Move comes after parties involved fail to reach consensus on issues they want SC to hear
The first issue is: can a smaller bench refer a review petition to a larger Constitution bench?
NEW DELHI :
Setting aside a hearing on the Sabarimala case, the Supreme Court on Monday turned the spotlight on itself, with a nine-judge bench deciding to frame the myriad issues flowing from the Kerala temple on its own.
The bench took the decision to do so after parties to the dispute failed to come to a consensus on the issues they would like the apex court to hear and rule on.
The bench headed by Chief Justice S.A.Bobde, which is hearing a review petition will decide on three issues: can a smaller bench refer a review petition to a larger Constitution bench?; can this larger bench then frame the issues on its own?; and can these issues go into the larger questions, such as women’s rights in this particular case?
This makes it a landmark case, as the judges have set out to settle important issues of jurisprudence.
The entire case dates back to 2018 when activists, religious groups and others sought a review petition of the SC’s ruling allowing girls and women of menstrual age to enter the Sabarimala temple.
There are more than 60 petitions before the court now. The difficulty is that the court in 2019 set itself the task of deciding on larger matters of how religions treat women.
This could see the judges hearing not only the Sabarimala case, but also matters such as female genital mutilation among Dawoodi Bohras, and alleged worshipping bars on women among Muslims and Parsis.
Generally, parties reach the court with issues framed and seek a particular relief or direction. But in this case, they have failed to do so.
In September 2018, a five-judge SC bench allowed women of all ages to enter the Sabarimala shrine in Kerala, lifting a bar on girls and women of menstrual age.
A review bench on 14 November 2019 referred the matter to a larger nine-judge bench, asking it to also examine women’s entry to mosques and other places of worship, and female genital mutilation among Dawoodi Bohras.
On Monday, however, senior counsel objected to the review bench referring the matter to a larger bench for the “larger issues".
The nine-judge bench said it will also deal with the issue of whether a reference order can be made in review jurisdiction for a hearing by a larger bench.
“We could not agree to the issues framed by everyone. Judges can consider framing the issues in the chamber. No need to do it in open court," said solicitor general Tushar Mehta.
Senior advocates Fali Sam Nariman, Kapil Sibal and Shyam Divan opposed a larger bench deciding on a review petition.
Nariman said there are “at least six judgements of Supreme Court that say while deciding a review, Supreme Court cannot refer issues to a larger bench." He also said in review cases, the apex court cannot refer questions involved in other cases to a larger bench.
“Possibly formidable points. I am not aware of that. We will hear you and also the counter. We are not going to decide this now (only after hearing all)," replied the Chief Justice.
Solicitor general Mehta, former attorney general K. Parasaran and former Solicitor general Ranjit Kumar, however, opposed this, saying the nine-judge bench can indeed decide on the broader issue of faith versus fundamental rights. The bench will meet on Thursday to fix dates, issues and allotment of time to advocates. Hearing begins next week.
Prathma Sharma contributed to this story.
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