A majority judgment delivered by a five-judge Bench led by Chief Justice of India (CJI) Ranjan Gogoi on Thursday kept a final decision on the Sabarimala review and writ petitions in abeyance till a larger Bench of seven judges delivers an “authoritative pronouncement” on the exact role a non-epistolary court can play in deciding whether a particular practice is essential or integral to a religion.
The review Bench, however, did not pass any interim order for stay of its September 26, 2018 judgment , which upheld the right of women aged between 10 and 50 to enter and worship at the temple in Kerala.
Chief Justice Gogoi, delivering the majority opinion along with Justices A.M. Khanwilkar and Indu Malhotra, framed a series of questions for the seven-judge Bench to examine.
These include whether a court can probe whether a practice is essential to a religion or should the question be left to the respective religious head; should “essential religious practices” be afforded constitutional protection under Article 26 (freedom to manage religious affairs); and what is the “permissible extent” of judicial recognition a court should give to PILs filed by people who do not belong to the religion of which practices are under the scanner.
Dissent by two judges
Justices Rohinton F. Nariman and D.Y. Chandrachud, however, joined to deliver a stinging dissent. They were part of the Constitution Bench that delivered the original majority judgment in September 2018.
Both dismissed the majority decision of a reference to a larger Bench. Justice Nariman, who wrote the dissent, said the judgment of a five-judge Constitution Bench was the last word on the interpretation of the Constitution. Once a Constitution Bench has laid down the law, both legislature and the executive, were bound to comply. That is the rule of law.
Instead of complying with the Supreme Court judgment, the country was witness to the “sad spectacle of unarmed women between the ages of 10 and 50 being thwarted in the exercise of their fundamental right of worship at the Sabarimala temple”. Organised efforts to thwart women from entering the temple should be put down firmly. All persons, including women between the ages of 10 and 50, were “equally entitled to practice the Hindu religion”.
The Sabarimala judgment of September 2018 was based on a bona fide PIL plea, which had raised grave issues of gender bias on account of a physiological or biological function common to all women.
‘Constitution the holy book’
The fears raised by Justice Malhotra, who dissented in 2018, about the threat of PILs being used by third parties to tinker with religious beliefs were unfounded. “Busybodies, religious fanatics, cranks and persons with vested interests will be turned down by the Court at the threshold itself,” Justice Nariman read out in open court. For judges, “the holy book is the Constitution”, he stressed.
But Chief Justice Gogoi reasoned that an authoritative pronouncement from a larger Bench would instil public confidence. An increasing number of petitions were being filed questioning the validity of religious practices and their restrictions on women, he noted. Some of these have questioned long-held religious beliefs, including the one against the bar on Muslim women from entering mosques or the practice among Parsis to prohibit women who have married inter-faith from the holy fire place (Agyari) or the challenge against female genital mutilation in the Dawoodi Bohra community.
Like the Sabarimala issue, these petitions concerned the tug-of-war between women’s fundamental right to equality under Article 14 and the believers’ right to freely practice religion. An authoritative pronouncement from the Supreme Court was necessary.
“It is time that this court evolves a judicial policy befitting to its plenary powers to do substantial and complete justice… The decision of a larger Bench would put at rest recurring issues touching upon the rights flowing from Articles 25 [freedom of religion] and 26 [right of administration of property of religious endowments] of the Constitution,” Chief Justice Gogoi observed.
The majority opinion said a seven-judge Bench decision on overlapping issues would be in accordance with “judicial discipline and propriety”.
“An authoritative pronouncement will also reflect the plurality of views of the judges converging into one opinion. That may also ensure consistency in approach for the posterity,” Chief Justice Gogoi said.
The majority opinion said the seven-judge Bench, while deciding the larger issues framed, could also consider whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 would govern the Sabarimala temple.
