On Monday, a 9-Judge Constitution Bench of the Apex Court upheld the decision of the Sabarimala Review Bench to refer to larger Bench questions on the ambit & scope of religious freedom practised by multiple faiths across the nation.
The 9-Judge Bench, led by CJI S.A. Bobde, said a Bench engaged in the review of a particular judgment could indeed refer other questions of law to a larger Bench. Arguments on merits would be heard from Feb 17.
The Bench also framed seven questions of law which the 9-Judge Bench would decide now. These are:
What is the scope & ambit of religious freedom under Article 25 of the Constitution? What is the interplay between religious freedom & rights of religious denominations under Article 26 of the Constitution? Whether religious denominations are subject to fundamental rights? What is the definition of ‘morality’ used in Articles 25 & 26? What is the ambit & scope of judicial review of Article 25? What is the meaning of the phrase “sections of Hindus under Article 25 (2)(b)? Whether a person not belonging to a religious group can question the practices, beliefs of that group in a PIL petition?
On the last day of hearing, the Chief Justice had defended the Nov 14, 2019, reference made by a five-judge Sabarimala Review Bench led by then CJI Ranjan Gogoi.
“By making this reference order (on November 14), the Bench (led by Justice Gogoi) has not prejudicially affected anybody’s rights. It may be the most innovative idea, but it has not affected any rights,” CJI Bobde had said orally.
On November 14 last year, the Gogoi Bench, in a majority judgment, did not decide the Sabarimala review cases before it. Instead, it went on to frame “larger issues” concerning essential religious practices of various religions. It further clubbed other pending cases on subjects as varied as female genital mutilation among Dawoodi Bohras to entry of Parsi women who married inter-faith into the fire temple & Muslim women into mosques & referred them all to a larger Bench. The reference order also asks the larger Bench to consider the Rule pertaining to the prohibition of entry to women of menstruating age into the Sabarimala temple. CJI Bobde, who succeeded Justice Ranjan Gogoi as top judge, set up a 9-Judge Bench to hear the reference.
The Nov 2019 reference had hit a bump on Monday last when Senior Lawyer Fali Nariman had objected to it. He had argued the court could not declare law in thin air.
Mr Nariman argued, “Fundamental (to judicial process) is you apply law to the facts of cases & not decide the law before looking into the facts… Never indulge in the exposition of law outside the realm of the facts of the case”.
He had said the Gogoi Bench’s sole task was to review the Sabarimala judgment of Sept 2018. The major ground for seeking a review was the finding in the judgment that Ayyappa devotees did not form a separate religious denomination. On Nov 14, the Review Bench had recorded no errors apparent or miscarriage of justice in the 2018 verdict.
‘Academic exercise’
Mr Nariman argued that “When Ayyappa devotees was not found to be a separate denomination, then these reference questions on Article 25 (religious freedom) are purely an academic exercise. It was not necessary to raise these hypothetical questions in reference. The President, & not the CJI, consults the Supreme Court under Article 143 of the Constitution on questions of law & facts”.
Senior Lawyer Shyam Divan had agreed that review jurisdiction didn’t include “framing a catalogue of questions randomly”.
Senior Lawyer A.M. Singhvi countered, “But what if judges have a doubt? They refer it to a larger Bench. Are you saying the President can refer questions of law to the Supreme Court, but judges cannot?”
‘Unlimited jurisdiction’
Senior Lawyers K. Parasaran had said the Top Court, as the highest Court of the land, had unlimited jurisdiction. The fact that it was reviewing Sabarimala judgment doesn’t preclude it from referring other questions of law & cases with similar issues to a larger Bench.
Solicitor General Tushar Mehta had contended that the objections raised against the Nov 14 reference to a larger Bench were based on “inherently faulty premise”.
Solicitor General Tushar Mehta said that “To say that a Review Bench cannot refer questions of law to larger Bench is absolutely absurd… No technical fetter prevents the Supreme Court from doing complete justice”.
The Govt. of Kerala had also objected to the reference, saying the Gogoi Bench couldn’t have kept the Sabarimala review pending until 9-Judge Bench had finished examining questions referred to it.
The Govt had voiced apprehensions about the possibility of the Sabarimala case being re-opened if the 9-Judge Bench ended up declaring a new law in the future.
Such a turn of events may even lead to the upending of the Sept 28, 2018 majority judgment of a Constitution Bench, which had declared the prohibition on entry of women aged between ten & fifty years of age as unconstitutional & discriminatory.
Source Link
