Review Judgment in Plain EnglishSabarimala Review
On November 14th 2019, a Constitution Bench by a narrow 3:2 majority, decided to keep the review petitions filed against the 2018 Sabarimala judgment pending (‘2018 Judgment’). As may be recalled, the 2018 Judgment had lifted the restrictions on women of menstruating age from entering the Sabarimala temple in Kerala. Multiple review petitions were filed against this on various grounds, including that there were apparent errors in the 2018 Judgment. The latest judgment means that the legal battle remains alive for the foreseeable future. Nevertheless, the Court did not issue a stay on the 2018 Judgment.
The majority decision – written by CJI Ranjan Gogoi on behalf of himself and Justices A.M.Khanwilkar and Indu Malhotra – was peculiar. Although the Court was only tasked with deciding a limited question of whether the petitioners had made out the narrow grounds for reviewing its 2018 Judgment or not, the majority declined to answer this till such time certain overarching constitutional questions were answered by a larger bench. Its reason was that these constitutional questions pertaining to the right to religion, which directly affect the Sabarimala issue, were bound to come up in some of the other cases pending before the Court.
The majority’s rationale was that other right to religion cases might, in all probability, involve the application of the 2018 Sabarimala judgment. It observed that the Benches in these case may, upon attempting to appy the Sabarimala judgment, make a reference to a larger bench. Implicit in this observation is the assumption that these benches may disagree with the Sabarimala judgment. The majority specifically referred to cases pertaining to the following issues: Muslim women’s right to enter mosques, Parsi women’s right to enter the fire temple after having married a non-Parsi, and the practice of female genital mutilation among the Dawoodi Bohra community. The majority concluded it was best to keep the review petitions pending. It referred the overarching issues to a larger bench.
Justice R.F. Nariman authored a dissenting opinion on behalf of himself and Justice D.Y. Chandrachud. The dissenting opinion unequivocally held that the mandate before them was not to decide if there would be a future possibility of a reference (page 15 of dissent). Thus, they held that the review petitions should be disposed of purely on the basis of whether grounds for review had been made out. This was not done by the review petitioners, held Nariman J. and Chandrachud J.
A more detailed breakdown is provided below:
Majority: Larger constitutional questions need to be determined first
The majority opinion starts off by listing the main arguments raised by the review petitioners. Essentially, the petitioners had argued that as long as a religious practice is not against public order, morality, health or any fundamental rights, religious groups should be free to practise their religious faith in a way they feel fit.
After making a reference to the petitioners’ arguments, the majority observed that the time had come for the Court to lay down a “judicial policy” to “put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution of India”. It may be noted that Articles 25 and 26 provide for the right to religion of individuals and religious denominations respectively as well as corresponding restrictions on these rights.
In order to settle these recurring issues, the majority then directed the setting up of a larger bench of not less than seven judges. Justifying its direction to set up a larger bench, the majority emphasized the need to ensure judicial discipline and propriety. One of the ways of enforcing such discipline and propriety, it mentioned, was through ensuring that petitions pending on same or similar issues proceeded together. Thus, it observed that would also be in line with the dicta in Article 145 (3) (requiring a bench of at least five judges to decide substantial questions of law related to the Constitution) and instill public confidence.
The majority then elaborated on the required bench strength to adjudicate constitutional questions. The Constitution requires five-judges to decide constitutional questions. However, the majority clarified that this number was specified when the total strength of the Court was only seven judges. With the strength having substantially increased (it stands at 34 now), the majority held that it “may not be inappropriate” to dispose of critical constitutional questions via only a five-judge bench. Therefore, it concluded that a larger bench comprising at least seven judges would ensure an “authoritative pronouncement” and also ensure a “plurality of views”.
After laying down the need to have a larger bench to decide on substantial constitutional questions, the majority then pointed to the possibility of the issues arising in Muslim and Parsi women’s entry and the female genital mutilation cases being overlapping and being covered by the ratio in the 2018 Judgment. This being a possibility, it held that those cases being referred to a larger bench in the future could not be ruled out.
The majority listed out what the overlapping issues may be:
- Interplay of freedom of religion under Articles 25 and 26 and right to equality under Article 14;
- Scope of the expression ‘public order, morality, health’ in Article 25(1);
- If the meaning of ‘morality’ in Article 25(1) and Article 26 is related to constitutional morality or limited to religious faith or belief;
- Extent to which a court can enquire into an essential religious practice;
- Scope of the expression ‘sections of Hindus’ mentioned in Article 25(2)(b);
- If essential religious practices of a religious denomination is protected; and
- Scope of “judicial recognition” to PILs filed by people not belonging to a religious denomination to contest a religious practice
It then went on to observe that in a judicial system such as is found in India, where the judiciary’s powers to examine questions related to religious faith are limited, the Court should be careful while making an assessment of such issues. Thereafter it noted the apparent conflict in the decision of Shirur Math (a seven-judge decision) and Durgah Committee, Ajmer regarding the extent to which the Court can look into the scope of essential religious practices. Given this, it held that reference to a larger bench was inevitable.
Dissent: Grounds for reviewing judgment not established
The dissenting opinion authored by Justice Nariman was primarily based on the premise that the Court was not tasked with deciding what a future bench may decide in relation to the issues listed by the majority. Thus, as and when these matters are heard by other benches, they may choose to either accept or distinguish the 2018 Judgment or even make a reference to a larger bench, observed Justice Nariman.
After setting out what the bench was not expected to do, the dissenting opinion explained what the bench was supposed to do: to examine whether grounds have been made out for review. Placing reliance on a long line of precedent, the dissent hinted that the grounds for allowing review are very narrow.
Thereafter, it went through the various arguments raised by the review petitioners and observed that these submissions had been raised even during the hearings leading up to the 2018 Judgment. Thus, the arguments did not establish any errors in the 2018 Judgment and were either vague or a mere repetition of the previous arguments, held the dissent.
Implementation of the 2018 judgment
Another key issue which the dissent addressed is the implementation of the 2018 Judgment. Taking cognizance of the difficulties still faced by women in entering the Sabarimala temple, the judges noted how all authorities – judicial and civil – had a duty to ensure the implementation of Supreme Court decisions. Particularly, it placed reliance on Article 144 of the Constitution to point out how all authorities were duty-bound to implement the Court’s orders.
It then went on to direct the Kerala Government to give wide publicity to the 2018 Judgment and “take steps to secure the confidence of the community in order to ensure the fulfilment of constitutional values”. It also ordered that consultations be held with “representatives of all affected interests” so that the steps taken to implement the order is met with the concerns of “all segments of the community”.