New Delhi: The Supreme Court on Monday clarified it will not decide on the Sabarimala reviews but instead, the nine-judge Constitution bench will frame the legal questions on religious discrimination against women at various religious places.
The top court emphasised it will only settle larger issues which arose from November 2019 verdict.
The bench, headed by Chief Justice S.A. Bobde and comprising Justices R. Banumathi, Ashok Bhushan, L. Nageswara Rao, Mohan M. Shantanagoudar, S. Abdul Nazeer, Subhash Reddy, B.R. Gavai, and Surya Kant, is to decide if these are essential religious practices and if so, to what extent the courts can interfere.
The nine-judge bench said that it will proceed in accordance with reference order of November verdict, delivered by a five-judge bench, which by a majority of 3:2 reckoned a larger bench to evolve a judicial policy to do “substantial and complete justice” in matters of freedom of religion — entry of Muslim women into mosques and dargahs, female genital mutilation in the Dawoodi Bohra community, and restrictions on Parsi women, married to non-Parsi men, from entering the holy fire place of Agyari.
The top court also indicated that it will not decide these issues after many senior advocates argued against the clubbing of these issues with Sabarimala.
Many senior advocates — Fali Nariman, Kapil Sibal and Shyam Divan — strongly opposed the nine-judge Constitution bench attempting to broaden the contours of the issue, which arise from the controversy over women’s entry into Sabarimala and also including restrictions on women’s entry into mosques and Agiyaris.
But Solicitor General Tushar Mehta, former Attorney General K. Parasaran and former Solicitor General Ranjit Kumar opposed this argument.
The lawyers said the apex court’s nine-judge bench can decide on the broader issue connected with the interplay between faith and fundamental right, which has been described in Articles 25 and 26 of the Constitution.
At this, the court observed there is a valley of difference between the lawyers on the two sides on framing the issues for arguments. “All the counsel suggested that the court can frame the issues, and we will do that,” said the Chief Justice, who last week said the court is disappointed as the lawyers failed to arrive at a consensus on framing the issues on the matter.
Nariman contended before the apex court that clubbing new issues will set a new precedent. “How can you think about other issues in a review?” he insisted.
Nariman argued that the court cannot club other issues with Sabarimala. He said it can’t frame questions in a review and bring in new issues as the scope of review is very restricted.
The Chief Justice said: “No. We will not be deciding these issues. We will only interpret articles involved, invoked in these cases.”
The bench will decide if these restrictions/ban on women was imposed by a religious denomination, if yes, then will it not get the protection of the Constitution as they have the right to manage their own religious affairs. The next hearing on the matter is scheduled on Thursday.