On 14 November 2019, a Review Bench, set up to examine the validity of the Court’s 2018 Sabarimala Temple Entry judgment, kept the review petitions pending. In doing so, it sought to refer certain overarching right to religion questions to a larger bench. Almost three months later, this larger, nine-judge Referral Bench has ruled that the Court can indeed refer such questions to a larger bench in a review petition.

 

To rewind, the 14 November decision of the Review Bench was met with surprise across the board. Commentators like Suhrith Parthasarathy pointed out that the Court did not have the power to make a reference in a review petition. Despite these reservations, a larger, nine-judge bench was set up soon thereafter.

 

This Bench though could not immediately take up the questions that the Review Bench suggested. First, the counsels’ conference failed to come to a consensus on what issues should be taken up for hearing. Thereafter, when the Bench decided to frame the issues itself, many of the counsels opposed it. They argued that the Court did not have the power to refer questions of law to a larger bench while examining a review petition.

 

This week’s Order of the Referral Bench is thus significant not just for its impact on the ongoing proceedings but also for setting a precedent that the Court has wide discretion in issuing referrals. Up till now, it was widely understood that a referral may be made only when a bench is unable to agree with the decisions of earlier benches of similar strength (as was the case in Rojer Mathew) or it noticed an irreconcilable conflict between decisions of earlier benches (as is sought to be argued in Article 370).

 

Despite the Order’s significant impact on Court’s powers, we are yet to find out the reasons that went behind it. For now, the Court has merely mentioned that the reasons for the Order will follow. In the same Order, it has also framed seven issues which will be taken up for hearing. Most of these issues mirror the ones which were suggested in the 14 November Order and revolve around the right to religion of individuals and denominations.

 

The final day-to-day hearing is set to commence on 17 February.

 

Best,

SC Observer Desk 

 

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