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9-Judge Bench of the Supreme Court assembles to hear pleas relating to discrimination against women at religious places including Kerala’s Sabarimala Temple. 

The Bench cleared the point that they will not be hearing the review pleas of Sabarimala Temple Case, but will be considering the issues referred to by the 5-Judge Bench earlier. The 5-Judge Bench in November, 2019 did NOT refer Sabarimala Review Petitions to a larger bench but kept it pending.

Questions before the 9-Judge Bench for consideration are:

1. Interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.

2. Sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.

3. Sweep of expression ‘morality’ or ‘constitutional morality. Is it overarching morality in reference to preamble or limited to religious beliefs or faith? There is a need to delineate the contours of that expression, lest it becomes subjective.

4. 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.

5. Meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.

6. 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?

In addition, it was said 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.

Senior Advocate, Indira Jaising argued that in order to decide the present issues, a decision on the review is a precondition.

Further, she stated that, 5-Judge Bench decision is not been held to be wrongly decided. The only reason to refer this to a 9 Judge Bench seems to be that Shirur math was decided by a 7-Judge Bench. But the Shirur Math judgment has also not been questioned. Even the 5-Judge Bench in Sabarimala Review petition has not said that the Shirur Math Judgment was wrong.

Senior Advocate, Abhishek Manu Singhvi: The issues framed in the present matter are very broad. The issues must be reframed.

Chief Justice of India agreed to fine-tuning of issues. Also, asked counsels to consult each other and decide which issue is to be argued by whom as done during Ayodhya hearing. He added that, the Secretary-General of the Supreme Court will convene a meeting of all lawyers to discuss the framing of issues.


Also Read:

Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held

Case BriefsSupreme Court

Supreme Court: In the issue relating to ban of female devotees between the age group of 10 to 50 from entering the Sabrimala Temple of Lord Ayyappa in Kerala, the 3-judge bench of Dipak Misra, CJ and R. Banumathi and Ashok Bhushan, JJ referred the matter to a Constitution bench.

Advocate RP Gupta, appearing for the petitioners argued that there was no religious custom or usage in the Hindu religion specially in Pampa river region to disallow women during menstrual period. He said:

“banning entry of women would be against the basic tenets of Hindu religion.”

Senior Counsel K Ramamoorthy, the amicus curiae in the matter, submitted before the that the question as to what is religious practice on the basis of religious belief which would apply not only to Ayyappa temple but would also apply to all the prominent temples all over India, cannot be decided by this bench and, therefore, the matter should be referred to a Constitution Bench.

Senior counsel Raju Ramachandran, also the amicus curiae in the matter, said:

“The right of a woman to visit and enter the temple as a devotee of the deity, as a believer in Hindu faith is an essential facet of her right and restriction of the present nature creates a dent in that right which is protected under Article 25 of the Constitution.”

Refuting the contention of the State of Kerala and the Devaswom Board that the practice is based on religious custom and the same is essential to religious practice and that there is not a total prohibition, he said that such a religious practice cannot be essential to the religion and it has been only imposed by subordinate legislation. He added:

“a significant section of adult women is excluded and the singular ground for exclusion is sex and the biological feature of menstruation. To put it differently, the discrimination is not singularly on the ground of sex but also sex and the biological factor which is a characteristic of the particular sex.”

The State and the Devaswom Board had contended that the petition under Article 32 of the Constitution was not maintainable as no right affecting public at large was involved in the case. It was further said:

“Ayyappa devotees form a denomination by themselves and have every right to regulate and manage its own affairs in matters of religion.”

It was argued that the Kerala High Court decision, where it was held restriction imposed by the Davaswom Board is not violative of Articles 15, 25 and 26 of the Constitution, would operate as res judicata.

The following questions have been framed for Constitution bench’s consideration:

  • Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution?
  • Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?
  • Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed under Article 290-A of the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?
  • Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?
  • Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution? [Indian Young Lawyers Association v. State of Kerala, 2017 SCC OnLine SC 1236, decided on 13.10.2017]