New Delhi: The Supreme Court on Monday said that it would frame the questions to adjudicate the conflict between the religious practices and beliefs, discriminatory to women, sought to be shielded under Article 25 and 26 of the Constitution and the right to equality under Article 14 of the Constitution.
A nine-judge bench headed by Chief Justice S.A. Bobde said, “We will frame the issues and on February 6 we will assemble and fix time slot for advocates to argue the case.” He said that “the question referred to us is of balance of rights”. The court took upon itself the task of framing the questions in the wake of sharp divergence of views amongst senior lawyers on both the sides. While senior counsel Fali Nariman, Kapil Sibal, Rajeev Dhavan, Shyan Divan and others said that a five-judge bench by its November 2019 judgment could not have made such a reference, others, including K.K. Parasaran, former solicitor-general Ranjit Kumar and solicitor-general Tushar Mehta said that there was no impediment in the way of nine-judge bench in hearing and deciding the issue. Besides CJI Bobde, other judges on the bench are Justices R. Banumathi, Ashok Bhushan, L.N. Rao, Mohan N. Shantana-goudar, Abdul Nazeer, R. Subhash Reddy, B.R. Gavai and Surya Kant.
The bench will also consider the preliminary objections raised by several senior lawyers including Fali Nariman, Kapil Sibal, Rajeev Dhavan, and Shyan Divan that a five judge-bench that was considering the petition seeking the review of the 2018 top court verdict permitting the entry of women of all ages in Lord Ayyappa’s Sabarimala temple could not have made reference to a larger bench the questions relating to the cases that were not before it.
At the outset of the hearing today, Nariman told the nine-judge constitution bench that the scope of a decision in review is limited to whether error in the judgment sought to be reconsidered is correct or not.
Nariman said that five-judge constitution bench while looking into the plea for the reconsideration of 2018 Sabnarimala verdict could not have taken recourse to its plenary powers under Article 142 to frame issues for reference to a larger bench to interpret and define essential religious practices across multiple faiths – a point CJI Bobde described as “formidable”.
Summing up the submission by Nariman, CJI Bobde said you are saying, “While hearing a review in a case, court can’t refer to a larger bench the questions arising in other cases.” However, CJI Bobde said that they would be deciding the larger issue and not the Sabarimala or other issues.