Bench – Ranjan Gogoi Cj., A.M. Khanwilkar J., Indu Malhotra J, (all in favor); D. Y. Chandrchud J., R F Nariman J. (both dissenting)
- What is essentially religious, essential to religion and integral part of the religion?
- Can the matters already sub-judice, i.e. entry of Muslim woman into Durgah/Mosque, entry of Parsi woman married to non-Parsi persons into the holy fire, female genital mutilation in Dawoodi Bohra committee clubbed together and matter be referred to higher bench?
Majority Judgement – All matters to be clubbed together and referred to a higher bench
Logic of the majority opinion –
- Complete justice must be ensured.
- A bench of minimum 7 judge should be convened to decide matters under Art. 25 and Art. 27 for public confidence
- Substantial point of law is to be decided by minimum 5 judge bench as per Art. 145(3). When Constitution was enacted maximum bench, strength was 7. Now it has increased to 33 and hence constitution bench strength needs to increase.
- Seven issues were framed to be decided in the higher bench
- Interplay of Art 25 and Art. 26 with other Articles under Part III, especially Art. 14 (Issue – 1)
- Understanding “public order, morality, health” in Art. 25(1)( Issue -2) ;“Section of Hindus” in Art. 25(2)(b)( Issue -3) ;‘Essential religious practice “of a domination under Art. 26 ( Issue -4) and the difference between “morality” and “constitutional morality” and delineate the contour of such expressions (Issue -5)
- To what extent courts can enquire into essentially religious practices and practices essential to religion ( Issue -6)
- The locus standi of PIL with respect to religion especially when the PIL maker does not belong to that religion ( Issue -7)
- There is incongruity between Shirur Mutt(7 judge) and Durgha Committee(5 judge) and needs to be decided.
Minority Judgement- Matter need not be sent to higher bench for review –Nariman J.
- Matters already subjudice need not be clubbed together as issues are already sent for review
- The premise of the present review was narrow and limited to Sabarimala alone
- Admissibility of review petition was discussed and the following cases were analysed
|Kamlesh Verma v Mayaati||3 grounds for review and 9 grounds in which review not maintainable|
|Sow Chandra Kante v. Sheikh Habib||only when there was a glaring omission or patent mistake or like grave error had crept in the earlier judgement.|
- Dissenting judgement of Indu Malhotra J. was discussed in detail –
- Art. 14 does not override Art. 25 or Art. 26
- Constitutional morality is harmonisation of different Fundamental Rights
- Ayyapa is religious denomination and entitled to protection under Art. 26
- Limited restriction of woman entry does not fall under Art. 17
- 3 judges have said exclusion of woman into temple is not an essential religious practice but Nariman J. assumed exclusion of woman was essential religious practice. And hence as per Rajnarain Singh v The Chairman, Patna Administration Committee the majority judgement to be accepted.
- Nariman J. chose to discuss three issues raised by Ld. Counsel Parasaran
- Judges did not deal with challenge to Art 15
- 3 judges did not deal with challenge to Art 17
- Chandrachud J. discussed Art 17 but his discussion was erroneous as Art 17 means untouchability and cannot be equated to menstruating woman
Nariman J. said that Art 17 was only Justice Chandrachud’s view and needs no deliberation
- Some points already discussed in the main judgement and some are vague in nature and need no further discussion
- Entry of woman between 10-50 age group already decided –>Majority decided
- Constitutional morality is a vague concept –> liable to be quashed as it is a stare decisis as per constitution bench judgment
- Judgement of Indu Malhotra J is erroneous because she used the ratio of minority view of S.P. Mittal v Union of India
- S. Mahendran v. Secretary, Travancore Devaswom Board, Thiruvananthapuram (1993), Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B. Jeejeebhoy (1970) and Canara Bank v. N.G. Subbaraya Setty & Anr (2018) were discussed to find the relation between res judicata and PIL and held that erroneous judgement could not be res judicata.
- State of Uttaranchal v. Balwant Singh Chaufal (2013) was referred to decide that malicious PIL should be discarded at the initial stage.
- Then Nariman J. went on to discuss the authority of Supreme Court. He held that Supreme Court enjoyed wide authority as per Art. 136, 140, 141 and 145(3) of the Supreme Court. The word authority in Art. 144 should be given highest possible meaning.
- Finally, he held that
- Bona fide criticism of a judgment, albeit of the highest court of the land, is certainly permissible, but thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be countenanced in our Constitutional scheme of things
- The Constitution places a non-negotiable obligation on all authorities to enforce the judgments of this Court. The duty to do so arises because it is necessary to preserve the rule of law.
- The decision of the Supreme Court binds everyone. Compliance is not a matter of option. If it were to be so, the authority of the court could be diluted at the option of those who are bound to comply with its verdicts.