A five-judge constitution bench, by a majority of 3:2 on November 14 last year, had referred to a larger bench the issue of discrimination against women in religions such as denial of entry of Muslim women into mosques, the practice of female genital mutilation in Dawoodi Bohra Muslim community and denial of right to Parsi women who have married outside their religion.
At the outset, Nariman said the question whether women of all age groups can be allowed entry into the Sabarimala temple has been already decided by the Supreme Court
in 2018 and the subsequent review has also been dealt with and hence, this cannot be adjudicated afresh.
The bench, which also comprises 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 also consider the objection of Nariman as one of the issues.
Nariman said the apex court cannot club other issues with Sabarimala and it cannot frame questions in a review and bring in new issues.
"Scope of review is very restricted. This will set a new precedent. How can you think about other issues in a review?" he said.
To this, the CJI said, "No. We will not be deciding these issues. We will only interpret articles involved in these cases." Another senior advocate Kapil Sibal, appearing for the All India Muslim Personal Board, said that though Muslim women are allowed entry into the mosque, the issue of essential religious practice is broad enough to be decided by this court.
The Article 25 and 26 (fundamental rights to religion) of the Constitution are part of the fundamental rights which are enforceable against state action, he said.
"A lot of petitions have been filed saying Nikah Halala is bad. Somebody is saying polygamy is bad. How the bench will decide the issue," Sibal said.
To this, the bench said, "That is why we have set up a nine-judge bench. That is why we are hearing you." The bench said it was only going to decide the interpretation of those articles which have been invoked in Sabarimala.
During the hearing, which is still continuing, Sibal asked, "How do you interpret Article 21 (right to life or personal liberty), 17 (abolition of untouchability) and 14 (equality before law)? Any statement that you make will impact everyone across the country. It will impact the caste system. How do you decide?" He further said these are the matters which will have an impact across the country and all religious denominations.
The apex court on January 13 has asked four senior lawyers to convene a meeting to decide on the issues to be deliberated by it in the matter.
While referring the matter to a larger bench, a five-judge bench on November 14 last year said the debate on the constitutional validity of religious practices such as a bar on the entry of women and girls into a place of worship was not limited to the Sabarimala case.
It had said such restrictions were there with regard to the entry of Muslim women into mosques and dargahs, and Parsi women, married to non-Parsi men, from entering the holy fire place of an agiary.
It set out seven questions of law to be examined by the larger bench. They include the 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 a denomination or section thereof are protected under Article 26.
While the five-judge bench unanimously agreed to refer religious issues to a larger bench, it gave a 3:2 split verdict on petitions seeking a review of the apex court's September 2018 decision, allowing women of all ages to enter the Sabarimala shrine in Kerala.
A majority verdict by then Chief Justice Ranjan Gogoi and justices A M Khanwilkar and Indu Malhotra decided to keep the pleas seeking a review of its decision regarding entry of women into the shrine pending and said restrictions on women at religious places were not limited to Sabarimala alone and were prevalent in other religions as well.
The minority verdict by justices R F Nariman and D Y 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 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.