The majority judgment in Sabarimala review petitions has posed many questions. What are its implications? Where to now? This piece attempts to break down the majority judgment rendered by CJI Ranjan Gogoi and Justices AM Khanwilkar and Indu Malhotra.

Three cases involving similar issues

The Court at the outset noted that the issue relating to restriction on entry of women in places of worship is not limited to the Sabarimala case. Similar practices have been called into question in two other cases – one on the entry of Muslim women in a Durgah/Mosque and second in relation to Parsi women married to a non-Parsi into the holy fireplace of an Agyari.

Further, the Court also noted that another seminal issue is pending in Supreme 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.

Need to put to rest recurring issues flowing from Articles 25 and 26

The Court then went on to state decision of a larger bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution of India.

When more than one petition is pending on similar or overlapping issues, it is essential to adhere to judicial discipline and propriety and for the same, all cases must proceed together. Thus, a decision of a larger Bench will instil public confidence.

“Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges. The decision of a larger bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution of India. It is essential to 6 adhere to judicial discipline and propriety when more than one petition is pending on the same, similar or overlapping issues in the same court for which all cases must proceed together. Indubitably, decision by a larger bench will also pave way to instil public confidence….”

Considering the present strength of Judges of the Supreme Court, it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of Judges. That would ensure an authoritative pronouncement and also reflect the plurality of views of the Judges converging into one opinion. That may also ensure consistency in approach for the posterity, the Court ruled.

So what has now been referred to larger Bench? Effectively nothing

The judgment gets interesting at this point. Since the three cases referred to earlier (on entry of Muslim women, Parsi women into their respective place of worship and female genital mutilation) were not in consideration before this Bench, this Bench could not pass an order of reference with respect to those cases. Also since a reference cannot be made in a review petition/s (which the court was deciding in the current case), a reference cannot be passed in the Sabarimala issue too.

Hence, the Court expertly words the rest of the judgment. It says that the issues in the three pending cases on Muslim and Parsi women “may be overlapping and covered by the judgment under review” (Sabarimala). Thus, the prospect of the issues arising in those cases being referred to larger bench cannot be ruled out, it says. The judgment reads:

“It is our considered view that the issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque (being 7 Writ Petition (Civil) No.472 of 2019); of Parsi Women married to a non-Parsi in the Agyari (being Special Leave Petition (Civil) No. 18889/2012); and including the practice of female genital mutilation in Dawoodi Bohra community (being Writ Petition (Civil) No.286 of 2017) may be overlapping and covered by the judgment under review. The prospect of the issues arising in those cases being referred to larger bench cannot be ruled out.”

The Court does not stop there and in fact, goes on to frame the issues which it believes may come up in the three pending cases.

The issues listed out are as follows:

1. Interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
2. What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.
3. The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over arching 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.
4. 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.
5. What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.
6. Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
7. What would be the permissible extent of judicial recognition to PILs 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?

Besides, the above seven issues the Court also stated that there is a conflict between two earlier judgments of the Court in Shirur Mutt case and Durgah Committee case and might need to be considered by a larger Bench.

Thus, this judgment does not make any reference. Instead, it anticipates a reference by various Benches hearing the three pending cases and gives a slight but obvious push to those Benches to refer the three matters to larger Bench. It even goes to the extent of framing issues that the larger Bench may consider and answer if and when it is formed.

Whether such a course of action can be adopted in review jurisdiction without answering the review itself is debatable.  

So at what stage are those three cases?

The Three cases

Entry of Muslim Women in Durgah/Mosque [Writ Petition (Civil) No.472 of 2019] – The Court had issued notice in this matter in April 2019. This matter was last heard by a Bench of Justices SA Bobde, S Abdul Nazeer and Krishna Murari.

Entry of Parsi Women married to a non-Parsi in the Agyari [Special Leave Petition (Civil) No. 18889/2012] – This matter was last heard by a Constitution Bench of five judgesheaded by then CJI Dipak Misra when an interim order in favour of the Parsi women had been passed. The larger issue is yet to be decided.

Female genital mutilation in Dawoodi Bohra community [Writ Petition (Civil) No.286 of 2017] -  This matter was last heard in September 2018 by a three-judge Bench of then CJI Dipak Misra and Justices AM Khanwilkar and DY Chandrachud when the matter was referred to a Constitution Bench.

It now remains to be seen how these three cases would be listed considering the current decision in the Sabarimala case. Since the current decision cannot be construed as a reference order, these cases might be listed separately before the same or different Benches and then referred to a larger Bench of seven judges.

Now what about the Sabarimala review petitions?

The Supreme Court again adopts a careful approach. It says that the review and writ petitions will remain pending the issues above are decided by the larger Bench.

However, it also says that the “while deciding the questions delineated above, larger bench may also consider it appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all. Whether the aforesaid consideration will require grant of a fresh opportunity to all interested parties may also have to be considered, the Court said.”

So, the larger Bench has been given the liberty to decide issues concerning Sabarimala case “if it considers appropriate”

Is there a Stay on 2018 judgment?

The Supreme Court in its order passed in November 2018 in the review petitions, had categorically refused to stay its judgment of 2018. There is no discussion in the majority judgment today regarding stay of the 2018 judgment. Thus, the judgment of 2018 continues to hold the field.