A nine-judge Bench led by Chief Justice of India (CJI) S.A. Bobde will on Thursday hear detailed arguments on whether the Supreme Court can refer questions of law to a larger Bench while hearing a plea to review its earlier judgment.
This development follows renowned jurist and senior advocate Fali Nariman’s objection on Monday to the manner in which the court turned a review of the Sabarimala case into an opportunity to examine “larger issues” concerning the essential religious practices of various faiths, including Islam and Zoroastrianism.
And Chief Justice Bobde acknowledged that day that Mr. Nariman had a “formidable point there”. But senior advocate K. Parasaran countered Mr. Nariman, saying the Sabarimala case had its genesis in public interest petitions. The case was not an in personam (affecting a specific person) litigation. In a case emanating from a PIL, there was no restraint on a constitutional court in extending the scope or questions to be examined, he argued.
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The review of the case by a five-judge Bench led by then CJI Ranjan Gogoi took a curious turn on November 14 last. It sidestepped the task of reviewing the September 2018 judgment, which declared the prohibition of 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 the Dawoodi Bohras and the ban on Parsi women who married inter-faith from entering the fire temple to the reference.
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Chief Justice Bobde, when he succeeded Justice Gogoi, promptly set up the nine-judge Bench to decide this reference.
On Monday, Mr. Nariman contended 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. He 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 larger Bench.
Review jurisdiction is rare and limited. The task of a review Bench is only to ascertain there is no apparent error or gross miscarriage of justice in the original judgment.
