[Sabarimala] Remember That The "Holy Book" Is The Constitution Of India; Justices RF Nariman & DY Chandrachud Dissent

Let every person remember that the "holy book" is the Constitution of India, remarked Justice Rohinton Fali Nariman, also speaking for Justice Dhananjaya Y. Chandrachud, in his dissent against the majority decision to refer the issues to larger bench. The judges opined that most of the arguments raised in the review petitions were already argued during the hearing of the writ petitions and were dealt with in the judgment of 28th September 2018. The judge still dealt with the arguments that was made by various parties during the hearing of review petitions. Following are some of those observations made in the dissenting opinion by Justice Nariman. Disagrees with Reference To Larger BenchAt the outset, Justice Nariman, expressing his disagreement about the reference made to larger bench by the majority headed by CJI Ranjan Gogoi, said that what a future constitution bench or larger bench may or may not do when considering the other issues pending before this Court is, strictly speaking, not before the Court at all. He said:"As and when the other matters are heard, the bench hearing those matters may well refer to our judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018, and may either apply such judgment, distinguish such judgment, or refer an issue/issues which arise from the said judgment for determination by a larger bench. All this is for future Constitution benches or larger benches to do. Consequently, if and when the issues that have been set out in the learned Chief Justice's judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning Muslims, Parsis and Dawoodi Bohras."Justice Chinnappa Reddy Judgment Relied By Justice Malhotra Was A Dissenting OpinionThe court noted that the judgment of Chinnappa Reddy, J. in S.P. Mittal v. Union of India, (1983) 1 SCC 51, was a dissenting judgment and Justice Indu Malhotra strongly relied upon the judgment of Chinnappa Reddy stating that the judgment of Chinnappa Reddy, J. is a concurring judgment on the aspect of religious denomination. "The conclusion of Malhotra, J., based on the observations contained in the dissenting judgment of Chinnappa Reddy, J., could not be said to be a possible view on this aspect. Without entering further into this controversy, we may only reiterate that the majority Judges have correctly held that the views of Chinnappa Reddy, J. are dissentient, as was recognized by Chinnappa Reddy, J. himself."Nothing To Show that Exclusion of Young Women Is An Essential Religious PracticeRegarding the issue raised whether the practice of excluding women between the ages of 10 to 50 from the shrine at Sabarimala would constitute an essential religious practice, the judge noted: "Nothing has been shown to us, as was correctly pointed out by the learned Chief Justice, from any textual or other authorities, to show that exclusion of women from ages 26 10 to 50 from Hindu temples is an essential part of the Hindu religion. This again is a ground that must be rejected, both because there is no error apparent, and because the same ground that was argued in extenso before the original judgment was delivered, is being reargued in review "Constitutional morality" is nothing but the values inculcated by the Constitution,The review petitioners had contended that 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. On this aspect, the bench said: Here again, apart from the fact that "constitutional morality" has now reached the level of stare decisis, and has been explained in several Constitution Bench judgments, reliance thereon cannot be said to suffer from any error apparent. Constitutional law and constitutional interpretation stand on a different footing from interpretation of statutes. Constitutional law keeps evolving keeping in view, among other things, the felt necessities of the time. As has been explained in some of our judgments, "constitutional morality" is nothing but the values inculcated by the Constitution, which are contained in the Preamble read with various other parts, in particular, Parts III and IV thereof. This again is a mere rehash of what was argued earlier, and can by no means be said to be an error apparent on the face of the record. Article 25 Not Carte Blanche To One Particular Section To Trample Right To Belief Of Of Other Section Belonging To Same ReligionThe judges also rejected the contention advanced that that belief and faith are not judicially reviewable by courts. It said that Article 25, is not an Article that gives a carte blanche to one particular section of persons to trample upon the right of belief and worship of another section of persons belonging to the same religion.Such arguments need to be rejected out of hand. Not...

[Sabarimala] Remember That The "Holy Book" Is The Constitution Of India; Justices RF Nariman & DY Chandrachud Dissent

Ashok Kini

"It is with this book in hand that the citizens of India march together as a nation, so that they may move forward in all spheres of human endeavour to achieve the great goals set out by this "Magna Carta" or Great Charter of India."

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