| Headnote |
Constitution of India — Art. 137 and Arts. 12, 14, 15, 17, 25(1), 25(2)(b), 26, 32, 51A, 73(2), 75(4), 99, 164(3) & 188 r/w Third Schedule, 129, 136, 140, 141, 142, 144, 145(3), 154(2)(a), 162, 266, 258(2), 277, 301-304, 307, 329(b), 353(b), 356(1)(a), 357(1)(b), 372(1) – Sabarimala temple case – Review Petitions filed u/Art.137 r/w Or. XLVII of 2013 Rules – Fresh writ petitions also filed u/Art.32– Held: Per Ranjan Gogoi, CJI (for himself and A.M. Khanwilkar, Indu Malhotra, JJ.) – Debate about constitutional validity of practices entailing into restriction of entry of women generally in the place of worship is not limited to this case, but also arises in respect of entry of Muslim women in Durgah/Mosque; Parsi women married to a non-Parsi into the holy fire place of an Agyari – Another seminal issue pending consideration in Supreme Court relates to female genital mutilation in Dawoodi Bohra community – Issues arising in such pending cases may be overlapping and covered by the judgment under review – Prospect of the issues arising therein being referred to larger bench cannot be ruled out – Further, conflict between decision of the Seven Judges bench in Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) reported as [1954] SCR 1005 and the subsequent view of Five Judges bench in Durgah Committee, Ajmer v. Syed Hussain Ali & Ors. reported as [1962] 1 SCR 383 requires consideration by a larger bench – Larger bench may also consider it appropriate to decide all issues, including the question as to whether the 1965 Rules govern the temple in question at all – Review petitions and the writ petitions may remain pending until determination of the questions, as indicated, by a Larger Bench as may be constituted by the Hon’ble the Chief Justice of India – Per R.F. Nariman, J. (for himself and Dr. D.Y. Chandrachud, J.) (Dissenting) Only thing that is before this Court is the narrow question as to whether grounds for review and for filing of the writ petitions have been made out qua the judgment under review in Indian Young Lawyers Association and Ors. v. State of Kerala reported as [2018] 9 SCR 561 – What a future constitution bench/ larger bench, if constituted by the Chief Justice of India, may or may not do when considering the other issues pending before this Court is not before this Court at all – In the five-Judge Bench Indian Young Lawyers Association’s case, four majority judgments had clear consensus on the issues- (i) that the devotees of Lord Ayyappado not constitute a separate religious denomination and thus, cannot claim the benefit of Art.26 or the proviso to s.3 of the 1965 Act; (ii) aforesaid four judgments specifically grounded the right of women between the ages of 10 to 50, excluded from practicing their religion, u/Art.25(1) emphasizing the expression “all persons” and the expression “equally” occurring in that Article, so that this right is equally available to both men and women of all ages professing the same religion and; (iii) that s.3 of the 1965 Act traces its origin to Art.25(2)(b) and would apply notwithstanding any custom to the contrary, to enable Hindu women the right of entry in all public temples open to Hindus, so that they may exercise the right of worship therein and as a concomitant, r.3(b) of the 1965 Rules is violative of Art.25(1) and ultra vires s.3 of the 1965 Act – Further, observations of Chandrachud, J. on Art.17 cannot be said to be a material error manifest on the face of the record undermining the soundness of the three conclusions reached by all the majority judgments – On whether the exclusion of women from Hindu temples is an essential part of the Hindu religion, three Judges clearly held that it is not – There is no error apparent here again – Also, “constitutional morality” has now reached the level of stare decisis, and has been explained in several Constitution Bench judgments, reliance thereon cannot be said to suffer from any error apparent– Extreme arguments that belief and faith are not judicially reviewable by courts, and that this Court cannot interfere by stating that a particular section of persons shall not hold a particular belief and act in accordance thereto, not only do not constitute “errors apparent”, but are arguments that fly in the face of Art.25 – Given the consensus on the three issues by the four majority judgments, no ground for review of the majority judgments made out – Review petitions dismissed – Writ petitions also dismissed as not being maintainable – State of Kerala to give wide publicity to this judgment through the medium of television, newspapers, etc. – Organised acts of resistance to thwart the implementation of the judgment be put down firmly – State government to ensure that the rule of law is preserved – Supreme Court Rules, 2013 – Or.XLVII – Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 – s.3 – Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules,1965–r.3(b)–Doctrine of stare decisis – Public Interest Litigation – Principle of Res Judicata. |
