Women cannot be seen as ‘untouchables’ for three days a month, says SC judge
Enough grounded facts gathered. Writing the study note now.
1. At a Glance
- Supreme Court's 9-judge Constitution Bench is hearing the Sabarimala reference — whether Article 17 (abolition of untouchability) applies beyond caste to exclude menstruating women from temple entry [S1][S4].
- Justice B.V. Nagarathna questioned the doctrinal fit of invoking Article 17 for a practice confined to "three days a month," while the Centre called the Sabarimala bar sui generis [S1][S2].
- Tests interlinkage of fundamental rights (Art. 25, 26), essential religious practices doctrine, and untouchability jurisprudence — a recurring GS-II/GS-IV theme.
- High-value topic: rare instance of a woman judge's minority-flavoured constitutional reasoning shaping a live 9-judge reference.
2. Why in the News
- On 7 April 2026, Justice Nagarathna orally remarked that women "cannot be seen as untouchables" selectively for three days a month, during Sabarimala reference hearings before the 9-judge Bench [S2].
- Solicitor-General Tushar Mehta, for the Centre, argued the Sabarimala prohibition was sui generis (unique) to the shrine and age-based, not time-based, and other Ayyappa temples worldwide admit women of all ages [S2].
- The Bench reserved judgment after 16 days of hearing [S1][S3].
3. Background & Evolution
- 28 September 2018: In Indian Young Lawyers Association v. State of Kerala, a 5-judge Constitution Bench (4:1, Justice Indu Malhotra dissenting) held the Sabarimala custom barring women aged 10–50 unconstitutional, violating Article 25 (freedom of religion); Justice D.Y. Chandrachud additionally invoked Article 17 [S3][S1].
- 14 November 2019: Review Bench, by 3:2, kept review petitions pending and referred larger constitutional questions (on essential religious practices, Art. 25/26 scope) to a larger bench [S3].
- 10 February 2020: 9-judge Bench upheld its own power to refer questions of law within a review petition [S3].
- 7 April 2026 onward: 9-judge Bench (CJI Surya Kant + Justices B.V. Nagarathna, M.M. Sundresh, Ahsanuddin Amanullah, Aravind Kumar, A.G. Masih, R. Mahadevan, Prasanna B. Varale, Joymalya Bagchi) commenced substantive hearing [S3].
- Reference also touches Parsi excommunication practices under Articles 25–26, indicating the Bench's ruling will have cross-religion implications [S4].
4. Core Static Facts
| Item | Detail |
|---|---|
| Case | Indian Young Lawyers Association v. State of Kerala (Sabarimala Reference) |
| Original verdict | 28 Sept 2018, 4:1 majority |
| Review outcome | 14 Nov 2019 — referred to larger bench (3:2) |
| Confirmatory order | 10 Feb 2020 — 9-judge Bench affirmed referral power |
| Present Bench size | 9 judges |
| Bench composition | CJI Surya Kant; Justices B.V. Nagarathna, M.M. Sundresh, Ahsanuddin Amanullah, Aravind Kumar, A.G. Masih, R. Mahadevan, Prasanna B. Varale, Joymalya Bagchi [S3] |
| Hearing start (current round) | 7 April 2026 [S2][S3] |
| Hearing duration | 16 days, judgment reserved [S1][S3] |
| Constitutional provisions in play | Article 25 (freedom of religion), Article 26 (religious denomination's right to manage affairs), Article 17 (abolition of untouchability) |
| Centre's position | Sabarimala prohibition is sui generis, age-based (10–50 yrs), not time-based; represented by SG Tushar Mehta [S2] |
| Only woman on Bench | Justice B.V. Nagarathna |
5. Multi-Dimensional Analysis
Legal / Constitutional - Central question: does Article 17 (drafted for caste-based untouchability) extend to gender-based temple exclusion, or is it doctrinally restricted to caste [S1]? - Interplay between individual fundamental rights (Art. 25(1)) and group/denominational rights (Art. 26) — the "essential religious practices" test is under fresh scrutiny [S4]. - Outcome will also govern Parsi excommunication cases bundled with the reference, widening its constitutional footprint [S4].
Social - Case is a flashpoint for gender equality vs. religious customs; menstrual taboo and notions of "purity/pollution" underpin the original exclusion [S2]. - Nagarathna's remark reframes the debate: cyclical selective exclusion is logically inconsistent with treating a person as permanently "impure."
Governance / Federal - Kerala Devaswom Board and State machinery had to implement (and earlier resisted implementing) the 2018 order — highlights implementation gaps between judicial pronouncement and on-ground administration.
Ethical - Balances religious autonomy against constitutional morality; Centre argues faith and denominational practice deserve deference, not just autonomy/dignity claims [S2].
Historical - Draws comparison with earlier essential-practices rulings (Shirur Mutt, Durgah Committee) and other gender-temple-entry disputes (Haji Ali Dargah, Shani Shingnapur) — useful comparative set.
6. Recent Developments (last 12–18 months)
- 7 April 2026: 9-judge Bench begins substantive hearing of Sabarimala reference [S2][S3].
- During hearings, SG Tushar Mehta reiterated Centre's reservations against the 2018 judgment's equating of the temple-entry bar with untouchability [S2].
- Justice Nagarathna's oral remarks on Article 17's temporal inconsistency reported prominently, becoming the news hook (per The Hindu, 8 April 2026 print edition) [S2].
- Bench reserved judgment after 16 days of hearing (2026) [S1][S3].
- Parallel consideration of Parsi excommunication practices under Articles 25–26 by the same Bench [S4].
7. Prelims Hooks
- Sabarimala original judgment: 28 September 2018, case Indian Young Lawyers Association v. State of Kerala.
- Majority: 4:1; sole dissent by Justice Indu Malhotra.
- Justice invoking Article 17 in 2018 majority: D.Y. Chandrachud.
- Review petitions referred to larger bench: 14 November 2019, by 3:2 majority.
- 9-judge Bench affirmed its referral power: 10 February 2020.
- Current 9-judge Bench hearing began: 7 April 2026.
- Bench headed by CJI Surya Kant; only woman judge on Bench: Justice B.V. Nagarathna.
- Solicitor-General representing Centre: Tushar Mehta.
- Centre's argument: Sabarimala bar is sui generis — unique, age-based (women aged 10–50), not time-based.
- Article invoked for "untouchability" argument: Article 17 of the Constitution.
- Articles governing religious freedom at stake: Article 25 (individual) and Article 26 (denominational).
- Hearing on the reference concluded after 16 days; judgment reserved.
- Bundled issue before same Bench: validity of Parsi excommunication practices.
- Sabarimala temple is dedicated to Lord Ayyappa, located in Kerala.
8. Mains Relevance
- GS-II (Polity & Governance): Fundamental Rights — Article 17, Article 25, Article 26; judicial review; essential religious practices doctrine.
- GS-I (Society): Gender and social exclusion; religion and social practices.
- GS-IV (Ethics, optional angle): Constitutional morality vs. religious freedom; individual dignity vs. group rights.
- Possible Mains stems: 1. "Discuss whether Article 17's prohibition of untouchability can be extended beyond caste-based discrimination to gender-based exclusionary religious practices. Illustrate with the Sabarimala reference." (GS-II) 2. "Examine the tension between individual religious freedom under Article 25 and a denomination's right to manage its own affairs under Article 26, in light of recent Supreme Court references." (GS-II) 3. "'Religious customs cannot override constitutional morality.' Critically examine this statement with reference to the Sabarimala case." (GS-IV)
9. Related Topics to Study Next
- Essential Religious Practices Doctrine — core test the Bench must apply to any custom claiming Art. 26 protection.
- Triple Talaq judgment (Shayara Bano case) — parallel case of personal law/religious practice vs. constitutional rights.
- Haji Ali Dargah entry case — comparable gender-temple/mosque access dispute.
- Kerala Devaswom Board — administrative body managing Sabarimala, relevant for federal/state temple administration.
- Doctrine of Constitutional Morality — recurring judicial concept invoked in Sabarimala, Navtej Singh Johar, and Adultery judgments.
- Article 17 and the Untouchability (Offences) Act, 1955 / Protection of Civil Rights Act, 1976 — statutory backbone of caste-untouchability law, useful for contrast.
- Parsi excommunication case — bundled with Sabarimala reference before same 9-judge Bench.
10. Common Errors / Trap Areas
- Confusing the 2018 verdict (which allowed entry) with the ongoing 2026 reference hearing (which is reconsidering the reasoning, not necessarily reversing the outcome yet — judgment reserved, not delivered).
- Assuming Article 17 is only about caste — the entire controversy is about whether its scope is wider than caste; don't answer definitively as "Article 17 = caste only."
- Mixing up review petition (2019) vs. reference to larger bench (2020 confirmation, 2026 hearing) — these are distinct procedural stages.
- Wrongly attributing Nagarathna's remark as the Court's final verdict — it was an oral observation during hearing, not the reserved judgment's ratio.
- Forgetting that the Bench size is 9 judges, not 5 (the original bench) — a common Prelims trap.
11. Sources
- [S1] "'There Can't Be Untouchability For 3 Days A Month', Justice Nagarathna On Article 17 Application In Sabarimala Case" — https://www.livelaw.in/amp/top-stories/there-cant-be-3-day-untouchability-against-women-every-month-justice-nagarathna-in-sabarimala-reference-hearing-529301 — (tier: 4)
- [S2] "Women cannot be seen as 'untouchables' for three days a month, says SC judge" (The Hindu, 8 April 2026, print edition) — https://www.thehindu.com/todays-paper/2026-04-08/th_international/articleG0QFQQEPU-14160135.ece — (tier: 4)
- [S3] "Supreme Court 9-judge Bench to hear Sabarimala reference from April 7" — https://www.barandbench.com/news/litigation/supreme-court-9-judge-bench-to-hear-sabarimala-reference-from-april-7 — (tier: 4)
- [S4] "Beyond Sabarimala: 9-Judge Bench Examines Validity of Parsi Excommunications Under Articles 25—26" — https://www.scconline.com/blog/post/2026/05/06/supreme-court-sabrimala-reference/ — (tier: 4)