Judges: Ranjan Gogoi, C.J.I., A.M. Khanwilkar, Indu Malhotra, Rohinton Fali Nariman and Dr. D.Y. Chandrachud, JJ.

Facts:

Review petitions in present case arose from judgment of the Supreme Court in Indian Young Lawyers Association and Ors. v. State of Kerala W.P. (C) No. 373 of 2006, which was delivered on 28 September, 2018, with regard to the Sabarimala temple dedicated to Lord Ayyappa.

It was held in 'Indian Young Lawyers Association' that -

(i) Ayyappa temple at Sabarimala cannot claim to be a religious denomination which can then claim the protection of Article 26 of the Constitution of India.

(ii) Practice of excluding women from the temple at Sabarimala is not an essential religious practice, and hence ulta vires the Constitution.

(iii) Notifications dated 21 October 1955 and 27 November 1956 issued by the Devaswom Board, prohibiting the entry of women between the ages of ten and fifty, are ultra vires Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and are even otherwise unconstitutional.

(iv) Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 was violative of Article 25 (1) of the Constitution of India and ultra vires Section 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.

Issues:

(i) Whether questions of law can be referred to a larger bench in a review petition?

Laws:

Supreme Court Rules, 2013 - Order XLVII Rule 1 - Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule 1 of the CPC, and in a criminal proceeding except on the ground of an error apparent on the face of the record.

Contentions:

Petitioners

(i) Majority judgment did not effectively deal with arguments based on Article 17 of the Constitution. This exposition amounts to an error apparent on the face of the record inasmuch as the expression "untouchability" would refer only to the discrimination meted out to Harijans, regardless of their sex. Same would, therefore, not embrace members of the female sex alone who are regarded as "untouchables" during their period of menstruation.

(ii) Judgments of Dipak Misra, C.J. and Chandrachud, J., in relying upon "constitutional morality", suffered from an error apparent, in that constitutional morality is a vague concept which cannot be utilised to undermine belief and faith.

Respondent

(i) The review petition is not maintainable as it does not satisfy the requirement of Order XLVII Rule 1 of Supreme Court Rules, 2013 (hereinafter SC Rules).

(ii) Court's review jurisdiction is too narrow to allow for a referral.

Analysis:

Requirement of Order XLVII Rule 1 of SC Rules - Review whether maintainable.

(i) Under Order XLVII, Rule 1 of SC Rules, there are no restrictions on the power of Supreme Court to review its judgment / order.

(ii) However, review of civil proceedings can only be entertained on grounds mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 (hereinafter, CPC). Review of criminal proceedings can only be entertained on the ground of an error apparent on the face of record.

(iii) There are no limitations in the exercise of the review jurisdiction of Supreme Court in review of judgments or orders arising out of proceedings other than civil and criminal proceedings.

(iv) In present case, the review petitions originated from a judgment passed in a writ petition filed under Article 32 of the Constitution, to which the provisions of Order XLVII, Rule 1 of CPC are not applicable.

Decision by larger bench - Need to rest recurring issues

(i) The decision of a larger bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution.

(ii) It is essential to adhere to judicial discipline and propriety when more than one petition is pending on the same, similar or overlapping issues in the same court for which all cases must proceed together. Indubitably, decision by a larger bench will also pave way to instil public confidence and effectuate the principle underlying Article 145(3) of the Constitution-which predicates that cases involving a substantial question of law as to the interpretation of the Constitution should be heard by a bench of minimum five judges of this Court.

Conclusions:

(i) Issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque; of Parsi Women married to a non-Parsi in the Agyari; and including the practice of female genital mutilation in Dawoodi Bohra community may be overlapping and covered by the judgment under review.

(ii) The prospect of the issues arising in those cases being referred to larger bench cannot be ruled out.

(iii) The said issues could be -

• 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.
• Sweep of expression 'public order, morality and health' occurring in Article 25(1) of the Constitution.
• Need to delineate the contours of expression 'morality' or 'constitutional morality', which has not been defined in the Constitution. Is it over arching morality in reference to preamble or limited to religious beliefs or faith.
• 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.
• Meaning of the expression 'sections of Hindus' appearing in Article 25(2)(b) of the Constitution.
• "Essential religious practices" of a religious denomination, or even a Section thereof are afforded constitutional protection under Article 26.
• 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.

(iv) The subject review petitions as well as the connected writ petitions was decided to be kept pending until determination of the questions indicated above by a Larger Bench.

Important Precedents:

(i) Indian Young Lawyers Association and Ors. v. State of Kerala W.P. (C) No. 373 of 2006