Thread by @legaljournalist

The majority judgment in #Sabarimala review petitions today has posed many questions. What are its implications? Where to now? #Thread

barandbench.com/sabarimala-rev…

The Court at the outset noted that the issue relating to restriction on entry of women in places of worship is not limited to the #Sabarimala case.

#sabarimala: Similar practices have been called into question in three other cases – one on entry of Muslim women in a Durgah/Mosque, second in relation to Parsi women married to a non-Parsi into the holy fireplace of an Agyari, third female genital mutilation among Dawoodi Bohra

The Court then went on to state that decision of a larger bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution of India.

#Sabarimala: When more than one petition is pending on similar or overlapping issues, it is essential to adhere to judicial discipline and propriety and for the same, all cases must proceed together. Thus, a decision of a larger Bench will instil public confidence, the Court said

So what has now been referred to larger Bench? Effectively nothing. Why so?

#Sabarimala

#Sabarimala: Since the three cases referred to earlier (on entry of Muslim women, Parsi women into their respective place of worship and female genital mutilation) were not in consideration before this Bench, this Bench could not pass an order of reference wrt those cases.

Also since a reference cannot be made in a review petition/s (which the court was deciding in the current case) without actually opining on the correctness of the judgment in question, a reference could not have been passed in the Sabarimala issue. #Sabarimala

#Sabarimala: Since the Court has not gone into the correctness of the 2018 judgment, it does not expressly refer anything to Constitution Bench.

Hence, the Court expertly words the rest of the judgment.

#Sabarimala: It says that the issues in the three pending cases on Muslim and Parsi women “MAY BE overlapping and covered by the judgment under review”(Sabarimala). Thus, the PROSPECT of the issues arising in those cases being referred to larger bench CANNOT BE RULED OUT.

#Sabarimala: The Court does not stop there and in fact, goes on to frame the issues which it believes MAY come up in the three pending cases if and when the same is referred to a larger Bench.

#sabarimala: Thus, this judgment does not make any reference. Instead, it anticipates a reference by various Benches hearing three other pending cases and gives a slight but obvious push to those Benches to refer the three matters to larger Bench.

#Sabarimala: It even goes to the extent of framing issues that the larger Bench may consider and answer if and when it is formed.

#Sabarimala: Whether such a course of action can be adopted in review jurisdiction without answering the review itself is debatable.

#Sabarimala: The three pending cases referred to in majority judgment on entry of Muslim women into mosques, Parsi women and female genital mutilation are at different stages.

#Sabarimala: One is before a 3-judge Bench, another before a 5-judge Constitution Bench and a third has been referred to a Constitution Bench.

#Sabarimala: It now remains to be seen how these three cases would be listed considering today's decision in Sabarimala case.

#Sabarimala: Since today's decision cannot be construed as a reference order, these cases might be listed separately and then referred to a larger Bench of seven judges.

@Sabarimala: Now what about the Sabarimala review petitions?

The Supreme Court again adopts a careful approach. It says that the review and writ petitions will remain pending until the issues set out by the Court are decided by the larger Bench.

@Sabarimala However, it also says that “while deciding the questions above, larger bench may also consider it appropriate to decide all issues, including question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all

@Sabarimala #Sabarimala: So, the larger Bench has been given the liberty to decide issues concerning Sabarimala case “if it considers appropriate”

@Sabarimala #Sabarimala: However, the biggest question is whether such a larger Bench will be formed or not. This can happen only if the three benches hearing the three cases judicially state that a 7-judge bench needs to hear the matter.

@Sabarimala #Sabarimala: Coming to last issue - stay. Supreme Court in its order passed in Nov 2018 in review petitions, had refused to stay its 2018 judgment. There is no discussion in majority judgment today regarding stay of 2018 judgment. Thus, 2018 judgment continues to hold the field