None of the three Supreme Court judges who dissented at various points in the Sabarimala litigation is part of the nine-judge Constitution Bench, which will hear, from January 13, over 60 petitions challenging the entry of women of menstruating age into the temple in Kerala.
The court on Tuesday published the names of the judges who would be part of the Bench, led by Chief Justice of India Sharad A. Bobde. The other judges are Justices R. Banumathi, Ashok Bhushan, L. Nageswara Rao, Mohan M. Shantanagoudar, S. Abdul Nazeer, R. Subhash Reddy, B.R. Gavai and Surya Kant.
Justices Indu Malhotra, A.M. Khanwilkar, Rohinton Nariman and D.Y. Chandrachud are not part of the Bench.
Justice Indu Malhotra had been the lone dissenter on September 28, 2018, when the court, in a 4:1 decision, quashed the rule that barred women aged 10-50 from entering and worshipping at the temple.
Justices Nariman and Chandrachud, part of the Review Bench, had jointly dissented from the majority decision on November 14, 2019, to refer the issue to a larger Bench. Justice Nariman, in a strongly worded minority opinion for himself and Justice Chandrachud, ordered Kerala to follow the rule of law and grant women pilgrims protection.
Incidentally, Justice Khanwilkar, who is also not a part of the nine-judge Bench, had agreed with the majority decision on September 28, 2018, and November 14, 2019.
The nine-judge Bench would essentially set the parameters for a judicial review in cases, especially public interest litigation petitions, touching on customs and practices believed to be essential to a religion. In the Sabarimala case, the review petitions argued that the entry of women of menstruating age is against the essential practice and belief associated with the temple and its deity.
In the Shirur Mutt case in 1954, a seven-judge Bench had, for the first time, gone into what constituted “essential religious practices”. The court had held, “What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” It had said the state was not meant to regulate religious practices. Under Article 25(2)(a) of the Constitution, it said, the state regulation could only extend to religious practices and activities which were economic, commercial or political.
The nine-judge Bench may now examine this judgment delivered 65 years ago.