Supreme Court faced serious opposition from a battery of top lawyers.
The Supreme Court Monday faced serious opposition from a battery of top lawyers who assailed as "erroneous" the reference made to it by a 5-judge bench on questions related to discrimination of women in religious places while dealing with the Sabarimala case.
While exercising review jurisdiction there cannot be any reference order on issues to be heard by a larger bench as it has a very limited scope, said senior advocate FS Nariman.
In the two-hour-long hearing, he said the 5-judge bench, headed by the then CJI Ranjan Gogoi, was wrong in making a reference of broad contours while deciding the review petition against the 2018 verdict, which allowed women of all age group to enter Kerala's Sabarimala temple.
The 9-judge bench, headed by Chief Justice SA Bobde, said however that it would go by the reference order of November 14 last year made by the 5-judge bench.
The apex court further noted that by a majority of 3:2, the bench had held that larger bench will have to evolve a judicial policy to do "substantial and complete justice" in matters of freedom of religion, such as entry of Muslim women into mosques and ''dargah'' and Parsi women, married to non-Parsi men, being barred from the holy fireplace of an Agyari.
FS Nariman said, however: "This is not practice which have been adopted by the Supreme Court since Privy Council days and there are several judgements to this effect."
The 9-judge bench took note of vehement opposition by senior advocates including Nariman, Kapil Sibal, Rajeev Dhavan, Rakesh Dwivedi and Shyam Divan as also the lack of consensus among them in framing larger issues over discrimination against women at various religious places and decided to frame them by itself.
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 -- said that it will inform the parties about the time frame for hearing and would commence the proceedings by next week.
Senior advocate Kapil Sibal, appearing for All Indian Muslim Personal Board (AIMPLB), said the Board maintained that Muslim women are allowed to enter mosques for offering Namaz, and the court should not enter into matter of faith to decide the essential religious practice while entertaining a PIL filed by a person not belonging to a particular faith.
The bench, however, said, "There is no point holding up everything for the sake of the issues. We will decide the issues with the rider that there may be additional issues at any time under Order 14 (Supreme Court rules)."
Kapil Sibal then said, "To say something dehors the facts will present a dangerous situation. If a nine-judge bench of the Supreme Court says something, it will have ramifications across the entire country and across all religions."
The bench asked Kapil Sibal to give an example of what he was saying.
Kapil Sibal replied saying, "Articles 21, 14 and 17 have to be seen in the context of religious practices. Any statement you make will impact every community across the board. The right to dignity will impact the entire caste system."
To this, the bench said that no crime is protected under Article 25 and 26 (freedom of religion).
Solicitor General Tushar Mehta, appearing for the Centre, referred to the Supreme Court rules and said that the court can undertake a larger debate "on the contours of Articles 25, 26 (fundamental right to religion)".
He said further that the court can refer even the Sabarimala matter to the larger bench.
He alleged all the lawyers had agreed to frame common questions for consideration of the bench and now "they are taking us back to the review. And asked not to do anything else. Is that permissible".
Senior advocate A M Singhvi said the court has assembled to decide the broad issues.
"Now we are hearing if at all to decide. The question of reference to this 9-judge bench may not be open at all. Now we are not only deliberating the review of the 5-judge bench decision but also the review of the 9-judge bench''s last order.
"Your Lordships should consider framing a broad charter... I have tried to keep them case-neutral, fact-neutral, and they can be ironed out further in the course of the hearing", Singhvi said.
Kapil Sibal said the fundamental rights are enforceable against the state action and here a person, who does not practice a faith, files a PIL and says Halala is bad, polygamy is bad.
"Who are they to say that?", he said, adding that as to how the court would deal with such a situation.
The bench, then observed, "The bar and the bench must understand what is the issue. And to approve or disapprove it. We need not go into the facts of each case."
In the 5-judge bench, Justices AM Khanwilkar and Indu Malhotra had decided to keep the pleas seeking a review of its decision regarding the entry of women into the Sabarimala shrine pending and said restrictions on women at religious places were not limited to it alone and were also prevalent in other religions.
The minority verdict by justices RF Nariman and DY Chandrachud gave a dissenting view by dismissing all the review pleas and directing compliance of its September 28, 2018 decision.
By a 4:1 majority verdict, the apex court had in the 2018 decision 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.