The decision of a five-judge Bench led by Chief Justice of India Ranjan Gogoi to have an open court hearing of the review petitions filed against another five-judge Constitution Bench’s Sabarimala judgment is “exceptional”, legal experts say.
The turn of events is quite extraordinary that an echo can be found 43 years ago in the open court review of the historic Kesavananda Bharati verdict in November 1975.
That review, however, was short-lived. On the third day of the court hearing, then Chief Justice of India A.N. Ray abruptly dissolved the Review Bench.
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Again, the Sabarimala judgment, which struck down a ban on women of menstruating age from undertaking the pilgrimage, was delivered by a Constitution Bench of five judges. The Review Bench formed by Chief Justice Gogoi is also a five-judge Bench. The Supreme Court decision in the Central Board of Dawoodi Bohra Community holds that a Bench of co-equal strength on its own cannot overrule a judgment of a Bench of co-ordinate number of judges. So, a five-judge Bench cannot overrule another five-judge Bench’s verdict. In case the Sabarimala verdict has to be overruled, the Supreme Court would have to form a larger Bench of seven judges.
Interestingly, the Kesavananda Bharati judgment was also delivered by a 13-judge Bench – the largest Constitution Bench in the history of the Supreme Court – on April 24, 1973. Through a wafer-thin majority of 7:6, the 13-judge Bench formulated that the Basic Structure of the Indian Constitution cannot be altered by the Parliament through amendments. The Review Bench with Chief Justice Ray had also composed of 13 judges. If at all, the Kesavananda Bharati judgment had to be set aside, it would have been necessary to set up a Review Bench of 15 judges.
In his biography of Nani Palkhivala called The Courtroom Genius, senior advocate Arvind Datar described the 1975 attempt to review the Kesavananda Bharati verdict as a “clumsy attempt”. Palkhivala had argued for the petitioners in the Kesavananda Bharati case and against its review.
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Finally, the 49 review petitions challenging the Sabarimala judgment question the very content of the Sabarimala verdict. This again is quite similar to how the Kesavananda Bharati review had questioned the core of the 1973 landmark verdict. The question framed in the review was “whether or not the basic structure doctrine restricted Parliament’s power to amend the Constitution”.
Review of any Supreme Court decision is rare. It is rarer still to examine review petitions filed against a Constitution Bench judgment. That too, in the open court. Review petitions are usually decided by circulation in judges’ chambers.
The philosophy behind a review is explained in the A.R. Antulay judgment of the Supreme Court wherein the court admitted that it can be fallible. “To err is human. Courts including the apex one are no exception,” the court had acknowledged.
Advocate Kaleeswaram Raj said the situation was rare as a Constitution Bench is itself formed to finally settle the law. “When there is a difference among smaller Benches on what law is, the question of law is referred to a Constitution Bench for a final opinion… to review a Constitution Bench judgment is rare,” he said.