Supreme Court: The 5-judge Constitution Bench of Ranjan Gogoi, CJ and RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, JJ has referred seminal issues to a larger bench in a 3:2 verdict. CJI Gogoi, Khanwilkar and Malhotra, JJ gave the majority opinion of referring the the questions to larger bench, whereas Nariman and Chandrachud, JJ gave dissenting opinions.
Due to the reference being made to the larger bench, the subject review petitions as well as the writ petitions will remain pending until determination of the questions indicated hereunder by a Larger Bench.
The questions referred to larger bench for consideration are:
- Interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
- Sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.
- Sweep of expression ‘morality’ or ‘constitutional morality. Is it over arching morality in reference to preamble 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 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.
- 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 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?
The Larger Bench may also decide the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the Sabarimala temple at all.
Majority Verdict by CJ Gogoi for himself & Khanwilkar & Malhotra, JJ
“This 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.”
Referring the Sabarimala issue to a larger bench, CJ Gogoi wrote that it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of Judges.
The Court came the to said conclusion after it was contended that the individual right to worship in a temple cannot outweigh the rights of the section of the religious group to which one may belong, to manage its own affairs of religion.
It was held that,
“the debate about the constitutional validity of practices entailing into restriction of entry of women generally in the place of worship is not limited to this case, but also arises in respect of entry of Muslim women in a Durgah/Mosque as also in relation to Parsi women married to a non-Parsi into the holy fire place of an Agyari.”
The Court also took note of another seminal issue pending for consideration regarding the powers of the constitutional courts to tread on question as to whether a particular practice is essential to religion or is an integral of the religion, in respect of female genital mutilation in Dawoodi Bohra community.
Surprisingly, the majority verdict runs in only 6-pages in a 77-pages long verdict.
Dissenting opinion by Nariman, J for himself and Chandrachud, J
“Bona fide criticism of a judgment, albeit of the highest court of the land, is certainly permissible, but thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be countenanced in our Constitutional scheme of things.”
Disagreeing with the majority opinion that the Review Petitions be kept in a lurch while the larger bench decides the seminal issues concerning right to religion and women rights, Nariman and Chandrachud, JJ said that the only issue before the Court in the present case was the review petitions and the writ petitions that were filed in relation to the judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018.
Stating that if and when the issues that have been set out in the learned Chief Justice’s judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning 7 Muslims, Parsis and Dawoodi Bohras, Nariman and Chandrachud, J said,
“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.”
They, hence, went on to examine the issue at hand and noticed that there was a clear consensus on the following 3 issues:
- The devotees of Lord Ayyappa do not constitute a separate religious denomination and cannot, therefore, claim the benefit of Article 26 or the proviso to Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.
- The four majority judgments specifically grounded the right of women between the ages of 10 to 50, who are excluded from practicing their religion, under Article 25(1) of the Constitution, emphasizing the expression “all persons” and the expression “equally” occurring in that Article, so that this right is equally available to both men and women of all ages professing the same religion.
- Section 3 of the 1965 Act traces its origin to Article 25(2)(b) of the Constitution of India, and would apply notwithstanding any custom to the contrary, to enable Hindu women the right of entry 18 in all public temples open to Hindus, so that they may exercise the right of worship therein. As a concomitant thereof, Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is violative of Article 25(1) of the Constitution of India and ultra vires Section 3 of the 1965 Act.
Given the consensus on the three issues delineated above by the four majority judgments, Nariman, J, hence, wrote that no ground for review of the majority judgments was made out and the review petitions were hence dismissed.
Nariman and Chandrachud, JJ, hence, directed the State of Kerala to give wide publicity to this judgment through the medium of television, newspapers, etc. Pressing upon the need to implement the 2018 Sabarimala Verdict, they asked the government to take steps to secure the confidence of the community in order to ensure the fulfillment of constitutional values. The State government may have broad-based consultations with representatives of all affected interests so that the modalities devised for implementing the judgment of the Court meet the genuine concerns of all segments of the community.
“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.”
In the September 28, 2018 verdict the 5-judge Constitution Bench held that not allowing women of any age group to enter the Sabarimala Temple was unconstitutional. The lone dissenting opinion in the matter was that of Justice Indu Malhotra, who said:
“the right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioner’s personal rights to worship in the Temple have been violated. the petitioners herein did not claim to be devotees of the Sabarimala temple. The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination.”
She was also of the opinion that in the case of the Sabarimala Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.
[Kantaru Rajeevaru v. India Young Lawyers’ Association, WRIT PETITION (CIVIL) NO. 373/2006, decided on 14.11.2019]
Read more about the opinions of all the judges in the 4:1 majority verdict here.
Watch this space for more details.