Right to religion: Supreme Court explains reference to larger Bench

‘Sabarimala case review Bench had the power to frame questions on religious freedom’

The judgment was officially delivered on February 10, but published on May 11, 2020. File

A nine-judge Bench of the Supreme Court declared that superior courts enjoy untrammelled power to take up any cause to do complete justice. This declaration came in a judgment explaining why the Bench, three months ago, decided to go ahead and examine “larger issues” of religious freedom across multiple faiths in connection with the Sabarimala review.

The judgment was officially delivered on February 10, but published on Monday. The nine-judge Bench has not able to hear the case as the nation went into lockdown mode in March following the COVID-19 pandemic.

Entry of women

On November 14 last year, a five-judge Bench led by then Chief Justice Ranjan Gogoi did not complete its assigned task of reviewing the apex court’s original Sabarimala judgment of 2018, which allowed women of every age to enter and worship at the temple. Instead, it had framed “larger issues” concerning essential religious practices of various religions and 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 and Muslim women into mosques and referred them all to a larger Bench. Chief Justice Bobde, who succeeded Justice Gogoi as top judge, set up a nine-judge Bench to hear the reference.

But matters came to a head when several parties raised objections before the nine-judge Bench about the reference. They questioned how a Bench sitting in a limited review jurisdiction assumed powers to frame new questions of law. Secondly, the lawyers had argued that the Gogoi Bench should have decided the Sabariimala review petitions first before referring any questions of law to a larger Bench. Thirdly, objections were raised on how the Gogoi Bench chose to rope in unconnected religious issues in the Sabarimala review.

Dismisses objections

On February 10, the nine-judge Bench dismissed the objections and decided to hear the reference. It had however postponed the publication of the detailed judgment to a later date. On Monday, the 29-page judgment of the Bench dismissed objections to its powers of reference.

“There is no fetter on the exercise of discretion of this court in referring questions of law to a larger Bench in review petitions. Being a superior court of record, it is for this court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior court of record is entitled to determine for itself questions about its own jurisdiction,” the nine-judge Constitution Bench declared.

It invoked Article 142 of the Constitution “which enables this court to make any order as is necessary for doing complete justice in any cause or matter pending before it.”

The lawyers had also questioned how the nine-judge Bench would determine the law without knowledge of the facts of each individual case.

“We do not agree. It is not necessary to refer to facts to decide pure questions of law, especially those pertaining to the interpretation of the provisions of the Constitution,” the nine-judge Bench said.