Sabarimala Reference : 'Questions Are Academic, Broad, Need Fine Tuning', Lawyers Tell SC [Court Room Exchange]

The much-awaited 9 judge bench hearing on the reference in the Sabarimala review opened to a packed courtroom with Chief Justice S. A. Bobde stating at the outset, "We are not hearing the review. We are only on the reference points".

Indicating the November 14 reference order of the five-judge bench which heard the Sabarimala review, it was pointed out on behalf of the original petitioners, "There is no defect in the (2018 Sabarimala) judgment. The reference order only says that the issues arising in cases of entry of Muslim women in mosques, rights of a Parsi woman married to a Non-Parsi and the practice of Female Genital Mutilation by the Dawoodi Bohra community may overlap with the issues in that judgment, and that the prospect of the reference of those issues to a larger bench cannot be ruled out...the reference is not registered separately so the causelist shows all the petitions. In the other similar matters, we have not even been supplied the copies of the petitions! We don't know what they are!"

"Your Lordships are not bound by the reference. Your Lordships can even frame your own questions!", it was urged.

"We are aware of our powers", said CJ Bobde.

At the same time, Solicitor General Tushar Mehta sought to point out, "one of the questions to be decided is whether he even has locus! He appears for the Young Lawyers Association. He doesn't have locus!"

"The decision on rightness or wrongness of the five-judge bench Sabarimala ruling is a precondition to answering these questions (in the reference order). No competent court has said that that judgment is bad in law. If Your Lordships say it is not correct, only then will subsequent questions arise", submitted Senior Counsel Indira Jaising.

"Also, these questions are of purely academic nature and it is not possible for Your Lordships to answer them by way of a ratio. Ratio is connected to the facts of the case as it is binding! Facts are necessary for there to be questions of law!", she continued.

"If necessary, only for the purpose of reference to facts, and not for decision, we can list all those cases", assured CJ Bobde.

"Also, we are not disputing your jurisdiction, but right now we don't know how the matter came to be before the 9-judge bench. If there is a dispute between two 5-judge benches, then we understand...the only reason I see is that Shirur Mutt was a 7-judge decision...but nobody has doubted its correctness! None of the counsels even said it! Unless somebody says that Shirur Mutt is wrong, how can it go to a nine-judge bench?... If you say you doubt the judgment, that does not mean it is wrong", pressed Ms. Jaising.

"The five judge bench says that these questions have arisen before us in the review petitions, and also in other petitions", ventured the CJ.

"No, they don't! These are not common questions of law. Hindu, Muslim and Parsi law cannot be governed under the same regime! I appear in all 3 matters", contended Ms. Jaising.

"It is not the business of this court to say what is religion. The Constitution does not speak of 'essential practices' and limitations come in only on account of public morality, etc. Your Lordships have to examine the facts", added Senior Advocate Rajeev Dhavan, in reference to the Shirur Mutt and Sri Venkataramana Devaru judgments.

Senior Counsel Abhishek Manu Singhvi made a mention of the Jain practice of 'Santhara' which the CJ described as "the right to die". "That is how it has been mischaracterised before Your Lordships. It is rooted in the core belief of Jainism", said Dr. Singhvi.

"What is before Your Lordships is the interplay of the freedom of religion, Article 25 and 26, Article 14, Article 21 and other provisions of Part III of the Constitution. It doesn't mean 5-6 Chapters of the Constitution. Such a sweep would shake every case-law from 1950!", he argued, "candidly" seeking more time to prepare for the hearing.

At this point, the CJ suggested that both sides hold a conference to decide on the apportionment of time as well as issues, which counsel would deal with which, so that there is no repetition. He referred to how Senior Advocates C. S. Vaidyanathan and Dr. Dhawan had undertaken the same exercise in the Ayodhya hearing and that the counsel in the present case may also proceed on the same lines.

"I agree! I want to sit down and narrow down the issues!", agreed Ms. Jaising.

"Let's sit and confer. We may disagree with each other but we will give you a clear blueprint of 'what', 'who' and 'how much'", added Dr. Singhvi.

"'how much' is not upto the bar. We will decide that", commented the CJI.

The SG also said that the reference questions are "broad propositions" and need to be "fine-tuned into issues".

"We might list all the cases, Dawoodi Bohra, Mosque entry, Parsi woman, before us for facts, even though we won't decide them...we are considering listing all of these before us so that there is no handicap but we still won't decide the petitions, only for referring to the facts", the CJ again said for the benefit of Senior Counsel Sanjay Hegde and V. Giri.

"What religion means is fundamental to all these cases. The limitations of Article 25 are fundamental to all these cases. A 9-judge bench to review fundamental law, to my mind, is absurd", said Dr. Dhawan.

Further, when the advocate for the chief priest of the Sabarimala Temple sought audience with the court on the temple entry issue, the CJ observed that the bench was concerned with the reference questions and not Sabarimala particularly.

"We should not be on specific questions, whether polygamy or Sabarimala. We should stay on the questions of reference", advanced the SG.

A lawyer drew the bench's attention to a November, 2019 judgment of the Madhya Pradesh High Court declining to allow Jain women to perform 'Jal Abhishek' of idols. "We won't touch any issue unless mentioned in the reference order", reiterated the CJ.

"The questions refer to 14, 25 and 26. I will also bring in 17. One of the judges accepted this argument and it is my main argument that it is a form of untouchability...", countered Ms. Jaising. The CJ incorporated her request for these additional issues in the order.

When the SG sought to clarify if polygamy would be dealt with by the bench, the CJ noted, "At the moment, the answer is 'no'".

"The delicious irony is that (Senior Counsel K. Parasaran) opened Sabarimala with me. Now we all have spoken but he has not spoken. He must also speak and affirm", remarked Dr. Singhvi. "These are Mr. Parasaran's questions only", pointed out Ms. Jaising.

"We will not review Justice Nariman's judgment (debarring Advocate Mathews Nedumpara for 'browbeating' judges)", announced the CJ towards the end of the hearing when it was prayed that he be allowed to argue, lest the party be left without counsel.

The CJ clarified that the bench shall proceed chronologically with the hearing, starting with Sabarimala, it being the oldest.

The court directed that the conference of the advocates be held on January 17 and that the Secretary General of the Supreme Court attend it and coordinate.