New Delhi: The Supreme Court on Thursday referred to a seven-member Constitution Bench the question of the entry of menstruating women in the 10-50 age group at Lord Ayyappa’s Sabarimala temple and issues about discriminatory religious practices relating to women in Muslim, Parsi and Dawoodi Bohra communities.
The reference to a seven-judge Constitution Bench was made by a majority of three judges in a five-judge bench, in which Justices Rohinton Fali Nariman and D.Y. Chandrachud took a dissenting position.
Referring to an endeavour by a batch of petitioners to resuscitate the debate about what is essentially religious, essential to religion and integral part of the religion, Chief Justice Ranjan Gogoi, also speaking for Justices A.M. Khanwilkar and Indu Malhotra, said the decision of the larger bench would put at rest the “recurring issues touching upon the rights flowing from Article 25 and 26 of the Constitution”.
Having pointed to the importance of the entire matter involving the rights under Article 25 and 26, CJI Gogoi said: “It is our considered view that the issues arising in the pending cases regarding entry of Muslim women in dargahs/mosques, of Parsi women married to non-Parsis in Agyari and the practice of female genital mutilation (among) Dawoodi Bohras ... may be overlapping and covered by the judgment under review.”
Having referred the entire matter to a seven-judge bench, the majority ruling did not say anything critical about the September 28, 2018 order that permitted the entry of women of all ages at the Sabarimala temple.
The majority judgment framed seven questions to be addressed by the seven-judge Constitution Bench, including interplay between the freedom of religion under Articles 25 and 26 and the fundamental rights, particularly Article 14. This includes constitutional morality and the extent to which the court can enquire into the issue of a particular practice as an integral part of the religion or religious practice of a particular religious denomination or should that be left only to be determined by the head of the religious group.
Another question framed by the majority judgment relates to the “permissible extent” a PIL could be entertained on calling into question religious practices of a denomination or a section at the instance of those who do not belong to such a religious denomination.
CJI Gogoi also referred to an earlier decision of a seven-judge bench, which held that what are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself.
Both sections of the same religious group, the CJI said, have “a right to freely profess, practise and propagate their religious beliefs as being integral part of their religion by virtue of Article 25.”
Speaking for himself and Justice D.Y. Chandrachiud, Justice Rohinton Nariman, apparently responding to one of the reference questions on the permissibility of PILs in religious matters, said the majority judgment pronounced on September 28, 2018 had entertained the PIL raised by the petitioner Indian Young Lawyers Association as it raised the “grave issues of gender bias on account of a physiological or biological function which is common to all women”.
Addressing the question of religious denomination, Justice Nariman referred to the majority judgments of September 28, 2018, which said devotees of Lord Ayyappa do not constitute a separate religious denomination and cannot, therefore, claim the benefit of Article 26 or the proviso to Section 3 of the Kerala Hindu Places of Public Worship Act...” The majority judgments were pronounced by then Chief Justice Dipak Misra, also speaking for Justices A.M. Khanwilkar, D.Y. Chandrachud and one by Justice Nariman himself.
Referring to CJI Gogoi’s reference to pending matters relating to the Parsi, Muslim and Dawoodi Bohra communities, Justice Nariman said: “What this court has before it is review petitions arising out of this court’s judgment... which was delivered on 28 September 2018, with regard to the Sabarimala temple dedicated to Lord Ayyappa.”
