In an interesting development in the Sabarimala case, the Supreme Court today held that larger issues pertaining to the Essential Religious Practices Test, interplay between Articles 25 and 26 on one hand and Article 14 on the other and the conflict between the judgments in the Shirur Mutt case and Durgah Committee case may be decided by a larger Bench.
The Sabarimala review petitions and writ petitions will remain pending until the determination of the questions by the larger Bench was held by the Apex Court. Significantly, there is no mention of stay of the 2018 judgment allowing women into the temple. This would mean that the said judgment will continue to hold the field.
While referring the Sbrimala case to larger bench, the majority judges observed that the matters involving the interpretation of the the provisions of the Constitution touching upon the rights to profess, practice and propogate its own religion should be heard by larger bench ,for a more authoritative and extravagant pronouncement and approach in these matters. The judgment was pronounced by a Bench comprising of Chief Justice of India Ranjan Gogoi and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.
The Court in its majority judgment noted that it was their considered view 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 the practice of female genital mutilation in Dawoodi Bohra community may be overlying and covered by the judgment under review. The Court observed and then set out the possible issues that could come up. They are being listed below:-
(i) 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?
The court also observed that order of the majority in Sabrimala Review Petition is very brief,. The order, however does not say that the judgment under review is stayed or not.Further, the Court also noted that there is a conflict between the judgments of the Supreme Court in Shirur Mutt case and Durgah Committee case and will require consideration of a larger Bench, the Court held. The judgment of the Supreme Court had significant ramifications in the State of Kerala, with the BJP, right-wing organisations, as well as the Congress Party opposing the verdict.
The Chief Justice of India Ranjan Gogoi, also on behalf of Justice AM Khanwilkar and Justice Indu Malhotra. Noted 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 jurisdiction under Section 9 of the Civil Procedure Code or Article 226/32 of the Constitution of India should tread cautiously and emphatically.
Therefore, the judgment of the Supreme Court had significant ramifications in the State of Kerala, with the BJP, right-wing organisations, as well as the Congress Party opposing the verdict. This was one of the remarkable mark in the Sabrimala case as it was clearly highlighted by the larger bench.