The Supreme Court's nine judge bench today (February 6, 2020) began the deliberations on the legal issues examining whether the top court can refer the questions of law to a larger bench while having the review jurisdiction exercised.
The question arose in the Sabarimala case hearing that relates to the gender discrimination against women at religious places. The bench headed by Chief Justice S A Bobde and consists of Justices R Banumathi, Ashok Bhushan, L Nageswara Rao, MM Shantanagoudar, SA Nazeer, R Subhash Reddy, BR Gavai and Surya Kant. Many senior lawyers including Fali S Nariman, Kapil Sibal, Shyam Divan, Rajeev Dhavan and Rakesh Dwivedi.
A five judge bench, by majority of 3:2 on the 14th of November, 2019 referred to a larger bench, the issue of discrimination against women at various religious places of worship. The majority held verdict by the former Chief justice - Ranjan Gogoi and Justices AM Khaniwilkar and Indu Malhotra decided to keep the plea in a review decision regarding to the issue of entry of women into the shrine as pending. And further said restrictions were not only limited to Sabarimala alone and prevailed in other religious places as well.
The updates from today's proceedings are as follows:
- Solicitor General Tushar Mehta said that the question framed for arguments today was on an "inherently faulty premise". The court had listed for arguments the issue whether a Sabarimala Review Bench could have framed and referred new questions of law to a larger Bench.
- CJI said, "You deciphered that the (5-judge Bench) had heard the review, they had passed the order in exercise of their original powers and not in furtherance of the review." The Solicitor Genreral Tushar Mehta agreed.
- SG said what is before the nine-judge Bench had nothing to do with any review or Sabarimala case.
- The nine-judge is on an authoritative interpretation of As. 25, 26 - freedom of religion. Solicitor General Tushar Mehta said that the powers of Supreme Court to refer a matter to larger bench is unfettered even if its a review petition or curative petition.
- CJI and Justice Banumathi asked SG to carry on with his response to the question whether a Review Bench could have referred new questions to a larger Bench. The CJI said the court will not hear arguments on this question beyond today, possibly "before today"
- Solicitor General said the Court’s powers were unfettered and it can lay down the broader law for the future.
- SG says SC, in its wisdom, realised there are several cases concerning interplay of A. 25 pending here - female mutilation among Dawoodi Bohras, Parsi women's entry to fire temple.
- A 5-judge Bench cannot do justice. SC found there is a need for clarity. Hence the reference.
- Solicitor General said that even if the reference was not proper, the larger Bench could always say it will examine the questions put to it.
- Justice Ashok Bhushan said that the CJI can refer even without a judicial order from the court.
- Solicitor General said even if the CJI is part of a Bench, he does ceases to be the CJI. He can refer.
- SG said testing whether the Sabarimala review Bench could have referred new questions to a larger Bench is a "frivolous issue"& It is justice which is relevant and not the technicality (of the referral). CJI wants Senior Advocate Fali Nariman to make his submission. Nariman differed from SG and began by submitting that reference can't be made in a review plea.Senior Advocate FS Nariman opposing the reference: In 2007, Sabarimala matter was referred to a larger bench.The 5 judge bench answered these questions. Then a review is filed.The scope of a review is not like in an original petition, it is extremely limited. CJI said once the court decides to hear a review, doesn’t the appeal get reopened? Nariman said only when review is admitted. Only when it is allowed and reopened.Fali Nariman concludes.
- The most interesting point made by him was that the Nov 2019 order of review bench was an administrative order in the guise of a judicial order. Fali S Nariman had asked how a CJI could issue an administrative order of referral to a larger Bench in the guise of a judicial order from the Sabarimala review BenchA A review is not a rehearing. It is only for determining if there are any glaring errors, Nariman reading out judgments on scope of review jurisdiction. Indira Jaising said these questions don't arise at all. CJI said that they will not decide any disputed facts in these proceedings.
- Indira Jaising appearing for one of the two women in the case said arguments of both Tushar Mehta and Fali Nariman are correct. Indira Jaising said most of the review petitioners were not parties to the original case. Most review petitions were filed with the leave of the court.Simultaneously petitions were also filed challenging the 2018 judgment. Indira jaising said SG has a point when he said the order has not been passed in review petition. So first question to be determined in what jurisdiction it has been passed and during pendency of review, writ petitions were allowed to be filed challenging the main judgment. So court will have to decide in which proceedings the order was passed.Jaising says An Article 32 petition cannot lie filed against a judicial order. Otherwise it will amount to infra-court appeal.This amounts to an intravenous-court appeal. Kerala govt said that the SC could have opened the Sabarimala only if there was an error apparent in the Sabarimala judgment quashing the ban on entry of women of menstruating age.You can never apply reference in a review because the nature of the proceedings are in high conflict. Sr Advocate Rakesh Dwivedi said Inherent powers of the SC cannot be expanded beyond the scope of the review jurisdiction.
- CJI said that they have found it implicit in the reference that there are issues here desirable to be examined by a larger Bench Kerala govt tells Supreme Court that a reference cannot be made in review. Indira Jaising argued Hearing such petitions will amount to intra-court appeal.
- Rajeev Dhavan appearing for an intervenor begins arguments. Said--Sabarimala is a decided case. It is binding on everybody. Disagreed with the judgment but it is bindins, has any judge said in the reference order that the judgment in Sabarimala is wrong? No error in the 2018 judgment has been pointed out in the reference order of review bench.
- In a review, the court can only look into whether there is an error apparent on the face of record: Kerala govt. It said if in reference SC changes the law, then parties will ask for new law to be applied in review. CJI said that they will.
- Kerala govt said that can't be allowed because review should be decided only on error apparent as law stood when main case was heard. Kerala govt tells SC--Review of Sabarimala case only entailed checking if September 2018 judgment, that quashed prohibition of women's entry, was wrong. Now, the reference would mean declaring a new law in cases like Sabarimala. How can a new law be retrospectively used on an already decided case.
- Shyam Divan said Challenge to female genital mutilation, entry of muslim women into mosques and parsi women into Agyari were not before the review bench. Shyam Divan commenced arguments. Said unless the case is reopened by saying there is an error apparent, there cannot be a review.
- Senior Advocate AM Singhvi said the issue today could a reference have been made to a larger bench given that the review had not yet been decided.
- Shyam Divan said referring to larger Bench questions of law while deciding a review plea is an appeal in disguise.
Author: Dyuti Pandya