[Sabarimala Reference] "Lay Down The Law Only When Facts Come In": Fali Nariman Tells Nine Judge Bench

After a marathon hearing session which lasted for the entire court hours on Thursday, the 9-judge bench of the Supreme Court constituted to answer the questions mentioned in the Sabarimala review reserved orders on the preliminary issue whether a reference is possible in a review petition.

"Whether this Court can refer questions of law to a larger bench in a review petition?" - this was the preliminary issue considered by the Court.

"The question (framed by the 9-judge bench for consideration today) doesn't depict the correct situation. The reference was not made in the review. ('That is the whole argument', remarked Chief Justice S. A. Bobde)...It is an inherently faulty premise on which the argument is based. if we cross this hurdle. no question remains to be answered", began SG Tushar Mehta.

"What is the petition on which the reference is based?", asked Justice L. Nageswara Rao.

"The review petitions and the writ petitions. Let's not go by nomenclature but the content...", said the SG.

"But that bench (the 5-judge bench headed by CJ Ranjan Gogoi which had made the reference in November, 2019)  was in fact hearing the review (of the 2018 Sabarimala judgment) only and it was in the order in the review that they decided to make a reference", noted CJ Bobde.

"These questions (framed in the reference order) have nothing to do with the Sabarimala review...it has been categorically mentioned that the questions arise in other cases invoking Articles 25 and 26 also, and that the reference is to deal with the 'wider issue de hors the review'", advanced the SG.

"The CJI, exercising the power as the CJI, though sitting on a bench, made this reference! The CJI never sits alone anyway, always on a bench! But he doesn't cease to be the CJI just because he is sitting on bench!", he submitted.

"Why are you saying this? Only the CJI has this power", asked CJ Bobde.

The SG conceded that even the rest of the bench could wield this power. "And it is a judicial order", pointed out Justice Rao.

"You are saying that though the order was passed in the review petition, it was passed under (Order 6 Rule 2 of the Supreme Court Rules)?", questioned the CJ.

"it is based on the general principles of 25 and 26 and the conflict between Shirur Mutt and Dargah Committee which the court felt on several occasions", replied the SG.

Indicating the said rule, he advanced 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.

"'Any cause'- that is very wide...and the bench can also make a reference but here incidentally the CJ happened to be presiding the bench. When he sits on the judicial side and presides over a bench, he does not cease to be the CJ", said the SG. 

"So there was no question of a reference? it was not necessary to place the matter before the CJ?", reflected CJ Bobde. 

"And a bench is not constituted by a judicial  order. There was no question of this 9-judge bench coming to be because of that order. This could have been done by the CJ only under Order 6...the order may have been the stimulating factor for the constitution of the bench but the power is with the CJI...the CJ can refer a matter to a larger bench even without an order of reference", added Justice Ashok Bhushan.

CJ Bobde agreed that there cannot be a constitution of a bench by a judicial order, stating,

"You may make an alternative argument that the reference was not made in the review. We may say that it was not necessary to frame this issue"

When the CJ asked about a 'cause', an 'appeal' or a 'suit', the SG responded, "it can even be a curative petition. Your power is unfettered. You just need to be satisfied that there are substantial questions, that there is a conflict between a 5-judge bench and a 7-judge bench and that there is need to lay down the law authoritatively for posterity..."

"If the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing", he quoted from the 2004 apex court decision in Central Board of Dawoodi Bohra Community v. State of Maharashtra.

"Even where Your Lordships felt that the reference is not proper, you said that now that we, as a larger bench, are seized of the issue, we will answer it...It is the responsibility of the court to do so! I can never argue about the number of judges or the bench! I am before the Supreme Court of India! It is absurd to say that it was a review, and hence, there cannot be a reference! If it was said that there is a 11-judge bench decision and therefore, no reference is needed, it would be different..." he explained.

"If the court feels that a controversy keeps arising on one facet or the other, the court can in its judicial wisdom decide that a five-judge bench sitting in review will not be able to do justice to it! It is not just the right, but as the custodian of the fundamental rights, it is the duty to lay down the law authoritatively! Technicality cannot stop the court, that it is only a IA, or SLP or review!", he continued.

He cited as an example the decriminalisation of section 377 of the IPC- In Suresh Kumar Koushal, a two-judge bench said it can not be decriminalised. Then, in a different matter, a writ petition under 32 in Navtej Singh Johar, even when the review petition (in Koushal) had been decided and the curative petition was pending, Your Lordships said that the decision in Suresh Kumar Koushal  requires reconsideration by a larger bench and the reference was made!"

Next, he relied on the 1954 Pesikaka case- "The review petition was pending. And the review bench referred the matter to a larger bench. It said that the review petitions shall stay pending till the decision of the larger bench!"

He concluded by saying that even if the Bench was taking this route for the first time, which is not so, procedure could not stand in the way of justice and that the power of the court was unfettered by procedure.

Then, Senior Advocate Fali S. Nariman was called upon by the CJ to respond to the SG's case.

"The SG said we have raised a frivolous argument? I have never seen an administrative order of the CJI being challenged! It happens in the HCs, in service matters and judges' appointments, but never in the Supreme Court...please Keep out of your minds that CJ Gogoi was to retire 3 days after delivering this judgment. It is not CJ Gogoi's judgment but that of 2 other judges also. They heard the arguments and reserved the judgment. They must have thought what should be done now! But they didn't express themselves then! Nobody prevented the CJ, except for his retirement, or his successor, who was present then, from constituting a 9-judge bench to hear the review! they could have said that we have heard the arguments and we feel that a 9-judge or an 11-judge bench is needed!", argued Mr. Nariman.

"When a court decides to hear the review, doesn't the appeal open up for reconsideration?", CJ Bobde wanted to know.

"Only if the review is admitted", replied the veteran lawyer. "But We always have the intention to hear the objections...", said the CJ.

"The reference order says, 'the subject review petitions may accordingly remain pending'...this is not A v. B!", countered Mr. Nariman.

"Pending the decision of the larger bench to reconsider it...", observed the CJ.

"No...7 questions were framed...25, 26 apply to a religion, a religious denomination, a sect! At the time the review was filed, the devotees of a particular idol at a particular place were not a sect.  They could have overruled that in the review petition! That was the essence of the case!", asserted Mr. Nariman.

"Can it not be said that the court found it important to consider the correctness of Sabarimala, but found that the case is not alone and that other similar matters are also pending, and hence, made the reference? But the idea was to have a relook at Sabarimala only!", asked the CJ.

"But the other considerations are extraneous! If there is no religious denomination, where is the question of 25 and 26 and of the 7 questions?", contended Mr. Nariman.

"The only time I saw such a thing happen in this court was in 1990, when CJ Sabyasachi Mukherjee came in at quarter to 3, called the Attorney General and ordered that Justice V. Ramaswami would not continue sitting on the bench", he remarked, referring to the order passed in open court of the then-CJ withdrawing work from Justice Ramaswami based on an internal audit report of the Chandigarh High Court that money was improperly spent. 

"Order 47 (on review) is not applicable! They did not point out any error apparent on the face of the record!", he continued.

"They wanted to depart from the ordinary and say that these writ petitions also have the same issues?", probed the CJ.

"But how can these questions be decided without any facts?", wondered Mr. Nariman. "A clear and mandatory provision cannot be  circumvented by recourse to inherent powers!", he stated, relying on the 1961 decision in Manohar Lal Chopra.

"What is your answer to the Pesikaka case?" asked the CJ.

"In that case, the review was allowed", replied Mr. Nariman. "The court decided to consider it?", the CJ clarified. "No, no, they reopened the whole case", explained Mr. Nariman. "But They kept the review pending", observed the CJ.

"'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'...that is the way to do it! Allowed and reopened!", elaborated Mr. Nariman, reading out from the Pesikaka judgment.

"But if there is no provision for making a reference prior to deciding a review, then M. L. Chopra doesn't apply? Then the residuary powers are activated?", opined CJ Bobde.

Mr. Nariman cautioned the court of the consequence in such an event, where an error consequent on the mistake of the court would apply to all unrelated cases.

"The parliament may by law make any provision as to the Supreme Court...", he narrated. Article 145 reads that subject to the provisions of any law made by Parliament, the Supreme Court may make rules for regulating generally the practice and procedure of the Court. 

"Why are you mentioning this here?", asked the CJ in a lighter vein.

"It is an express provision qua the SC...", replied Mr. Nariman good-humouredly. "Because no such law has been made", supplemented Senior Counsel Indira Jaising.

"Academic questions cannot be raised to answer! Devotees of all idols cannot be a separate sect. If you are a Hindu, then you are a Hindu. If you are a Sikh, then you are a Sikh. Parsis also go to a particular fire temple. That doesn't mean they are separate sub-sect...only the President can ask questions (as in Article 143). It is a good provision to have. Otherwise, the questions must arise in a concrete case. The concrete case was the review! But here, the review was not decide and instead it was adjourned!", continued Mr. Nariman.

"You are saying it can be done only under 143?", the CJ inquired. "Yes. And that is the power of the President", replied the Senior Advocate.

"We have sworn documents, sworn affidavits. Why can't we look at them to decide questions of law? Why can't we look at other facts?", queried the CJ.

"Nobody told you till now that this (devotees of Lord Ayyappa at the Sabarimala Temple) is not a religious denomination! Courts have no self-start! You are only motivated by a case. In a case, you may everything- it will be other obiter or ratio!", averred Mr. Nariman.

He proceeded to discus the dangers of advisory opinion.

"Often enough, in dealing with the very narrow point raised by a writ petition, wider arguments are urged before the Court; but the Court should always be careful not to cover ground which is strictly not relevant for the purpose of deciding the petition before it. Obiter observations and discussion of problems not ,directly involved in any proceeding should be avoided by courts in dealing with all matters brought before them; but this requirement becomes almost compulsive when the Court is dealing with constitutional matters", he quoted from the 1966 Mirajkar ruling of 9 judges.

"Even Justice Hidayatullah, who was the dissenting judge, agreed that 'judicial effort should be restrained and should never attempt an exposition of the law at large and outside the range of the facts on which a case in hand is founded'", he expounded.

"We are not going to decide any facts...we won't act on anything", repeated the CJ.

"Sabarimala was a constitutional issue! Are you going to decide these questions anyway? However framed? De hors the facts?...You may have 5, 7 or 9 judges. Lay down the law by all means. But only when the facts comes in! Who knew Lord Ayyappa's case would arise?", Mr. Nariman rested his case.