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Saturday, December 14, 2019

Sabarimala majority ruling: Review pending, scope widened

The Supreme Court has deferred its decision on review of 2018 Sabarimala verdict until a larger Bench examines broader issues such as essentiality of religious practices and constitutional morality. This is what the judges said.

Written by Apurva Vishwanath | New Delhi | Updated: November 15, 2019 9:55:08 am
Simply put: Review pending, scope widened Devotees at the Sabarimala temple in 2016. This was before the Supreme Court lifted a ban on women of menstruating age from entering the temple. (PTI)

In Thursday’s 3:2 Supreme Court ruling on the Sabarimala case, which deferred a decision on reviewing the 2018 verdict until a larger Bench can settle key points of law relating to the right to freedom of religion, the majority verdict was written by Chief Justice of India Ranjan Gogoi for himself and Justices A M Khanwilkar and Indu Malhotra.

Sabarimala judgment: What does the majority verdict say?

The 2018 verdict had held unconstitutional the practice of barring women of menstrual age from entering the temple. Thursday’s majority verdict has not decided the petitions seeking a review of that verdict, and has kept these pending until a larger Bench decides on a gamut of issues around religion, essentiality of religious practices, and constitutional provisions relating to freedom of religion. Given the volume of cases that the Supreme Court handles, setting up a Bench of five or more judges is often delayed.

What issues were included for review?

“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 fireplace of an Agyari,” the judgment said.

“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,” the court added, saying it is of the “considered view” that issues arising in these cases “may be overlapping and covered by the judgment under review”.

The CJI has the administrative power to club similar cases together. It is, however, rare for the court to pass a judicial order clubbing cases that are not listed with one it is hearing. The case concerning entry of Muslim women into mosques is listed before a two-judge Bench headed by Justice S A Bobde, while the cases relating to female genital mutilation (Sunita Tiwari v Union of India & Ors) and Parsi women’s rights have already been referred to Constitution Benches that are yet to be set up.

Additionally, the court framed seven issues that could be considered by the larger Bench. They range from balancing the freedom of religion under Articles 25 and 26 of the Constitution with other fundamental rights, particularly the right to equality, to recalibrating judicial decisions on constitutional morality and essential religious practices.

Sabarimala order: Chief Justice of India Ranjan Gogoi (centre) and Justices A M Khanwilkar (left) and Indu Malhotra. (Illustration by Suvajit Dey)

What did the court say about recalibrating such decisions?

Constitutional morality: The court said ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. “Is it overarching 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.”

In the 2018 Sabarimala verdict, the majority opinion authored by then CJI Dipak Misra defined ‘morality’ in Article 25 to mean constitutional morality. Article 25 reads, “Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion”.

Referring to Article 25(1), the 2018 judgment said: “We must remember that when there is a violation of the fundamental rights, the term ‘morality’ naturally implies constitutional morality and any view that is ultimately taken by the Constitutional Courts must be in conformity with the principles and basic tenets of the concept of this constitutional morality…”

In the verdict decriminalising homosexuality, also in 2018, Justice Misra gave an expansive definition of constitutional morality: “… The magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while… adhering to the other principles of constitutionalism.”

Also read | Sabarimala verdict: How majority view echoes dissent of 2018

Essential religious practices: “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,” is an aspect the court wants a larger Bench to settle.

According to the essential religious practices doctrine evolved by the court in the 1950s, practices and beliefs considered integral by a religious community are to be regarded as “essential”, and protected under Article 25.
In the 2018 Sabarimala judgment, the majority opinion held that barring certain women from entering the temple owing to the celibate nature of Lord Ayyappa was not an essential religious practice. Justice R F Nariman, in his concurring opinion, had observed that when there is internal dissent on a practice, its essentiality to the religion becomes questionable.

For a reconsideration of this doctrine, a long line of case laws will have to be examined. For example, to determine whether the Swami Narayan Satsangis could bar non-Satsangi Harijans from entering their temples, a civil court examined evidence whether the Satsang constituted a religious denomination. In Ismail Faruqui v Union of India (1994), the court determined that offering prayers in a mosque was not an essential religious practice of Islam and upheld the law under which the Centre acquired the disputed land in Ayodhya.

An Expert Explains | When judges decide question of religion: Problems with test of ‘essential practices’

What about issues directly relating to the Sabarimala case?

One such question is whether the courts can allow public interest litigation “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?” Justice Malhotra, in her dissent in the 2018 verdict, had questioned the standing of an NGO that filed the PIL. Thursday’s majority opinion said it would overlook the preliminary question of locus since the case was already before a Constitution Bench.

Another question linked to Sabarimala is whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 governs this temple at all.

What is the takeaway from the verdict?

The court has allowed the 2018 Sabarimala verdict to continue until the larger Bench is set up and decides the case conclusively. Based on what that Bench decides, the review can be dismissed or the 2018 order can be modified. For now, the court has sown the seeds of a complex legal debate.

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