Justice BV Nagarathna: Women cannot be ‘untouchable’ for 3 days in a month

New Delhi: In a debate on faith and belief and fundamental rights, Justice B V Nagarathna on Tuesday criticized the social custom that used to treat women as “untouchables” for three days a month as the customary ban on menstruating women from entering the Lord Ayyappa temple at Sabarimala was lifted.Justice Nagarathna, who was part of a nine-judge Constitution bench headed by CJI Surya Kant, embarked on a fiery and entertaining elucidation of contentious constitutional and legal principles on equality, religion, religious practices, beliefs and beliefs, saying, “As a woman, I disagree.”She, who will become India’s first female chief justice next September, has questioned social conventions that isolate menstruating women, saying: “Women cannot be untouchable for three days in a month and then be treated normally.”When Attorney General Tushar Mehta questioned the validity of the Supreme Court’s judgment in Young Lawyers Association of India v. State of Kerala on September 28, 2018, which was meant to test the ban on entry of women in the age group of 10 to 50 years into India. Sabarimala Temple Take Article 17 as the touchstone, which abolished untouchability and criminalized it.He said that in India, women are worshiped and “our president, prime minister, governors and constitutional offices are all women”. He said women’s equality was a cornerstone of government policy and therefore, applying the Section 17 test to declare the custom of Sabarimala unconstitutional seemed to go well beyond the scope of jurisprudence.He said women of all ages can enter all Ayyappa temples but the ban on menstruating women from entering Sabarimala is unique as devotees consider Lord Ayyappa in the temple to be a “naistik brahmachari”.“This unique attribute of God cannot be tested by the Supreme Court,” Mehta said, complaining that the jurisprudence of testing every issue on a gender equality dipstick has unfortunately crept into the Constitutional Court over the past few decades. “Women are equal in all aspects and must be treated equally,” he said.Justice MM Sundresh said the central contention was that since the attributes of God are intrinsically linked to the faith and beliefs of devotees of Sabarimala and followers of Lord Ayyappa, the court cannot conduct a validity test on such beliefs and beliefs.Mehta said the Sabarimala temple’s practices were “sui generis” (a category of its own) and similar features could be found in other religious institutions. “Someone may find that his/her right to freedom of expression not to cover the hair is violated when they are forced to cover their head when entering a magyar or monastery,” he said.