Sabarimala Reference : SG Urges SC To Consider Re-Framing The Issues As Lawyers Could Not Reach Consensus

Solicitor General Tushar Mehta on Monday told the CJI-led bench that the lawyers could not reach a consensus on the framing of issues to be considered by the 9-bench judges on the larger questions of faith and fundamental rights referred in the Sabarimala review case.

The SG urged the bench to consider re-framing the issues, and handed over a draft containing suggestions.

CJI said that the request will be considered. He also indicated that a 10-day hearing period would be set for the case.

On January 13, the nine-judge bench led by CJI SA Bobde 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 referred in the order passed by the Sabarimala review bench on November 14, 2019 were too broad.

After that, the lawyers had a conference on January 17, but could not reach a common ground regarding the issues.

On November 14, a 5-judge bench headed by the then CJI Ranjan Gogoi observed 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. 

According to the November 14 order, the following are the issues, that 'could' arise for the consideration of 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?