SC 9-Judge Bench To Consider Re-framing Issues On Faith And Fundamental Rights Referred In Sabarimala Review [Read Order]

The nine-judge bench of the Supreme Court on Monday said that it will consider re-framing the issues on essential religious practices, interplay between faith and fundamental rights, and extent of judicial review on religious practices which were referred in the Sabarimala review order passed by a 5-judge bench on November 14, 2019.

The CJ-led bench has asked the Secretary General of the Supreme Court to convene a meeting of all lawyers involved in the case on January 17 for this purpose. The meeting will decide the points of :

• 1. Reframing or addition of issues.
• 2. Allocation of issues among lawyers.
• 3. Division of time between lawyers.

The bench comprises CJI S A Bobde, Justice R Banumathi, Justice Ashok Bhushan, Justice L Nageswara Rao, Justice Mohan M Shantanagoudar, Justice S Abdul Nazeer, Justice R Subhash Reddy, Justice B R Gavai and Justice Surya Kant.

The bench has also agreed to list the pending writ petitions relating to the issues of women entry in mosques, entry of Parsi women (who have married outside community) to access Fire Temples and validity of the practice of Female Genital Mutilation among Dawoodi Bohras.

At the outset itself, the CJI clarified that the bench will not hear the Sabarimala review, but will only consider the issues referred in the November 14 order passed by the Sabarimala review bench. For that matter, today's causelist had specified the bench will consider only the reference and will not hear arguments on the review petitions or writ petitions in Sabarimala case. Those petitions will remain pending until the determination of questions referred, the causelist had clarified.

Senior Advocate Indira Jaising submitted that without a pronouncement that the Sabarimala judgment was wrong, the reference was not possible. She also pointed that even the 7-judge bench decision in Shirur Mutt case has not been doubted so as to justify a reference to a nine-judge bench.

Senior Advocate Dr A M Singhvi, appearing for the Travancore Devaswom Board, submitted that the issues have been framed very 'broadly', despite the best of the intentions.

Solicitor General Tushar Mehta also agreed that the seven issues referred needs 'fine-tuning'.

In the light of such submissions, the CJI agreed to convene a meeting of the lawyers involved to re-frame the issues. CJI also urged the lawyers to divide the time for arguments among themselves for smooth hearing as it was done in the hearing of Ayodhya case. The Court has given three weeks time for the settlement of issues.

It was on January 7 that the composition of the nine judge bench was notified by the Supreme Court. 

It is pertinent to note that none of the judges of the bench which delivered the original judgment on September 28, 2018 - Justices A M Khanwilkar, D Y Chandrachud, R F Nariman and Indu Malhotra- are included in the review bench.

It was on November 14 that the Supreme Court bench headed by the then CJI Ranjan Gogoi had passed an order of reference in the Sabarimala review petitions, regarding certain questions of essential religious practices. That bench, by 3:2 majority, said that there were some common questions which are likely to arise in pending cases relating to women entry in mosques, right of Parsi women who had married outside religion to access Fire Temples, legality of the practice of Female Genital Mutilation amongs Dawoodi Bohra community etc.

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? 

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