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

Singhvi is now deconstructing Art. 145(3). “For less than 5 judges, it goes to appeal. ‘Case’ covers every proceeding pending. Both 145 and 147 don’t bar the judges on an implied basis.”

Singhvi @DrAMSinghvi says that that will amount to subversion of the law.

Basis of the entire argument of the other side is two-fold:

1. De facto intra court appeal.

2. Once you have a review; till it is decided finally, you can seek no guidance.

CJI Bobde asks about the discipline of the law. “What will happen to the discipline of the law? We cannot say that we will refer it and not listen to it”.

Singhvi says that the burden is on the other side to show the express bar on the Bench not being able to entertain the reference. “There is no bar in the Constitution, in any statute.”

Singhvi : They are saying that there is a Per se bar on the Bench entertaining this reference. I am submitting that there is no express bar.

Divan also refers to KS Puttuswamy case, wherein the scope of questions of law in front of a 9 judge bench was limited. He also refers to the “Doctrine of precedence” which behaves as a fetter on the arbitrary action of judge

“We cannot have a catalog of questions which are randomly put up.” Quoting from Jindal Stainless Steel judgement, Divan says there are only 8 reported judgements from a 9 judge bench. Therefore, there is a narrow scope when it comes to these Benches. 

Permitting reference on a question of law in the guise of a review would amount to an appeal. Therefore, review is not maintainable : Divan 

Referring to the minority opinion, Divan says that no case has been made out for the review petition. A ground for review must be made out for the reference : Divan.

Once the judgement is rendered, it is final under our jurisdiction, unless it is reopened. CJI asks whether it can only be opened via review. Divan says that is the case.