Sabarimala Reference : New Issues Framed By 9-Judge Bench On Religious Practices & Fundamental Rights

The 9-judge bench constituted by the Supreme Court to consider the issues mentioned in the Sabarimala review order has framed seven new issues for consideration.

The following are those issues :

• 1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
• 2. What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
• 3. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
• 4. What is the scope and extent of the word 'morality' under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
• 5. What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
• 6. What is the meaning of expression "Sections of Hindus" occurring in Article 25 (2) (b) of the Constitution of India?
• 7. Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?

On November 14, a 5-judge bench headed by the then CJI Ranjan Gogoi observed by 3:2 majority that certain issues in the Sabarimala review were common to the pending cases concerning women entry in Mosques, validity of the practice of Female Genital Mutilation among Dawoodi Bohra community and the right of Parsi women who had married outside community to enter Fire Temples.

The November 14 order listed the following as the issues which "could" arise for consideration by a larger 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.

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

(vii) 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 was on January 7 that the SC notified the constitution of 9-judge bench comprising CJI SA Bobde, Justices R Banumathi, Ashok Bhushan, L Nageshwara Rao, Mohan M Shantanagoudar, S Abdul Nazeer, R Subhash Reddy, B R Gavai and Surya Kant to consider these issues.

On January 13, the CJI had asked the lawyers in the case to have a conference for re-framing the issues. This was after the bench agreed with the submissions that the 7 questions mentioned in the order passed by the Sabarimala review bench were too broad.

After that, the lawyers had a conference on January 17, but could not reach a common ground regarding the issues. On February 6, the bench agreed to consider the preliminary issue of maintainability of reference.

On February 10, the bench held that the reference was maintainable and held that questions of law can be referred to a larger bench in a review. The reasons for this conclusion will be published later, as per the order.