Right to religion: SC explains reference to larger Bench

‘It has the power to frame questions on religious freedom’

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 ben able to hear the case as the nation went into a lockdown 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 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. CJI S.A. Bobde, who succeeded Justice Gogoi, 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 Sabarimala 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. On Monday, the 29-page judgment of the Bench dismissed objections to its powers of reference.

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