Top SC lawyers oppose "erroneous" reference to wider issues in Sabarimala case review

The Supreme Court Monday faced serious opposition from a battery of top lawyers who assailed as "erroneous" the reference made to it by a 5-judge bench on questions related to discrimination of women in religious places while dealing with the Sabarimala case.

While exercising review jurisdiction there cannot be any reference order on issues to be heard by a larger bench as it has a very limited scope, said senior advocate F S Nariman.

In two-hour long hearing, he said the 5-judge bench, headed by the then CJI Ranjan Gogoi, was wrong in making a reference of broad contours while deciding the review petition against the 2018 verdict, which allowed women of all age group to enter Kerala's Sabarimala temple.

The 9-judge bench, headed by Chief Justice S A Bobde, said however that it would go by the reference order of November 14 last year made by the 5-judge bench.

The apex court further noted that by a majority of 3:2, the bench had held that 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.

Nariman said however: "This is not practice which have been adopted by the Supreme Court since Privy Council days and there are several judgements to this effect."
The bench however said, "There is no point holding up everything for the sake of the issues. We will decide the issues with the rider that there may be additional issues at any time under Order 14 (Supreme Court rules)."
Sibal then said, "To say something de hors the facts will present a dangerous situation. If a nine-judge bench of the Supreme Court says something, it will have ramifications across the entire country and across all religions."
Sibal replied saying, "Articles 21, 14 and 17 have to be seen in the context of religious practices. Any statement you make will impact every community across the board. The right to dignity will impact the entire caste system."
The bench, then observed, "The bar and the bench must understand what is the issue. And to approve or disapprove it. We need not go into facts of each case."