Centre, Kerala govt at odds over sending Sabarimala queries to larger SC bench

A nine-judge bench of the top court heard the limited issue of whether a bench of the Supreme Court, while hearing a review petition, can refer questions of law to a larger bench.

The Union and the Kerala governments opposed each other in the Supreme Court on Thursday regarding the reference to a larger bench of legal questions surrounding the entry of women into the Sabarimala temple.

On November 14, 2019, a five-judge bench that heard the Sabarimala review petitions framed seven questions to be answered by a larger bench, resulting in the constitution of a nine-judge bench. (REUTERS FILE)

The bench reserved its verdict, saying an order will be pronounced on Monday.

“To say that reference was not possible because it was a review petition is absurd. Technicalities should not come in Your Lordships’ way to discharge justice for posterity,” the Centre’ second senior-most law officer, solicitor general Tushar Mehta told the court.

However, senior counsel Jaideep Gupta, representing the Kerala government, opposed the reference.

“In a review, the court can only look into whether there is an error apparent on the face of record,” Gupta argued.

A nine-judge bench of the top court heard the limited issue of whether a bench of the Supreme Court, while hearing a review petition, can refer questions of law to a larger bench.

The Centre and Kerala government have also been at loggerheads regarding the Citizenship (Amendment) Act, or CAA -- with the state even filing a petition in the Supreme Court last month challenging the contentious central law. That petition is yet to be heard by the Supreme Court.

On November 14, 2019, a five-judge bench that heard the Sabarimala review petitions framed seven questions to be answered by a larger bench, resulting in the constitution of a nine-judge bench.

When the bench assembled on February 3 to finalise the issues to be heard by it, senior counsel Fali Nariman, appearing for one of the petitioners, disputed the jurisdiction of the five-judge bench to frame legal questions and refer the case to a larger bench. He argued that the jurisdiction vested with Supreme Court while exercising the powers of review is very limited. A review bench, he argued, can only correct errors in the judgment which is being reviewed; it cannot frame legal issues and refer it to a larger bench.

The nine-judge bench then decided to assemble on Thursday to first settle the issue raised by Nariman before proceeding with the hearing.

Solicitor general Tushar Mehta told the court on Thursday that the power of the Supreme Court to refer matters to a larger bench is unfettered irrespective of whether the court is hearing a review petition or a curative petition.

Mehta also cited the case on Section 377 of Indian Penal Code, in which fresh petitions by Navtej Singh Johar and others were entertained by the court and referred to a Constitution bench even though curative petition against a 2013 judgment in which the court had upheld the validity of Section 377 was still pending. The court eventually struck down Section 377 in the fresh petitions by Johar.

Jaideep Gupta, however, argued that the scope of review jurisdiction is very limited. In a review petition, he submitted, the court can only look into whether there is an apparent error in the judgment which is being reviewed. Besides, the same has to be considered depending on the law as it existed when the main case was being heard.

If there is a subsequent change in law, that cannot impact the review.

“If in reference SC changes the law, then parties will ask for new law to be applied in review. That can’t be allowed because review should be decided only on error apparent as law stood when main case was heard. Based on a subsequent change in law, an earlier case will not be reopened,” Gupta said.

The CJI, in his observations, appeared to weigh in favour of the central government. He remarked that reference of legal questions by a five-judge bench of the Supreme Court to a larger bench was only a procedural innovation and did not prejudicially affect anybody’s rights.

“It might, at the most, be an innovative procedure”, he said.

Senior counsel K Parasaran and Abhishek Manu Singhvi supported the submissions advanced by the Centre.

Parasaran, representing the Nair Service Society (NSS), said that unless there is an express bar in the Constitution on the jurisdiction of Supreme Court, nobody can argue that top court does not have jurisdiction to refer cases to larger bench while hearing a review petition.

Senior counsel Singhvi said that if during the course of hearing of review, if the judges have a doubt, they can ask a larger bench to clear the doubt.

Senior counsel Indira Jaising, appearing for Bindu Ammini, one of two women who entered Sabarimala in 2019, submitted that the order of the review bench lacks clarity as to whether it was passed in writ petitions or review petitions.

The Sabarimala temple which is the abode of Lord Ayyappa, the presiding deity is one of the busiest pilgrimage sites in South India. Ayyappa devotees believe that the deity has vowed celibacy, what they call “naishtika brahmacharya”, which is the basis for barring entry of women between 10 and 50 years of age into the temple.

The top court in its September 2018 judgment allowed the entry of women of all ages, leading to about 60 review petitions challenging the 2018 verdict. A five-judge bench, hearing the petitions, in November 14 last year said framing of seven larger questions should be considered by a larger bench.