[dropcap]T[/dropcap]HE Supreme Court by a majority decision of 3:2 has left the review petitions that arose against its judgment to allow the entry of women of all age groups into the Sabarimala temple in Kerala and the attendant writ petitions pending.
“It is our considered view that the issues arising in the pending cases regarding entry of Muslim women in Durgah/Mosque (being 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,” the Chief Justice of India (CJI) Ranjan Gogoi who authored the majority judgment for himself and Justices A M Khanwilkar and Indu Malhotra said on November 12, 2019.
The issues as laid out by the majority decision for a possible reference to a larger bench are:
- The interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
- The sweep of the expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.
- The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it an over-arching morality in reference to the Preamble of the Constitution of India or limited to religious beliefs or faith. There is need to delineate the contours of that expression, lest it becomes subjective.
- The extent to which the court can enquire into the issue of whether 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.
- What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.
- Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
- What would be the permissible extent of judicial recognition of 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?
The majority judgment also noted that “the decision of the seven-judges bench of this court in Commissioner, Hindu Religious Endowments, Madras vs Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) holding that the question of essential religious practices of a particular religious denomination should be left to be determined by the denomination itself and the subsequent view of a five-judge bench in Durgah Committee, Ajmer vs Syed Hussain Ali & Ors. carving out a role for the court in this regard to exclude what the courts could determine to be secular practices or superstitious beliefs seemed to be in apparent conflict, requiring consideration by a larger bench.
“While deciding the questions delineated above, the 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”, the majority judgment said.
It, therefore, flows from the majority decision that the judgment under review in Sabarimala has not been referred for reconsideration, but only certain “questions” that are common to Sabarimala and other pending cases referred above, have been referred to larger bench. Till then, the review petitions and connected writ petitions remain pending.
Sharp dissent
The minority judgment authored by Justice Rohinton F Nariman for himself and Justice D Y Chandrachud has sharply disagreed with the majority.
“What this Court has before it is review petitions arising out of this Court’s judgment in Indian Young Lawyers Association and Ors. v. State of Kerala W.P. (C) No.373 of 2006, which was delivered on 28 September, 2018, with regard to the Sabarimala temple dedicated to Lord Ayyappa. What a future constitution bench or larger bench, if constituted by the learned Chief Justice of India, may or may not do when considering the other issues pending before this court is, strictly speaking, not before this court at all. The only thing that is before this court is the review petitions and the writ petitions that have now been filed in relation to the judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018”.
“…What is before us is only the narrow question as to whether grounds for review and grounds for filing of the writ petitions have been made out qua the judgment in Indian Young Lawyers Association and Ors. v. State of Kerala”.
“When the process is complete and a decision is pronounced, it is the decision of the Supreme Court and binds everyone. Compliance is not a matter of option. If it were to be so, the authority of the court could be diluted at the option of those who are bound to comply with its verdicts”, the minority judgment said.
“Organised acts of resistance to thwart the implementation of this judgment must be put down firmly. Yet in devising modalities for compliance, a solution which provides lasting peace, while at the same time reaffirming human dignity as a fundamental constitutional value, should be adopted. Consistent with the duties inhering in it, we expect the State government to ensure that the rule of law is preserved”, the minority judgment read.
The majority judgment does not grant any stay on the judgment under review. The judgment still holds the field and is binding law.
