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The nine-judge bench of the Supreme Court constituted to hear legal questions relating to entry of women into the Sabarimala temple and other gender-related questions in other religions will sit on February 3 to finalise these after the lawyers tasked with doing this couldn’t arrive at a consensus. .
Chief Justice of India SA Bobde said this on Thursday after senior advocates Indira Jaising, V Giri, Arvind Datar and Gopal Sankaranarayanan mentioned the matter to his court at 2 pm and said the lawyers could not reach a consensus on the issues to be argued.
On November 14, 2019, a five judge bench which heard the Sabarimala review petitions framed seven questions to be answered by the larger bench. This included questions on interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other fundamental rights, particularly right to equality under Article 14, the scope of expression ‘morality’ or ‘constitutional morality’ and the extent to which the court can enquire into whether a particular practice is an integral part of the religion or religious denomination. However, when the 9-judge constitution bench assembled for hearing on January 13, Chief Justice Bobde asked the parties to reframe the questions that it should consider.
A meeting was convened by the Registrar General of the top court on January 17 pursuant to the order of the court but it remained inconclusive.
The government’s second senior-most law officer, Solicitor General Tushar Mehta told the court on January 28 that the lawyers who attended the January 17 meeting could not arrive at a consensus on the issues and requested the court to finalise the same. Other senior advocates involved in the matter also informed the court on Thursday about their failure to arrive at a common ground. Senior advocate V Giri handed over a document to Chief Justice Bobde containing the issues framed by lawyers. He asked the CJI to take the same into account.
CJI Bobde said that the bench will work on it over the weekend and hold a hearing on February 3. The nine judges, the CJI said, would then meet and finalise the issues after taking into account the inputs that they receive in the February 3 hearing.
Senior counsel Indira Jaising strongly pitched for delineating issues between lawyers stating that the points of law which each lawyer proposes to argue should be indicated beforehand.
“It should be clearly indicated which lawyer is arguing which proposition and for which party”, Jaising submitted.
CJI Bobde concurred with Jaising and said that lawyers would not be permitted to duplicate arguments.
“One point should be argued only by one counsel. Every counsel will have to inform the court in advance which proposition he/ she is arguing so that there is no duplication”, the CJI said.
The 9-judge bench of the Supreme Court is expected to reconsider a 65-year-old judgment delivered by it in the Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt case.
This judgment, delivered in 1954, laid down a test called essential religious practices test which has since served as the basis for courts pronouncing upon issues touching upon religion and religious practices. As per this test, whether a practice is integral to a religion or not should be decided with reference to the doctrines of that religion. A religious denomination or organization, that judgement held, enjoys complete autonomy in the matter of deciding what rites and ceremonies are essential according to the tenets of the religion and no outside authority has any jurisdiction to interfere.
The top court in its 2018 judgment struck down Rule 3(b) of the the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965,which was the legal basis for barring entry of women between the ages of 10 and 50 into Sabarimala.
Subsequently, at least 60 review petitions were filed in Supreme Court challenging the September 2018 verdict. This was heard by a five-judge bench in open court. The verdict, delivered on November 14 last year, framed seven questions to be considered by a larger bench.
The review petitions will be decided after the nine-judge bench answers the legal questions referred to it.
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