The five-judge Constitution Bench on Thursday in a 3:2 majority judgment referred the Sabarimala issue to a seven-judge Supreme Court bench, and posed seven questions for the larger bench to answer. The court said that matters that include interpretation of the Constitutional provisions that talk about the right to profess, practice and propagate religion should be heard by a larger bench.
While Chief Justice of India Ranjan Gogoi and Justices AM Khanwilkar and Indu Malhotra delivered the majority judgment running into nine pages, Justices RF Nariman and DY Chandrachud wrote a dissenting judgment that ran into 68 pages.
The majority judgment pointed out that the issue of women’s entry into Sabarimala also overlaps with other matters already pending in the apex court – like the case over the entry of Muslim women into mosques, the issue of Parsi women case, and the case challenging the practice of female genital mutilation in Dawoodi Bohra community. The court also stated that when more than one petition is pending on similar or overlapping issues, it is essential to judicial discipline and propriety to ensure a larger bench address the issues.
“The decision of a larger bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution of India,” the majority judgment said.
The judgment also stated that the larger bench will also answer seven questions and issues put forth by the Supreme Court:
1. Clarify the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
2. What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution?
3. The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over arching morality in reference to preamble, or limited to religious beliefs or faith? There is a need to delineate the contours of that expression, lest it becomes subjective.
4. What is the extent to which the court can enquire into the issue of whether a particular practice is an integral part of the religion or religious practice of a particular religious denomination, or should that be left exclusively to be determined by the head of the section of the religious group?
5. What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution?
6. Are the “essential religious practices” of a religious denomination, or even a section thereof, afforded constitutional protection under Article 26?
7. What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?
The Supreme Court said that until the larger bench decides on these seven issues, the 65 review petitions filed in court will remain pending. The next Chief Justice of India, SA Bobde, will be constituting this larger bench. Once the seven-judge bench answers these questions, the review petitions are likely to be taken up.
What the dissenting judgment said
Justice RF Nariman authored the dissenting judgment, with Justice DY Chandrachud concurring with him, and ruled in favour of disposing of the review petitions. Justice RF Nariman disagreed with the majority judgment, stating that Supreme Court judgments (referring to SC’s 2018 verdict on Sabarimala) are binding.
“The position under our constitutional scheme is that the Supreme Court of India is the ultimate repository of interpretation of the Constitution. Once a Constitution Bench of five learned Judges interprets the Constitution and lays down the law, the said interpretation is binding not only as a precedent on all courts and tribunals, but also on the coordinate branches of government, namely, the legislature and the executive,” the dissenting judgment said.
The two judges also stated that the matters that have been referred to the larger bench have not specifically been mentioned as part of the Sabarimala review petitions at all. They said that the petitions before them strictly talk about women’s entry into Sabarimala, and that other issues concerning Muslims, Parsis and Dawoodi Bohras can be addressed separately by a larger bench.
The dissenting judgment also pointed out that in 2018, three judges had maintained that the exclusion of women from Hindu temples is not an essential part of the Hindu religion and thus could not be held to be an essential religious practice.
The judgment also said, “The delicate balance between the exercise of religious rights by different groups within the same religious faith that is found in Article 25 has to be determined on a case by case basis. The slippery-slope argument, that this judgment will be used to undermine the religious rights of others, including religious minorities, is wholly without basis.”
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