Hot Off The PressNews

Supreme Court: A nine-judge Constitution bench headed by Chief Justice S A Bobde will hear from January 13 the issue of allowing women and girls of all ages to enter Kerala’s Sabarimala temple, along with the other contentious issues of alleged discrimination against Muslim and Parsi women.

The other judges on the bench are Justices R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant. Interestingly, none of the nine judges has previously been a part of any bench hearing the Sabarimala issue.  

The nine-judge bench has been set up after a five-judge bench headed by then CJI Ranjan Gogoi, by a 3:2 majority verdict, suggested that the matter be referred to a seven-judge bench while examining the review petition filed against the historic September 28, 2018 judgement which had allowed women of all ages to enter Sabarimala temple. The judgment dated 14.11.2019, delivered right before the retirement of the then CJI Justice Ranjan Gogoi, said,

“This Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges.”

Referring the issues connected to the case at hand, CJ Gogoi wrote that it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of JudgesHe, hence, ‘suggested’ that a 7-judge bench be formed to decide the abovementioned issues.

Besdies Justice Gogoi, Justices A M Khanwilkar and Indu Malhotra (the lone woman judge on the bench) were in majority while Justices R F Nariman and D Y Chandrachud had penned a minority verdict on November 14, 2019.

The top court had on Monday issued a notice informing about listing of the petition filed by Indian Young Lawyers Association seeking review of the 2018 judgement.

However, the names of the judges were announced today.

Questions that the Larger Bench ‘may’ take up for consideration as suggested in the November 14, 2019 verdict

  • Interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
  • Sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.
  • Sweep of expression ‘morality’ or ‘constitutional morality. Is it over arching morality in reference to preamble or limited to religious beliefs or faith? There is need to delineate the contours of that expression, lest it becomes subjective.
  • The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.
  • Meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.
  • Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
  • What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

The majority verdict also suggested that the Larger Bench may also decide the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the Sabarimala temple at all.

(With inputs from PTI)

Case BriefsHigh Courts

Calcutta High Court: Rajasekhar Mantha, J., has referred to three important questions, which in the Court’s opinion are required to be settled by an appropriate larger bench.

In the instant case, the Investigating Officer (“IO”) had prayed for a voice sample of the petitioner to enable FSL experts to compare the same with certain evidence that was already in custody of the IO. The Magistrate has allowed the IO’s prayer and directed the petitioner to provide a voice sample before the FSL expert. Aggrieved thereby, the petitioner filed the instant revision.

Notably, the petitioner was not named as accused in the FIR and the investigation was still on.

The petitioner argued that as the law presently stands, a witness cannot be compelled to give a voice sample. Per contra, the State relied on the decision of the Supreme Court in Ritesh Sinha v. State of U.P., (2019) 8 SCC 1, to contend that if an accused can be compelled to give voice sample, as held in the said case, then a witness who is not an accused, at an investigation, can be definitely asked to give voice sample.

Considering the submissions of the parties, the High Court was of the view that the following questions require to be settled by an appropriate larger Bench:

“(a) Whether Section 311-A read with Section 53 and 53-A CrPC along with Section 5 of the Identification of Prisoners Act, 1920, empowers a Magistrate to compel a witness in course of investigation into an FIR, to give voice sample in the aid of such investigation?”

(b)Can the principle laid down by the Supreme Court in the Ritesh Sinha v. State of U.P. be applied also to witnesses in course of investigation?

(c)Whether a witness even in course of an investigation can be compelled to give evidence, that could subsequently emerge as a ground for including him as an accused in the final investigation report?”

The High Court directed the matter to be placed before the Chief Justice for reference to an appropriate Bench.

In the meantime, however, the petitioner was ordered to give voice samples to the IO in the presence of the FSL expert. It was directed that the said sample shall be kept sealed and unopened, and the parties shall abide by the result of the reference proposed. [Mukul Roy v. State of W.B., 2019 SCC OnLine Cal 4341, decided on 12-12-2019]

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 5-judge Constitution Bench of Ranjan Gogoi, CJ and RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, JJ has referred certain seminal issues to a larger bench in a 3:2 verdict. CJI Gogoi, Khanwilkar and Malhotra, JJ gave the majority opinion of referring the the questions to larger bench, whereas Nariman and Chandrachud, JJ gave dissenting opinions.

Due to the reference being made to the larger bench, the subject review petitions as well as the writ petitions will remain pending until determination of the questions indicated hereunder by a Larger Bench.

Surprisingly, the majority verdict runs in only 6-pages in a 77-pages long verdict.

Majority Verdict by CJ Gogoi for himself & Khanwilkar & Malhotra, JJ

“This Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges.”

Referring the issues connected to the case at hand, CJ Gogoi wrote that it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of Judges. He, hence, ‘suggested’ that a 7-judge bench be formed to decide the abovementioned issues. 

Questions that the Larger Bench ‘may’ take up for consideration

  • Interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
  • Sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.
  • Sweep of expression ‘morality’ or ‘constitutional morality. Is it over arching morality in reference to preamble or limited to religious beliefs or faith? There is need to delineate the contours of that expression, lest it becomes subjective.
  • The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.
  • Meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.
  • Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
  • What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

The majority verdict also suggested that the Larger Bench may also decide the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the Sabarimala temple at all.

Overlapping or related issues pending before the Supreme Court

“The debate about the constitutional validity of practices entailing into restriction of entry of women generally in the place of worship is not limited to this case, but also arises in respect of entry of Muslim women in a Durgah/Mosque as also in relation to Parsi women married to a non-Parsi into the holy fire place of an Agyari.”

The Court also took note of other seminal issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque; Parsi Women married to a non-Parsi in the Agyari; and including the practice of female genital mutilation in Dawoodi Bohra community and said that these issues may be overlapping and covered by the judgment under review and hence, the prospect of the issues arising in those cases being referred to larger bench cannot be ruled out.

    • Muslim Women in Durgah/Mosque Case is pending before a 3-judge bench of SA Bobde, SA Nazeer and Krishna Murari, JJ. On November 5, 2019, the bench had adjourned the matter for 10 days which means that the matter will now be taken up after Justice Bobde takes charge of the CJI office.
    • 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]

Stay on the 2018 verdict

The verdict is silent on whether there will be a stay on the 2018 Sabarimala Verdict which means that the said judgment will continue to hold ground till the review petitions are finally decided by the Court.

Why the majority verdict is debatable?

‘Suggestive’ reference

The verdict does not make a clear reference of issues to a larger bench. The wordsthe prospect of the issues arising in those cases being referred to larger bench cannot be ruled outused in the majority verdict may mean to imply that the reference made by the Court is merely ‘suggestive’.

Nariman, J’s minority opinion also talks about the ‘suggestive’ nature of the references when it says,

“if and when the issues that have been set out in the learned Chief Justice’s judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning Muslims, Parsis and Dawoodi Bohras.”

Hence, it would not be completely wrong to say that this judgment merely suggests the Benches in the abovementioned 3 cases to refer the issues listed down by it to a larger bench if it thinks fit.

Reference of a review petition

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.

It is also pertinent to note that in the majority verdict, no ‘error on the face of record’ has been pointed out. In fact, the majority verdict has not answered the review at all. Which explains why the majority verdict runs in only 6 pages and 9 paras.

Dissenting opinion by Nariman, J for himself and Chandrachud, J

“Bona fide criticism of a judgment, albeit of the highest court of the land, is certainly permissible, but thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be countenanced in our Constitutional scheme of things.”

Disagreeing with the majority opinion that the Review Petitions be kept in a lurch while the larger bench decides the seminal issues concerning right to religion and women rights, Nariman and Chandrachud, JJ said that the only issue before the Court in the present case was the review petitions and the writ petitions that were filed in relation to the judgment in Indian Young Lawyers Association v. State of Kerala, 2018 SCC Online SC 1690.

Stating that if and when the issues that have been set out in the learned Chief Justice’s judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning Muslims, Parsis and Dawoodi Bohras, Nariman and Chandrachud, J said,

“What a future constitution bench or larger bench, if constituted by the learned Chief Justice of India, may or may not do when considering the other issues pending before this Court is, strictly speaking, not before this Court at all.”

They, hence, went on to examine the issue at hand and noticed that there was a clear consensus on the following 3 issues:

  • The devotees of Lord Ayyappa do not constitute a separate religious denomination and cannot, therefore, claim the benefit of Article 26 or the proviso to Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.
  • The four majority judgments specifically grounded the right of women between the ages of 10 to 50, who are excluded from practicing their religion, under Article 25(1) of the Constitution, emphasizing the expression “all persons” and the expression “equally” occurring in that Article, so that this right is equally available to both men and women of all ages professing the same religion.
  • Section 3 of the 1965 Act traces its origin to Article 25(2)(b) of the Constitution of India, and would apply notwithstanding any custom to the contrary, to enable Hindu women the right of entry 18 in all public temples open to Hindus, so that they may exercise the right of worship therein. As a concomitant thereof, Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is violative of Article 25(1) of the Constitution of India and ultra vires Section 3 of the 1965 Act.

Given the consensus on the three issues delineated above, Nariman, J, hence, wrote that no ground for review of the majority judgments was made out and the review petitions were hence dismissed.

Nariman and Chandrachud, JJ, hence, directed the State of Kerala to give wide publicity to the 2018 Sabarimala judgment through the medium of television, newspapers, etc. Pressing upon the need to implement the 2018 Sabarimala Verdict, they asked the government to take steps to secure the confidence of the community in order to ensure the fulfillment of constitutional values. The State government may have broad-based consultations with representatives of all affected interests so that the modalities devised for implementing the judgment of the Court meet the genuine concerns of all segments of the community, Nariman, J said in the minority opinion.

[Kantaru Rajeevaru v. India Young Lawyers’ Association, 2019 SCC OnLine SC 1461, decided on 14.11.2019]


Read more about the opinions of all the judges in the 4:1 majority verdict here.

Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Dipak Misra and Ashok Bhushan and S. Abdul Nazeer, JJ., by a majority of 2:1, held that the appeals concerning the Ayodhya (Ram Janmabhoomi-Babri Masjid) matter need not be referred to a larger Bench for consideration. Ashok Bhushan, J. delivered the majority judgment for CJ Dipak Misra and himself. While S. Abdul Nazeer, J. in his separate opinion was of the view that the matter should be referred to a larger Bench.

The present appeals were fixed for commencement of final arguments on 05-12-2017, when Dr Rajeev Dhavan, learned senior counsel appearing for the appellants submitted that the Constitution Bench Judgment of the Court in Ismail Faruqui v. Union of India, (1994) 6 SCC 360 needs reconsideration, hence the reference be made to a larger Bench. In Ismail Faruqui, while the Constitution Bench (per majority) upheld the validity of the Acquisition of Certain Area at Ayodhya Act, 1993 except that of Section 4(3) of the Act which was struck down; it also made observations that a mosque s not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open. According to Dr Dhavan, the law laid down in Ismail Faruqui in relation to praying in a mosque not being an essential practice is contrary to both, i.e. the law relating to essential practice and the process by which essential practice is to be considered. Whether essential practice can be decided on a mere ipse dixit of the Court or whether the Court is obliged to examine belief, tenets and practices, is a pure question of law. He submitted that Ismail Faruqui judgment being devoid of any examination on the above issues, the matter need to go to a larger Bench.

The Court had to find out the context of observations made in the judgment which according to the appellant were questionable and to decide whether the said observations furnish any ground for reconsideration of the Constitution Bench judgment. After referring to a plethora of judgments, Ashok Bhushan, J. observed that the question as to whether particular religious practice is essential or integral part of the religion is a question, which has to be considered by considering the doctrine, tenets and beliefs of the religion. What Dr Dhavan contended was that the Constitution Bench in Ismail Faruqui, without there being any consideration of essentiality of a religion, made the questionable observations. It was observed from that the context for making the said observation was a claim of immunity of a mosque from acquisition. Whether every mosque is the essential part of the practice of religion of Islam, acquisition of which ipso facto may violate the rights under Articles 25 and 26, was the question which had cropped up for consideration before the Constitution Bench. The observation has been made to emphasise there is no immunity of the mosque from the acquisition. What the Court in Ismail Faruqui meant was that unless the place of offering of prayer has a particular significance so that any hindrance to worship may violate right under Articles 25 and 26, any hindrance to offering of prayer at any place shall not affect right under Articles 25 and 26. the observation need not be read broadly to hold that a mosque can never be an essential part of the practice of the religion of Islam.

As to the question of res judicata –the present proceedings being barred in light of the decision in Ismail Faruqui, the Court held that the issues which were involved in that case were validity of the Act of 1993. The issues which have been framed in the suits giving rise to the present appeals were different issues which could not be said to be directly and substantially in issue in Ismail Faruqui. On this count alone, the plea of res judicata as raised by the respondent was liable to be rejected.

While concluding, the Court held that the questionable observations made in Ismail Faruqui, as noted above, were made in context of land acquisition. Those observations were neither relevant for deciding the suits nor relevant deciding the present appeals. Therefore, the Court was of the considered opinion that no case was made out to refer the Constitution Bench judgment Ismail Faruqui for reconsideration. Hence, no case has been made out seeking reference of these appeals to a Constitution Bench of this Court.

S. Abdul Nazeer, J., in his separate opinion stated that he was unable to accept the view of the Justice Bhushan that no case had been made out seeking reference of the present appeals to a Constitution Bench of this Court. However, he was in respectful agreement with the opinion on the question of res judicata. Therefore, while concluding, considering the Constitutional importance and significance of the issues involved, he was of the opinion that following questions need to be referred to a larger Bench:

(a) Whether in the light of Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 and other cases, an essential practice can be decided without a detailed examination of the beliefs, tenets and practice of the faith in question?

(b) Whether the test for determining the essential practice is both essentiality and integrality?

(c) Does Article 25, only protect belief and practices of particular significance of a faith or all practices regarded by the faith as essential?

(d) Do Articles 15, 25 and 26 (read with Article 14) allow the comparative significance of faiths to be undertaken?

As per the majority, it was held that the present appeal does not require to be referred to a larger Bench nor does the Ismail Faruqui case needs reconsideration. The matter was disposed of accordingly. [M. Siddiq v. Mahant Suresh Das, 2018 SCC OnLine SC 1677, decided on 27-09-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of R.K. Deshpande and Arun D. Upadhye, JJ., addressed a petition filed challenging the order of a Divisional Commissioner, Amravati on refusal to grant parole on the basis of Rule 4(b)(13) read with Rule (2)(B)(i) of Maharashtra Prisons (Bombay Furlough an Parole) Rules, 1959. The Court placed this matter before Chief Justice to be referred to a larger bench.

The present petition pertained to the facts that the petitioner was a convict for the offence under Section 376 IPC for the offence of rape. The sentence imposed upon him was of 10 years imprisonment under Section 376(2)(a) and 1-year imprisonment under Section 342 IPC. Petitioner was refused a parole. Though he was recommended for the same by the authorities due to the bar under  Rule 4(b)(13) read with Rule (2)(B)(i) of Maharashtra Prisons (Bombay Furlough an Parole) Rules, 1959, he was refused parole.

The Learned APP on behalf of the respondents relied on Sharad Devaram Shelake v. State of Maharashtra, 2016 SCC OnLine Bom 2448, wherein the above-stated rule was upheld. The division bench in the above-stated case had relied upon the decision of Supreme Court in State of Haryana v. Jai Singh,(2003) 9 SCC 114, wherein it was held, “Classification created for imposing bar to grant parole or furlough, based on the nature of offences, is a valid classification for the purpose of deciding whether the persons who have committed such offences should be granted remission or not.”

On due consideration of the facts and circumstances of the case along with the contentions placed, the Court was of the view that the matter should be referred to larger bench instead of making out a distinction between the decision of State of Haryana v. Jai Singh,(2003) 9 SCC 114 and Sharad Devaram Shelake v. State of Maharashtra, 2016 SCC OnLine Bom 2448.

Therefore, the Court referred the case to a larger bench for the consideration of the issue: “Whether Rule 4(13) Maharashtra prisons (Bombay Furlough and Parole) Rules, 1959 creating an absolute bar to claim release on furlough leave and consequently Rule 19(2)(B)(i) of the Rules of 1959 to claim release on parole leave to the convict for the offence of rape is violative of Articles 14 and 21 of the Constitution of India, particularly when the offenders in other serious offences are entitled to such leave?” [Vijay Pralhad Varankar v. Division Commr., Amravati;2018 SCC OnLine Bom 2261; dated 23-08-2018]

Hot Off The PressNews

Supreme Court: In the matter where the National Human Rights Commission (NHRC) had sought direction to all states for mandatorily giving information to it about any encounter killings in their jurisdiction for the purposes of enquiry, the bench of Kurian Joseph and R. Banumathi, JJ referred the matter to a larger bench.

The NHRC, in its plea filed in 2014, has sought direction to state governments and police authorities that they should continue to provide the information asked for by it in accordance with the guidelines and provisions of the Protection of Human Rights Act, 1993, to probe the cases of encounter killings. It also sought direction to the state governments that they should not refuse to comply with the recommendations made by Commission. It had also argued that due to the Supreme Court verdict of 2014 by which certain guidelines were framed, its role in such enquiries has virtually been nullified. It had said that Section 12(a) of the Act makes it a mandatory obligation upon the NHRC to inquire on its own or on a petition presented to it by a victim, into the complaints of human rights violation by a public servant.

Senior advocate Gopal Subramaniam and advocate Shobha Gupta, appearing for the Commission, said it is a pure question of law as the Act provided for it to enquire on its own or on a petition presented to it by a victim or any person on his behalf into any complaint of violation of human rights by a public servant.

The Court said that a larger bench will look into the matter.

Source: PTI

Case BriefsSupreme Court

Supreme Court: The Bench of Ranjan Gogoi and Navin Sinha, JJ referred the matter relating to framing of guidelines for designation of practicing Advocates as designated Senior Advocate(s) in the Supreme Court to a larger bench.

Noticing that the decision of this Court on the said issues may have effect on the process and procedure of designation of Senior Advocate(s) by the High Courts in the country, apart from the Supreme Court of India, the Court said that it is necessary to know the precise guidelines that are in force in different High Courts for designation of Senior Advocates. [Indira Jaising v. Supreme Court of India, WRIT PETITION (CIVIL) NO(S). 454/2015, order dated 22.03.2017]