Questions of law can be referred to a larger bench in the review petition, holds Supreme Court [Read Order]

[dropcap]A[/dropcap] constitution bench of nine-judge of the Supreme Court today unanimously held that the court could refer questions of law to a larger bench in a Review Petition. The Court also said the detail reasons for arriving at this conclusion would follow later.

On February 6, 2019, the court had heard the arguments on the issue "whether the questions of law can be referred to a larger bench in a review petition".

A nine-judge bench comprises Chief Justice of India (CJI) S A Bobde, Justices R Banumathi, Ashok Bhushan, L Nageshwara Rao, Mohan M Shantanagoudar, Abdul Nazeer, R Subhash Reddy, B R Gavai, and Surya Kant, also framed seven issues on the issue of inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India.

The issues as framed by the court are as follows-

1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
2. What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denominations under Article 26 of the Constitution of India?
3. Whether rights of religious denominations under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
4. What is the scope and extent of the word "morality" in Articles 25 and 26 of the Constitution of India and whether it is meant to include constitutional morality?
5. What is the scope and extent of judicial review with regard to religious practice as referred to in Article 25 of the Constitution of India?
6. What is the meaning of expression "Section of Hindus" occurring in Article 25 (2)(b) of the Constitution of India?
7. Whether a person not belonging to a religious denomination or religious group can question the practice of religious denomination or religious group by filing a PIL?

The apex court now will start day-to-day hearing in the case from February 17.

The apex court had heard the senior lawyers including Fali S Nariman, Indira Jaising, Shyam Divan, Jaideep Gupta, Rakesh Dwivedi and Abhishek Manu Singhvi etc, on the preliminary issue indicated above.

The Solicitor General Tushar Mehta appearing for the central government had supported the referral order dated November 14, 2019, and argued that any technicalities should not fetter the jurisdiction of the apex court.

"If there's a question of law, the Court has the liberty to constitute a larger Bench to settle the issues. As custodian of Fundamental Rights, it is the duty of the court to lay down an authoritative pronouncement on these questions of law", Solicitor General Mehta said.

On the other side, opposing the referral order senior advocate Fali S Nariman submitted that the scope of review was very narrow to examine the correctness of the original judgement on limited grounds. Senior advocate Nariman said that the review jurisdiction cannot be invoked to refer to larger bench certain questions of law which are not directly arising from the original judgement.

Senior advocate Indira Jaising joined Fali Nariman in opposing the referral order dated November 14, 2019, and said it was not clear whether the order was passed in the review petitions or in the writ petitions or both. She further contended that review petition ought to be de-tagged from the writ petitions so that maintainability of writ petition assailing the Sabarimala judgment of 2018 could be argued.

Senior advocate Shyam Divan opposing the referral order submitted that allowing a reference on a question of law in the guise of a review would amount to an appeal. Senior advocate Divan said that without finding an error in the original judgement, a reference of questions of law in review cannot be made.

On November 14, a five-judge bench headed by then CJI Ranjan Gogoi observed by 3:2 majority that certain issues in Sabrimala review are common to the pending cases concerning entry of women in Mosques and/or Dargah, challenge to the practice of Female Genital Mutilation among Dawoodi Bohra Muslim community and the rights of Paris women who had married outside the religion to enter Agiary/ Fire Temple.

The issues as laid down by the majority decision in the November 14 order for consideration to a larger bench are:

1. Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
2. What is the sweep of expression 'public order, morality and health' occurring in Article 25(1) of the Constitution?
3. The expression 'morality' or 'constitutional morality' has not been defined in the Constitution. Is it overarching morality in reference to preamble or limited to religious beliefs or faith? There is a need to delineate the contours of that expression, lest it becomes subjective
4. The extent to which the court can inquire 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.
5. What is the meaning of the expression 'sections of Hindus' appearing in Article 25(2)(b) of the Constitution?
6. Whether the "essential religious practices" of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
7. 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?

Read the order here:

[pdfviewer]https://cdn.theleaflet.in/wp-content/uploads/2020/02/10140124/38452_2018_1_1501_20478_Judgement_10-Feb-2020.pdf[/pdfviewer]

Also read: Fight against Female Genital Mutilation