Sabarimala queries can be referred to larger bench: SC

Top court also reframed seven questions that will be taken up by the bench

NEWDELHI: The Supreme Court on Monday upheld the reference to a larger bench of legal questions surrounding entry of women into the Sabarimala temple, and reframed the seven questions that will be taken up by the bench.

The hearing before a ninejudge bench headed by Chief Justice of India (CJI) SA Bobde will begin on February 17. One lawyer from each side will make leading arguments, and get one full day to argue. The court will also give two hours each to lawyers to make supplementary arguments.

On Monday, the nine-judge bench held that the Supreme Court, while exercising its powers under review jurisdictions, is empowered to frame legal questions and refer them a larger bench.

The bench was constituted after a five-judge bench which heard the Sabarimala review petitions, on November 14, 2019, framed seven questions to be answered by the larger bench. These included questions on the 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 the 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.

The court, in the November judgment, observed that the practices entailing the restrictions on women in religious matters was not limited to the Sabarimala case, but also arose in respect of three other cases pending before the Supreme Court - entry of Muslim women in a dargah/mosque, entry of

Parsi women marrying nonparsi men into the holy fire place of an Agyari, and regarding the practice of female genital mutilation among the Dawoodi Bohra community.

The court had said the review petitions can be decided only after the legal questions concerning women’s rights vis-a-vis religious practices are settled by a larger bench of not less than seven judges, eventually leading to the formation of the ninejudge bench.

However, various petitioners and the Kerala government opposed the reference arguing that the jurisdiction vested with Supreme Court while exercising powers of review is very limited. A review bench, it was argued, can only correct errors in the judgement which is being reviewed and it cannot frame legal issues and refer it to a larger bench.

The nine-judge bench then assembled to settle this issue before proceeding with the hearing. The Sabarimala temple, abode of Lord Ayyappa, is one of the busiest pilgrimage sites in southern India. Ayyappa devotees believe that the deity has vowed celibacy, what they call “naishtika brahmacharya”, which is the basis for barring entry of women between 10 to 50 years of age into the temple.

The top court, in its 2018 judgement, 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.

Subsequently, at least 60 review petitions were filed in the Supreme Court challenging the September 2018 verdict which was heard by the five-judge bench in open court before it delivered its verdict on November 14 last year framing seven questions to be considered by a larger bench.