All the eyes are set on the Hon’ble Supreme Court for its judgment on Sabarimala case. Some review petitions are filed to discuss the interplay of articles 25 and 26, the power of judiciary in fixing the faith and essential religious practices of a religion. The SC held that the court will be dealing only with the issues in review order and observed regarding the application of the review petitions in the present case.
Issues relating to the Faith v/s right debate set off by the Sabarimala case turned into question of public importance at large .Earlier five judge bench order of the SC had left several questions to be considered by a larger bench, including the interrelationship between Articles 25 and 26, rights to freedom to propagate and practice religion, and the other fundamental rights in the Constitution, particularly right to equality and thereby referred it to a larger bench .
The reference order by five judge bench on 14 November raised multiple questions mostly pertaining to what are the contours of judicial powers when it comes to deciding what exactly is faith and the essential factors of religion. All these questions raise important issue particularly regarding that how far can judiciary decide that what the faith says and is it valid or not. The judgment also stated that the larger bench will also answer seven questions and issues put forth by the Supreme Court:
1. Clarify the 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 a need to delineate the contours of that expression, lest it becomes subjective.
4. What is the extent to which the court can enquire into the issue of whether 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. Are the “essential religious practices” of a religious denomination, or even a section thereof, 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?
The questions that are referred to the larger bench also includes the interpretation of constitutional morality and how is it different from public morality because that has been a lynchpin of several judgments of SC .
SC has rejected the objections of Fali Nariman, Rajeev Dhawan and Indira Jaisingh where they objected the clubbing of various other issues to the Sabarimala Review Petition . They were of the opinion that at this stage of Review Petition of Sabarimala Court should not club in new issues and exaggerrate the existing issue, rather it should be be solely decided on its own stand. To this the 9 Judges bench of SC headed by the CJI has decided on the contentious legal issue that whether SC can refer the question of law to a larger bench while excersising its power under its limited power of review jurisdiction in Sabarimala case. On this matter the verdict has rejected objections from senior advocates of Fali Nariman, Rajeev Dhawan, Indira Jaisingh and Shyam Diwan who represented various review petitioners. Supreme Court ruled that Court can refer larger questions of law to a large bench in a Review petition and further they said that other allegedly gender discriminatory issues of other religions like Muslim women’s entry to mosques, cases on female genital mutilation in the Dawoodi Bohra community and access to fire temples or ‘towers of silence’ for Parsi women who marry outside the community will all be clubbed along with the Sabarimala matter . SC shall frame issues and will look into whether these amount into essential religious practices which are protected by the constitution and if it is so then whether SC can intervene into these practices and shall also ensure that communities which support these practises are a separate denomination in the eyes of law. Further SC case clarifies that it is not hearing the review petitions, but the questions mentioned in the review order and shall be interpreting the Articles which are invoked in these cases.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje