The larger Bench in Sabarimala case may chart the course of religious practices in India
New Delhi, Nov 15: Contrary to what one may have expected, the Supreme Court on Thursday decided to refer the Sabarimala case to a larger Bench. However the judgment was not a unanimous one.
The majority verdict was delivered by the Chief Justice of India, Ranjan Gogoi, Justices A M Khanwilkar and Indu Malhotra. In a nut-shell if one were to interpret the majority view, it could be said that they did not want to look at the Sabarimala case in isolation.
The Sabarimala case was about the entry of women of all ages into the Temple. The Supreme Court had allowed the entry of women of all ages, following which the review petitions were filed and the judgment of which was delivered on Thursday.
There have been petitions before the Supreme Court in which similar issues have been raised. The court has dealt with the entry of Muslim women into a Durgah or Mosque. The court has also dealt with a petition in relation to a Parsi woman married to a non-Parsi entering into the holy fire place of an Agyari.
The majority on the Bench said in its verdict, "it is our considered view that the issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque (being 7 Writ Petition (Civil) No.472 of 2019); of Parsi Women married to a non-Parsi in the Agyari (being Special Leave Petition (Civil) No. 18889/2012); and including the practice of female genital mutilation in Dawoodi Bohra community (being Writ Petition (Civil) No.286 of 2017) may be overlapping and covered by the judgment under review. The prospect of the issues arising in those cases being referred to larger bench cannot be ruled out."
"Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges. The decision of a larger bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution of India. It is essential to 6 adhere to judicial discipline and propriety when more than one petition is pending on the same, similar or overlapping issues in the same court for which all cases must proceed together. Indubitably, decision by a larger bench will also pave way to instil public confidence," the majority on the Bench also said.
Status of the other cases:
Regarding the entry of Muslim women into Mosques, the court had issued notice in April 2019. The matter is pending before a Bench headed by Justice S A Bobde.
In the Parsi woman matter, the court had passed an interim order allowing the Parsi woman to enter the Agyari. The larger issue is still pending before the Supreme Court.
In the Dawoodi Bohra case, the matter was referred to a Constitution Bench in 2018.
Decide the larger issue:
The majority view suggests that it did not want to decide the case in isolation. There are similar issues pending and hence it would be best if a 7 judge Bench decides on the larger issue rather than going into each case individually.
When it comes to matters such as these, there are larger issues that need to be decided on. The interplay between the freedom religion under Articles 25 and 26 of the Constitution and other provisions in Part III particularly in the Constitution need to be decided. The larger Bench would also go into the expression of morality or constitutional morality, which has not been defined in the Constitution. The extent of up to which the court can enquire into the issue of a particular practise in religious matters would also be a subject matter to be decided by the larger Bench.
Another issue that the larger Bench would decide on whether essential religious practices of a religious denomination thereof are afforded constitutional protection under Article 26.
The majority also made it clear that while deciding the questions delineated above, larger bench may also consider it appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all. Whether the aforesaid consideration will require grant of a fresh opportunity to all interested parties may also have to be considered.