Supreme Court: A nine-judge Constitution bench of the Supreme Court will hear on February 6 argument on the issue whether the court can refer questions of law to a larger bench on a review petition after renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected.
“Are you saying that when hearing the review of one judgment [Sabarimala in this case], we cannot refer such larger questions to a larger Bench?”
To which Mr. Nariman responded,
“Yes, that is absolutely right. It will be outside your jurisdiction to do that,”
Finding a formidable point in Mr. Nariman’s arguments, CJI said that the nine-judge Bench would not “abort the hearing” now but the objections raised by Mr. Nariman would be framed as an “issue” to be decided by the Bench.
In our report dated 14.11.2019, we had pointed out that the order passed by the 5-judge bench in Kantaru Rajeevaru v. India Young Lawyers’ Association, 2019 SCC OnLine SC 1461 was debatable as involved a reference to a larger bench in a review petition. We wrote,
“If it is believed that a reference has indeed been made in the majority verdict, it will again be debatable on the ground that a reference cannot be made in a review petition. A judgment of the Supreme Court of is final, and a review of such judgment is an exception. Whatever the Court decides in a Review Petition become the law. So will a reference of a review petition to a larger bench mean creation of a new forum? Too many loose ends have been left in the majority verdict that the Court will have to tie up sooner or later.”
The bench is hearing matters relating to discrimination against women in various religions including Kerala’s Sabarimala temple, mosques, the practice of female genital mutilation in the Dawoodi Bohra community and Parsi women married to non-Parsi men being barred from its holy fire temple.
Overlapping or related issues pending before the Supreme Court
- Muslim Women in Durgah/Mosque Case is pending before a 3-judge bench of SA Bobde, SA Nazeer and Krishna Murari, JJ.
- Parsi Women married to a non-Parsi in the Agyari case was referred to a 5-judge bench by a 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ in October, 2017. The 5-judge bench of former CJ Dipak Misra and AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, JJ last heard the matter on December 14, 2017. [2017 SCC OnLine SC 1275]
- Case relating to practice of female genital mutilation in Dawoodi Bohra community was referred to a larger bench on September 24, 2018 by a 3-judge bench of former CJ Dipak Misra and AM Khanwilkar and DY Chandrachud, JJ. The Constitution bench is yet to be formed. [2018 SCC OnLine SC 2667]
Earlier, CJI Bobde had said that the court will examine the matter and hear the scope of judicial review on the point of religious faith and women’s rights. He had fixed a 10-day period for concluding the hearing on the petition seeking women’s entry into Sabarimala temple, mosques, and Parsi Agiyari.
The Court had on January 13 said that it will only hear the questions referred to in the review order passed by it in November last year in the Sabarimala temple case, which allowed women and girls of all age groups to visit the shrine in Kerala. The bench had asked counsels to consult each other and decide which issue is to be argued by whom as done during Ayodhya hearing.
The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges.
The court is hearing a clutch of petitions seeking reconsideration of its September 2018 judgment that lifted the bar on menstruating women from worshipping in the Sabarimala temple in Kerala.
The Court in a landmark 4:1 ruling had set aside decades-old restrictions on the entry of women of menstruating age inside the temple.
The verdict had sparked a series of protests across the state, which eventually led to the filing of several petitions seeking review of the top court’s order challenging the authority of the court to intervene in a belief of the people.