The Supreme Court on 3 January, decided to determine larger issues of right to practice one’s religion vis-a-vis discrimination faced by women of different faiths, by framing questions, amid objections to a 2019 reference in review petitions against the 2018 judgement that allowed women of all age groups to enter Kerala’s Sabarimala temple. A nine-judge bench presided over by Chief Justice S A Bobde said they would discuss and frame legal questions and fix the date of hearing on Thursday. There seems to be a “clash” between fundamental rights guaranteed by the Constitution. Fundamental rights under Articles 14 and 15 seem to be competing with those under Articles 25 and 26 – Article 26 in particular. Article 26 gives the freedom to manage religious affairs, guaranteeing individual as well as collective freedom of religion. The only restrictions to the right to religious freedom are public order, morality, and health. “We are not aborting hearing. We are going to decide the interpretation of Articles. We will not hear it in a preliminary and cursory manner. We will add this issue, (if referral order can be made in review judgement) and hear it along with other issues,” the bench added. The court’s oral observations came during two-hour of hearing, when senior advocates F S Nariman and Shyam Divan, raised preliminary objections.
They said there cannot be a reference order to a larger bench in petitions seeking review of a judgement. “Question is, if, at all, it is permissible to make a reference in review judgement,” Nariman asked. “Does it lie within the scope of the review? Can the questions, which are abstract, can be raised?” he further asked. Nariman was backed by senior advocate Shyam Divan, who said issues related to rights of women from other faiths raised in November 14, 2019 judgement were “in the realm of speculation and surmises”. Taking a contrary view, senior advocate K Parasaran said, the Sabarimala issue arose out of a PIL and all other cases were also related to the PILs. “If the situation arises, the court can change its jurisdiction to deal with the issues. You can look at the past, present and future,” he said, supporting the reference order. Senior advocate Kapil Sibal said, without facts, if the court said something, it will have enormous implications on religions across the country. Solicitor General Tushar Mehta and senior advocates A M Singhvi and Ranjit Kumar said the efforts were being made to take people back. On this, the court said the nine-judge would not decide on the Sabarimala issue as was made clear in the reference order.
Dealing with review petitions against the 2018 Sabarimala judgement, a five-judge had on November 14, 2019, said similar questions related to Muslim women’s right to enter ‘dargah’ and mosque, and permission to Parsi women, married to a non-Parsi, into the holy fireplace of an ‘Agyari’ and practice of female genital mutilation among Dawoodi Bohar community were pending and would require authoritative determinations by a larger bench.