[Sabarimala Reference] Court Has Not Prejudicially Affected Anyone's Rights By Making The Reference : CJI Bobde

During the hearing of the maintainability of Sabarimala reference before the 9-judges bench, CJI SA Bobde, heading the bench, commented that by making a reference, the Court has not 'prejudicially affected anybody's rights'.

"By making a reference order, the court has not prejudicially affected anybody's rights! At the most, it is an innovative procedure", opined the CJ

Responding to the preliminary objection against the reference being made in a review, the CJI remarked :

"We have said that in the reference, we won't go into the facts. Your argument would be correct if we disposed off the review. We will only answer the questions, then different benches can decide the review...why can't we say in a review that the judgment requires a re-look?"

Earlier, Senior Advocate Fali S Nariman had elaborately argued against the reference, while the Solicitor General, appearing for the Centre supported the same.

Following that, Senior Advocate Indira Jaising, asserting that the entry of women belonging to a specific age group to the Sabarimala Temple is a disputed fact, submitted that "unless the facts are determined, the questions don't arise".

"The SG has a point in saying that the order of reference is not passed in the review. Look at the cause-title- it is an exhaustive title consisting of review petitions as well as writ petitions. These writ petitions under 32, directly challenging the judgment, were allowed to be filed even though the review is not decided", she advanced.

"There is no clarity as to the order of November 14, 2019 making the reference has been passed int he review petition or the writ petitions or both. That is for you to decide as the scope of a review petition and a writ potion are substantially different. A review has a very, very limited scope which is not necessarily true for a writ petition. in the writ petition, the court could conceivably make a reference and frame questions...", she explained.

"Even without deciding the review?", asked Chief Justice S. A. Bobde. "No...", replied Ms. Jaising.

"The bench should have either set out the error in the judgment in review and addressed it or dismissed the review petitions. There has neither been a disposal nor a finding that the judgment was erroneous. The review  petitions are only adjourned. There is no conflict between Shirur mutt and Dargah Committee. But saying there is a conflict abstractly is of no use...secondly if the order was passed in the writ petitions, the court has to decide if the writ petitions are maintainable". 

"The referring bench should have read the content of the writ petitions", she submitted.

"Why should we decide all this? Even if the reference was made in a single proceeding, we can decide it. Unless the reference was made in the review, and we come to the conclusion that it could not have been so made without deciding the review first...", observed the CJ.

"Your Lordships may either decline the reference, or de-tag the review from the writ petitions and decide the review in accordance with the law and then place it on board", responded the Senior Counsel.

Next, as Senior Advocate Rajeev Dhavan sought to make a brief submission, SG Tushar Mehta brought to the court's attention that he was an intervenor on behalf of himself.

"I have addressed the court earlier also. And I am also the intervenor for the former Secretary General of the Lok Sabha", replied Dr. Dhavan, even as the CJ raised doubts about one who was not party to the earlier proceedings.

"The CJ has the power to make a reference without a judicial order? In every case that the SG cited, there was a judicial order. otherwise, I could just seek an appointment in the CJI's chambers and say that there is no such order but can you in your judicial capacity make a reference?", commenced Dr. Dhavan.

"Sabarimala is a decided case and it is binding. The reference order does not say that the judgment is wrong. Which means that it is good law! There is no concept of inter-court appeals here...', he expounded. 

"Maintainability is the prelude to every writ petition. There has to be locus, as also a writ petition cannot question a judgment of the court", he concluded.

Then, Senior Advocate Rakesh Dwivedi began his arguments- "In Pesikaka case, the order of reference doesn't keep the review pending. 'granting' the review means allowing it. The original matter is opened for reconsideration. the matter is alive. Then any reference can be made"

"It is a case of residual power...an a technicality may be overridden in the interest of justice", noted the CJ.

"The inherent power cannot expand  the scope of a review", replied Mr. Dwivedi.

Indicating Order 6 Rule 2 of the Supreme Court Rules, which provides that if, in the course of the hearing in any "cause, appeal or other proceeding", the bench is of the view that the matter requires consideration by a larger bench, he may make a reference for the CJI to constitute the bench, he advanced that "other proceeding cannot mean a review or a revision". 

"We agree that the bench (making the reference) did not say if the (Sabarimala) judgment was wrong or right. But we have no control over what that bench said. But if there is something which is desirable to be heard by a larger Bech...?", asked the  CJ.

"There cannot be a conflict between a 7-judge bench decision (Shirur Mutt) and a 5-judge bench ruling (Dargah Committee). Even if there is a conflict, the 7-judge bench verdict has to be followed!", argued Mr. Dwivedi.

Another Senior advocate pointed out that the subjective ground for reference creates problem. When the CJ remarked that the constitution bench (headed by CJ Ranjan Gogoi) itself said that the matter needs to be reheard, the counsel insisted that the bench should have still stated if the judgment was right or wrong.

Further, Senior Advocate Jaideep Gupta, for the state of Kerala, submitted, "nature of a review proceeding and a reference are completely different. In fact, they conflict. As between the parties to the original litigation, the case can be reopened only if there is an error apparent on the face of the record. In a reference, Your Lordships have to see if the law should remain the same or changed...One question was whether the essential practices test is a part of 25. If, in the reference, Your Lordships say it is not, that will not be an error apparent on the face of the record of the judgment in the original proceeding!"

"We have said that in the reference, we won't go into the facts. Your argument would be correct if we disposed off the review. We will only answer the questions, then different benches can decide the review...why can't we say in a review that the judgment requires a re-look?", reflected the CJ.

"And if any one question is necessary for deciding the review, say, whether a petition questioning the faith can be filed at the behest of one who is a member of another religious denomination, then that question will be applicable", added Justice Ashok Bhushan. 

"Even in Pesikaka, the reference was made in the review petition", remarked Justice L. Nageswara Rao.

 "The power is not different when review is allowed from when review is pending", commented Justice Bhushan.

"We grant the review and reopen the case to enable us to obtain the opinion of a larger Bench on the constitutional question raised in the judgments previously delivered by us", the constitution bench had observed in Pesikaka.

As Senior Counsel Shyam Divan readied to argue, the SG objected, saying that he appears for the petitioners in the FGM matter and not in Sabarimala, and that he may be heard before the 9-judge bench in the reference but not on the preliminary issue "Whether this Court can refer questions of law to a larger bench in a review petition?"

"To answer Justice Rao's question, the court in Pesikaka was fully conscious that they could not have made a reference in the review. So they re-open the case. It becomes a full-fledged criminal appeal. And then they were fully competent to make the reference...", began Mr. Diwan.

"'Grant the review' doesn't mean 'decide the review'. Is it disposed off without reasons? The bench has to record error on the face of the record which was not done there", noted the CJ. Mr. Diwan agreed that there was an infirmity.

"There is no ratio that a reference can't be made (in a review)", added Justice Bhushan.

"I agree that it is no more than a practice", conceded Mr. Divan.

"Is there a restriction that questions of law cannot be referred to a larger bench?', asked Justice Rao.

"In Order 47 Rule 1 of the Supreme Court Rules, there is an embargo on the entertainment of review pleas. The bench making the reference (in the present case) has not even entertained the review, and two judges have dismissed the review!", contended Mr. Divan.

At this, the CJ inquired if notice was issued on the review petitions and was informed that the order was only for an open-court hearing.

Mr. Divan took the bench to the proviso to Article 145(3) which stipulates that only where the bench hearing an appeal consists of less than five Judges and, in the course of the hearing, is satisfied that the appeal involves a substantial question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of the appeal, such bench shall refer the question for opinion to a bench of  5 or more judges.

He expounded the doctrine of merger- "the cause of action merges with the final judgment and decree. Right now, we only have the original Sabarimala judgment decided by 3:2. Unless the review is allowed, undoing the 2018 Sabarimala judgment, there is no separate cause of action existing", he suggested.

"Not undoing. Re-opening", corrected the CJ.

In his turn, Senior Counsel Abhishek Manu Singhvi argued that no express bar on the court sitting in review making a reference to a larger bench has been shown, and that "the burden for the same is on those who are denuding a constitution bench that has made the reference and another constitution bench which is considering the reference".

"Yes. The President can ask his doubts [Articles 143, 145(3)], but if a bench hearing a review has a doubt, where does it go?", wondered CJ Bobde.

"The larger bench decides the questions and sends to back to he review bench to dispose off the review", agreed Dr. Singhvi.

The bench asked about the Explanation to Order 47 Rule 1 of the CPC. "Can an analogical provision bar you from making a reference to a 9-judge bench?", responded Dr. Singhvi.

"Discipline of law would require that where a reference is made to a larger bench, the bench making the reference would be bound by its decision. It cannot say that you answer our questions but it is upto us whether to follow or not", reflected the CJ.

"Order 47 doesn't contemplate a situation where a matter is referred to a larger bench of the same court", he added.

"The proviso to Article 145(3) is not interpreted to be a bar?", the bench wanted to know. "It applies to an appeal being heard by less than 5 judges. This is not an appeal. And the bench making the reference was of 5 judges", replied Dr. Singhvi.

Next. Senior Advocate K. Parasaran placed his case- "As far as the SC is concerned, there needs to be an express constitutional bar on jurisdiction. For example, Article 262 (Adjudication of disputes relating to waters of inter State rivers or river valleys)"

At this, CJ Bobde turned to veteran lawyer Fali S. Nariman, who had earlier questioned the propriety of this reference-

"In Delhi Judicial Service case (1991), you had cited Halsbury's Laws of England that a superior court has all the powers unless expressly barred, and an inferior court has no power unless conferred expressly. This will apply here?". Mr. Nariman replied in the affirmative.

"32 is the source of all power! It is the guarantee of a remedy for a right", urged Mr. Parasaran.

"And by making a reference order, the court has not prejudicially affected anybody's rights! At the most, it is an innovative procedure", opined the CJ.

Senior Counsel Arvind Datar pointed out that CJI Gogoi was aware of and indicated in the reference order the specific writ petitions in which similar questions would arise as to women belonging to other religions.

Senior Advocate P. S. Narsimha agreed that there was no option other than making a reference to a larger bench since Fundamental Rights are involved.

Senior Counsel V. Giri reiterated that upon the reference being answered, the review would be back before the five-Judge Bench for disposal.

Senior Counsel Ranjeet Kumar suggested that the jurisdiction is guaranteed- the Supreme Court is the final adjudicator of questions pertaining to fundamental rights as Article 32 comes under Part 3 of the Constitution. Senior Advocate C. S. Vaidyanathan also concurred that Article 32 is contemplated for the grounds of review in Order 47 and that the jurisdiction under Article 32 is not comparable to other jurisdictions.

The bench reserved its verdict on Thursday.