The Kerala government on Thursday objected to the Supreme Court keeping the Sabarimala review case in limbo till a nine-judge Bench is done examining questions referred to it on the constitutionality of essential religious practices followed by multiple faiths.
The government apprehends the possibility of the case being reopened if the nine-judge Bench ends up declaring new law in the future. Such a turn of events may even lead to the upending of the September 28, 2018 majority judgment of a Constitution Bench, which had declared the prohibition of entry of women aged between 10 and 50 years as unconstitutional and discriminatory.
CJI defends Gogoi Bench’s reference
Chief Justice of India (CJI) Sharad A. Bobde, heading the nine-judge Bench, however, defended the November 14, 2019 reference made by a five-judge Sabarimala Review Bench led by then CJI Ranjan Gogoi. “By making this reference order [on November 14], the Bench [led by Justice Gogoi] has not prejudicially affected anybody's rights. It may be the most innovative idea, but it has not affected any rights,” he said.
The Bench reserved orders on the issue whether the Review Bench could have referred other questions of law to a larger Bench. The CJI said the order would be pronounced on February 10.
The Kerala government, represented by senior advocate Jaideep Gupta, contended that the Review Bench could not have made the November 14 reference to a larger Bench before completing its assigned task. Review jurisdiction of the court was limited to judgment under review while a reference to a larger Bench leads to the declaration of new law. Review and reference were like chalk and cheese. The Gogoi Bench could not have walked both, it argued.
A review of the Sabarimala case only entailed examining whether the September 2018 judgment was wrong. Now, the reference may mean this nine-judge Bench is declaring new law in cases like Sabarimala. How can a new law be retrospectively used on an already decided case?, Mr. Gupta said.
“But if a larger Bench lays down new law, the Review Bench would have to follow that law,” the CJI responded.
“Exactly, that is why I am saying the Sabarimala review should not be kept pending,” Mr. Gupta submitted.
Senior advocate Fali Nariman, who had intervened, agreed with the Kerala government, saying “when a review petition is pending, the idea is to hear it”.
On November 14 last, the Gogoi Bench, in a majority judgment, did not decide the Sabarimala review cases before it. Instead, it went on to frame “larger issues” concerning essential practices of various religions. It further clubbed other pending cases on subjects as varied as female genital mutilation among the Dawoodi Bohras to the entry of Parsi women who married inter-faith into the fire temple and Muslim women into mosques and referred them all to a larger Bench. The reference order also asked the larger Bench to consider the Rule pertaining to the prohibition of entry of women of menstruating age into the Sabarimala temple. Chief Justice Bobde, who succeeded Justice Gogoi as top judge, set up a nine-judge Bench to hear the reference.
But the reference hit a bump on Monday when Mr. Nariman objected to it. He had argued that the court cannot declare law in thin air.
On Thursday, Mr. Nariman argued, “Fundamental [to judicial process] is you apply law to the facts of cases and not decide the law before looking into the facts... Never indulge in the exposition of law outside the realm of the facts of the case.”
He said the Gogoi Bench's sole task was to review the Sabarimala judgment of September 2018. The major ground for seeking a review was the finding in the September 2018 judgment that Ayyappa devotees do not form a separate religious denomination. On November 14, the Review Bench recorded no errors apparent or miscarriage of justice in the 2018 Sabarimala verdict.
“When Ayyappa devotees was not found to be a separate denomination, then these reference questions on Article 25 [religious freedom] are purely an academic exercise. It was not necessary to raise these hypothetical questions in reference. The President, and not the CJI, consults the Supreme Court under Article 143 of the Constitution on questions of law and facts,” he argued.
Senior advocate Shyam Divan agreed that review jurisdiction did not include “framing a catalogue of questions randomly”.
“But what if judges have a doubt? They refer it to a larger Bench. Are you saying the President can refer questions of law to the Supreme Court, but judges cannot?” senior advocate A.M. Singhvi countered.
To the Kerala government's submissions, Mr. Singhvi said, “What if another Bench refers these questions to this nine-judge Bench, which answers them. Can the five-judge Bench, which will resume the Sabarimala review, ignore a law laid down by the nine-judge Bench?"
Senior advocate K. Parasaran said the Supreme Court, as the highest court of the land, has unlimited jurisdiction. The fact that it was reviewing Sabarimala judgment did not preclude it from referring other questions of law and cases with similar issues to a larger Bench.
Solicitor General Tushar Mehta contended that the objections raised against the November 14 reference to a larger Bench was based on “inherently faulty premise”. "To say that a Review Bench cannot refer questions of law to larger Bench is absolutely absurd... No technical fetter prevents the Supreme Court from doing complete justice”, he said. He referred to how the Section 377 IPC matter (decriminalisation of homosexuality case) was referred for a fresh examination at the curative stage.