[Sabarimala] Courts Should Tread Cautiously While Dealing With Religious Issues: Read The Issues Referred To Larger Bench [Read Judgment]

While referring the Sabarimala case to larger bench, the majority judges observed that the matters involving the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion,should be heard by a larger bench, for an authoritative pronouncement in these matters.

The order of the majority in Sabarimala Review petitions is very brief, with only 9 pages and 9 paragraphs. The order, however, does not say that the judgment under review is stayed or not. The operative part of the order by CJI reads thus:

The subject review petitions as well as the writ petitions may, accordingly, remain pending until determination of the questions indicated above by a Larger Bench as may be constituted by the Hon'ble the Chief Justice of India.

The Chief Justice of India Ranjan Gogoi, also on behalf of Justice AM Khanwilkar and Justice Indu Malhotra, observed that in a legal framework where the courts do not have any epistolary jurisdiction and issues pertaining to religion including religious practices are decided in exercise of jurisdiction under Section 9 of the Civil Procedure Code or Article 226/32 of the Constitution the courts should tread cautiously.

This is time honoured principle and practice, the CJI said. The order further said:

The decision of the Seven Judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) holding that what are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself and the subsequent view of a Five Judges bench in Durgah Committee, Ajmer vs. Syed Hussain Ali & Ors. carving out a role for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs seem to be in apparent conflict requiring consideration by a larger Bench.

The court added that the issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque; of Parsi Women married to a non-Parsi in the Agyari; and including the practice of female genital mutilation in Dawoodi Bohra community may be overlapping and covered by the Sabarimala judgment. In this regard, the bench noted:

"the debate about the constitutional validity of practices entailing into restriction of entry of women generally in the place of worship is not limited to this case, but also arises in respect of entry of Muslim women in a Durgah/Mosque as also in relation to Parsi women married to a non-Parsi into the holy fire place of an Agyari. There is yet another seminal issue pending for consideration in this Court regarding the powers of the constitutional courts to tread on question as to whether a particular practice is essential to religion or is an integral of the religion, in respect of female genital mutilation in Dawoodi Bohra community"

It said that the prospect of the issues arising in those cases being referred to larger bench cannot be ruled out. The said issues could be, the bench noted as follows:

(i) Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.

(ii) What is the sweep of expression 'public order, morality and health' occurring in Article 25(1) of the Constitution.

(iii) 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 need to delineate the contours of that expression, lest it becomes subjective

(iv) The extent to which the court can enquire into the issue of 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.

(v) What is the meaning of the expression 'sections of Hindus' appearing in Article 25(2)(b) of the Constitution.

(v) Whether the "essential religious practices" of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.

(vi) 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 larger bench may also consider it appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all, the order reads.

Explaining its reason for referring the matter to larger bench, the majority judgment reads thus:

It is time that this Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges. 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. It is essential to adhere to judicial discipline and propriety when more than one petition is pending on the same, similar or overlapping issues in the same court for which all cases must proceed together. Indubitably, decision by a larger bench will also pave way to instil public confidence and effectuate the principle underlying Article 145(3) of the Constitution - which predicates that cases involving a substantial question of law as to the interpretation of the Constitution should be heard by a bench of minimum five judges of this Court. Be it noted that this stipulation came when the strength of the Supreme Court Judges in 1950 was only seven Judges. The purpose underlying was, obviously, to ensure that the Supreme Court must rule authoritatively, if not as a full court (unlike the US Supreme Court). In the context of the present strength of Judges of the Supreme Court, it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of Judges. That would ensure an authoritative pronouncement and also reflect the plurality of views of the Judges converging into one opinion. That may also ensure consistency in approach for the posterity. 

Justices Nariman, Chandrachud Dissents 

In a strong an elaborate dissent, Justice RF Nariman, also speaking for Justice Chandrachud, said that what a future constitution bench or larger bench may or may not do when considering the other issues pending before this Court is, strictly speaking, not before the Court at all. The judge said:

"As and when the other matters are heard, the bench hearing those matters may well refer to our judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018, and may either apply such judgment, distinguish such judgment, or refer an issue/issues which arise from the said judgment for determination by a larger bench. All this is for future Constitution benches or larger benches to do. Consequently, if and when the issues that have been set out in the learned Chief Justice's judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning Muslims, Parsis and Dawoodi Bohras."

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