[Sabarimala Reference] Nine Judge Bench Hearing -Live-Updates From Supreme Court

Referring to Gulabchand case (1965 2 SCR 567), he says that unless there is an explicit order to reopen it, it remains the same.

Divan refers to the other cases such as FGM, Muslim women’s entry into mosques and Parsi matter, which were not before the court. “Unless the review is allowed, there is one final judgement”.

He refers to the doctrine of merger wherein the cause of action merges into a decree. “If you want to reopen the judgement, then the cause of action remains. Otherwise under DoM, cause of action merges.”

Divan takes the court back to the minority opinion in the #Sabarimala review which states that reference cannot be done.

#Sabarimala

Divan asks the Bench to look at Order 47. “No application for review will be entertained unless on the ground mentioned”. Divan asks the Bench to keep this in mind that the same cannot even be entertained because the scope for review is narrow.

Divan refers to review in the criminal appeal of a judgement in which Justice Bhagwati says that unless the case is reopened and decided, reference cannot be done.

CJI asks whether unless the Bench records that there’s an error on the face of the record, there cannot be a review ? Divana responds in affirmative.  

As Senior Advocate Syam Divan prepares to argue,

SG states that Divan is only in the case regarding FGM. He has nothing to do with the current case, and that he has already argued before.

Divan thanks SG for reminding everyone.

Divan starts submissions.

Jaideep Gupta : If you hear the reference post the review, the lis will be opened again. It will no longer be res judicata between the parties.

Nine-Judge bench has re-assembled.

Sr. Adv. Jaideep Gupta resumes his submissions

"Based on the subsequent change of law, the original lis will not be opened. This is a settled proposition of law."

Reference will bind everyone in the future. But, in review, the parties to the litigation will be affected.

Review cannot be decided post the reference. If it does, then the question of law which is decided in the reference, will become a ground in the review. It becomes an appeal.

Will continue after lunch