating menstrual exclusion with the historically entrenched practice of caste-based untouchability.“Speaking as a woman, I can say there cannot be three days of untouchability every month and fourth day…no untouchability...let us go by hard realities. Article 17 can’t apply for three days every month and on the fourth day, there is no untouchability,” she said.The remarks assume significance because the 2018 Sabarimala judgment expanded the scope of Article 17 beyond its traditional caste-based understanding. The majority, particularly Justice DY Chandrachud, had held that practices rooted in notions of “purity and pollution”, including the exclusion of menstruating women, could amount to a form of untouchability prohibited by the Constitution. The nine-judge bench is now examining whether such an expansive reading is constitutionally sustainable.Tuesday marked the first day of substantive hearing before the bench, with Solicitor General Tushar Mehta opening arguments for the Union government. Apart from the CJI and Justice Nagarathna, the bench also comprises justices MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, AG Masih, R Mahadevan, Prasanna B Varale and Joymalya BagchiThe Centre, in its submission filed on Monday, urged the court to uphold the restriction on the entry of women of menstruating age, contending that the issue lies within the domain of religious faith and denominational autonomy and falls outside the scope of judicial review.Notably, the government has also urged the nine-judge bench to declare that the law and reasoning in the 2018 Joseph Shine judgment, which struck down the offence of adultery, are not good law, contending that the ruling rests on an overbroad and subjective application of “constitutional morality” — that the Centre termed “a judicially evolved, vague and indeterminate concept.”At the outset, the SG emphasised the complexity and plurality of religions in India, cautioning against a one-size-fits-all constitutional approach. It argued that both Hinduism and Islam contain multiple denominations and sub-denominations, each with distinct practices and identities, and that this internal diversity must inform the interpretation of Articles 25 and 26.The bench also engaged with the scope of judicial review in matters of faith, as the Centre reiterated its opposition to the “essential religious practices” doctrine. Determining what constitutes an essential practice, the government argued, would require courts to interpret religious scriptures and theological principles-- an exercise for which they are institutionally ill-equipped. Even if a practice appears irrational or unscientific, it submitted, the remedy lies in legislative reform rather than judicial intervention.The Union further contended that constitutional provisions must be interpreted in light of the Constituent assembly debates and the broader constitutional scheme, including the Preamble. It emphasised that Article 25 protects individual freedom of conscience, while Article 26 safeguards the rights of religious denominations to manage their own affairs, and that the two provisions must be read harmoniously rather than hierarchically.One of the chief arguments by the Centre was that the Sabarimala temple constitutes a denominational institution entitled to protection under Article 26. It argued that the expression “section thereof” in Article 25 was deliberately introduced to recognise sub-groups within broader religious traditions, and that the mere fact that a temple is open to all Hindus does not strip it of its denominational character.Responding to concerns around gender equality, the Centre maintained that the restriction is not based on notions of discrimination but is intrinsically linked to the nature of the deity worshipped at Sabarimala. It reiterated that Lord Ayyappan is worshipped in the form of a Naisthika Brahmachari (eternal celibate), and that the exclusion of women of a particular age group is a practice unique to this temple.The bench also examined the interplay between equality guarantees and religious freedom, particularly whether practices of a denomination can be tested against Articles 14 and 15. In response, SG Mehta argued that neither Article 25 nor Article 26 is subordinate to the other, and that a purposive interpretation is required to balance individual rights with denominational autonomy.On the broader question of judicial intervention, the Centre reiterated its position, as outlined in written submissions filed on Monday, that courts should refrain from evaluating religious practices on grounds such as rationality, modernity or scientific defensibility. Such an approach, it said, would amount to substituting judicial philosophy for the internal understanding of faith.The nine-judge bench is tasked with answering seven wide-ranging constitutional questions arising from the 2019 reference, including the scope of judicial review over religious practices, the contours of the essential religious practices doctrine, and the meaning of constitutional morality. The outcome is expected to have far-reaching implications not only for the Sabarimala dispute but also for a range of cases involving the intersection of religion, equality and constitutional adjudication.