BY: GAUTHAM RAJAN
Chief Justice S.A. Bobde, while hearing the maintainability of the Sabarimala reference before a 9-judge bench, stated that the court has not “prejudicially affected anyone’s rights” while making the reference. 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 of 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.
The issue is related to the question of maintainability of the reference of the Sabarimala case in the Supreme Court. The arguments on Thursday was started by Solicitor General Tushar Mehta, who supported the reference on behalf of the Central Government. He said that the reference had nothing to do with Sabarimala review. The Sabarimala review bench had not referred the review to the larger bench, but certain larger questions on religious rights and scope of judicial interference on them.
He said that technicalities should not fetter the jurisdiction of the Court. The decision of SC in Navtej Johar case, where a 5-judge bench struck down Section 377 of IPC even as the curative petition against the 2013 decision of 2-judge bench which had upheld the provision was pending, was cited by the SG to state that the Court can consider the issue, regardless of technical hurdles. “If there’s a question of law, the Court has the liberty to constitute a larger Bench to settle the issues. As custodian of Fundamental Rights, it is the duty of the court to lay down an authoritative pronouncement on these questions of law”, the Solicitor General opined. Tushar Mehta brought to the court’s attention that he was an intervenor on behalf of himself.
QUESTION OF LAW:
The question of law that is to be discussed here is: whether or not the reference made in the aforementioned case is maintainable or not. Senior Advocate F S Nariman submitted that the reference was not maintainable. It was submitted by the renowned jurist that the scope of review was very narrow to examine the correctness of the original judgment on limited grounds. Therefore, the review jurisdiction cannot be invoked to refer to larger bench certain questions of law, which are not directly arising from the original judgment, submitted Senior Advocate Nariman. He remarked that the order passed by the Sabarimala review bench on November 14, 2019 was an ‘adjournment order’ and not a reference. “You cannot indulge in the exposition of law outside the facts of the case.”, he said. Nariman also highlighted the fact that there was no ‘inherent’ power of review. Senior Advocate Indira Jaising submitted that it was not clear if the November 14, 2019 order in Sabarimala review was passed in the review petitions or in the writ petitions which were filed challenging the original judgment passed in September 2018. She supported Nariman’s argument that such a reference in review was impermissible.
“Only after demonstrating that there is a prima facie error can a reference be made on the review”, Jaising was of the opinion. Senior Advocate Jaideep Gupta, appearing for Kerala Government, voiced his opposition to the reference. Senior Advocate Dr AM Singhvi supported the reference citing the inherent unlimited powers of the Court. Singhvi reminded the Court that the Sabarimala judgment came in a PIL, which used the liberal jurisdiction of the Court. Therefore, the petitioners cannot now turn around to plead for narrow exercise of court’s jurisdiction. 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. There are mixed answers with regards to the question of law. The aforementioned advocates seem to be divided on the question of maintainability of the said reference.
The Supreme Court has decided to reserve the order. The said reservation was done on Thursday the 6 th . The court will further decide on the same.