Justice BV Nagarathna has become the first judge on the nine-member constitution bench to start writing the judgment in the long-pending Sabarimala reference, setting the stage for a verdict that could redefine the Supreme Court’s approach to religious freedom, judicial review and the “essential religious practices” doctrine.
The development assumes significance as Justice Nagarathna was the only woman judge on the bench that heard the 16-day marathon proceedings and had, during the hearings, expressed views on several of the core constitutional questions arising from the dispute, including the role of the essential religious practices test.
Besides the CJI and Justice Nagarathna, the bench comprises justices MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi. To be sure, other members of the nine-judge bench are also free to write separate opinions. Justice Nagarathna’s authorship is particularly noteworthy given her own record of speaking independently in Constitution Bench matters. The majority held that royalty was not a tax but a payment made by a mining lessee to the state for the right to extract minerals, and consequently held that states could impose taxes on mineral rights.
The nine-judge bench headed by Chief Justice of India Surya Kant had reserved its judgment on May 14 after hearing arguments on the constitutional questions referred to it following the 2018 Sabarimala verdict. The reference originates from the Supreme Court’s September 2018 judgment, by a 4:1 majority, allowing women of all ages to enter the Sabarimala temple in Kerala. The verdict had held that the exclusion of women between the ages of 10 and 50 could not withstand constitutional scrutiny. The subsequent review proceedings led to the larger constitutional reference, with the court deciding to examine broader questions concerning the relationship between Articles 14, 25 and 26 of the Constitution, the scope of judicial review of religious practices, the meaning of religious denomination and the extent to which courts can employ the essential religious practices doctrine. She was the lone dissenter in the Supreme Court’s 2023 demonetisation verdict, holding that the Centre could not invalidate the entire series of ₹ 500 and ₹ 1,000 notes merely through a notification and that the exercise ought to have been undertaken through legislation. Her dissenting voice was also significant in the 2024 nine-judge constitution bench judgment on mineral taxation, which examined whether royalty payable under the Mines and Minerals (Development and Regulation) Act, 1957, was a tax.
It also held that mineral-bearing land could be treated as “land” under Entry 49 of the State List, permitting states to levy tax on such land.
