Day 1 Arguments: 13 January 2020

On 14 November 2019, while delivering a judgment in the Sabarimala review petitions, the Supreme Court referred overarching questions pertaining to religious freedom and gender equality to a larger 9-judge Bench. It observed that these issue are not only pertinent to the Sabarimala matter, but also three other pending cases. These cases pertain to Muslim women’s right to enter mosquesParsi 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.


The Court specifically listed the following issues for consideration.

  1. Interplay of freedom of religion under Articles 25 and 26 and right to equality under Article 14;
  2. Scope of the expression ‘public order, morality, health’ in Article 25(1);
  3. If the meaning of ‘morality’ in Article 25(1) and Article 26 is related to constitutional morality or limited to religious faith or belief;
  4. Extent to which a court can inquire into an essential religious practice;
  5. Scope of the expression ‘sections of Hindus’ mentioned in Article 25(2)(b);
  6. If essential religious practices of a religious denomination is protected; and
  7. Scope of “judicial recognition” to PILs filed by people not belonging to a religious denomination to contest a religious practice


The Bench comprises Chief Justice Sharad Bobde and Justices R. BanumathiAshok BhushanNageswara RaoMohan ShantanagoudarAbdul NazeerR. Subhash ReddyBhushan Ramkrishna Gavai and Surya Kant


The Bench assembled at 10.30 AM.


Chief Justice S.A. Bobde clarified that it will not hear the review petitions challenging the 2018 Sabarimala judgment, but rather the questions referred in the review judgment passed on 14 November. Further, he stated that the petitions regarding the entry of Muslim women into mosques, entry of Parsi women into Fire Temples and the practice of FGM within the Dawoodi Bohra community will be tagged to the current proceedings. 


Senior Advocate Indira Jaising argued that the Court cannot hear the overarching referral questions while the review petitions in the Sabarimala case are pending. She asserted that a judgment in the review petitions, establishing the rightness or wrongness of the Sabarimala judgment, is a precondition for hearing the referral questions. 


Expanding further, Senior Advocate Jaising explained that in order to issue a referral, the Court must opine that the 5-judge Bench Sabarimala judgment is wrong. Alternatively, she observed that the referral may have been made by observing that the 7-judge Bench decision in Shirur Mutt was wrongly decided. She specified that no Bench has observed that Shirur Mutt is wrong (the 14 November judgment only observed that Shirur Mutt may been in conflict with Durgah Committee, Ajmer).


Next, Senior Advocate Rajeev Dhavan spoke on behalf of himself, appearing as an intervenor. He submitted that it was beyond the scope of the Supreme Court to make observations on how an individual is to practice their religion. 


Senior Advocate Abhishek Manu Singhvi observed that the issues framed in the 14 November judgment are very broad. He requested the Court to grant the counsels time to frame more specific issues. He stressed that any judgment the Court reaches has the potential to unsettle established precedent on not only on Article 25(1) of the Constitution, but also on Part 3 of the Constitution in general.


Solicitor General Tushar Mehta concurred with Senior Advocate A.M. Singhvi, stating that the issues ought to be reframed more narrowly.


Chief Justice Bobde suggested that all the counsels could hold a conference to reframe the issues more narrowly. Further, he said this conference could be used to decide which counsel will argue on which issue. He cited the 2019 Ayodhya hearings as an example of an efficient division of oral arguments between counsels. 


Senior Advocate Aryama Sundaram remarked that all the issues should be framed in the context of the Sabarimala review petitions, arguing that otherwise the Court would be burdened with the 'impossible task' of relying on a distinct set of facts from four largely unrelated cases.


Solicitor General Tushar Mehta asked the Bench whether the Court will entertain issues pertaining to polygamy. Chief Justice Bobde clarified that only questions mentioned in the 14 November judgment will be entertained. The 14 November judgment makes no explicit reference to polygamy. 


Chief Justice Bobde concluded that the Secretary General of the Supreme Court will convene the conference for reframing the issues. He said that the conference will take place on 17 January and requested all the counsels to be present. He asked the counsels to also use the conference to decide which counsels will present which arguments. He gave the counsels three weeks to file the reframed issues with the Registrar. 


The Bench declined to hear a counsel for the Chief Tantri of Sabarimala Temple, who was seeking to address the Bench directly on the Sabarimala matter. The next hearing is likely in three weeks.


The Bench rose at 11.33 AM.

(Court reporting by Abhishek Sankritik)