Sabarimala row: Won't hear issue in preliminary or cursory manner, says SC bench

The Supreme Court on Monday decided to address preliminary objections by jurist Fali S Nariman to the reference made in a 2019 post-Sabarimala judgement to determine larger issues of rights and faiths.

On November 14, 2019, a five-judge bench, while dealing with review petitions against the 2018 Sabarimala judgement, had said that similar pending questions related to Muslim women's right to enter the 'dargah' and the mosque; permission for Parsi women, married to a non-Parsi, to enter the holy fireplace of an 'Agyari' and the practice of female genital mutilation among Dawoodi Bohra community would require authoritative determinations.

"We are not aborting hearing," Chief Justice S A Bobde-led nine-judge bench said on Monday. "We are going to decide the interpretation of Articles. We will not hear it (Sabarimala issue) in preliminary and cursory manner. We will add this issue (if referral order can be made in review judgement) and hear it along with other issues," the bench added.

Nariman, appearing for the first time in the matter, contended that the scope of the decision in the review is extremely limited. There has to be an error apparent on the face of records, which may warrant a review of the judgement.

"Question is if at all it is permissible to make a reference in review judgement," Nariman asked.

"Does it lie within the scope of the review? Questions which are abstract, can those be raised?" he asked.

Nariman was supported by senior advocate Shyam Divan, who said issues related to rights of women from other faiths raised in the November 14, 2019 judgement are in the realm of speculation and surmises.

Taking a contrary view, senior advocate K Parasaran said, the Sabarimala issue arose out of a PIL, and all other cases were also related to PILs.

"If situation arises, the court can change its jurisdiction to deal with the issues. You can look at the past, present and future," he said, supporting the reference order.

"PIL is innovated under constitutional jurisdiction. To exercise it or not is your discretion," he added.

Senior advocate Kapil Sibal said, without facts, if the court said something, it will have enormous implications on religions across the country.

Solicitor General Tushar Mehta and senior advocate A M Singhvi said the efforts were being made to take us back.

On this, the court said the nine-judge bench was not deciding the Sabarimala issue as was made clear in the reference order.