Clearing the way for hearing a reference in the Sabarimala case on the larger question of discrimination against women at different religious places, a nine-judge Constitution Bench of the Supreme Court Monday said “this Court can refer questions of law to a larger bench in a Review Petition”.
It framed seven issues to be taken up by the court and fixed February 17 to start the hearing on day-to-day basis.
The Bench, comprising Chief Justice of India S A Bobde and Justices R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, turned down objections raised by Senior Advocate Fali S Nariman and some others that the court could not make such a reference in a pending review petition as the scope of review was extremely narrow.
The Sabarimala reference to the nine-judge Bench followed the September 19, 2019 decision of a five-judge Bench, headed by then CJI Ranjan Gogoi, to keep review petitions, challenging its September 28, 2018 order that lifted age restrictions on the entry of women to the hill shrine in Kerala, pending till a larger bench took a call on certain questions arising from it.
The five-judge Bench pointed out that petitions seeking entry of women to mosques, challenging female genital mutilation among Dawoodi Bohras and practices in the Parsi community were still pending and these could be impacted by questions raised in the Sabarimala matter. It said the larger bench will have to evolve a judicial policy to do “substantial and complete justice” in these matters.
The nine-judge Bench, which a week ago clarified it won’t be deciding the review petition but only lay down the general law to be followed, will examine the “scope and ambit of right to freedom of religion under Article 25 of the Constitution” and the “inter-play between the rights of persons under Article 25… and rights of religious denomination under Article 26”.
It will also look into the question “whether the rights of a religious denomination under Article 26… are subject to other provisions of Part III of the Constitution… apart from public order, morality and health”.
The Bench will also answer “what is the scope and extent of the word ‘morality’ under Articles 25 and 26… and whether it is meant to include Constitutional morality” and “what is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25”.
Besides, it will try to delineate the “meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution” and lay down “whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL”.
It allowed some intervention applications and asked the lawyers to furnish details on who they are representing so that the court can finalise the schedule of allotment of time.
It said Solicitor General Tushar Mehta, representing the Centre, would open the arguments on February 17 followed by Senior Advocate K Parasaran.
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