A nine-judge Bench led by Chief Justice of India (CJI) Sharad A. Bobde on Monday said its objective was not to review the Sabarimala women entry case but examine “larger issues” of law like the prohibition of women from entering mosques and temples to genital mutilation among Dawoodi Bohras and the banning of Parsi women who married inter-faith from entering the fire temple.
Instead, the Bench would examine the legality and essentiality of religious beliefs which prohibit women from entering into mosques and temples; which allow genital mutilation by Dawoodi Bohras; and which ban Parsi women who married inter-faith to enter the fire temple.
The Bench, however, clarified that it would not go into the legality of issues such as the practice of polygamy and ‘nikah-halala’ in Islam.
Chief Justice Bobde explained that the basis of the Bench's judicial enquiry would be seven questions referred to a larger Bench by a five-judge Bench on November 14, 2019.
On November 14, the five-judge Bench led by then Chief Justice Ranjan Gogoi, instead of deciding the Sabarimala review entrusted to it, sought an “authoritative pronouncement” on the Court's power to decide the essentiality of religious practices. Framing seven questions, the Bench referred them to a seven-judge Bench. These referral questions included whether “essential religious practices” be afforded constitutional protection under Article 26 (freedom to manage religious affairs).
Chief Justice Bobde, who succeeded Justice Gogoi, formed a Bench of nine rather than seven judges to examine these referred questions which concern multiple faiths.
On Monday, Solicitor General Tushar Mehta said the referred questions were too broad and needed fine-tuning.
Directive to lawyers
The CJI asked lawyers involved in the case to hold a conference on January 17 to reframe/add issues to be examined by the nine-judge Bench. The court posted the case for hearing after three weeks.
When lawyers sought to remind the court that the case challenging the Citizenship (Amendment) Act was scheduled for January 22 and the hearing before the nine-judge Bench ought to be heard without a break, the CJI said cases were being heard “chronologically”.
The CJI explained that the nine-judge Bench was only examining propositions of law raised about religious practices believed to be essential to various religions. The Bench would not go into the individual facts of the various petitions that make the body of the case before it.
“We will decide questions of law on women's entry to mosques/temples, genital mutilation by Dawoodi Bohras, entry of Parsi women who marry outside their community into fire temple. We will not decide individual facts of each case,” Chief Justice Bobde addressed the lawyers in the courtroom.
Senior lawyers’ contention
But senior lawyers like Indira Jaising and Rajeev Dhavan said the Supreme Court cannot decide on the essentiality of religious practices. It was outside its jurisdiction. “This Court cannot tell how religion is to be practised,” Mr. Dhavan submitted.
They drew the Bench's attention to the Shrirur Mutt judgment of the Supreme Court of 1954. According to the 62-year-old verdict, the essentiality of religious practices should be decided in accordance with the religious doctrines of each faith. The Supreme Court has limited power of judicial review, they argued.
The 1954 judgment held that any regulation could only extend to religious practices and activities which were economic, commercial or political in their character.
Lawyers even asked whether the numerically stronger nine-judge Bench was formed to test the Shrirur Mutt verdict delivered by a seven-judge Bench, which had reduced the court's role and left the question of essentiality of religious practices to the wisdom of religious texts.
“The only reason to refer this to a nine-judge Bench seems to be that Shirur Mutt was decided by a seven-judge Bench. But no one has questioned that judgment,” Ms. Jaising said.