10 Reasons Why The Sabarimala Reference To 7 Judges Is Problematic

While I do not agree with the majority judgment in the Sabarimala judgment, the reference to a larger bench in a review petition by the majority judgment is unclear and opens a pandora's box. Let me state the reasons why –

1. The review jurisdiction of the Court under Article 137 of the Consitution is subject to the provisions of any law made by Parliament or any rules made under article 145. Under Article 145 of the Constitution, the Supreme Court Rules, 2013 have been notified. Order 47 of the Supreme Court Rules deals with power to review. The scope in a civil review jurisdiction is extremely limited to discovery of new important matters of evidence, mistake or error on the face of the record and any other sufficient reason. [Kamlesh Verma (2013) 8 SCC 320].
   
   A review is not even maintainable in following cases: (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

2. In the instant case, however, along with review petitions several fresh writ petitions had also been filed as a fall out of the judgment under review. All these petitions were heard together in the open Court. A fresh writ petition filed on an issue already adjudicated by a constitution bench of the Court deserved to have been dismissed as barred by Res Judicata.
3. The majority judgment notes that 3 important matters i.e. entry of muslim women in a Durgah/Mosque, Parsi women married to a non-Parsi into the holy fire place of an Agyari, question regarding powers of the constitutional courts to tread on question as to whether a particular practice is essential to religion or is an integral of the religion, in respect of female genital mutilation in Dawoodi Bohra community; are pending before the Court. Interestingly the last two issues were already pending at the time when the Sabarimala judgment was pronounced by a 5 judge bench. The issue regarding entry of muslim women in a durgah/mosque was filed after the decision and notice was issued in it only because of the judgment in Sabarimala. Therefore all these three judgments stand covered by the Sabarimala judgment.
4. The majority judgment proceeds on an assumption that the issues in these three cases may be overlapping and covered by the judgment under review. The prospect of the issues arising in those cases being referred to larger bench cannot be ruled out! This is completely unfounded and without any basis. The Supreme Court cannot refer important issues to larger benches on a mere probability that they may be referred to larger benches at some point of time. If such a need arises before an appropriate bench, it shall do so, but till then finality of litigation has to be adhered to. Assuming that no such need for reference arises in future, the instant reference has already usurped the jurisdiction of future benches and referred the issues to larger bench. What a future constitution bench or larger bench, if constituted, may or may not do when considering the other issues pending before the Court was not at all before the Court in the instant review petition.
5. Further, there is no proper application of judicial mind in framing issues of reference. In Para 6, the majority judgment simply says that the said issues 'could be'. This is neither a proper reference nor helps the larger bench in adjudication. Eg, the first issue states as follows – "Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.". Not only is this extremely wide but also does not properly state the exact and precise terms of reference. The rest of the issues are similarly kept extremely open and wide.
6. The majority judgment states that the decision by a larger bench will also pave way to instil public confidence and effectuate the principle underlying Article 145(3) of the Constitution - which predicates that cases involving a substantial question of law as to the interpretation of the Constitution should be heard by a bench of minimum five judges of this Court. Interestingly, a 5 judge bench decision has already been passed by the court and the court was in its review jurisdiction. Whether in a review jurisdiction, a matter can be referred to a larger bench is debatable.
7. The majority judgment further opened the arena by holding that while deciding the questions delineated above, the larger bench may also consider it appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all. It was also laid that whether the aforesaid consideration will require grant of a fresh opportunity to all interested parties may also have to be considered. This virtually means that the sabarimala case will also be heard again. This is without assigning any reasons to do so.
8. The majority judgment further holds that the review petitions as well as the writ petitions may, accordingly, remain pending until determination of the questions indicated above by a Larger Bench. Thus, a larger bench will have to be constituted, the matters (including Sabarimala judgment) will have to be heard, the 7 judge bench will take a decision, the matter will therefore again be remanded to the review bench, review bench will be constituted by the then CJI, the review bench will hear the matter and finally take a decision. The process is eternally long considering the fact that 7 judge benches are constituted in the Supreme Court very slowly due to lot of reasons.
9. Till then, as there is no express stay on operation of the Sabarimala judgment, the same, even though being referred to a larger bench, shall continue to be a binding precedent under Article 141 of the Constitution and all authorities have to act in its aid as per Article 144 of the Constitution.
10. Out of the 5 judges who heard the review petition, CJI Gogoi retires after 2 days, Justice Indu Malhotra superannuates in March 2021 , Justice Nariman in August 2021, Justice Khanwilkar in July 2022, and Justice Chandrachud (who may become the CJI) in November 2024. So most probably, by the time the review petition is heard, it shall be by a new bench completely.

In my view, the logic behind reference to a larger bench on an assumption that in future the matter may be referred to a larger bench does not inspire confidence and is not the correct manner to refer constitutional issues of such importance to larger benches. If at all, in its review jurisdiction, the majority felt that a need arises for reviewing the judgment, it should have done that but interestingly the judgment is completely silent on this aspect. There is no finding on the correctness of the Sabarimala judgment. It is also debatable that whether the Sabarimala judgment still carries the force of a precedent or stand suspended till the larger bench decides as the same issue decided by it also stands referred to the larger bench.

Pertinent to note that the 7 judge bench, if so constituted, reserves its power to remit back the matter for vague terms of reference as well as for the reason that the reference is not required. Till it is constituted, fingers crossed!

Views Are Personal Only.

(Author is a practicing Lawyer at Supreme Court of India)

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]