Supreme Court Narrows Sabarimala Reference Scope on Day 13

In a pivotal clarification during Day 13 of the Supreme Court of India's 9-Judge Constitution Bench hearings on the Sabarimala Reference, the apex court emphasized that it is not reviewing the 2018 Sabarimala verdict but is instead focused solely on broader constitutional questions. Justice B.V. Nagarathna delivered a striking observation, stating, "There Can't Be Untouchability For 3 Days A Month" , challenging the application of Article 17 to menstrual restrictions in religious contexts. Meanwhile, Solicitor General Tushar Mehta defended Indian cultural nuances, asserting, "India Not Patriarchal Or Gender Stereotyped As The West Understands" . These exchanges underscore the bench's delicate balancing act between religious freedoms under Article 25 and fundamental rights to equality and dignity, captivating legal observers nationwide.

The Sabarimala Saga: A Quick Recap

The Sabarimala dispute traces back to the 2018 landmark judgment in Indian Young Lawyers Association v. State of Kerala , where a 4:1 majority of a five-judge bench struck down the Kerala High Court's 1991 ruling upholding the custom barring women of menstruating age (10-50 years) from entering the Sabarimala Lord Ayyappa temple. The majority, led by then-CJ Dipak Misra, invoked constitutional morality, holding the restriction violative of Articles 14 (equality), 15 (non-discrimination), 17 (untouchability), and 25 (religious freedom, subject to public order, morality, health).

Justice Indu Malhotra dissented, arguing for deference to essential religious practices—a doctrine rooted in Shirur Mutt (1954) and refined in cases like Durgah Committee (1961). The verdict sparked nationwide protests, review petitions, and intra-court tensions, culminating in a Presidential Reference under Article 143(1) to a larger bench. Overlapping with the Shayara Bano (triple talaq) reference, the 9-judge bench—comprising CJI D.Y. Chandrachud, Justices Sanjay Kishan Kaul, Surya Kant, J.B. Pardiwala, Manoj Misra, Hima Kohli, S.V.N. Bhatti, and others including Justice Nagarathna—is examining nine questions on essential practices, judicial review of religious customs, and the scope of Parts III and IVA (uniform civil code aspirations).

This reference, pending since 2019, has heard arguments intermittently, with Day 13 marking intensified scrutiny on menstruation as "untouchability."

Day 13: Core Clarifications and Sharp Observations

The bench, on Day 13, reiterated its limited mandate. As reported, "Not Reviewing Sabarimala Verdict In Reference; Only Considering Constitutional Questions, Says Supreme Court" . This delimitation is crucial, preventing the hearings from devolving into a direct overturn of the 2018 decision and instead forging general principles applicable to future cases.

Arguments traversed the essentiality test: Is the puberty-based exclusion an "essential religious practice" integral to Sabarimala's celibate deity worship? Devotees contend it preserves the temple's spiritual purity, citing ancient texts like the Skanda Purana. Critics, including women's rights advocates, frame it as gender discrimination masquerading as faith.

Echoes from Day 2 Hearings

Reports from Day 2, referenced repeatedly, laid foundational tones mirroring Day 13. The same clarifications on non-review were voiced, alongside early probes into Article 17's ambit. "'There Can't Be Untouchability For 3 Days A Month', Justice Nagarathna On Article 17 Application In Sabarimala Case" first emerged here, signaling judicial skepticism toward periodic exclusions. The Solicitor General's cultural riposte, "India Not Patriarchal Or Gender Stereotyped As The West Understands : Solicitor General To Supreme Court In Sabarimala Reference" , rejected imported feminist lenses, urging recognition of India's diverse, non-monolithic patriarchy.

These Day 2 insights have evolved, with counsel like J. Sai Deepak (for devotees) emphasizing empirical evidence of unbroken tradition, while others like Colin Gonsalves highlighted empirical harms to women's dignity.

Justice Nagarathna's Pivotal Remark on Article 17

Justice Nagarathna's query— "There Can't Be Untouchability For 3 Days A Month" —cuts to Article 17's core: "Untouchability is abolished and its practice in any form is forbidden." Post- Shayara Bano , where instant triple talaq was deemed non-essential, the bench grapples with whether menstrual pollution (a concept in Hindu texts like Manusmriti) constitutes "untouchability."

Historically, Article 17 targeted caste-based exclusion, as in People's Union for Democratic Rights (1982). Extending it to biological cycles risks overreach, yet Justice Nagarathna's rhetoric invokes dignity, echoing Joseph Shine (adultery decriminalization). This could broaden Article 17, impacting Sabarimala and parallel bans (e.g., some temples' women's entry rules).

Solicitor General's Cultural Defense

Solicitor General Mehta's intervention reframed the debate indigenously. Dismissing "Western" patriarchy—often critiquing rigid gender roles as in Obergefell v. Hodges (US same-sex marriage)—he portrayed Indian society as fluid, with women-centric festivals like Navratri. This aligns with Sabarimala dissenters advocating contextualism over universalism, potentially swaying the bench toward deference under Article 25(2)(b)'s reformative clause.

Constitutional Questions at Stake

The nine reference questions probe: 1. Who determines essential practices—courts or believers? 2. Role of constitutional morality vs. scriptural sanctity. 3. Interplay of gender justice with group rights.

Precedents like Sabu George (female foeticide) and NALSA (transgender rights) inform, but risks of majoritarianism loom.

Legal Analysis: Balancing Faith and Equality

Analytically, the bench navigates triple bind : State neutrality (Article 51A), reform (Article 25), equality (Part III). Justice Nagarathna's Article 17 push tests if menstruation taboos are "practice in any form," potentially aligning with Anuj Garg (women in bars). Yet, SG's point cautions against cultural erasure, per State of Bombay v. Narasu Appa Mali (Hindu law non-justiciability, though eroded).

If the bench holds exclusions non-essential, it reinforces 2018; else, it recalibrates via larger bench logic ( Central Board of Dawoodi Bohra ).

Implications for Legal Practice and Society

For litigators, this crystallizes reference mechanics—Article 143 as advisory, not appellate. Gender bar practitioners gain ammunition against temple exclusions (e.g., Padmanabhaswamy). Constitutionally, it may spur UCC momentum under Article 44.

Societally, outcomes could normalize menstrual discourse, reducing stigma (per Justice K.S. Puttaswamy privacy), or safeguard pluralism amid rising Hindutva critiques.

Practitioners must track: Amicus curiae inputs, empirical data (e.g., Sabarimala pilgrim surveys), international law limits ( Vishaka evolution).

Looking Ahead: Possible Ramifications

As hearings continue, expect deeper dives into anthropology (e.g., Dr. Gift Siromoney's testimonies). A verdict could unify Sabrimala - Shayara doctrines, fortifying judicial review while respecting Indic ethos. Legal professionals: Brace for citations in upcoming religious rights battles—from mosque surveys to live-in norms.

This Day 13 reinforces the Supreme Court's role as constitutional sentinel, ensuring faith evolves without forsaking roots.