Sabarimala case: SC to frame questions

#dailynews60 : The Supreme Court on Monday said it will frame the legal issues to be adjudicated by a 9-judge Constitution bench on religious discrimination against women at various religious places — the larger question which arose during the Sabarimala case.

As the lawyers representing various parties in the case have not arrived at a consensus on framing larger issues to be deliberated upon by the Constitution bench, it will frame them by Thursday, the top court said.

The Constitution bench, headed by Chief Justice S A Bobde, said it will inform the parties about the time frame for the hearing and would commence the proceedings by next week.

The bench said that it would go by the reference order of November 14 last year, made by a five-judge bench which by a majority of 3:2 had said that the larger bench will have to evolve a judicial policy to do “substantial and complete justice” in matters of freedom of religion, such as entry of Muslim women into mosques and ‘dargah’ and Parsi women, married to non-Parsi men, being barred from the holy fire place of an Agyari.

It took note of vehement opposition by some senior lawyers including F S Nariman, Kapil Sibal, Rajeev Dhavan, Rakesh Dwivedi and Shyam Divan that the apex court was wrong in making a reference of broad contours while deciding the review petition against the 2018 verdict, which allowed women of all age group to enter Kerala’s Sabarimala temple.

The bench — also comprising justices R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant — said it would also deal with the legal issue raised by the lawyers whether a reference order can be made in review jurisdiction for a hearing by a larger bench.

During the hearing, Nariman said that in review jurisdiction, there cannot be any reference order on issues to be heard by a larger bench as such a jurisdiction has a very limited scope.

He said that exercising the limited jurisdiction of review, the bench headed by then Chief Justice Ranjan Gogoi (since retired) had made the reference to a larger bench by listing out seven questions.

“This is not practice which has been adopted by the Supreme Court since Privy Council days and there are several judgements to this effect,” the senior lawyer said.

Senior advocate Kapil Sibal, appearing for All Indian Muslim Personal Board (AIMPLB), supported Nariman’s arguments. He said though the Board has said Muslim women are allowed to enter mosques for offering Namaz, the court should not enter into matter of faith and decide the essential religious practice while entertaining a PIL filed by a person not belonging to a particular faith.

The bench said, “There is no point holding up everything for the sake of the issues. We will decide the issues with the rider that there may be additional issues at any time under Order 14 (Supreme Court rules)”.

Solicitor General Tushar Mehta for the Centre referred to the Supreme Court rules and said that the court can undertake a larger debate “on the contours of Articles 25, 26 (fundamental right to religion)”.

He said that court refer the Sabarimala matter to the larger bench.

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”.

It said that questions like entry of Muslim women into mosque, the practice of female genital mutilation, Parse women issue have arisen during the hearing of the review petitions in the Sabarimala case.

“Now the bench found that the answer to each case would involve Article 25 and other fundamental rights and their balancing, as they call it. That is why the questions were referred to us. We don’t have the review before us. The order says that the review will be decided at a later stage…,” the bench said.

As several lawyers including Nariman kept opposing the reference order and the issues to be dealt by the nine-judge bench, the Chief Justice said, “We said we are not deciding the review petition, the Parsi women case or any other matter. 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”.

Mehta, senior advocates K Parasaran and Ranjit Kumar, however, opposed the arguments and said the top court while exercising the review jurisdiction can refer a larger issue, which had arisen during the adjudication of the dispute, to a larger bench.

A five-judge bench, by a majority of 3:2 on November 14 last year, had referred to a larger bench the issue of discrimination against women in various religions.

A majority verdict by the then Chief Justice Ranjan Gogoi and justices A M Khanwilkar and Indu Malhotra decided to keep the pleas seeking a review of its decision regarding entry of women into the shrine pending and said restrictions on women at religious places were not limited to Sabarimala alone and were prevalent in other religions also.

By a 4:1 majority verdict, the apex court had lifted the ban that prevented women and girls between the age of 10 and 50 years from entering the famous Ayyappa shrine in Sabarimala and held that the centuries-old Hindu religious practice was illegal and unconstitutional.