Today's Paper

SC to frame issues for 9-judge Bench hearing religious rights

CJI acknowledges objection to wider review post-Sabarimala is a ‘formidable point’

Renowned jurist and senior advocate Fali Nariman has objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected.

“Are you saying that when hearing the review of one judgment [Sabarimala in this case], we cannot refer such larger questions to a larger Bench?” Chief Justice of India (CJI) Sharad A. Bobde, heading the Bench, asked Mr. Nariman on Monday.

“Yes, that is absolutely right. It will be outside your jurisdiction to do that,” Mr. Nariman replied emphatically.

The CJI observed orally that Mr. Nariman had a “formidable point there”.

He, however, said the Bench would not “abort the hearing” now.

The objections raised by Mr. Nariman would be framed as an “issue” to be decided by the Bench. It would convene on Thursday to fix the dates of the hearings that would start next week. The CJI clarified that the nine judges would confer and frame the issues for hearing.

PIL petitions

Senior advocate K. Parasaran countered Mr. Nariman, saying that the Sabarimala case had its genesis in public interest litigation petitions. It was not an in personam (affecting a specific person) litigation.

In a case emanating from a PIL petition, there is no restraint on a constitutional court in extending the scope or questions to be examined, he argued.

The Sabarimala case review by a five-judge Bench, led by then CJI Ranjan Gogoi, took a curious turn on November 14 last. The Bench sidestepped the task of reviewing the September 2018 judgment, which declared the prohibition on the entry of women of menstruating age into the Sabarimala temple as discriminatory.

Instead, the Bench referred seven questions, including whether essential religious practices should be afforded constitutional protection under Article 26 (freedom to manage religious affairs), to a larger Bench.

Further, the Review Bench tagged other pending cases on the prohibition of Muslim women from entering mosques, female genital mutilation among Dawoodi Bohras and the ban on Parsi women who married inter-faith from entering the fire temple to the reference.

Chief Justice Bobde, when he succeeded Justice Gogoi, promptly set up the nine-judge Bench to decide this reference.

On Monday, Mr. Nariman argued that the Gogoi Bench had no business to either drag other cases into the reference or frame such “larger issues” when its sole mandate was to simply review the Sabarimala verdict.

Recommended for you