A nine-member constitution bench headed by Chief Justice of India (CJI) SA Bobde will, in the next few days, deliberate upon the issue of entry of women in Sabarimala as well as in other temples, places of worship of other faiths like mosques, Parsi temples called agyari. This is an enhanced size from what the previous CJI Ranjan Gogoi had suggested while referring the review petitions against the Sabarimala verdict to a larger bench. The then CJI had proposed a seven-judge constitutional bench.
The nine judges in the current bench, while hearing the review petition, will have a relook into how faith is or ought to be defined under the constitution. Apart from CJI SA Bobde, there are Justice R Banumathi, Ashok Bhushan, LA Nageswara Rao, Mohan M Shantanagoudar, S Abdul Nazeer, R Subhash Reddy, BR Gavai and Suryakant in the bench.
CJI Bobde has selected the new judges in the nine-member bench constituted to hear the matter of the dispute on the entry of women in the temple of Lord Ayyappa in Sabarimala, Kerala. Sources say no judge known to hold a rigid, ‘secular’ view on the issue has been included in the new bench.
During the hearing of the review petitions on the Sabarimala dispute, a five-member bench headed by the then CJI Ranjan Gogoi had decided to refer the matter to a larger bench in a majority decision of 3 to 2. The majority believed that the apex court’s verdict could not be limited to the entry of women in the Sabarimala temple alone. It was necessary, they held, that the court should take a hearing on such restrictions in mosques and Parsi temples as well. In fact, during the course of the case, a Parsi judge was reported to have lost his cool when it was suggested that his faith could be subjected to secularism too.
Two judges of the five-member bench believed that there was nothing wrong in letting women of all ages enter the Sabarimala temple. Women of all ages should get admission into the temple, they held. However, the majority believed that the matter should be referred to a larger bench.
Normally, when a five-member bench refers a case to a larger bench, a bench of seven judges hears it. Nine is not the norm. In this case, however, CJI Bobde, using his powers under Order 6 Rule 1 of the Supreme Court Rules, 2013, constituted this bench of nine judges for hearing all such cases together.
Now the question arises as to why the CJI took this decision. The answer will be found only in the decision of 14 November 2019.
The five-judge bench had cited discrepancies in two rulings in similar cases in the past. The first verdict was by a seven-judge constitution bench and the other by a five-judge constitution bench. In 1954, a seven-member bench, in the case of Sri Laxmindra Tirtha Swami of Madras vs Shirur Math, had said that the task of deciding the necessary religious practices of a religion should be left to the community concerned. At the same time, a five-member bench, in the case of Ajmer vs Saeed Hussain Ali and others, decided in 1962 the role of the court.
The court in the second case said that the constitution bench could separate secular practices or superstitions considered to be barred from interference, from essential religious practices.
Having studied these cases of the past, a majority of the judges while hearing the Sabarimala case arrived at the opinion that the case should be referred to a bench larger than that of both 1954 and 1962 cases.
A five-member bench headed by the previous CJI Ranjan Gogoi had said that the larger bench might consider constitutional and fundamental issues such as religious practices and propagation if desired. At the same time, he had stressed that in view of many such cases related to different religions, it was the need of the hour that the Supreme Court did full justice and take an official position under constitutional principles. Therefore, there should be no less than seven judges on the bench, then CJI Gogoi had said.
The verdict of the larger bench was supposed to put an end to all matters related to Articles 25 and 26 of the Constitution (right to religious practice). At the same time, people would repose increased confidence in the judiciary when such a judgment would come by, a majority of the judges thought. They said Such a verdict would ensure consistency in people’s attitude towards the courts. Those involved in the judicial system are reported to have said that only a nine-member bench could reconsider the decision of a seven-judge bench in the Shirur Math case.
Also, CJI Bobde wanted to settle all similar matters for posterity. That is why he agreed to set up a bench of 9 judges.
The writer is a senior advocate who has contributed this article under the condition of anonymity