Reasons for upholding Reference

On 28 September 2018, a 4:1 majority struck down the Sabarimala temple’s custom of excluding women of a menstruating age. Over 50 review petitions were filed challenging the judgment. Instead of ruling on the review petitions, on 14 November 2019, the Court decided to refer the case to a larger bench. Specifically, it held that at the heart of the review petitions were questions about freedom of religion, which the Court has yet to resolve. It concluded that a Constitution Bench comprising seven or more judges must offer an authoritative finding on these questions, before the review petitions can proceed.


On 13 January 2020, a nine-judge Bench led by Chief Justice Bobde began hearing the referral. However, various parties contended that the reference was illegitimate. They argued that the Bench hearing the review petitions, led by then Chief Justice Gogoi, had lacked the jurisdiction to make the referral.


After hearing arguments on the referral question for two days, Chief Justice Bobde’s Bench concluded that the referral was justified. However, in its order on 10 February, it did not specify why it had come to this conclusion. The order merely says, ‘for reasons to follow, we hold that this Court can refer questions of law to a larger bench in a Review Petition’.


Finally, after three months, Chief Justice Bobde’s Bench published its reasons today. In short, it reached its conclusion by holding that the Supreme Court has the power to determine its own jurisdiction. It concluded that there wasn’t any specific constitutional provision forbidding it from entertaining the current referral. A more detailed summary can be found below.


Review petitions are maintainable

One of the main contentions of those opposed to the reference, was that the review petitions were not maintainable in the first place. They asked, if the review petitions should have been dismissed, how could have a referral been made?


Chief Justice Bobde dismissed their argument that the review petitions were not maintainable under Order XLVII of the Supreme Court Rules, 2013. He observed that Order XLVII specifies grounds for review in civil and criminal proceedings. The Sabarimala review petitions stemmed from a Public Interest Litigation – i.e. a writ proceeding. He concluded that the restrictions under Order XLVII cannot apply to the Sabarimala review petitions.


To further his argument, he noted that the Supreme Court Rules, 2013 generally have different rules for civil/criminal proceedings and Writ Petitions. While the former are primarily found in Part II of the rules, the latter is in Part III.


Finally, he substantiated his finding that the restrictions under Order XLVII only apply to civil and criminal proceedings, by analysing the placement of punctuation in the rule. He concluded that the Court’s power to entertain review petitions challenging PILs is not subject to the limitations in Order XLVII.


Hence, he held that the Supreme Court Rules, 2013 did not prevent the Court from hearing the Sabarimala review petitions - i.e. he held them to be maintainable.


Whether a reference can be made during a pending review petition?

The counsels opposed to the referral also argued that a reference cannot be made during a pending review petition. They cited Behram Pesikaka v. State of Bombay, where the Court only made its referral, after having granted a review.


Justice Bobde held that merely because Behram Pesikaka used this process, it did not follow that this was the universal standard.


Further, he emphasised that Order VI, Rule 2 of the Supreme Court Rules state that a reference may be made ‘in the course’ of any ‘proceeding’. This, he said, empowers the Court to make references during review proceedings.


Article 142 and the power to do complete justice

Drawing upon arguments of counsels in favour of the referral, Justice Bobde reflected on the Court’s vast powers under Article 142 of the Constitution. Article 142 empowers the Supreme Court to issue any order for 'doing complete justice' in any ‘cause’ or ‘matter’ pending before it.


Justice Bobde reasoned that the terms ‘cause’ and ‘matter’ are broad enough to include review petitions. Therefore, he said that the Court enjoys the power to issue any order in the Sabarimala review petitions, to do complete justice.


He reasoned that the referral was in the interest of complete justice, as it was issued with the aim of resolving important constitutional questions.


Pure questions of law, in the absence of facts

Justice Bobde then turned to the argument that the referral attempts to resolve a pure question of law, in the absence of facts. The counsels opposed to the referral argued that the Court lacked the jurisdiction to engage in such abstract theorizing, citing Central Bank of India v. Workmen.


However, Justice Bobde once again rejected their argument. He held that the Court need not necessarily refer to a specific factual scenario when settling the authoritative interpretation of a constitutional provision. He observed that the Court had previously upheld a similar referral in Indra Sawhney, on the ground that the referral would ‘finally settle the legal position’ on reservations.


He proceeded to cite cases where the Court had engaged primarily in pure questions of law in factual vacuums, such as TMA Pai Foundation on Article 30(1) of the Constitution and KS Puttaswamy on the fundamental right to privacy.


The proviso to Article 145(3)

Finally, Justice Bobde addressed the argument against referral based on the proviso to Article 145(3).


Article 145(3) specifies that the minimum number of judges that can hear 'any case involving a substantial question of law as to the interpretation of this Constitution' is five. The proviso serves to clarify when a case can be referred to such a five judge or larger bench. In presenting this clarification, the proviso assumes the referral is being made by a ‘Court hearing an appeal’ composed of ‘less than five judges’.


As such, the counsels opposing the referral argued that referrals may only be made from appeal proceedings. However, Justice Bobde said that this only holds true, if the bench making the referral comprises of less than five judges. As the Sabarimala review bench had five judges, Justice Bobde held that the proviso to Article 145(3) cannot apply.


The Court is likely to resume hearing the case once it resumes operating at a full capacity, after the COVID-19 lockdown.