All-new 9-member Supreme Court bench to review Sabarimala case

The bench comprising Chief Justice S A Bobde and justices R Banumathi, Ashok Bhushan, L Nageswara Rao, Mohan M Shantanagoudar, S Abdul Nazeer, R Subhash Reddy, BR Gavai and Surya Kant, will hear the case from 13 January 2020. 

None of the three Supreme Court judges who dissented at various points in the Sabarimala litigation is part of the nine-judge Constitution Bench, which will hear over 60 petitions challenging the entry of women of menstruating age into the Kerala temple.

Justice Indu Malhotra was the lone dissenter on 28 September 2018, when the court, in a 4:1 decision, quashed the rule that barred women in the 10-50 age group from entering the temple.

Justices Nariman and Chandrachud, part of the review bench, had jointly dissented from the majority decision on 14 November 2019, to refer the issue to a larger Bench. 

The nine-judge Bench would essentially set the parameters for a judicial review in cases, especially public interest litigation petitions, touching on customs and practices believed to be essential to a religion. In the Sabarimala case, the review petitions argued that the entry of women of menstruating age is against the essential practice and belief associated with the temple and its deity.

The nine-judge bench headed by Chief Justice S A Bobde is likely to examine several matters related to the verdict and petitions, including the interpretation of freedom of religion granted under Articles 25 and 26 of the Constitution and other provisions, especially in Article 14, that grant right to equality before the law and equal protection of the laws.

Article 25(1) makes freedom of religion subject to “public order, morality and health”, and the top court is likely to examine the extent to which it applies. The court may also examine the meaning of “section of Hindus”, which is mentioned in Article 25(2)(b), reported the website. The sub-section throws open “Hindu religious institutions of a public character to all classes and sections of Hindus”.

The court may also check whether the “essential religious practices” of a religious denomination, or section, can be provided constitutional protection under Article 26.

The review comes in the backdrop of so-called activists such as Bindu Ammini and Rehana Fathima moved the top court seeking a direction to the Kerala government to ensure police protection for women trying to enter Sabarimala. 

The court, however, declined to pass any judgement and said the matter was “very emotive.”