On 11 May, the Supreme Court notified the formation of single judge benches to hear certain bail and transfer matters. This was a break from the Court’s tradition of having benches of two or more judges.
The change was made possible through amendments to the rules regulating practice and procedure of the Court – the Supreme Court Rules, 2013 (Rules). Specifically, Order VI Rule 1 was amended to provide for single judge benches.
Despite how critical they are to the Court’s functioning, these Rules are mostly invisible in Court’s judicial discourse. Nevertheless, recently, the Court had to intensively engage with them in the Sabarimala Reference, and peripherally in Ayodhya Title Dispute.
Reference in Ayodhya
Initially, the appeals from the Allahabad High Court decision in the Ayodhya title suits were heard by a three judge Division Bench of the Supreme Court. During the hearing, Senior Advocate Rajeev Dhavan though made a request to refer these appeals to a Constitution Bench (consisting of 5 judges or more). Sr.Adv.Dhavan made this request on the ground that the Court’s decision in Ismail Farooqui (also by a three judge bench) had to be re-examined and this could only be done by a larger bench.
This Division Bench though, by a 2:1 split, rejected the request and directed that the matter be continued to be listed before a three judge bench. It then appeared that the title suits will indeed be heard by a Division Bench, rather than a Constitution Bench.
Nevertheless, shortly afterwards, the then Chief Justice Ranjan Gogoi, announced the setting up of a Constitution Bench. In doing so, the CJI clarified that he was exercising his discretion under Order VI, Rule 1 of the Rules – the same provisions which were amended recently.
The Sabarimala Reference was another instance when the Rules came in the public glare. At the very beginning of the Reference itself, various parties had contended that the reference was illegitimate. One of the grounds relied upon by these parties was that Order XLVII of the Rules did not allow for such a referral.
But, on 10 February, the Supreme Court rejected this challenge. In its reasoned order released on 11 May, the Court held that Order XLVII specifies grounds for review in civil and criminal proceedings. Since the Sabarimala review petitions stemmed from a Public Interest Litigation – i.e. a writ proceeding, it concluded that the restrictions under Order XLVII cannot apply to the Sabarimala review petitions.
Thus, both in Ayodhya Title Dispute and Sabarimala Reference, the application (or the lack thereof) of the Rules was a critical point of contention. Even with the latest amendments, which were notified in September 2019, the Supreme Court Bar Association had expressed its reservation, stating that they were not consulted before the amendment. Back in 2014 too, when the 2013 rules replaced the earlier rules, the Bar Association had mounted a challenge against them, even asking for a stay on its operation. Nevertheless, this Petition remains pending.
Looking forward, the Supreme Court Rules may continue to hog limelight, particularly given the drastic changes imposed by COVID-19 to the Court’s functioning. In fact, the Court, in its landmark decision pertaining to live streaming from the Court, explicitly mentions the need to amend the Rules for this purpose. This gives an indication of how the Rules are going to be at the forefront of the Court’s transition to the post-pandemic world.