Day 3 Arguments: 6 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 2020, 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. Nevertheless, numerous counsels were opposed to issues being framed in the present reference. They argued that the present reference proceedings could not have been initiated in the first place as the Review Bench which made the reference did not have the power to do so. Given the opposition, the Bench then decided to first hear the counsels on the preliminary issue of the validity of the reference. 


After a day-long hearing, the nine-judge Bench today reserved its order on whether the Court can make a reference on a question of law while exercising its review jurisdiction. 


Reference was made in exercise of administrative powers

The arguments for the day began with the Solicitor General Tushar Mehta making submissions in support of continuing the on-going reference proceedings. The SG primarily gave two reasons for this. First, he submitted that the reference was not made while the Court was exercising its review jurisdiction; instead it was done in furtherance of Court’s administrative powers to issue a reference, noted the SG.


In any case, the SG pointed out that the Court had unfettered powers to make a reference, regardless of the nature of the proceeding in which such reference was being made. In this regard, he placed reliance on the Court's powers under the Supreme Court Rules, 2013. Elaborating on the nature of this power, he pointed out that the Chief Justice is the ‘Master of the Roster’ and that the same was noted with approval in the Dawoodi Bohra judgment (paragraphs 12-14).   


The Solicitor General’s second reason in support of the reference was that the Court had the power to do complete justice. Moreover, it was the duty of the Court to lay down an authoritative decision, added the SG. Thus, he submitted that technicalities cannot come in the way of Court’s power to do complete justice.


Finally, drawing an analogy, he pointed out that the review petitions filed against the decision in Suresh Kumar Kaushal too were kept pending when the reference was being decided.  



No error found by the Review Bench in the 2018 Sabarimala judgment

The next one to make his arguments was Senior Advocate Fali Nariman. He started off by submitting that deciding a case without the benefit of facts (as is the case in the present referral proceedings) was undesirable. In this regard, he referred to the judgment in Naresh Mirajkar, which he said, had held against an exposition of law at large. Further, he asserted that all observations in a judgment delivered in the abstract without a grounding on facts, are merely obiter, ie, they do not have binding legal force.


As to the reference itself, he argued that the Court’s inherent powers may not be invoked as the Supreme Court Rules, 2013 provided for the procedure to be followed in such cases. Finally, he pointed out that the Review Bench had not found any errors in the 2018 Sabarimala judgment, negating the validity of the reference. Thus, there was no point in leaving the review petitions pending, submitted Nariman.


Thereafter, Sr.Adv.Indira Jaising commenced her submissions. She argued that there was no clarity on whether the reference order was passed in the Review Petitions or the Writ Petitions and Special Leave Petitions challenging the 2018 judgment. Adding to this, she pointed out that the Review Petitions themselves were simply adjourned. Thus, it was argued that the Review Petitions had to be first decided and in case any errors were found in the 2018 judgment, then the overarching constitutional questions be referred.


If the above route was circumvented, it would set a precedent where references may be regularly made in review petitions. Therefore, she requested the reference to be declined.


Reference may only be made when there is a conflict with a co-ordinate bench      

Sr.Adv.Rakesh Dwivedi sought to delineate the narrow scope of review jurisdiction. Relying on Ram Chandra Singh, he argued that the procedure for review is provided exclusively in Article 137 and Order 47 of the Supreme Court Rules. Thus, the Court cannot venture beyond these provisions to assert its jurisdiction. Within the confines of these provisions, the Court may make reference only in cases where it doubts the validity of a previous judgment made by a bench of co-ordinate strength, noted Dwivedi.


Thereafter, Sr. Adv. Jaideep Gupta submitted that even if the present reference were to overturn the position of law laid down in Sabarimala, the same would not amount to finding an error in the judgment itself. Thus, there is no bar to deciding the review petitions when the reference is on-going, submitted Gupta.


Burden of proof on those assailing the reference

Sr. Adv. Singhvi echoed some of the arguments made by the Solicitor General and argued that Court’s power to make a reference was extensive. He submitted that the onus of proving otherwise was on those who were assailing the reference. In order to substantiate his stand, he asserted that no express legal bar could be found against the Court’s power to make a reference in review. Any other interpretation, he said, would lower the majesty of the Court.


Senior Advocate K Parasaran too argued in favour of according an expansive jurisdiction to make reference. At this point, CJI SA Bobde observed that the reference was not affecting the rights of anyone.


Reliance was thereafter placed on the decisions in AS Antulay as well as In Re: Kaveri by Sr.Adv.CS Vaidyanathan to argue that the Court has an inherent power to make a review. Senior Advocates Narasimha and Radhakrishnan too argued in favour of the referral. Narasimha supported the referral by seeking to know what the alternative would be. Much like Sr.Adv.Singhvi, Sr.Adv.Radhakrishnan sought to support the referral by arguing that all the opposition were merely technical in nature. In support of his argument, he placed reliance on In Re: Special Reference No. 1 of 2012.


Sabarimala decision has made the reference redundant                

Senior Advocate Arvind Datar introduced a novel argument towards the end of the day's hearing. He pointed out that the concurring opinion of Justice DY Chandrachud (specifically paragraph 291) in the Sabarimala decision was sufficient to settle the issue of female entry to all places of worship across religions.


The apparent futility of the reference was thereafter sought to be highlighted by Sr.Adv.Fali Nariman. Given that Sabarimala temple was not held to be a denominational temple under Article 26, the doctrine of essential practices would not in any case apply to it, argued Nariman. Thus, the reference is moot, submitted Nariman.


Finally, Sr.Adv. Indira Jaising pointed out that never before has a review petition been referred to a larger bench. Thus, she once again requested the Bench to clarify whether the reference was issued in the writ petitions or the review petitions.


With that, the arguments on the preliminary issue came to an end. The Bench will pass its orders on the issue on Monday, after which it is expected to commence hearing on the substantive issues.


(Court reporting by Abhishek Sankritik)