The Supreme Court is reviewing its 2018 judgment, wherein it declared unconstitutional the Sabarimala Temple's practice of excluding women of a 'menstruating age'.
First, it will resolve certain overarching constitutional questions pertaining to the fundamental right to freedom of religion and its relation to other fundamental rights.
The case background for the 2018 Sabarimala writ petition can be found here.
On 28 September 2018, a 4:1 majority of the Supreme Court held that the Sabarimala Temple's exclusionary custom is unconstitutional. The custom prohibited women between the ages of 10 and 50 years old from entering the temple. The judgment primary held that the custom violated the fundamental right to freedom of religion of female worshippers under Article 25 of the Constitution.
More than 50 review petitions were subsequently filed by various individuals and organisations including Kantaru Rajeevaru, the National Ayyappa Devotees (Women's) Association, the Nair Service Society, & the All Kerala Brahmin's Association. On 13 November 2018, the Court began hearing the review petitions in open court. As Chief Justice Dipak Misra had retired, Chief Justice Ranjan Gogoi replaced him on the Bench. The other judges on the Bench remained the same: Justices Ajay Manikrao Khanwilkar, Rohinton Nariman, D.Y. Chandrachud and Indu Malhotra.
One year later, on 14 November 2019, the Bench delivered a judgment keeping the review petitions pending and referring certain overarching constitutional questions to a larger Bench. These overarching issues pertain to women's acess to public religious institutions. By a narrow 3:2 majority, the Bench speculated that other freedom of religion cases may object to the reasoning in the 2018 Sabarimala judgment and order a referral. Justices Nariman and Chandrachud dissented, holding that this speculation went beyond the narrow scope of a review petition.
On 13 January 2020, a new Bench comprising the following judges will begin hearing the overarching referral questions: Chief Justice S.A. Bobde and Justices, R. Banumathi, Ashok Bhushan, Nageswara Rao, Mohan M. Shantanagoudar, S. Abdul Nazeer, R. Subhash Reddy, B.R. Gavai and Surya Kant.
Before final arguments began on the referral questions, the issue arose as to whether a Bench hearing a review petition could make a referral in the first place. The counsels opposing the 14 November 2019 referral argued that the Court's review jurisdiction is too narrow to allow for a referral. However, on 10 February, the nine-judge Bench upheld the referral order issued in the 14 November judgment. It held that the Court has the power to refer a point in law to a larger bench in a review petition, however it did not offer any reasons for this finding.
It has tagged three other pending cases - these cases pertain to Muslim women’s right to enter mosques, Parsi women's right to enter a Fire Temple after having married a non-Parsi, and the practice of female genital mutilation (FGM) among the Dawoodi Bohra community.
1. [RESOLVED] Whether the Court has the power to refer a question in law to a larger bench in a review petition?
2. Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?
3. What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
4. What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
5. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
6. What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
7. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
8. What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?