Courts Should Tread Cautiously While Dealing With Religious Issues: Sabrimala Case referred to larger constitutional bench

While referring the Sabarimala case to larger bench, the majority judges observed that the matters involving the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion,should be heard by a larger bench, for an authoritative pronouncement in these matters.

The order of the majority in Sabarimala Review petitions is very brief, with only 9 pages and 9 paragraphs. The order, however, does not say that the judgment under review is stayed or not.

The Chief Justice of India Ranjan Gogoi, also on behalf of Justice AM Khanwilkar and Justice Indu Malhotra, observed that in a legal framework where the courts do not have any epistolary jurisdiction and issues pertaining to religion including religious practices are decided in exercise of jurisdiction under Section 9 of the Civil Procedure Code or Article 226/32 of the Constitution the courts should tread cautiously.

The said issues could be, the bench noted as follows:

(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.

(v) Whether the "essential religious practices" of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.

(vi) 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?