Recently, the Hon’ble Supreme Court of India delivered a landmark verdict wherein it struck down the traditional practice of prohibiting women falling under a certain age group entry into the Sabarimala shrine. In the previous post, I had critically analyzed the judgment. However, despite the progressive stance of the Court there exists a section of the society which is unhappy with the ruling, terming it a violation of their faith in the deity. This section led by the Nair Service Society has filed a review petition before the Supreme Court praying a reconsideration of the decision. In this post, I shall be analyzing this petition and arguing how there are no justifiable grounds made for such reconsideration. I shall first, discuss the concept of a review petition in detail, including the how and when regarding its filing. Subsequently, I shall analyze the present petition.
What is a Review Petition?
A review petition is a remedy available to a party, by which it can request the Court to reconsider a verdict rendered. The concept is based on the principle of ex debito justitiae i.e. no one should suffer because of Court’s mistake. It is a tacit recognition of human infallibility that the Court might have erred while delivering the verdict.
The power of review is vested in the Hon’ble Supreme Court of India by Article 137 of the Constitution. This power is subject to the Rules made by the Court under Article 145 which currently are the Supreme Court Rules, 2013. Order XLVII of the Rules, discusses Review Petitions.
Grounds for filing a Review Petition:
A party can file a review petition if any of the grounds below are attracted:
- Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
- Mistake or error apparent on the face of the record;
- Any other sufficient reason.
The term ‘any other sufficient reason’ has been interpreted as a reason sufficient on grounds analogous to the above specified.
A review is specifically not maintainable if the following grounds are attracted:
- A repetition of old and overruled argument is not enough to reopen concluded adjudications.
- Minor mistakes of inconsequential import.
- Review proceedings cannot be equated with the original hearing of the case.
- Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
- A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.
- The mere possibility of two views on the subject cannot be a ground for review.
- The error apparent on the face of the record should not be an error which has to be fished out and searched.
- The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
- Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.
[The above principles find judicial recognition in the case of Kamlesh Verma v. Mayawati, (2013) 8 SCC 320 (India)]
Procedure for filing a Review Petition:
A review petition can be filed by any person whose rights are violated by the impugned judgment. The person filing the Petition should ensure that the grounds mentioned above are satisfied.
The Petition should be accompanied by two documents:
- A certified copy of the impugned order or judgment sought to be reviewed; and
- A certificate of the Advocate on-record certifying that it is the first application for review and is based on the grounds admissible.
- Documents relied on by the Petitioner.
Such a Petition has to be mandatorily filed within 30 days from the date of order sought to be reviewed.
Hearing of a Review Petition:
As per Order XLVII of the Rules, a Review Petition has to be circulated to the same Judge or Bench of Judges that delivered the impugned judgment or order sought to be reviewed. In case the judges are not available, the application shall be heard by a Judge(s) as ordered by the Chief Justice.
Interestingly, there is no requirement of oral arguments in a Review Petition and it is disposed of by circulation. Only in exceptional situations, have the Court termed oral argument necessary, for instance in matters of death penalty [Mohd. Arif v. The Registrar, Supreme Court of India, (2014) 9 SCC 737 (India)].
Dismissal or Accepting a Review Petition: Requirement of Reasons?
Although the Indian judiciary follows the practice of delivering reasoned decisions i.e. the Court has to provide reasons for reaching a conclusion, this does not apply to Review Petitions.* The rationale behind the same is the possibility of prejudice and prejudgment. If the Court allows a Review Petition, admitting an error apparent on the face of the record and thereby directing rehearing of the case, it would considerably prejudice the losing party if the Apex Court were to give reasons for taking this view. If the Review Bench of the Apex Court were required to give reasons, the Review Bench would have to discuss the case fully and elaborately and expose what according to it constitutes an error in the reasoning of the Original Bench and this would inevitably result in pre- judgment of the case and prejudice its reheating.
Sabarimala Judgment: No Basis For Review
The Review Petition filed against the Sabarimala verdict, inter alia raises the following grounds:
- No consideration of locus standi by the Court.
- The question of whether presence of women in procreative stage affects character of ‘Nastik Brahmachari’ is not addressed by Courts.
- Judgment does not take into account the opinion of Justice Rajagopal in Sardar Syedna Jaher, wherein he opined ‘Article 25(2) does not enable the state to reform a religion out of its existence or identity’.
- Restriction is not on grounds of ‘sex’ alone.
- Procedural errors committed by the Court.
In my opinion, none of the above qualifies the essentials for filing a Review Petition.
a. Consideration of Locus Standi-
The Petition vehemently argues that in the majority judgment, the Court failed to assess the standing of the Petitioners, who were ‘third parties’ and a large section of women devotees opposed their stance. This argument is not tenable on two counts. First, the said case was a reference by a three judge bench and issue of maintainability could be deemed to be settled. Second, given the subject matter of the Petition it patently fulfilled the essentials of a PIL.
The Court in the case of State of Uttaranchal v. Balwant Singh Chauffal laid down the essentials of a PIL, which inter alia included ‘substantial public interest’ as a ground. Alleged discrimination on grounds of sex is one such ground. Furthermore, the issue of maintainability was put to rest in the concurring opinion of Chandrachud J (at ¶ 51], who also cautioned against adopting a hyper technical approach when violation of essential rights was in question [¶ 30].
b. Whether presence of women in procreative stage affects character of ‘Nastik Brahmachari’ is not addressed by Courts-
The Petition also raises the concern that the Court does not consider whether the presence of women in procreative stage affects character of the deity. In my opinion, the judges were under no obligation to enter this inquiry as per law. The protection being claimed by the Board was under Article 25 and 26 both of which can be restricted on grounds of ‘morality’. The term morality in catena of cases has been interpreted as constitutional morality which includes equality and dignity as its facets, which justifies the stance of the Court.
Furthermore, the character of the deity would have to be ascertained only if the test of essential practice would be applied. The test as I discussed in the previous post, comes into play only if the rights of a religious denomination are affected. The Court by not declaring the Ayappans as a religious denomination ruled out such an inquiry. Therefore, the Court was under no obligation to enter such an inquiry.
c. No consideration to the opinion of Justice Rajagopal in Sardar Syedna Jaher v. State of Bombay-
The Petition also contends that the Court failed to consider the opinion of Justice Rajagopal wherein he opined ‘Article 25(2) does not enable the state to reform a religion out of its existence or identity’. I believe such a claim is incorrect on two counts. First, the observation by the Hon’ble Judge was a concurring opinion, making it persuasive and not binding on the Court. Second, the Court does acknowledge the opinion, but chooses not to adopt it [¶ 17] which is a prerogative of the Court.
d. The restriction is not on grounds of ‘sex’ alone-
The Petition also contends that the discrimination against women is not based solely on the ground of ‘sex’ but age as well. By adopting two grounds for such a classification, the Petition seeks to avoid a violation of Article 15. However, in my opinion this is a failed attempt.
The Court in several decisions, especially involving women has held that one has to take into account the inter-sectional nature of sex discrimination, which cannot be said to operate in isolation of other identities. For instance, in the case of Navtej Singh Johar, Chandrachud J., gives the example of a rule prohibiting people under 6ft to be employed in the army. Although it is common knowledge, that rarely are Indian women above 6ft but the rule would still be valid under the erstwhile interpretation of Article 15 as it is not based solely on sex but height as well. Such a conclusion would be reached, despite it being patently clear that the target section of such a law is women. To avoid such an absurdity, Chandrachud J., calls for taking into account social context.
The additional reason for not allowing women entry is ‘menstruation’ a biological process which only a woman undergoes. Although prima facie the ground for discrimination against women is not solely ‘sex’ but the sex plus age. However, since this criterion is intrinsically connected to sex, it fails the test of Article 15. The issue of procedural errors by the Court is taken care of by the vast jurisprudence which shows that in matters of violation of Part III rights a hyper technical approach should not be adopted.
Apart from the above, the Petition does not fulfill the essentials of a Review Petition (as discussed above) as well. First, the Petition raises arguments that were made during the impugned decision and rejected by the Court (see point ‘a’ Grounds for filing a Review Petition). Second, even if one is to believe that the Petition presents a different view to the matter at hand (supported by the dissenting opinion of Malhotra J.) that cannot be a ground for review (see point ‘f’). Third, the Petition by reconsideration seeks the same relief of upholding the prohibition of women in the shrine, which is akin to the prayer in the said decision (see point ‘i’).
In light of the above arguments, I believe that the Review Petition lacks a constitutional and legal basis and should prime facie be dismissed by the Court. The parties instead of politicizing the issue should accept the verdict, thereby allowing women to exercise their Right to Freedom of Religion, as the lord would never discriminate on its subjects, on grounds of sex.
[The opinions expressed in the article are solely of the author.]
* Initially, there was judicial ambivalence on whether the Court should provide reasons while accepting or rejecting Review Petitions. However, the position seems to have settled now as reiterated by the Constitution Bench in Medical Council of India v. Christian Medical College.