Woman can't be treated as 'untouchable' for 3 days: Justice B V Nagarathna in Sabarimala case

A nine-judge bench was hearing petitions related to discrimination against women at religious places, including Sabarimala temple of Keralam, and on the ambit and scope of religious freedom practised by multiple faiths.

New Delhi: Supreme Court judge Justice B V Nagarathna on Tuesday said that a woman cannot be treated as "untouchable" for three days in a month and on the fourth day, there is no untouchability.

A nine-judge bench led by CJI Surya Kant began hearing arguments on petitions related to discrimination against women at religious places, including Kerala's Sabarimala temple, and on the ambit and scope of religious freedom practised by multiple faiths.

Opening the arguments for the Centre, Solicitor General Tushar Mehta contended courts cannot narrowly define "religious denominations" and "essential religious practices" as done in the September 2018 Sabarimala judgment. He maintained the judgment was a wrong law.

Mehta said an opinion in the Sabarimala judgment states that Article 17 applies to women. "You are treating women as untouchable, that is the one opinion. That is something I have a strong exception to it. India is not that patriarchal or a gender-stereotypical society, as the West understands. Sometime that is the problem,'' he said.

Justice Nagarathna, at that moment, said untouchability has its own history and Article 17 was made a fundamental right to overcome that.

"Untouchability in the context of Sabarimala, I do not know how it would be argued". Mehta said: "It can never be justified on the grounds of untouchability, and I am stating that directly," he said.

She said, “Speaking as a woman, I can say there cannot be three-day untouchability every month and on the fourth day there is no untouchability--- the hard reality. The other aspect is the main question. Speaking as a woman, Article 17 cannot apply for three days and on the fourth day there is no untouchability.”

Mehta said he has no issue or dispute with that.

“Sabarimala, I will defend in my own different way….Sabarimala does not (say) four days. Sabarimala means a particular age group and let us be very clear if there is any confusion in anyone’s mind,” he said.

“Lord Ayyappa temples throughout the world are open for all sections of ladies, except one, which is sui generis case. There are three Lord Ayyappa temples, to my knowledge, in New Delhi, all from child till old women, everyone goes and worships and it is only one temple,” he said.

Mehta said, “If I go to a mazar or go to a gurdwara, and if I have to cover my head, I cannot say that you are taking away my right of choice. This is what Sabarimala says: your right of choice is taken away, your autonomy is taken away. It is not taking away autonomy, it is respecting the tenets, the faith, the belief of that religion.”

“When we go to Ajmer Sharif, we cover our heads. When we go to a gurdwara, we do cover our heads,” he said.

The Solicitor General emphasized, India has always treated women not only equally but on a higher pedestal and we are uniquely the only culture that bows down to women deities.

Justice Nagarthna observed that if there is a social ill which is branded as a religious practice, the court can distinguish between the two, whether it’s a social evil or an essential religious practice.

In its written submissions, the Centre favoured a review of the 2018 Sabarimala judgment, contending it ran contrary to the binding law laid down in the coordinate bench judgment in Devaru case.

Mehta's submissions stated that in the Sabarimala judgment, the majority opinions not only wrongly declared Ayyappa devotees not to fall within the definition of denomination but failed to even deal with the expression ‘or a section thereof’.

This, the centre said, assumes particular importance in the Indian context because religions in India, especially Hinduism, are marked by deep internal diversity. The Centre said Hinduism has historically accommodated multiple streams of thought, forms of worship, ritual practices, local traditions, philosophical schools, temple traditions and sampradayas and even village deities. “Therefore, constitutional adjudication must account for plurality within religion and not proceed on the assumption that every religion has only one uniform set of beliefs and practices,'' it said.

A five-judge Constitution bench had on September 28, 2018 by a majority of 4:1 had set aside the age-old prohibition of women between 10 and 50 years from entering the temple. It had passed the judgement on a petition filed by Indian Young Lawyers Association and others.

In November, 2019, the Supreme Court's five-judge bench referred to a larger bench for deciding questions arising out of a plea for entry of women into Kerala's Sabarimala temple. The court said similar questions pending related to Muslim women's right to enter 'dargah' and mosque and permission to Parsi women married to a non-Parsi into the holy fire place of an 'Agyari' and practice of female genital mutilation among Dawoodi Bohar community would require authoritative determinations.

The court by a majority view of 3:2 said it was essential to adhere to judicial discipline and propriety when more than one petition was pending on the same, similar or overlapping issues, for which all cases must proceed together.

In January, 2020, a nine -judge bench was set up to decide the matter.