Sabarimala case: Supreme Court holds it can refer questions of law to larger bench

The Supreme Court on Monday decided to examine the scope and ambit of the fundamental right to freedom of religion vis-a-vis other rights to citizens, arising out of a 2018 judgement which allowed entry of all-age women to Kerala's Sabarimala temple.

A nine-judge bench presided over by Chief Justice S A Bobde held that the top court can refer questions of law to a larger bench in a review petition, rejecting the preliminary objections made by senior advocate F S Nariman and others that the scope of review jurisdiction was very limited.

The bench, also comprising Justices R Banumathi, Ashok Bhushan, R Banumathi, L Nageswara Rao, Mohan M Shantanagoudar, S Abdul Nazeer, R Subhash Reddy, B R Gavai and Surya Kant pronounced its order and framed as many as seven questions for its determination from February 17.

A five-judge on September 28, 2018, had set aside prohibition on entry of women between 10 and 50 years of age to Lord Ayappa temple at Sabarimala, hitherto in operation on the ground that menstruating females were not pure.

Following a batch of petitions for review of the judgement, which faced strong protests from the devotees; a five-judge bench had on November 14, 2019, by a majority view of 3:2 ordered for placing the matter before a larger bench.

The court had noted similar questions related to Muslim women's right to enter 'dargah' and mosque, and permission to Parsi women, married to a non-Parsi, to visit the holy fire place of an 'Agyari' and practice of female genital mutilation among Dawoodi Bohar community would require authoritative determinations, along with the right of all age women to enter Lord Ayappa's temple at Sabarimala.

The court had then said it was essential to adhere to “judicial discipline and propriety”. Since more than one petition was pending on the same, similar or overlapping issues, all cases must proceed together, it had said.

SC's 9-judge bench frames following issues for consideration

* Scope and ambit of right to freedom of religion

* Inter-play between the rights to practice religion and rights of religious denomination

* Whether rights of a religious denomination are subject to fundamental rights, apart from public order, morality and health

* Scope and extent of the word ‘morality’ under Art 25 and 26 and whether it is meant to include Constitutional morality

* Scope and extent of judicial review with regard to a religious practice

* Meaning of expression “Sections of Hindus” in Art 25 (2) (b)

* Whether a person not belonging to a religious denomination or religious group can question a practice of that denomination or group by filing a PIL