No Sabarimala entry for women after referring the dispute to seven judges Bench by Supreme Court
By a majority Judgment in Indian Young Lawyers Association and Ors. v. State of Kerala W.P. (C) No.373 of 2006, Supreme Court allowed women to enter in the sanctum sanatorium of Sabarimala Temple. But with reference the matter in the following reviewing judgment, the binding effect of the Order passed in Indian Young Lawyers Association and Ors. v. State of Kerala W.P. (C) No.373 of 2006 has been questioned and doubted, thus automatically touched the status quo ante without saying so in a 3:2 Judgment.
In that case, there shall be a restriction as it was before the passing of the Indian Young Lawyers Association and Ors. v. State of Kerala W.P. (C) No.373 of 2006
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
REVIEW PETITION (CIVIL) NO. 3358/2018
1. Ordinarily, review petitions ought to proceed on the principle predicated in Order XLVII in Part IV of the Supreme Court Rules, 2013. However, along with review petitions several fresh writ petitions have been filed as a fall out of the judgment under review. All these petitions were heard together in the open Court.
2. The endeavour of the petitioners is to resuscitate the debate about – what is essentially religious, essential to religion and integral part of the religion. They would urge that ‘Religion’ is a means to express ones ‘Faith’. In the Indian context, given the plurality of religions, languages, cultures and traditions, what is perceived as faith and essential practices of the religion for a particular deity by a section of the religious group, may not be so perceived (as an integral part of the religion) by another section of the same religious group for the same deity in a temple at another location. Both sections of the same religious group have a right to freely profess, practise and propagate their religious beliefs as being integral part of their religion by virtue of Article 25 of the Constitution of India. It matters not that they do not constitute a separate religious denomination. Further, as long as the practice (ostensibly restriction) associated with the religious belief is not opposed to public order, morality and health or the other provisions of Part III of the Constitution of India, the section of the religious group is free to profess, practise and propagate the same as being integral part of their religion. The individual right to worship in a temple cannot outweigh the rights of the section of the religious group to which one may belong, to manage its own affairs of religion. This is broadly what has been contended.
3. Concededly, the debate about the constitutional validity of practices entailing into restriction of entry of women generally in the place of worship is not limited to this case, but also arises in respect of entry of Muslim women in a Durgah/Mosque as also in relation to Parsi women married to a non-Parsi into the holy fire place of an Agyari. There is yet another seminal issue pending for consideration in this Court regarding the powers of the constitutional courts to tread on question as to whether a particular practice is essential to religion or is an integral of the religion, in respect of female genital mutilation in Dawoodi Bohra community.
4. It is time that this Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges. The decision of a larger bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution of India. It is essential to adhere to judicial discipline and propriety when more than one petition is pending on the same, similar or overlapping issues in the same court for which all cases must proceed together. Indubitably, decision by a larger bench will also pave way to instil public confidence and effectuate the principle underlying Article 145(3) of the Constitution – which predicates that cases involving a substantial question of law as to the interpretation of the Constitution should be heard by a bench of minimum five judges of this Court. Be it noted that this stipulation came when the strength of the Supreme Court Judges in 1950 was only seven Judges. The purpose underlying was, obviously, to ensure that the Supreme Court must rule authoritatively, if not as a full court (unlike the US Supreme Court). In the context of the present strength of Judges of the Supreme Court, it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of Judges. That would ensure an authoritative pronouncement and also reflect the plurality of views of the Judges converging into one opinion. That may also ensure consistency in approach for the posterity.
5. It is our considered view that the issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque (being Writ Petition (Civil) No.472 of 2019); of Parsi Women married to a non-Parsi in the Agyari (being Special Leave Petition (Civil) No. 18889/2012); and including the practice of female genital mutilation in Dawoodi Bohra community (being Writ Petition (Civil) No.286 of 2017) may be overlapping and covered by the judgment under review. The prospect of the issues arising in those cases being referred to larger bench cannot be ruled out.
The said issues could be:
(i) Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
(ii) What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.
(iii) The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over arching morality in reference to preamble or limited to religious beliefs or faith. There is need to delineate the contours of that expression, lest it becomes subjective.
(iv) The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.
(v) What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.
(vi) Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
(vii) What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?
6. In a legal framework where the courts do not have any epistolary jurisdiction and issues pertaining to religion including religious practices are decided in exercise of jurisdiction under Section 9 of the Civil Procedure Code or Article 226/32 of the Constitution the courts should tread cautiously. This is time honoured principle and practice.
7. In this context, the decision of the Seven Judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) (1954) SCR 1005 holding that what are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself and the subsequent view of a Five Judges bench in Durgah Committee, Ajmer vs. Syed Hussain Ali & Ors. (1962) 1 SCR 383 carving out a role for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs seem to be in apparent conflict requiring consideration by a larger Bench.
8. While deciding the questions delineated above, the larger bench may also consider it appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all. Whether the aforesaid consideration will require grant of a fresh opportunity to all interested parties may also have to be considered.
9. The subject review petitions, as well as the writ petitions, may, accordingly, remain pending until determination of the questions indicated above by a Larger Bench as may be constituted by the Hon’ble the Chief Justice of India.
CJI. [Ranjan Gogoi]
J. [A.M. Khanwilkar]
J. [Indu Malhotra]
November 14, 2019
Minority Judgment passed by justice Nariman and Justice Chandrachud has no binding effect.