CJI to head 9-judge Bench on Sabarimala

Tribune News Service

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New Delhi, January 7

Chief Justice of India SA Bobde will head the nine-judge Constitution Bench, which will decide on the legality of religious practices considered to be discriminatory against women, including the age-old practice debarring women between the age of 10 and 50 years from entering Lord Ayyappa’s hilltop temple at Sabarimala in Kerala.

The eight other judges on the Constitution Bench — which is scheduled to commence hearing from January 13 — are: Justice R Banumathi, Justice Ashok Bhushan, Justice L Nageswara Rao, Justice Mohan M Shantanagoudar, Justice S Abdul Nazeer, Justice R Subhash Reddy, Justice BR Gavai and Justice Surya Kant.

Justice RF Nariman, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra, who were on the five-judge Bench that allowed entry of women irrespective of age into the Sabarimala Temple in 2018 and on the Review Bench that referred the issue of discriminatory religious practices to larger Bench, have been left out.

Enlarging the scope of Sabarimala Temple entry restrictions issue, the Supreme Court on November 14 last year referred to a larger Bench the issue of discriminatory practices in other religions as well for laying down constitutional principles for determination of such issues.

By a majority verdict of 3:2, a five-judge Bench headed by the then Chief Justice of India Ranjan Gogoi had framed seven issues for consideration of the larger Bench for enunciating constitutional principles to be followed in dealing with such issues in any religion. The other two judges who were part of the majority verdict were Justice AM Khanwilkar and Justice Indu Malhotra.

The majority verdict took note of the fact that the debate about constitutional validity of practices entailing into restriction of entry of women generally in places of worship was not limited to Sabarimala Temple alone but also arose in respect of entry of Muslim women in a ‘dargah’/mosque and entry of Parsi women married to a non-Parsi into the holy fire place of an ‘agyari’. If a particular practice was essential to religion or was an integral of the religion, was also pending before it in respect of female genital mutilation in Dawoodi Bohra community, it had noted.

The verdict had come on petitions seeking review of its September 28, 2018, judgment allowing entry women, irrespective of their age, into the Sabarimala Temple. There were 65 petitions in all — 56 review petitions, four fresh writ petitions and five transfer petitions.

Earlier, by 4:1 verdict, a five-judge Constitution Bench headed by the then CJI Dipak Misra had had on September 28, 2018, allowed entry women, irrespective of their age, into the Sabarimala Temple by declaring the age-old practice unconstitutional. Justice Malhotra, the lone woman on the Bench, had dissented. The majority had declared unconstitutional Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which barred entry of women between 10 and 50 years of age into the temple.

Issues before Constitution Bench

• What is ambit of interplay between freedom of religion under Articles 25 and 26 and other fundamental rights, particularly right to equality under Article 14?
• Meaning of “morality”. Is it over-arching morality in reference to preamble or limited to religious beliefs?
• How far courts can enquire into a practice being an integral part of a religion? Should it be left exclusively to be determined by religious group’s head?