2020 (5) TMI 723 - SC - Indian Laws

Validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 - seeking permission to female devotees between the ages of 10 to 50 years to enter the Sabarimala temple without any restrictions - violative of Article 25 of the Constitution of India or not - interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14 - HELD THAT - Though the preliminary point for adjudication is the reference of questions of law to a larger bench in a review petition, submissions were made by both sides regarding the maintainability of the review petitions. Presumably, this was done because no reference can be made in review petitions which were not maintainable. Admittedly, the review petitions are kept pending awaiting the pronouncement on the questions of law which were referred to this Bench. Therefore, we refrain from expressing any view on the merits of the review petitions. However, it is necessary to decide the maintainability of the review petitions in view of the submissions made by the parties. Article 137 of the Constitution of India empowers the Supreme Court to review any judgment pronounced or order made by it subject to the provisions of any law made by the Parliament or any rules made under Article 145. No law has been made by the Parliament as contemplated in Article 137. Article 145 of the Constitution of India gives power to the Supreme Court to make rules for regulating the practice and procedures in the Court. Article 145 (1) (e) pertains to the rules relating to the conditions subject to which any judgment or order pronounced by the Court may be reviewed and the procedure for such review including the time within which applications to the Court for such review are to be entertained - It is clear from a plain reading of Order XLVII, Rule 1 that there are no restrictions on the power of this Court to review its judgment or order. The exceptions to the general power of review relate to review of civil proceedings which can be entertained only on grounds mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 and to review of criminal proceedings which can be entertained only on the ground of an error apparent on the face of record. Undoubtedly there is no bar on the exercise of jurisdiction for referring questions of law in a pending review petition. Therefore, the reference cannot be said to be vitiated for lack of jurisdiction. This Court has acted well within its power in making the reference. Proviso to Article 145 (3) - HELD THAT - Article 145 of the Constitution of India empowers this Court to make Rules for regulating the practice and procedure of the Court. Article 145 (3) provides that the minimum number of Judges to decide any case involving substantial questions of law as to the interpretation of the Constitution or for the purpose of hearing a reference under Article 143 shall be five - the contention is that reference to a larger bench in accordance with the proviso to Article 145(3) can be made only in Appeals and not in any other proceedings. However, the proviso deals with a situation when reference has to be made by a bench of less than five Judges. The present reference is made by a bench of five Judges and, therefore, the proviso to Article 145 (3) is not applicable. The instant review petitions and the reference arising from the review petitions are maintainable.

Summary

Issues Involved:
1. Validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965.
2. Scope of freedom of religion under Articles 25 and 26 of the Constitution.
3. Interplay between Articles 25 and 26 and other provisions in Part III, particularly Article 14.
4. Meaning and scope of "public order, morality and health" in Article 25(1).
5. Definition and scope of "constitutional morality".
6. Judicial review of essential religious practices.
7. Meaning of "sections of Hindus" in Article 25(2)(b).
8. Constitutional protection of essential religious practices under Article 26.
9. Permissibility of PILs questioning religious practices by non-members of the denomination.

Detailed Analysis:

1. Validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965:
The Supreme Court, by a majority of 4:1, held that the exclusion of women aged 10 to 50 years from the Sabarimala temple is violative of Article 25 of the Constitution. The Court also declared Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, as violative of Article 25(1) and ultra vires Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.

2. Scope of Freedom of Religion Under Articles 25 and 26:
The Court identified the need for an authoritative pronouncement on the scope of freedom of religion guaranteed under Articles 25 and 26. It was noted that the determination of this issue would impact pending writ petitions related to religious practices in other communities, such as the entry of Muslim women in durgahs/mosques and the practice of female genital mutilation in the Dawoodi Bohra Community.

3. Interplay Between Articles 25 and 26 and Other Provisions in Part III, Particularly Article 14:
The Court framed the issue of how the freedom of religion under Articles 25 and 26 interacts with other fundamental rights, particularly the right to equality under Article 14. This requires a larger bench to resolve the conflict of opinions in previous judgments.

4. Meaning and Scope of "Public Order, Morality and Health" in Article 25(1):
The Court sought to define the sweep of the expression "public order, morality and health" in Article 25(1) and whether it includes "constitutional morality". This issue was referred to a larger bench to delineate the contours of these terms.

5. Definition and Scope of "Constitutional Morality":
The Court recognized the need to clearly define "constitutional morality" and whether it is overarching in reference to the preamble or limited to religious beliefs or faith. This issue was also referred to a larger bench.

6. Judicial Review of Essential Religious Practices:
The extent to which the Court can inquire into whether a particular practice is an integral part of a religion or religious denomination was identified as a significant issue. The Court noted the conflict between the judgments in the Shirur Mutt case and the Durgah Committee case on this matter.

7. Meaning of "Sections of Hindus" in Article 25(2)(b):
The Court framed the issue of what constitutes "sections of Hindus" under Article 25(2)(b) and referred it to a larger bench for interpretation.

8. Constitutional Protection of Essential Religious Practices Under Article 26:
The Court sought to determine whether the "essential religious practices" of a religious denomination or a section thereof are afforded constitutional protection under Article 26. This issue was referred to a larger bench for authoritative resolution.

9. Permissibility of PILs Questioning Religious Practices by Non-Members of the Denomination:
The Court framed the issue of the permissible extent of judicial recognition of PILs in matters questioning religious practices of a denomination by individuals who do not belong to that denomination. This was referred to a larger bench for determination.

Separate Judgments:
R.F. Nariman and D.Y. Chandrachud JJ dissented, dismissing the review petitions and fresh writ petitions as not maintainable. They found no ground for review and did not agree with the majority opinion.

Preliminary Issue on Reference to Larger Bench:
The Court addressed whether it could refer questions of law to a larger bench in a review petition. It held that it could, emphasizing that there are no restrictions on the Court's power to review its judgment or order, particularly in proceedings other than civil and criminal proceedings. The Court also noted that the reference was made to resolve conflicts in previous judgments and to provide clarity on significant constitutional questions.

Conclusion:
The Supreme Court concluded that the review petitions and the reference arising from them are maintainable. The issues framed were referred to a larger bench for authoritative resolution, emphasizing the Court's inherent power to do complete justice and its jurisdiction to determine its own jurisdiction.