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Religious freedom: SC frames 7 questions, hearing from Feb 17


S.A. Bobde


New Delhi: The Supreme Court on Monday framed seven questions pertaining to the scope of religious freedom permitted in different religions, arguments on which will begin from February 17 before a nine-Judge Constitution Bench.

These questions pertain to a clash of faith and fundamental rights vis-a-vis entry of women of all ages into the Sabarimala temple, entry of Muslim women into mosques and 'dargahs', female genital mutilation practised among the Dawoodi Bohra community, and entry of women married to non-Parsis into the fire temple.

A nine-judge bench headed by Chief Justice S.A. Bobde held that its five-judge bench can refer questions of law to a larger bench, while exercising its limited power, under the review jurisdiction in the Sabarimala case.

A bench headed by the Chief Justice framed seven questions to be heard by the nine-judge bench that 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.

The nine-judge bench will hear the issues referred by a five-judge Constitution bench headed by then Chief Justice Ranjan Gogoi (since retired) on November 14, 2019.

The court proposes to hear the questions on a day-to-day basis from February 17.

The nine-judge bench observed that it will follow the hearing procedure streamlined during the Ayodhya title dispute case, wherein the court hearing lasted only 40 days.

The court noted that major parties involved in this case will have to wrap up their arguments in a day, with two hours each for rejoinders.

The questions include: What is the scope and ambit of the right to freedom of religion under Article 25 of the Constitution? What is the interplay between the rights of persons under Article 25 of the Constitution of India and rights of religious denominations under Article 26 of the Constitution?

The bench will also examine the scope and extent of judicial review with regard to a religious practice, as referred to in Article 25, and the meaning of the expression "Sections of Hindus" in Article 25 (2) (b) of India's Constitution.

The bench will also deal with whether a person not belonging to a religious denomination or group can question a practice of that group by filing a public interest litigation (PIL).

The court said that Solicitor General Tushar Mehta, representing the Centre, will open the arguments on the matter, followed by senior advocate K. Parasaran on February 17.

The nine-judge bench will proceed in accordance with reference order of November 2019 delivered by a five-judge bench, which by a majority of 3-2 referred a larger bench to evolve a judicial policy to do "substantial and complete justice" in matters of freedom of religion -- entry of Muslim women into mosques and 'dargahs'; female genital mutilation in the Dawoodi Bohra community; and the bar on Parsi women married to non-Parsi men from entering their fire temple or 'agiary'.

The top court had indicated that it would not decide on the issue of Muslim women's entry into mosques, as well as on the Parsi and Dawoodi Bohra practices after many senior advocates argued against the clubbing of these issues with the Sabarimala temple case.

In September 2018, the apex court through a 4:1 verdict lifted the ban on women and girls aged between 10 and 50 from entering the sanctum of the famous Ayyappa shrine in Sabarimala.

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