Pronouncement of Order: 10 February 2020

In November 2019, the Supreme Court chose to keep the Sabarimala review petitions pending, while it decides certain overarching constitutional questions pertaining to freedom of religion. It referred these questions to a larger bench and tagged various other writ petitions to the matter. On 13 January 2020, a nine-judge Bench began hearing the matter. 

 

In the first hearing, this Bench directed the counsels to confer and decide the issues to be determined. However, as the counsels were unable to reach a consensus, the Bench decided to instead hear the counsels and then frame the issues for adjudication itself. Nevertheless, numerous counsels were opposed to issues being framed in the reference. They argued that the present reference proceedings could not have been initiated in the first place as the Review Bench which made the reference did not have the power to do so. Given the opposition, the Bench then decided to first hear the counsels on the preliminary issue of the validity of the reference. 

 

After a day-long hearing on 6 February, the Bench reserved its order on whether the Court can make a reference on a question of law while exercising its review jurisdiction. 

 

Today, the nine-judge Bench held that the Court has jurisdiction to refer questions of law to a larger bench in a review petition. It added that a reasoned order will follow.

 

Framing of issues

 

After the pronouncement of the order, the Bench read out the substantive issues which will be taken up in the final hearing:

 

  1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?

 

  1. 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?

 

  1. 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?

 

  1. 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?

 

  1. 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?

 

  1. What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?

 

  1. 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?

 

The Bench also mentioned that the counsels were free to suggest changes to the issues framed by it. Following this, it sought suggestions from the counsels on the schedule for the final hearing. After a brief exchange, it fixed 17 February as the date on which the final oral arguments will begin.  

 

Finally, the Court heard a few intervenors, some of which were allowed.  

 

(Court reporting by Abhishek Sankritik)