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Supreme Court Questions Writ Maintainability in Sabarimala Reference Hearing
New Delhi: On the seventh day of the landmark Sabarimala reference hearing before a nine-judge Constitution Bench of the , the court delved into profound questions of judicial finality and religious autonomy. Justice B.V. Nagarathna sharply interrogated the maintainability of a decades-old writ petition challenging the 1962 judgment upholding excommunication practices in the Dawoodi Bohra community. Simultaneously, Senior Advocate J. Sai Deepak presented a robust defense of religious denominations' rights under , arguing against state overreach masked as social reform. Chief Justice Kant emphasized examining this as a "general principle of law," potentially reshaping the boundaries of writ jurisdiction under Articles 32 and 226.
This hearing underscores the tension between precedent stability and evolving constitutional interpretations, particularly in the sensitive arena of religious freedoms versus public morality.
Background: The Sabarimala Reference and Dawoodi Bohra Litigation
The Sabarimala reference stems from the September 28, 2018, verdict by a five-judge bench allowing women's entry into the Kerala temple, which excluded females of menstruating age based on tradition. Review petitions led to a reference to a larger bench to resolve conflicts between prior rulings on religious practices, notably the "essential religious practices" doctrine from the case (1954) and subsequent jurisprudence.
Layered into this is the Dawoodi Bohra saga. In Sardar Syedna Taher Saifuddin Saheb vs State of Bombay (1962), a seven-judge bench struck down the Bombay Prevention of Excommunication Act, 1949, affirming the Dai al-Mutlaq (spiritual head)'s absolute authority to excommunicate members. This was challenged in 1986 via a writ petition under by the , seeking reconsideration amid claims of rights violations.
The petition languished for nearly three decades. In 2023, a five-judge bench referred it to the nine-judge Sabarimala bench, expressing
prima facie
doubts on the 1962 ruling's balancing of rights with religious authority. Today, Senior Advocate Neeraj Kishan Kaul, representing the Syedna (respondent), traced the litigation:
"How we came here is that original judgment of 1962, where Maharashtra legislation was challenged [and was struck down], and in 1986 came a writ petition which challenged the judgment of the constitution bench."
Challenging Precedent via Writ: Maintainability Under Fire
Justice Nagarathna zeroed in on a core issue: "Noting that the writ petition was essentially challenging the 1962 judgment... Justice BV Nagarathna asked how a writ petition could be filed challenging a judgment ." She invoked res judicata principles, warning that writs cannot function as reviews of the Supreme Court's own rulings.
Drawing a recent parallel, she cited an NGO's petition against the 2014
Pramati Educational & Cultural Trust
judgment, which exempted minority institutions from the Right of Children to Free and Compulsory Education Act, 2009.
"The Court straightway deemed fit to impose an exemplary cost of Rs. 1 Lac because this is the grossest abuse of writ jurisdiction,"
she noted.
"If writ petitions are filed so carelessly, no judgment will ever attain finality."
Her concern escalated: " You can't go on like this, filling writ petitions and challenging judgments of this court. There will be no finality. " She distinguished structured references—like the Antulay case, where a two-judge bench's doubts on a five-judge ruling led to a seven-judge overruling (5:2)—from "parties go[ing] on challenging."
Senior Advocate Raju Ramachandran, for the petitioners, assured he would satisfy the court on maintainability. Yet Justice Nagarathna remained skeptical:
"We are on practice rather than on law."
CJI Kant broadened the lens: " This is not with reference to one individual matter, but as general principle of law, we would like to examine whether the court in exercise of or 226, is in a position or competent to revisit a judgment by assuming the power of review or recall. " This signals a potential landmark ruling on constitutional stare decisis.
Sai Deepak's Defense: Safeguarding Autonomy
Representing entities like the (managing Pandalam royal traditions for Sabarimala), , and temples such as and , J. Sai Deepak urged a
"holistic understanding of Part III."
He argued —permitting state laws for social welfare and reform (e.g., temple entry)—is a "proviso to " only, not qualifying 's denominational rights.
"
was always conceived as a proviso to rather than a qualification of
,
"he submitted, tracing drafting history from B.N. Rau's notes to Ambedkar's rephrasing. Codification of pre-existing practices, he contended, does not invite judicial review:"
Codification of a pre-existing religious practice by the State does not make that practice amenable to judicial review
... what cannot be done directly can also not be done indirectly."
Sai Deepak advocated a broad "religious denomination"—any
"religious association of people bound by a common belief"
—rejecting
's "exacting requirements." embodies collective Article 25 rights, with internal limits (public order, morality, health) sufficing for reform, sans 's "Trojan horse."
Justice Nagarathna queried state-enabled customs under Kerala laws prohibiting entry. Sai Deepak countered: State powers under 25(2) limit individual rights, not institutional Art 26 management. He invoked (untouchability) within "public morality" and cautioned against "constitutional morality" overriding text: " The journey from 2018 September 28th till date is the journey of misplaced application of Constitutional morality ."
He rejected Irish Constitution analogies, preserving Article 14 equality between denominational and non-denominational bodies.
Legal Analysis: Balancing Finality, Autonomy, and Reform
This hearing illuminates fault lines in Indian constitutionalism. On maintainability, the bench confronts res judicata 's application to its own constitutional verdicts. Unlike civil suits, writs under are "fundamental rights" enforcers, but abuse risks eroding authority—echoing costs in Pramati . A ruling could codify when larger benches alone revisit precedents, curbing "serial litigation."
On religious rights, Sai Deepak's "two baskets" theory—individual (Art 25) vs institutional (Art 26)—revives 's ethos, post- Sabarimala (2018). If accepted, Art 25(2)(b) won't pierce Art 26 armor, limiting reform to non-essential practices. Yet, 's dignity and "public morality" (including Art 17) provide counterweights, as the 2023 referring bench hinted for Bohra excommunication.
Doctrinally, it tests "essential practices" vs autonomy: Broader "denomination" shields temples like Sabarimala; codification (e.g., Kerala rules) won't trigger rationality review if rooted in custom.
Impacts on Legal Practice and Justice System
For litigators, expect stricter writ scrutiny—fewer direct precedent attacks, more references. Religious groups (temples, Bohras) gain ammunition for autonomy; social reformers face hurdles. Minority institutions (per Pramati ) benefit from finality.
Broader: Reinforces text over "ought" policy, averting judicial policymaking. In a polarized landscape, it could stabilize temple governance (Sabarimala, Padmanabhaswamy) while checking majoritarianism.
Conclusion: A Pivot in Constitutional Jurisprudence
Day seven's exchanges foreshadow a verdict reconciling reverence for precedent with rights evolution. By probing writ limits and Art 25/26 contours, the bench may fortify religious liberty without stasis, ensuring judgments attain true finality. Legal professionals await clarity on when courts review themselves—and when they must not.
