A nine-judge Constitution bench of the Supreme Court on Thursday reserved its order on whether it can refer legal questions to a larger bench while exercising its review jurisdiction in the matters related to the entry of women into Kerala’s Sabarimala temple and discrimination at other religious places, PTI reported.
The bench headed by Chief Justice SA Bobde will pronounce its order on February 10 and will accord daily hearing in the case from February 12.
Solicitor General Tushar Mehta argued that the top court was correct in referring the questions of law to the larger bench. “As custodian of fundamental rights, it was the duty of the court to lay down an authoritative pronouncement on these questions of law,” he said.
However, senior advocate Fali S Nariman opposed Mehta’s submission, saying only the president can ask questions of national importance, and not the court.
Mehta said that the technicalities should not fetter the jurisdiction of the court, Bar and Bench reported. He referred to the decision of the Supreme Court in the Navtej Singh Johar case about Section 377 of the Indian Penal Code, where the legal questions were sent to a larger bench despite a pending curative petition. “The larger questions need to be decided for posterity,” he added.
The other members of the bench are Justices R Banumathi, Ashok Bhushan, LN Rao, MM Shantanagoudar, SA Nazeer, RS Reddy, BR Gavai and Surya Kant.
Last week, the top court had agreed to frame the questions that would be adjudicated in the Sabarimala case after the lawyers involved failed to reach a consensus. In their arguments then, Nariman, Kapil Sibal, Rajiv Dhavan and others said the court could not have sent the case to a larger bench because the scope of review was extremely limited.
Although the matter arose out of the Sabarimala case, the nine-judge Constitution bench was earlier tasked with considering seven bigger legal questions, which could be used to examine other related petitions too, such as the entry of Muslim and Parsi women into places of worship, and female genital cutting in the Dawoodi Bohra community.
On September 28, 2018, a five-judge Constitution bench, which included former Chief Justice Dipak Misra, had allowed women of all ages to enter the Ayyappa temple, leading to massive protests. Only a handful of women managed to enter the shrine after the judgement.
On November 14, 2019, a five-judge Constitution bench ruled, in a 3:2 verdict, that a larger bench should consider the matter again.
The court was 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 the 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 was 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 was also to check whether the “essential religious practices” of a religious denomination, or section, can be provided constitutional protection under Article 26.