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Sabarimala Issue – S.C referred to 7 Judge Bench.

KANTARU RAJEEVARU vs INDIAN YOUNG LAWYERS ASSOCIATION THR. ITS GENERAL SECRETARY AND ORS – REVIEW PETITION (CIVIL) NO. 3358/2018  IN WRIT PETITION (CIVIL) NO. 373/2006 – November 14, 2019.

By Majority of Judges the matter was referred to 7 judge. The following are the issues viewed by the Hon’ble Supreme court before referring the matter for the larger bench:

It is our considered view that the issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque (beingWrit Petition (Civil) No.472 of 2019); of Parsi Women married to a non-Parsi in the Agyari (being Special Leave Petition (Civil) No. 18889/2012); and including the practice of female genital mutilation in Dawoodi Bohra community (being Writ Petition (Civil) No.286 of 2017) may be overlapping and covered by the judgment under review. The prospect of the issues arising in those cases being referred to larger bench cannot be ruled out. The said issues could be: (i) Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14. (ii) What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution. (iii) The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over arching morality in reference to preamble or limited to religious beliefs or faith. There is need to delineate the contours of that expression, lest it becomes subjective. (iv) The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group. (v) What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution. (vi) Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26. (vii) What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

Bonafide criticism explained:

Bona fide criticism of a judgment, albeit of the highest court of the land, is certainly permissible, but thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be countenanced in our Constitutional scheme of things. After all, in India’s tryst with destiny, we have chosen to be wedded to the rule of law as laid down by the Constitution of India. Let every person remember that the “holy book” is the Constitution of India, and it is with this book in hand that the citizens of India march together as a nation, so that they may move forward in all spheres of human endeavour to achieve the great goals set out by this “Magna Carta” or Great Charter of India.

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