Yesterday, the Hon’ble Supreme Court of India delivered its judgment on the petitions seeking a review of the Court’s decision in the Sabarimala Shrine case. The Court in a 3:2 verdict has held that a larger bench needs to conclusively determine certain issues namely scope and meaning of the constitutional restrictions on freedom of religion, application of the essential religious practice test etc. and only after such a determination, will the Court rule on the present review petitions. In effect, the Court has put on hold the review petitions, till the time a larger bench answers the questions posed by the Court here.
The majority opinion written by the Hon’ble Chief Justice Ranjan Gogoi (for Justice Khanwilkar, Justice Malhotra and himself) is problematic for several reasons (referred to as “majority judgment”). However, the most prominent error is the Court’s departure from the settled jurisprudence on review petitions and referral of cases to a larger bench.
In the present post, I shall discuss the above mentioned errors committed by the Court. The post shall begin by briefly discussing the law on review petitions and referral of cases to larger benches. Thereafter, I shall analyze the majority judgment and discuss how it is in contravention of the above mentioned laws. The post shall conclude by discussing the future course of action post the decision.
Before I discuss the judgment, a brief overview of the Sabarimala controversy would be beneficial for the uninitiated. Sabarimala is a temple of Lord Ayappa in Kerala, where women of menstruating age were not allowed entry until last year, due to the celibate nature of the deity. However, last year the Hon’ble Supreme Court of India struck down this prohibition as unconstitutional by a 4:1 verdict. Against this judgment, the present review petition was filed in the Supreme Court.
A. Law on Review Petitions:
A review petition is based on the principle of ex debito justitiae i.e. no one should suffer because of Court’s mistake. It allows a party to request the Court to reconsider a verdict rendered by it on certain grounds. The power of review is vested in the Hon’ble Supreme Court of India by virtue of Article 137 of the Constitution of India.
It should be noted that grounds for seeking a review are limited to (a) discovery of new and important matter or evidence; (b) mistake or error apparent on the face of the record and (c) any other sufficient reason (i.e. a reason sufficient on grounds analogous to the above specified grounds).
Additionally, a review petition is not maintainable if the following grounds are attracted, namely, repetition of old and overruled arguments, mere possibility of two views, the error in the judgment has to be searched, if the same relief which has been negative is sought etc. [Kamlesh Verma v. Mayawati, (2013) 8 SCC 320]. The Courts in catena of decisions have held that in a review petition, the Court cannot go into the merits of the matter and shall only adjudicate whether it should be re-heard.
(I have discussed in detail the law on review petitions in a previous post.)
B. Referral of a Judgment/issue to a larger bench?
The Indian Supreme Court (“SC”) unlike its counterpart in United States and United Kingdom does not sit en banc (i.e. all the judges of the Court sit together and hear the cases). The Judges of the Indian SC sit in smaller benches of two or three each which results in several judgments rendered by different benches on the same issue. To avoid a situation of conflicting judgments by different benches, the Court follows the theory of precedents as per which a Bench is bound to follow the previous decision of a co-ordinate bench or a larger bench on the same issue. If a Bench disregards an existing decision of a larger bench, its decision is per incuriam (i.e. bad in law due to lack of regard).
If a Bench feels that the previous decision of a co-ordinate bench (i.e. same size) was incorrectly decided or there are conflicting decisions of co-ordinate benches on the same issue, it can request the Chief Justice to refer the said case to a larger bench. However, where the decision is of a larger bench and not a co-ordinate bench, the Court has no option but to follow the said decision. It cannot express its disagreement or question the correctness of the larger Bench’s decision and at best can request the Chief Justice to refer the case/issue to a Bench of the same size as the larger bench’s decision, for reconsideration. Thereafter, if that constituted bench feels that the issue/case should be revisited, the Chief Justice may constitute a larger bench to revisit the same.
For example, a 3 Judge bench disagrees with the reasoning in a 5 judge Bench decision ‘A’, which it is bound to follow. The 3 Judge Bench may request the Chief Justice to refer ‘A’ to a 5 Judge Bench for reconsideration. The Chief Justice may then place ‘A’ for reconsideration before a Bench of 5 judges and only if those Judges conclude that ‘A’ needs to be revisited, the Chief Justice will place it before a bench of 7 Judges.
The above mentioned practice is based on the rule of judicial discipline and propriety [Central Board of Dawoodi Bohra v. State of Maharashtra, (2005) 2 SCC 673].
C. The Present Judgement & the Errors:
According to the majority judgment, the issue of entry of women in places of worship is not limited to the present case only, as it is hearing several other cases involving the issue as well. Therefore, to have a uniform adjudication of all these cases and to avoid overlaps, the majority has referred certain fundamental issues common to these cases to a larger bench of 7 Judges. These issues inter alia include:
- Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
- What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.
- The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over arching morality in reference to preamble or limited to religious beliefs or faith. There is need to delineate the contours of that expression, lest it becomes subjective.
- The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.
- What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.
- Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
- What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?
In my opinion, the referral is incorrect for the following reasons (which are in addition to the errors already pointed out by other scholars) :
- Ignoring the existing jurisprudence on Review Petitions:
As discussed before, for a review petition to be admitted, the Court has to be satisfied that either new evidence has come to light or there is an error apparent on the face of the record. The scope of review is very limited and if the petitioner is raising old/rejected arguments or praying for the same relief as before, the petition has to be rejected. In the present case, both the arguments and the relief of the petitioners were the same as before. The dissenting opinion authored by Justice Nariman (on behalf of Justice Chandrachud and himself) correctly rejects the review petition on these grounds whereas the majority judgment lacks any discussion on them.
Interestingly, the majority judgment also states that the larger bench may decide the issue of whether the Kerala Hindu Places of Public Worship Rules, 1965 govern the Sabarimala temple. It should be noted that the said argument was already raised before the 2018 Bench, and asking the larger bench to look into it amounts to a discussion on merits, which a review court cannot undertake/direct.
- Contravention of the Law on Referral:
As discussed before, a bench may refer a case/issue to a larger bench in two situations i.e. first, it disagrees with the decision or second, there exist conflicting decisions of co-ordinate benches. The majority judgment cited the second reason behind the referral, which in my opinion is not attracted here.
First, as per the majority judgment, there exist conflicting decisions of a 7 Judge Bench [Shriur Matt Case (1954) SCR 1005] and a subsequent 5 Judge Bench decision [Durga Committee Case (1962) 1 SCR 383] on the issue of determination of an essential religious practice. In my opinion, there is no conflict at all as a 5 Judge Bench would be bound by a 7 Judge Bench decision; otherwise its decision is per incuriam. Therefore, the said argument is untenable as out of the two, the 7 Judge decision shall prevail.
Second, the judgment refers issues like the interplay of freedom of religion with right to equality, scope and meaning of restrictions on the freedom of religion, applicability of the ERP to Article 26 etc. to the larger bench. It should be noted that these issues have been categorically answered/settled by previous judgments and there exist no conflicting co-ordinate bench decisions disputing their interpretation, therefore there is no need for any clarification/interpretation from the larger bench. In fact, the majority itself has not listed any conflicting decisions on these issues.
The Way Ahead:
Post the judgment, the Chief Justice shall now constitute a 7 Judge bench which would decide whether there is a need for a larger bench to consider the referred issues. If the 7 judge bench rules in the affirmative, a 9 Judge bench shall be constituted to assess the validity of the judgment in Shirur Mutt’s case (a 7 Judge bench decision) along with adjudicating the other referred issues in the present judgment.
On a side note, the majority judgment needs to be lauded for its brevity (i.e. 9 pages only) which is welcome change from the voluminous decisions the Court has given this week. Additionally, the judgment has now opened the possibility of a larger bench reviewing the ‘essential religious practice’ test which is a good sign, as in my opinion the doctrine restricts one’s freedom of religion and should be done away with. I have argued at length on this point in a previous post.
One also needs to appreciate the dissenting judgment, which is par excellence and dismisses the review petition on sound reasons.
[Views are personal]