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9-Judge Bench reference in Sabarimala review: Lawyers to meet on Jan 17 to chart out course of hearing
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9-Judge Bench reference in Sabarimala review: Lawyers to meet on Jan 17 to chart out course of hearing

Bar & Bench

In the reference made in the Sabarimala review case concerning issues of rights of women qua religion, the Supreme Court today directed lawyers appearing for various parties to hold a conference.

At this conference, the lawyers are expected to chart out how the arguments will be made, what issues will be added, etc.

The lawyers will convene on January 17 to determine these issues. The Secretary General of the Supreme Court was also directed to be present at this conference.

The matter was heard today by a 9-Judge Constitution Bench of Chief Justice of India SA Bobde and Justices R Banumathi, Ashok Bhushan, L Nageswara Rao, Mohan M Shantanagoudar, S Abdul Nazeer, R Subhash Reddy, BR Gavai, and Surya Kant.

At the outset, a core committee member of the Sabarimala Temple urged the Court to hear and decide the review petition in light of submissions made by the head of the committee. However, CJI Bobde responded,

“We are not hearing the review petition, are only hearing the 7 points as mentioned in the reference.”
CJI SA Bobde

Counsel for the Indian Lawyers Association stated that the writ petitions concerning Muslim women’s rights to enter mosques, genital mutilation in the Bohra Muslim community etc are intrinsically connected to Sabarimala. To this, CJI BObde said,

"Whether these questions concerning other communities are different or not, has to be seen and looked into."

Senior Advocate Indira Jaising was next to raise a query. She stated that a decision on the review is a pre-condition to decide the present issues. The questions so framed are purely academic in nature and are judicially insurmountable, Jaising argued.

Senior Advocate Indira Jaising
Senior Advocate Indira Jaising

In response, CJI Bobde stated that the advocates may refer to any facts in light of the Sabarimala issue. However, it would not be possible for the 9 judges to hear each and every fact, he clarified. To this, Jaising said,

"My lords will have to opine that the 5-judge bench judgment is wrong. Someone has to hold it as wrongly decided. Which authority should we go to?"

Senior Advocate Rajeev Dhavan, appearing in person as an intervenor, said,

“The Court has no business to decide the religion of a person.”

At this point, Solicitor General for India Tushar Mehta intervened. He said,

"There is nothing wrong with the judgement, the intention is very clear".

CJI Bobde responded,

"Mr. Solicitor General, We are not upholding these objections."

Senior Advocate Abhishek Manu Singhvi was next to speak. He stated that the issues framed are broadly put out and need to be more specific. To this, CJI Bobde suggests that a conference with both sides be set up to consolidate the issues at hand.

The Chief Justice observed that the counsel must decide amongst themselves regarding who shall argue what. He stated that Senior Advocates Rajeev Dhavan and CS Vaidyanathan had done a great job of this in the Ayodhya matter.

Even as lawyers continued to make objections haphazardly, CJI Bobde assured them that everyone present shall be heard and that the Bench would not rise before doing so.

Aryama Sundaram
Aryama Sundaram

Senior Advocate Aryama Sundaram stated that everything needs to be spelt out in terms of the review instead of going through the impossible task of referring to separate facts. However, CJI Bobde was adamant.

"We shall not touch upon any issue which has not been mentioned in the judgment."

Ultimately, CJI Bobde said that the Secretary General of the Supreme Court shall convene the meeting and fine tune the proceedings. He said to the lawyers,

"We will grant you three weeks time to come up with this and then have it put up 2-3 days post that."

The Court then urged Senior Advocates Singhvi, Jaising and Dhavan to arrange a conference within three days from today. The Secretary General shall attend this meeting.

CJI Bobde also observed that the following issues shall be looked into by the lawyers at the conference-

1) Whether any issue needs to be reframed, added or modified;

2) Allotment of time for each issue;

3) Particular time granted for each argument.

While delivering its judgment in the Sabarimala Review case, the Supreme Court had referred the larger question of womens' rights under Article 14 as against the rights under Articles 25 and 26, to a larger Bench. The decision in the review petitions filed against the 2018 Sabarimala judgment was kept pending till the larger questions are decided.

The issues likely to come up in this reference before this nine-Judge Bench, as enlisted by the Supreme Court in its November 14 judgment, are:

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

(ii) What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution?

(iii) The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. 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.

(iv) 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.

(v) What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution

(vi) Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26?

(vii) 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?