Renowned jurist and senior advocate Fali Nariman has objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected.
“Are you saying that when hearing the review of one judgment [Sabarimala in this case], we cannot refer such larger questions to a larger Bench?” Chief Justice of India (CJI) Sharad A. Bobde, heading the nine-judge Bench, asked Mr. Nariman on Monday.
“Yes, that is absolutely right. It will be outside your jurisdiction to do that,” Mr. Nariman replied emphatically.
The CJI observed orally that Mr. Nariman had a “formidable point there”.
He said the nine-judge Bench would not “abort the hearing” now. The objections raised by Mr. Nariman would be framed as an “issue” to be decided by the Bench. It would convene on Thursday to fix the dates of the hearings that would start from next week. The CJI clarified that the nine judges would confer and frame the issues for hearing.
Senior advocate K. Parasaran countered Mr. Nariman, saying the Sabarimala case had its genesis in public interest petitions. It was not an in personam (affecting a specific person) litigation. In a case emanating from a PIL, there is no restraint on a constitutional court in extending the scope or questions to be examined, he argued.
The Sabarimala case review by a five-judge Bench led by then CJI Ranjan Gogoi took a curious turn on November 14 last. The Bench sidestepped the task of reviewing the September 2018 judgment, which declared the prohibition on the entry of women of menstruating age into the Sabarimala temple as discriminatory. Instead, the Bench referred seven questions, including whether essential religious practices should be afforded constitutional protection under Article 26 (freedom to manage religious affairs), to a larger Bench. Further, the Review Bench tagged other pending cases on the prohibition of Muslim women from entering mosques, female genital mutilation among Dawoodi Bohras and the ban on Parsi women who married inter-faith from entering the fire temple to the reference.
Chief Justice Bobde, when he succeeded Justice Gogoi, promptly set up the nine-judge Bench to decide this reference.
On Monday, Mr. Nariman argued that the Gogoi Bench had no business to either drag other cases into the reference nor frame such “larger issues” when its sole mandate was to simply review the Sabarimala verdict.
Mr. Nariman said he could cite at least six judgments of the Court holding that a Bench sitting in review cannot frame new issues and refer them to a larger Bench. Review jurisdiction was rare and limited. The task of a review Bench was only to ascertain there was no apparent error or gross miscarriage of justice in the original judgment.
Chief Justice Bobde said the nine-judge Bench would not decide on the legality of the religious practices under challenge in the individual cases referred to it.
But Mr. Nariman intervened to say that courts “cannot decide the law without applying the facts of each case”.
Senior advocate Shyam Divan added that courts cannot indulge in “speculative opinions”. “The November 14 judgment was speculative in nature,” he said.
Senior advocate Rajeev Dhavan asked how the Sabarimala review could be kept in limbo. “A review cannot be adjourned or postponed as the November 14 judgment has done… How can you hear larger issues when the review is pending?”, he said.
The CJI said Mr. Nariman and others “may be correct in saying that law ought to be decided as and when cases come and not in anticipation or pre-emption of their coming”.