THE SUPREME Court on Tuesday expressed surprise over the application of the anti-untouchability clause in the Constitution to the Sabarimala temple customs by its five-judge bench in 2018 to rule against the age restrictions on entry of women into the hill shrine located in Kerala.Justice B V Nagarathna, who is the sole woman on the nine-judge bench examining constitutional questions arising out of petitions seeking a review of the September 28, 2018 Sabarimala judgement, wondered how can there be untouchability only for three days a month.“Untouchability has its own history and therefore to get over it, Article 17 was made a fundamental right. Untouchability in the context of Sabarimala, I do not know how it will be argued… Speaking as a woman, I can say there can’t be three-day untouchability every month and on the fourth day there is no untouchability… Article 17 cannot apply for three days…,” the judge said.The bench presided by Chief Justice of India Surya Kant also comprises Justices M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.Justice Nagarathna made the remarks as Solicitor General Tushar Mehta appearing for the Centre took “strong exception” to the 2018 ruling applying the untouchability clause to Sabarimala customs. “I’m sorry but one opinion in Sabarimala (judgement) says Article 17 applies to women, (that) you are treating women as untouchables, that’s something I have a very, very strong exception to,” Mehta said.The SG said the Sabarimala case was wrongly decided. “It is my case that it is wrongly decided and deserves to be declared a wrong law,” Mehta told the bench.The petitioners in the case had argued that the age restrictions on women in the 10-50 child-bearing age group at the temple was based on “notions of impurity and pollution”. Agreeing with this argument, Justice (since retired) D Y Chandradchud who was part of the 5-judges bench, had said the practice amounted to untouchability which was prohibited by Article 17.Story continues below this adOn Tuesday, the SG said he fully agreed with Justice Nagarathna’s query.He said the age restriction on women in Sabarimala was something unique to the temple where the main deity is Lord Ayyappa and that other Ayyappa temples did not have any such rules. “Let us be very clear, if there is any confusion in anyone’s mind — Lord Ayyappan temples throughout the world are open for all sections of ladies except one particular temple which is a sui generis case. There are three Lord Ayyappan temples to my knowledge in Delhi and women of all ages go and worship…”, he said.“There can be a denomination and denominational practices, which we have to respect. Everything is not relatable to human dignity or individual body freedom. If I go to a mazar or gurdwara, if I have to cover my head, you cannot say you are taking away my dignity, my right of choice. This is what Sabarimala (ruling) says ‘your right of choice is taken away, your autonomy is taken away. It is not taking away the autonomy. It is respecting the tenets, the faith, the belief of that religion.”He said the Sabarimala judgment had denied the protection of Article 26 (b), which guarantees the right to manage religious affairs, to Ayyappa devotees saying they did not constitute a denomination. But the court failed to notice that the protection was available even to sections of the denomination, the SG contended.Story continues below this adMehta said he will, however, not pitch his argument so high as to contend that Article 26 rights are unfettered. “Article 26 (b) is not a standalone island. It will have to be read along with article 25 and other parts of the Constitution. There are some arguments…that Article 26 b is unfettered by any provision…that it cannot be read together with even 25 (2)(b) and that there cannot be any law even for social reform, which according to me is too high interpretation to be given,” he said.Referring to how western notions have crept into Indian jurisprudence, the SG said, “India is not that patriarchal or gender-stereotype society as the west understands. Sometimes that’s the problem.”Mehta said, “Not only has India has always treated women equally, we have always treated them at a higher pedestal… We are the only society which worships ladies. (From) The President of India, to the Prime Minister, to the judges of the Supreme Court, we bow down before our lady deities. So let us not introduce those concepts of patriarchy or gender stereotypes.”He also referred to the limitations on constitutional courts to decide issues of faith, saying they are not ecclesiastical courts to do that. “In Ayyappan Swamy, it’s attribute of a deity. Can the attribute of a deity ever be subject of judicial review,” he asked.Story continues below this adJustice Bagchi sought to know whether a religious practice as understood by a denomination can be tested against the equality clauses under Articles 14 to 16.Mehta said his view is that “neither Article 26 is superior nor Article 25 is subordinate. The interpretation will have to be purposive, reading 25 and 26 together.”On September 28, 2018, a five-judge bench of the Supreme Court, by a 4:1 majority, lifted the age restriction on women visitors and struck down as unconstitutional Rule 3(b) of the Kerala Hindu Places of Public Worship Rules, 1965, which allowed the exclusion of women on the grounds of custom. On November 14, 2019, the top court, while considering review petitions in the matter, said in a 3:2 ruling that the September 2018 decision may impinge on the affairs of other religions as well and would require a more detailed examination. It therefore decided to keep the review petitions pending till a larger bench took a call.