9-judge bench to deliberate if SC can refer question of law to larger bench in review jurisdiction

New Delhi: The 9-judge Constitution bench of the Supreme Court is set to deliberate on Thursday if the top court can refer questions of law to a larger bench while exercising its review jurisdiction.

This question arose during hearing in the Sabarimala case which relates to religious discrimination against women at various religious places.

The apex court, on its administrative side, has issued a notice intimating the parties that the 9-judge bench, headed by Chief Justice S A Bobde, would on February 6 hear argument on "whether this court can refer questions of law to a larger bench in a review petition".

The other members of the bench include justices R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant.

Several senior lawyers including Fali S Nariman, Kapil Sibal, Shyam Divan, Rajeev Dhavan and Rakesh Dwivedi argued on February 3 that while exercising review jurisdiction the Supreme Court does not have powers to refer a question of law to a larger bench.

They said that last year's November 14 verdict of 5-judge bench, headed by the then CJI Rajan Gogoi, was wrong in making a reference of broad contours while deciding the review petition against the 2018 judgement which allowed women of all age group to enter Kerala's Sabarimala temple.

Besides Sabarimala, the last year's verdict had also referred issues of entry of Muslim women into mosques and 'dargah' and Parsi women, married to non-Parsi men, being barred from the holy fire place of an Agyari, to the larger bench.

The senior lawyers had assailed as "erroneous" the reference made to larger bench by a 5-judge bench on questions related to discrimination of women in religious places while dealing with the Sabarimala case.

Nariman had said, "This is not practice which have been adopted by the Supreme Court since Privy Council days and there are several judgements to this effect." He had argued that in review jurisdiction, there cannot be any reference order on issues to be heard by a larger bench as such a jurisdiction has a very limited scope.

The top court had said that it will frame the legal issues to be adjudicated by a 9-judge Constitution bench on religious discrimination against women at various religious places.

As the lawyers representing various parties in the case have not arrived at a consensus on framing larger issues to be deliberated upon by the Constitution bench, it will frame them, the top court said.

The Constitution bench said it will inform the parties about the time frame for the hearing and would commence the proceedings by next week.

The apex court had said that as of now it would go by the reference order of November 14 last year, made by a five-judge bench.

By a 3:2 majority, it said the 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 fire place of an Agyari.

It had taken note of vehement opposition by the senior lawyers that the apex court was wrong in making a reference of broad contours while deciding the review petition against the 2018 verdict.

The top court had said that it would deal with the legal issue raised by the senior lawyers whether a reference order can be made in review jurisdiction for a hearing by a larger bench.

Sibal, appearing for All Indian Muslim Personal Board (AIMPLB), had said though the Board has said Muslim women are allowed to enter mosques for offering Namaz, the court should not enter into matter of faith and decide the essential religious practice while entertaining a PIL filed by a person not belonging to a particular faith. 

Solicitor General Tushar Mehta had 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)".

Mehta, senior advocates K Parasaran and Ranjit Kumar had said the top court while exercising the review jurisdiction can refer a larger issue, which had arisen during the adjudication of the dispute, to a larger bench.

A five-judge 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 various religions.

A majority verdict by the 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 also.

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.