A revival of battles already fought and lost

In its review of the Sabarimala case, the Supreme Court went beyond its narrow capacity to revisit its own orders

November 28, 2019 12:02 am | Updated 12:39 am IST

Last year, on September 28, the Supreme Court of India delivered a momentous verdict in Indian Young Lawyers Association v. The State of Kerala . There, a majority of 4:1, in ruling in favour of women’s entry into the Sabarimala temple in Kerala, presented to us the most attractive portrait of what the Constitution really means. But today that vision stands threatened. In early November, a sharply divided bench, in Kantaru Rajeevaru , with two out of five judges dissenting, has decided to keep review petitions filed against the original judgment pending, and, in the process, has virtually unfastened the brilliance of the court’s transformative verdict.

Contours of first ruling

There is no doubt the initial ruling could well have been rendered on narrow and technical grounds. But each of the three judges who wrote opinions for the majority of four chose to read the Constitution expansively, by leaving their respective imprints on the verdict. Their definitive and collective findings, though, are easily deductible. First, they ruled that the devotees of Lord Ayyappa did not constitute a separate religious denomination. Second, they held that the bar enforced on women aged between 10 and 50 years from entering the Sabarimala temple infringed the equal rights of those women to freedom of religion. And third, they found that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, on which the ban was grounded, violated not only the Constitution but also Section 3 of its parent law, which promised free access to temples for all classes of Hindus. What is more, these findings apart, three of the judges on the majority also expressly ruled that the exclusion of women was, in any event, not an essential religious practice, and was, therefore, undeserving of any constitutional protection (a fourth judge, Justice R.F. Nariman, proceeded on the assumption that the practice was essential but still found it unlawful).

On the ground

The verdict helped burnish India’s grandest constitutional guarantees, but it also provoked strong criticism. Many felt the court had erred by wading deep into theological waters. At the same time, though, the resistance to the judgment went too far. Not only were protests held across the country but efforts made by women to access the temple were thwarted in open defiance of the judgment. Simultaneous with these acts of disobedience, pleas were filed in the Supreme Court, in some cases, seeking a review of the judgment, and, in others, seeking an issuance of a writ to once again forbid the entry into the shrine of women of menstruating age. The aim of these petitions was simple: to quench the flames of freedom that the court had helped light up.

Article 137 of the Constitution confers an express power on the Supreme Court to review its own decisions. But this authority is subject to both parliamentary law and to rules of procedure framed by the court. These rules, as the court’s own prior judgments make plain, allows a bench the power of review only when the earlier judgment is likely to result in a miscarriage of justice on account of any manifest error that is clear on the face of its record. In other words, the court’s capacity to review its own orders is confined within narrow boundaries: it can neither rehear formerly concluded arguments nor can it reappreciate the evidence on record. There is a lambent logic to this tenet. At stake when a judgment is sought to be reviewed is not only the court’s authority — in that its carefully considered decisions are meant to be final and binding — but also, as Justice V.R. Krishna Iyer once wrote, its “precious public time”, which can scarcely accommodate a revival of battles already fought and lost.

Speculative line

However, the majority’s judgment in Kantaru Rajeevaru simply does not grapple with these considerations. Instead, it offers a welter of ‘ifs’, ‘buts’, and ‘maybes’. It begins by admitting that the petitioners’ endeavour is to resuscitate a debate about what constitutes a practice essential to religion. This finding, one would have thought, would have served as sufficient cause for dismissing the claims for review. But, inexplicably, the opinion proceeds to refer to a series of other, unconnected cases where a similar debate might arise for consideration. This therefore necessitates, the judgment holds, an “authoritative enunciation” by a “larger bench of not less than seven judges” of a judicial policy that will “put at rest recurring issues” concerning the right to freedom of religion. This holding, though, is baffling for many reasons, not least the fact that the court has already carved a rich jurisprudence touching upon the engagement of religious rights with other constitutional promises.

The court then says there is a “prospect” of the issues arising in the other cases — including cases concerning the entry of Muslim women into mosques, the conscientious rights of Parsi women married to a non-Parsi, and the validity of the practice of female genital mutilation in the Dawoodi Bohra community — “being referred to a larger bench”. Having conjectured thus, the court stops short of framing issues for a referral and instead speculates, once again, on what some of these “issues could be”.

As Justice Nariman points out, in a coruscating dissenting opinion that Justice D.Y. Chandrachud concurs with, these findings are entirely beyond the remit of the court’s authority in determining a plea for review. “What a future constitution bench or larger bench… may or may not do when considering the other issues pending before this court,” he writes, “is, strictly speaking, not before this court at all.”

The majority’s opinion then highlights a seemingly illusory conflict between the court’s judgments in the Shirur Mutt’s case (1954), which was decided by a seven-judge bench, and Durgah Committee , Ajmer (1961), which was decided by a bench of five judges. It is of no consequence to it, though, that this point of supposed divergence made no material difference to the original judgment in Indian Young Lawyers Association . Indeed, the opinion fails to draw attention to a single error made in the judgment under review, let alone a manifest error apparent from the face of its record.

A diminished ideal

Each of us is free to formulate our own views on the court’s original judgment. But the court itself can act on a review petition only within those limits prescribed by law. For the majority to order that the pleas for review be kept pending until the determination of a set of vague and unenumerated questions by a larger bench is, on any reading, extraordinary. Had the court found demonstrable errors in the original judgment, it ought to have allowed the review petitions and rescinded its earlier verdict. But it displayed neither the confidence to do this, presumably because it could not find any such errors, nor, more worryingly, did it show the moral courage to dismiss these petitions and make impregnable its previous ruling.

It is difficult to understand how this irresolution can at all be helpful. In the ultimate analysis, the court’s ruling in Kantaru Rajeevaru only denudes it of its authority and allows people to believe, as Justice Nariman notes in his dissent, that compliance with the law is a “matter of option”. The majority’s decision to open up for abuse the limited jurisdiction for review of its own orders that the court has hitherto permitted also has the potential to produce a miasma of public mischief. Only a swift dismissal of the review petitions can help reinvigorate some belief in the now diminished ideal of the rule of law.

Suhrith Parthasarathy is an advocate practising at the Madras High Court

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