In a striking intervention during the Constitution Bench hearing on the Sabarimala reference, Justice B.V. Nagarathna openly questioned the application of Article 17 of the Constitution to restrictions on women’s entry, casting doubt on one of the most debated aspects of the 2018 verdict. The observation brings renewed focus on the constitutional limits of “untouchability,” with the Court now examining whether its scope can extend beyond its historically rooted social context into questions of religious practice.
The debate emerged as the Solicitor General challenged the earlier view that exclusion of women amounted to untouchability, arguing that such a reading stretches Article 17 of the Constitution beyond its intended purpose. He maintained that the restriction at Sabarimala is not grounded in notions of impurity but is tied to a specific age group, reflecting a unique religious practice. Emphasising the autonomy of religious denominations under Articles 25 and 26 of the Constitution, he argued that courts should not reinterpret traditions through contemporary lenses that distort their character. The discussion, therefore, pivoted on a deeper constitutional tension: whether practices rooted in faith can be equated with historical social evils that the Constitution sought to eradicate.
Justice Nagarathna brought a sharp constitutional perspective to the discussion, highlighting the historical and social context in which Article 17 of the Constitution was enacted. She indicated that the provision was designed to address deeply entrenched caste-based discrimination and not to be mechanically extended to every form of exclusion. In a candid and thought-provoking remark, she observed, “there can't be a three-day untouchability every month, and on the fourth day, there is no untouchability.” The comment emphasised the Court’s concern over inconsistencies in applying constitutional principles without regard to their original purpose. At the same time, the Bench clarified that it is presently engaging with broader constitutional questions arising from the reference, leaving the final contours of the issue open for determination.
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