THIRUVANANTHAPURAM: The Supreme Court, on a majority of three to two judges, on Thursday left the Sabarimala case review petitions and writ petitions “pending” till a yet-to-be-constituted seven-judge bench deals with overlapping questions of faith and fundamental rights in similar cases awaiting disposal at the top court.
Chief Justice Ranjan Gogoi and Justices A M Khanwilkar and Indu Malhotra, who formed the majority, did not go into the question of a stay on the Sabarimala verdict of September 28, 2018, which permits women of all ages to worship at the Ayyappa temple.
Earlier, the five-judge bench had refused to grant a stay when it was sought ahead of filing review petitions. This stay is presumed to hold good until set aside.
Lawyers said it would be incorrect to say that Chief Justice Gogoi has referred the Sabrimala review petitions and writ petitions to the larger bench. Mr Gogoi obse-rved that “the review petitions as well as the writ petitions may, accordingly, remain pending until determination” of other questions by a larger bench as may be constituted by the Chief Justice.
Questions are not limited to this (Sabarimala) case, but also arise “in respect of entry of Muslim women in a dargah/mosque as also in relation to Parsi women married to a non-Parsi into the holy fire place of an Agyari... and female genital mutilation in Dawoodi Bohra community”.
The bench said the prospect of issues arising in those cases being referred to larger bench cannot be ruled out. Issues could be the interplay between the freedom of religion and fundamental rights, the sweep of expression ‘public order, morality and health’ occurring in Article 25 (1) (Freedom of conscience and free profession, practice and propagation of religion), definition of ‘morality’ or ‘constitutional morality’ in the Constitution and the extent to which the court can enquire into the issue of a particular practice as an integral part of the religion.
“What is the meaning of the expression ‘sections of Hindus’ in the Constitution, whether the essential religious practices of a religious denomination, or even a section thereof are afforded constitutional protection” and what would be the extent of judicial recognition to PILs on religious practices of a denomination or a section at the instance of persons who do not belong to such religious denomination?
Issues pertaining to these cases were separately pending at the top court. According to dissenting Justice R F Nariman, it was sub judice to club them with Sabarimala case but lawyers said the CJI had used his plenary powers to link them.
Mr Gogoi cited two previous judgments to show there was lack of agreement in determining the court’s ambit in judging religious matters. The Shirur Mutt 7-judge verdict upholds denominational rights while the verdict in Ajmer dargah case 1961 by five judges carves “out a role for the court to exclude what courts determine to be secular practices or superstitious beliefs”.
These two verdicts “seem to be in apparent conflict requiring consideration by a larger Bench”, Mr Gogoi said.
However, sources said there was a perception that the Mr Gogoi-led majority judgment, referring to the overlap and interplay of major religious and rights questions would ultimately lead to the debate on the extent of religious rights versus a uniform civil code, as it is being argued by the right-wingers, aiming at homogenizing cultures. EOMJM
