[Breaking] Nine Judge Constitution Bench To Start Hearing On Questions Referred In Sabarimala Review From 13 January 2020 [Read Notice]

A Nine Judges Constitution Bench of the Supreme Court will commence hearing on the questions referred in the Sabarimala Case from next Monday, 13th January 2020.

The notice does not mention the name of judges who will be part of the nine judge bench. The notice by Officer on Special Duty (Listing) reads thus:

"Take notice that the following matters will be listed for hearing before a Nine Judges Constitution Bench commencing from Monday the 13th January , 2020"

The earlier notice by registry to the concerned parties had requested them to file four more complete set of paper books.

On November 13, the five judge bench of the Supreme Court (3:2) had referred certain legal issues before the larger bench, while keeping the review petitions in Sabarimala pending. The majority had 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.

While hearing petitions filed Bindu Ammini and Rehna Fathima seeking protection, the CJI SA Bobde had remarked that that the "2018 verdict is not the last word". He had also assured that he will set up the seven judges bench soon to settle the issue.

In its order, the Supreme Court had mentioned about three other pending cases before, in which there are some issues overlapping and covered by the Sabarimala Judgment of 28th September 2018. Two of them [Female Genital Mutilation and Parsi Women Religious Identity] are before the Constitution Bench of five judges, while the other [Muslim Women Entry In Mosques] is pending consideration before a three judge bench.

Following are the issues that might be considered by the Nine Judge Bench:

(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?

It might also deal with the question whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all? The majority, in its order in review petitions, had also observed that the decision of the Seven Judges bench 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.

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