Faiths vs Rights case in Supreme Court today, 9-judge bench to hear matters on Sabarimala.

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Anine-judge Constitution bench is set to hear on Monday the issues relating to the ‘Faith vs Rights’ debate that was set off by the Sabarimala case last year. This bench is expected to set out the precedent and judicial policy with regard to dealing with questions of religion and rights.

The five-judge review bench, in a 3:2 judgment, had framed several questions for consideration by a larger bench, with regard to the interrelationship between article 25 and 26, rights to freedom to propagate and practice religion, and the other fundamental rights in the Constitution, particularly right to equality.

The question of women’s entry into the Ayappa Temple at Sabarimala was left open by this judgment, which noted that several questions of law needed to be considered before the review petitions could be heard.

Headed by CJI SA Bobde, the 9-judge bench also includes Justice Banumathi, J Ashok Bhushan, J L Nageshwara Rao, J MM Shantanugoudar, J SA Nazeer, J RS Reddy, J BR Gavai and J Suryakant.

Interestingly, the four judges who had been part of the Sabarimala bench earlier- Justice RF Nariman, AM Khanwilkar, DY Chandrachud, and Justice Indu Malhotra have not been made part of this bench.

The five-judge bench, headed by then CJI Ranjan Gogoi had noted that apart from the Sabarimala temple entry issue, the Supreme Court was set to hear a number of cases that would require the court to look into aspects of religious practice. These include the plea filed by Bohra Muslim women against the practice of female genital mutilation, pea by Parsi women with regard to their rights of inheritance and entry into Agiyaris, and a plea by Muslim women seeking the right to enter a Dargah or mosque.

With almost all religions in the country including certain practices that are now coming under challenge for violating women’s rights, the Supreme Court has decided to look into the issue of how far can the court exercise power when it comes to balancing gender rights with religious practices.

It is time that this Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles the November 2019 judgment of the Sabarimala bench had noted, adding that The decision of a larger bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution of India.

Seven specific issues had been set out by the court for consideration by this bench.

(i)Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.

(ii)What is the sweep of expression public order, morality and health’ occurring in Article 25(1) of the Constitution?

(iii)Definition of the expression morality’ or constitutional morality’. Is it overarching morality in reference to preamble or limited to religious beliefs or faith.

(iv) The extent to which the court can inquire into the issue of whether a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.

(v)What is the meaning of the expression sections of Hindus’ appearing in Article 25(2)(b) of the Constitution?

(vi)Whether the essential religious practices of a religious denomination or even a section thereof are afforded constitutional protection under Article 26.

(vii)What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

While these questions have been set out in the judgment referring the matter to the larger bench, the bench is also set to decide on whether it will consider the 61 petitions filed seeking review of the Sabarimala temple entry judgment, and pass any orders regarding the controversy over the entry of women into the Ayyappa temple.