Sabarimala: No fetters in referring questions of law to larger bench in review petitions, says SC

The Supreme Court on Monday said that its 5-judge bench had powers to refer the questions of law to a larger bench for adjudication while exercising its limited power under review jurisdiction in the Sabarimala temple entry case, saying “there is no fetter on the exercise of discretion of this Court in referring questions of law to a larger bench in review petitions”.

A 9-judge Constitution bench, headed by Chief Justice S A Bobde, which had on February 10, held that the top Court can refer questions of law to a larger bench in a review petition gave detailed reasoning to support its decision.

The bench, also comprising Justices R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant held the instant review petitions and the reference arising from the review petitions are maintainable.

“It is clear that there is no fetter in the exercise of the jurisdiction of this Court in review petitions of judgments or orders arising out of proceedings other than civil and criminal proceedings,” the bench said.

It said that from the plain reading of Supreme Court Rules, 2013, it is clear that there is no limitation for the exercise of power by this Court in review petitions filed against judgments and orders in proceedings other than civil proceeding or criminal proceedings.

The bench rejected the submissions of several parties that a reference cannot be made in a pending review petition and it can only be made after the review petitions are adjudicated.

It said that being a superior Court of record, it is for this Court to consider whether any matter falls within its jurisdiction or not and unlike a court of limited jurisdiction, the superior Court of record is entitled to determine for itself questions about its own jurisdiction.

“In the absence of any express provision in the Constitution, this Court being a superior Court of record has jurisdiction in every matter and if there is any doubt, the Court has power to determine its jurisdiction,” it said, adding that the reference can also be supported by adverting to Article 142 of the Constitution of India which enables this Court to make any order as is necessary for doing complete justice in any cause or matter pending before it.

The top court had on February 10, rejected the objections that a 5-judge bench on November 14, 2019 was wrong in making a reference to a larger bench without deciding the review petitions challenging the 2018 Sabarimala verdict, which had allowed women of all age group to enter the hill-top shrine in Kerala.

It had framed seven questions on the scope of religious freedom in various religions and made it clear that it was open to addition and deletion of issues framed.

The bench had framed questions which include, "What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?" and "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?"

Besides other questions, the top court said it would also examine, as to 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 public interest litigation (PIL).

These issues have been framed afresh after a battery of lawyers raised objections that the 5-judge Constitution bench, headed by the then Chief Justice Ranjan Gogoi (since retired) on November 14, 2019, had framed vague and broad issues which cannot be decided without any facts of the particular case.

Besides the Sabarimala case, the verdict had also referred issues of entry of Muslim women into mosques and dargahs and of Parsi women, married to non-Parsi men, being barred from the holy fire place of an Agiary, to the larger bench.

The 5-judge bench, by a majority of 3:2, had referred to a larger bench the issue of discrimination against women at various religions' places of worship.

It said the larger bench will have to evolve a judicial policy to do "substantial and complete justice" in matters of freedom of religion, such as restrictions on the entry of Muslim and Parsi women into their places of worship.

It had set out seven questions of law to be examined by the larger bench. They included -- interplay between freedom of religion under Articles 25 and 26 of the Constitution; need to delineate the expression 'constitutional morality'; the extent to which courts can enquire into particular religious practices; meaning of sections of Hindus under Article 25 and whether 'essential religious practices' of denomination or a section thereof are protected under Article 26.

Another question was the "permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination".

Prior to that, in September 2018, by a 4:1 majority verdict, the apex court had lifted the ban that prevented women and girls between the age of 10 and 50 years from entering the famous Ayyappa shrine in Sabarimala and held that the centuries-old Hindu religious practice was illegal and unconstitutional.