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Women’s entry to worship places: Lawyers question SC’s move; hearings to go on
The bench was constituted after the Supreme Court in November 2019 referred petitions seeking a review of its September 2018 verdict in the Sabarimala case that allowed women of all ages to pray at the temple to a larger bench.
The nine-judge Supreme Court bench constituted to hear the case pertaining to rules for women at places of worship, including Kerala’s Sabarimala temple, said on Monday it will go ahead with the hearing even as senior lawyers led by Fali Nariman questioned its powers to do so.
“We are not aborting the hearing,” Chief Justice of India (CJI) SA Bobde remarked.
The 2018 Sabarimala verdict angered traditionalists, who say women of between the ages of 10 and 50 cannot enter the temple because the presiding deity, Lord Ayyappa, is considered celibate.
In its November 2019 judgment, a five-judge Supreme Court bench observed practices restricting entry of women into places of worship were not limited to Sabarimala, but also arose in respect of three other cases pending before it.
The three cases pertain to the entry of Muslim women into mosques, the entry of Parsi women married to non-Parsi men into the holy fireplace of an Agyari or Zoroastrian place of worship, and the practice of female genital mutilation among the Dawoodi Bohra community.
The court had said the review petitions can be decided only after certain larger legal questions concerning women’s rights vis-à-vis religious practices are settled by a larger bench of not less than seven judges.
Senior counsel Fali Nariman on Monday disputed the jurisdiction of a five-judge bench to frame legal questions and refer a case to a larger bench.
The legal questions, he pointed out, were decided by the top court in its 2018 judgment. He argued the jurisdiction vested with the Supreme Court while exercising powers of review is very limited. A review bench, he argued, can only correct errors in a judgment being reviewed and cannot frame legal issues and refer it to a larger bench.
Nariman underscored that legal questions can be decided as and when such cases come up before the Supreme Court. But a bench hearing a review petition cannot ask a larger bench to answer the issues, he added.
“Legal issues were answered by a bench of five by 4:1 majority. A review petition against such a decision is limited in scope. The review jurisdiction is very limited – is the decision (being reviewed) correct or not. I am not suggesting that Your Lordships should not constitute a nine-judge bench. That is Your Lordships’ privilege. My objection is to the use of review to do that. It will be a bad precedent,” Nariman said.
Senior advocates, including Kapil Sibal and Shyam Divan, backed Nariman’s arguments. It was not clear which party Nariman was representing.
“Reference to a larger bench is not permissible in a review petition. The review can only be used to correct errors in the main judgment. It cannot be used to frame issues and refer the same to a larger bench. Reference could have been done only in the main judgment of September 2018,” Divan argued.
Bobde responded saying the Sabarimala case was not before the nine-judge bench which, he said, was concerned only with the larger issues referred to it by the five-judge bench.
“We are hearing only the questions referred to us by the five-judge bench. We are not hearing the review petitions. We are not deciding the Sabarimala review,” CJI Bobde said.
Sibal said that a decision by a nine-judge bench on legal issues touching upon religious practices without actually going into facts of each case could have ramifications affecting all religions across the country.
Solicitor general Tushar Mehta, who appeared for the central government, argued that the nine-judge bench was well within its rights to hear the matter.
Senior counsel K Parasaran, who represents Nair Service Society, one of the parties opposing the entry of women into Sabarimala, echoed Mehta.
Bobde said the issues raised by Nariman can be among those which the nine-member bench could consider. He added the bench will hold a discussion, frame the issues and then sit again on February 6 when it will decide on the time to be allocated to each counsel to make arguments. “We will frame what Mr. Nariman argued as a separate issue and hear it along with the reference,” he said.
Senior counsel Sanjay Hegde told HT: “Mr. Nariman has made a valid objection. A review bench can only look into the pleadings made in the case before it and whether the previous bench has made an error or not. It cannot frame questions and make a reference.”
