A nine-judge Constitution Bench of the Supreme Court on Friday decided to frame the questions that would be adjudicated in the Sabarimala case after the lawyers involved failed to reach a consensus, Live Law reported.
On January 13, the top court had given the lawyers three weeks to reach a consensus on the specific legal questions. However, Solicitor General Tushar Mehta had told the judges on January 28 that the lawyers could not reach a consensus during their meeting, and requested the court to frame the questions. The bench headed by Chief Justice SA Bobde said it would inform the parties about the time frame for the hearing and commence proceedings by next week, PTI reported.
The bench will examine matters related to the entry of women into Kerala’s Sabarimala temple, and women in other religions such as the entry of Muslim women in mosques and ‘dargah’, and the entry ban on Parsi women married to non-Parsi men at fire temples or agiaries. On November 14, five-judge Constitution bench had ruled in a 3:2 verdict that a larger bench should consider the matter after a number of review petitions were filed.
“Issues were suggested by everyone but we couldn’t agree,” said Solicitor General Tushar Mehta. “The suggestions are anyway subject to Your Lordships’ approval. So instead of debating here, knowing that we won’t agree, Your Lordships may fix the issues in chamber.”
Senior lawyer Fali S Nariman questioned the propriety of the reference to the nine-judge Bench. “In rendering an opinion on review, there cannot be any going beyond the scope of the review,” he told the court. “There cannot be any abstract questions which are not arising in the case itself. Questions in the Sabarimala case were referred to a five-judge bench by a three-judge bench. And the five-judge bench answered these questions by 4:1...”
When SA Bobde asked Nariman if he was arguing that the court could not have “referred larger questions to a larger Bench” while hearing the review of one judgement, the lawyer said: “Yes, that is absolutely right. It will be outside your jurisdiction to do that.”
The court took note of the objections that were also supported by other lawyers such as Kapil Sibal, Rajeev Dhavan, Rakesh Dwivedi and Shyam Divan. The 2018 verdict had allowed women of all age groups to enter Kerala’s Sabarimala temple. Following that judgement by a five-judge Constitution bench headed by former Chief Justice of India Dipak Misra, massive protests broke out against the verdict in Kerala. Only a handful of women managed to enter the hill shrine where women of menstruating age were traditionally not given entry.
Kapil Sibal, representing the All Indian Muslim Personal Board, supported Nariman, and said though the board had said Muslim women were allowed to enter mosques to offer namaz, the court should not enter into matter of faith and decide what is an essential religious practice while hearing a public interest litigation plea filed by a person not belonging to the faith.
The court is expected to examine several matters related to the verdict and petitions, including the interplay between freedom of religion granted under Articles 25 and 26 of Constitution and other provisions, especially in Article 14, that grant right to equality before the law and equal protection of the laws.
Article 25(1) makes freedom of religion subject to “public order, morality and health”, and the top court is likely to examine the extent to which it applies. The court is also expected to examine the meaning of “section of Hindus”, which is mentioned in Article 25(2)(b). The sub-section throws open “Hindu religious institutions of a public character to all classes and sections of Hindus”. The court may also check whether the “essential religious practices” of a religious denomination, or section, can be provided constitutional protection under Article 26.
“We said we are not deciding the review petition, the Parsi women case or any other matter,” said Bobde in response to the objections of Nariman and the other lawyers. “We are only on the interpretation of articles. We will have the hearing in a preliminary, cursory manner...We will frame what Nariman is arguing as a separate issue. And we will hear it along with the reference.”
The bench said “the fact of the matter is that we have questions referred to us by a five-judge bench, what is referred to us is not the review petitions”.