The nine-judge Constitution bench set up to address questions referred to it by the bench which heard the Sabarimala review petitions will confine itself to answering the larger issues, and will not decide the review petitions, the Supreme Court clarified on Monday.
“These issues arise out of the Sabarimala matter — plea on Muslim women’s entry to mosques, Dawoodi Bohra matter (petition challenging female genital mutilation in the community) and Parsi question (plea for entry of Parsi women who married outside the community to fire temple). We are considering listing all those petitions before us, so that there is no handicap to anybody, but we will still not decide those petitions,” Chief Justice of India S A Bobde, who heads the bench, said.
The bench also comprises Justices R Banumathi, Ashok Bhushan, L Nageswara Rao, Mohan M Shantanagoudar, S Abdul Nazeer, R Subhash Reddy, B R Gavai, and Surya Kant.
The bench asked the SC secretary general to convene a meeting of the parties to fine-tune the issues. It directed the parties to meet on January 17. The secretary general will also attend the meeting.
The bench gave the parties three weeks to provide their suggestions on whether any of the issues already referred need to be re-framed and/or if anything needs to be added, and if so, in what manner.
As the bench proceeded to fix the next date of hearing, counsel for some of the parties submitted that petitions challenging the Citizenship Amendment Act, 2019, and amendments to Article 370 have also been listed for hearing this month before Constitution benches, and wondered whether it will be possible to hear them all simultaneously.
The CJI responded, “We are trying to go chronologically. Sabarimala is an older problem. We will deal with it first.”
Opposing the reference, senior counsel Indira Jaising said the Sabarimala judgment seemed to be a precondition to answering the references, but no competent court had decided whether the judgment is bad in law. Therefore, she argued, it is necessary to first decide the correctness of the judgment. Jaising argued that the reference was “purely academic, devoid of ratio and devoid of facts”.
Appearing for the Centre, Solicitor General Tushar Mehta said, “There is no confusion as far as reference is considered.” All parties will assist the court to fine-tune the seven issues already referred to by the Sabarimala bench, he said.
On Jaising’s objection, the bench said, “We are not upholding this objection now. As and when necessary, we can list those petitions also — not for deciding them, but for applying the decision.” To another counsel who also raised similar contentions, the CJI said, “You don’t seem to be aware of the purpose of the reference. We are aware of our powers; we will decide…”
Senior Advocate Abhishek Singhvi, who appeared for the Sabarimala temple administration board, said the issues referred were of extreme importance and urged the court to grant sufficient time to give written submissions. He said the parties would re-frame the issues to narrow them down and improve the focus.
Applications by some parties seeking to be impleaded in the matter also came up, but the court said it will hear them on a particular day to decide whether to allow them or not.
Among those who have sought impleadment is Raja Raja Varma, a senior member of Pandalam royal family. Legend has it that the deity of Sabarimala temple is linked to the family. In his plea, Verma has contended that it was an unincorporated family temple. Thus, the family has a say in its rituals and essential practices.
A bench headed by then CJI Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra had by a 4:1 decision on September 28, 2018, lifted age restrictions on entry of women to the hill shrine.