The Supreme Court of India in the sensitive case seeking the review of the Sabarimala verdict delivered last year has referred the matter to a seven-judge constitution bench. The SC, in the review petition, by a 3:2 majority, held that “if matters involving seminal issues, including the interpretation of the provisions of the Constitution touching upon the right to profess, practice and propagate its own religion, are heard by larger bench of commensurate number of judges then that would ensure an authoritative pronouncement and also reflect the plurality of views of the judges converging into one opinion.”
The top court also observed: “the decision of the seven judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras vs Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) (1954) holding that what are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself and the subsequent view of a five judges bench in Durgah Committee, Ajmer vs. Syed Hussain Ali (1961) carving out a role for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs seem to be in apparent conflict requiring consideration by a larger bench.”
The main conflict arises here because firstly, the unanimous decision delivered by the seven-judge bench in the Shirur Mutt case declared that what is an essential or integral part of the religion cannot be determined by the secular court because the word ‘religion’ is difficult to be defined. It concluded that what constitutes an essential religious practice has to be decided by the heads of that religious denomination and the courts have no say in it. The bench referred to the decisions of US and Australian courts and chose the latter.
The reason for reliance on Australian judgments was that while in both the Constitutions there is no restriction on matters related to freedom of religion, the same were imposed by the courts of law. The US courts imposed many such restrictions whereas the Australian courts rarely interfered in the matters of religion. Hence, the Shirur Mutt case is a leading case on religious beliefs and practices.
Secondly, the doctrine of precedent envisages that lower courts, as well as lower benches of the same court, are bound by the decisions of the higher courts and also of the higher benches of the same court. In the Durgah Committee case, it was observed that “Even practices, though religious, may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself.” Curiously, this decision has no precedence over the Shirur Mutt case because the bench strength in the Durgah Committee was five judges.
Moreover, jurist HM Seervai in his critical commentary on constitutional law has said that the observations made in the Durgah Committee case by Justice Gajendragadkar are his obiter dictum (opinion of the court) and not the Ratio decidendi (decision of the court), hence it is not at all binding on future benches of the court. Under these circumstances, reference to a seven-judge constitutional bench to decide matters of essential religious practice is unreasonable because if a decision rendered in the Shirur Mutt case is either to be upheld or overruled then the constitutional requirement is minimum of eight or more judges. This reference reminds one of what American judge Justice Robert Jackson said in Brown v. Allen, (1953) that ‘we are not final because we are infallible, we are infallible only because we are final.’
Thirdly, Justice Nariman in his dissenting judgment in the review case justified the court’s stand to entertain PILs in matters of religious belief and practices by saying that the case raises grave issues related to gender bias and disagreed with the dissent of Justice Indu Malhotra where she held that entertaining PILs filed by atheists would pave the way for challenging every religious belief and practice.
In his review what the Judge failed to observe is that every person who brings his case to the judiciary thinks that grave injustice has happened to him, hence no litigation brought before the courts could be frivolous and vexatious. Moreover, as warned by Seervai that the judges deciding cases involving the freedom of religion ought not to allow their personal views on religion to influence their judgment because in a unique and diverse multi-linguistic, multi-cultural and multi-religious country like India every individual has a different belief and diverse faith that must be protected by the judiciary. Moreover, the Supreme Court itself has held that PILs are initiated with a desire to seek publicity by means of the court. Hence, it would be better for the courts not to put its activist hand into the hot water of religious beliefs and practices.
Fourthly, Justice Nariman held that the issue before the court was review of the judgment delivered last year and the seminal question on essential religious practices will be decided by the future constitution bench. Here the Judge may be partly correct, but what he has failed to notice is that there are certain other matters relating to different religions that ought to be decided by the Supreme Court. If all these petitions are clubbed together and decided by a larger constitutional bench consisting of eight or more judges of the Supreme Court, this will save judicial time and also decide whether the doctrine laid in the Shirur Mutt case is to be upheld or overruled.
Fifthly, Justice Nariman also held that the access to the review petition can be resorted to only when there appears grave or apparent error in the main judgment. Here indeed there was a prima facie error in the main judgment where the majority judgment failed to give a proper look into the doctrine laid down in Shirur Mutt (1954), Ratilal Panamchand Gandhi (1954), Dawoodi Bohra Community (1962), Bijoe Emmanuel (1989) among other cases on religious practice.
Finally, Justice Nariman expressed his anguish on non-implementation of the court’s ruling to allow women of menstrual age into the Sabarimala temple and held that it is in clear violation of well-established principles of rule of law. It is to be noted that there are many directions of the courts to the government, which are gathering dust. Constitution of a larger bench, preferably consisting of nine judges, at the earliest to resolve this issue is need of the hour.
(Prof GB Reddy is Professor, University College of Law, Osmania University. Baglekar Akash Kumar is a student at the college)