Day 2 Arguments: 3 February 2020

In November 2019, the Supreme Court chose to keep the Sabarimala review petitions pending, while it decides certain overarching constitutional questions pertaining to freedom of religion. It referred these overarching questions to a larger bench and tagged various other writ petitions to the matter.


On 13 January, a nine-judge Bench began hearing the matter. In the first hearing, the nine-judge Bench directed the counsels to confer and decide the issues to be determined. However, as the counsels were unable to reach a consensus, the Bench decided to instead hear the counsels and then frame the issues for adjudication itself. Today, the Bench heard the counsels for around two hours and then adjourned the matter, so as to frame the issues for determination.


In today's hearing, a number of senior counsels made their submissions on why the present reference went beyond the Court’s jurisdiction. The only counsel to argue otherwise was Senior Advocate K Parasaran, who submitted that the Court’s jurisdiction in such public interest matters was extremely wide.


Overarching questions may not be framed and referred under review jurisdiction

Senior Advocate Fali Nariman opened arguments. He asserted that the Court cannot, in exercising its review jurisdiction, take up overarching constitutional questions and make referrences to a larger benches. He stressed that the Court's review jurisdiction is extremely narrow in scope. Therefore, he argued that the current nine-judge Bench cannot adjudicate upon abstract questions, which were not even before the five judges hearing the review petition.


In response, Chief Justice Bobde observed that a number of writ petitions were tagged along with the Sabarimala review petitions. The common questions which emerged from the review petitions as well as the writ petitions were being considered now, added the CJI. Specifically, he pointed out that these issues related to Articles 25 and 26 of the Constitution as well as other Part III rights. Thus, after determining the overarching constitutional questions, the principles emerging out of them may be applied to the review petitions, observed the CJI. He further observed that the grievance raised by Sr. Adv. Nariman – lack of jurisdiction to consider and refer overarching questions in a review – may itself be framed as one of the issues.


The submissions of Sr. Adv. Shyam Divan echoed those of Sr. Adv. Nariman. He argued that the cases on Female Genital Mutilation, Muslim Women’s Right to Pray, and Parsi Fire Temple Entry were not before the Review Bench and it could not have referred these to a larger bench.


Sr. Adv. Dhavan commenced his submissions by noting that when a judgment has already been given (referring to the 2018 Sabarimala Judgment) and a review against it is pending, a reference, in the nature of an appeal, is not permissible. The decision in the review petitions cannot be adjourned or postponed, argued Dhavan.


Arguing on similar lines as Dhavan, Sr. Adv. Dwivedi pointed out that a reference from a review cannot be made unless there was an apparent error in the judgment which was being reviewed. To the contrary, two of the five judges on the Review Bench had rejected the review petitions, while the rest did not make any decision, submitted Dwivedi.


A reference cannot be decided without the benefit of facts

The primary submission advanced by Sr. Adv. Jaising was that a case cannot be decided in a vacuum, without the benefit of facts. Moreover, such a determination in abstract may lead to undesirable outcomes when the principles are applied to individual cases. Similarly, Sr. Adv. Jaideep Gupta submitted that for an issue to be properly decided, the Court needs to have the benefit of the facts which gave rise to it.      


Court’s jurisdiction to deal with public interest matters is wide

Unlike the counsels who argued before him, Sr.Adv. K Parasaran affirmed the Review Bench’s jurisdiction to make the reference. He pointed out that the Sabarimala petitions were brought under the Court’s Public Interest Litigation (PIL) jurisdiction, which was extremely wide in scope. He placed reliance on Indra Sawhney to assert the extent of Court’s jurisdiction in PIL matters.


With that, arguments for the day came to an end. The Bench then adjourned to frame the issues to be determined. It will now assemble on 6 February to decide the schedule of arguments, which is expected to begin on 10 February.  


(Court reporting by Abhishek Sankritik)