NEW DELHI: Stating that “courts should tread cautiously” on “issues pertaining to religion, including religious practices,” a five-judge Constitution bench, through a majority judgment, referred the matter about the entry of women of all age groups into Kerala’s Sabarimala temple to a larger bench of seven judges.
The review bench comprising Chief Justice of India Ranjan Gogoi, Justices A M Khanwilkar, Indu Malhotra, R F Nariman and D Y Chandrachud, did not pass any order on the court’s 2018 judgment, which upheld the right of women in the age group between 10 and 50 to enter and worship at the temple.
Lawyers associated with the case are interpreting this as the court’s refusal to stay the entry of women.
“Since the majority judgment was silent on any stay of its earlier verdict, the earlier order of allowing women of all ages into the Sabarimala Ayyappa temple will remain in force until a seven-judge bench hears the matter afresh and gives its ruling,” they said.
Thursday’s judgment was, however, not unanimous but a 3:2 majority judgment.
While Chief Justice Gogoi authored the majority judgment for himself and Justices Khanwilkar and Malhotra, Justice Nariman wrote a strong dissenting opinion for himself and Justice Chandrachud. They were part of the Constitution bench that delivered the original majority judgment in September 2018.
Justice Nariman stated that the Constitution was the “holy book” and expressed concern at the “thwarting, or encouraging persons to thwart, the directions or orders of the highest court”.
“Let every person remember that the ‘holy book’ is the Constitution of India, and it is with this book in hand that the citizens of India march together as a nation, so that they may move forward in all spheres of human endeavour to achieve the great goals set out by this ‘Magna Carta’ or Great Charter of India.”
The onus on constituting a new bench will now be in hands of CJI-designate Justice S A Bobde, who will take oath on November 18 after the incumbent demits office on November 17.
The Sabrimala temple is also slated to reopen on November 17.
“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 maybe constituted by the Hon’ble the Chief Justice of India,” the judgment read.
The majority judgment framed seven possible issues that the bench could take up, including interplay between freedom of religion and fundamental rights, the contours of the expression ‘public order, morality and health’ used in Article 25 of the Indian Constitution allowing freedom of religion and interpretation of ‘morality’ or ‘constitutional morality’ are among the issues to be discussed.
CJI Gogoi said the seven-judge bench, while deciding the larger issues framed, could also consider whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 would govern the Sabarimala temple. The bench also urged the larger bench to look into other pending issues regarding entry of Muslim women in mosques, Parsi women marrying non-Parsis in the Agyari, and the practice of female genital mutilation in the Dawoodi Bohra community.
However, the dissenting opinion differed with the other judges pointed out that the additional matters referred by the CJI can be taken up by other Constitution benches and stressed that this court should be only concerned with the Sabarimala verdict and whether it should be reviewed or not. Justice Nariman noted the submission that since there have been mass protests against the implementation of the judgment, the court should take a re-look at the entire issue.
He directed the Kerala government to give publicity to the 2018 judgment, asserting that the Constitution places a “non-negotiable obligation” on all authorities to enforce apex court judgments.
“Once a Constitution Bench of five learned Judges interprets the Constitution and lays down the law, the said interpretation is binding not only as a precedent on all courts and tribunals but also on the coordinate branches of Government, namely, the legislature and the executive.”
CJI Gogoi also emphasised on the plurality of faith in India, saying, “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.” “In the context of the present strength of judges of the Supreme Court, it may not be inappropriate if matters involving seminal issues...” SC said.