Thread by @barandbench

A nine-Judge Constitution Bench of the Supreme Court will begin hearing today arguments on the issue of whether questions of law can be referred by the Court to a larger Bench in a review petition.

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This Constitution Bench was set up to decide questions pertaining to women's rights under Article 14 vis-a-vis Religious rights under Articles 25 and 26 that were referred to a larger Bench by in #Sabarimala review judgment.

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The first issue, however, to be considered by this Nine-Judge Bench will be the scope of review jurisdiction vis-a-vis reference.

The question of scope of review jurisdiction was raised by Senior Counsel Fali Nariman and will now be taken up as the first issue to be considered.

The Bench assembles.

Solicitor General Tushar Mehta is the first to address the Court, says that besides Senior Counsel Fali Nariman it is nobody's stand that reference was made in the #Sabarimala review.

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On this, Justice Rao asks which was the matter in which reference was made.

Mehta submits that it was during the review petition in #Sabarimala matter but that's a matter of nomenclature.

CJI SA Bobde says that the reference was certainly made by the Bench hearing the review

Mehta reads out from the majority opinion in the November 2019 Judgment in Sabarimala review which says that the issue under review was not referred to a larger Bench but various larger and substantial questions were referred.

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Justice Rao points out that Mehta is citing the reasons listed in the majority opinion for the reference made; asks why Mehta would suggest that reference was not made in the review.

Mehta says, it's because questions referred are larger questions and do not pertain to review

Mehta cites Order 6 Rule 2 of the #SupremeCourt Rules which lay down the powers of the Court pertaining to reference.

"Here CJI himself happened to feel the need to refer questions to a larger Bench and happened to be the author of the judgment that made the reference", Mehta

Mehta says that the entire judgment was not referred to a larger Bench by the majority opinion, but rather certain larger questions of law were referred to a larger Bench.

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Mehta says there are questions that need to be decided and there is a conflict between two judgments - one seven Judge Bench and another five-Judge Bench. The larger questions need to be decided for posterity, Mehta argues.

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Your Lordships have consistently not felt fettered in referring questions to larger Benches, Mehta says

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What strength of the Supreme Court Bench decides my question cannot be for me to argue on... The Supreme Court decides which question will be heard by the Bench of what strength, Mehta

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Citing the UP Sugar Mills case, Mehta argues that when the Bench finds that a certain controversy keeps arising under one facet or another like FGM or those concerning entry of women in various religious sites, the Court in its judicial wisdom may refer larger questions

Mehta says, Supreme Court as the custodian of fundamental rights, it is the duty of the Court to lay down the authoritative judgment on such questions, for posterity.

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Mehta stresses that the Court has an unfettered power to make a reference to a larger Bench for laying down of authoritative judgment, even if the reference is made in a curative petition, the Court's power remains.

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"It is the justice that is relevant, not the technicality", Mehta

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Mehta cites an example of the Naz Foundation case and Navtej Singh Johar case concerning Section 377 of the IPC. He says that the question of was referred to a larger Bench despite pending curative petition.

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"No technicality can fetter Your Lordships from doing complete justice", Mehta says adding that this is not the first time a procedure of this nature is adopted

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Mehta refers to Order 55 Rule 6 of the Supreme Court Rules which says that nothing limits the Court from taking decisions for complete justice and concludes his arguments

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Senior Counsel Abhishek Manu Singhvi rises to make additional submissions in support of maintainability of the reference.

CJI Bobde says that the Court would like to hear Senior Counsel Fali Nariman's arguments against maintainability of the reference first

Nariman says, some "frivolous" points in favour of maintainability have been raised and he would address these "frivolous" points.

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Nariman says let's forget for sometime that CJI Gogoi was to retire within three days since the day the judgment in the review was passed.

"Nothing prevented him (CJI Gogoi) from constituting a nine-Judge Bench for hearing these constitutional questions", Nariman

"The famous Shirur Mutt case was decided by a Full Court... First case to be decided by a Full Court and in happened to be on interpretation of Article 25", Nariman

Nariman says that Article 145(3) provided for a minimum strength if the Constitution Bench for matters concerning interpretation of Constitutional questions and this strength was five Judges. This was done at a time when the SC strength was that of 8 judges, Nariman points out

CJI Bobde asks if an appeal is reopened when a review is filed.

Nariman says, only if the same is allowed.

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Nariman says in #Sabarimala, the question pertains to a religious denomination. Articles 25 & 26 only apply to religion, religious denomination, or sect. Devotees of a particular idol at a place are not a sect to which Articles 25 or 26 may apply

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CJI Bobde points out that whether or not it was a religious denomination is a question in the main issue. The question before the Court right now is whether the reference was made in the review petition

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CJI says that paragraph 5 of the majority opinion says that there are various writ petitions pending which raise similar larger questions and the Court perhaps thought that the larger questions need to be decided first

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Nariman asks how can these questions nbe decided without knowing the facts of the case

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Devotees of Lord Ayappa were held not to be religious denomination... if they are not religious denominations, then questions of Articles 25 & 26 become purely academic, Nariman

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Nariman says that the Court may devide question of law and then come back and decide the review, but here (in #Sabarimala) it was only an adjournment order.

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Nariman says that the Court only moves when there is a matter before it...nfacts have to be adjudicates based in the law, not the other way that a law is found first and then decision taken

Nariman cites various precedents which throw light on the scope of review petitions

Review is guided by a set of principles, for a specific reason. Reference is when an opinion is sought by the executive on a question of law, Nariman argues

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CJI Bobde says that in case there is no clarity on certain matters, the Court will not decide on the same in this reference.

Nariman: Then what is the point.

Indira Jaising: Facts will continue to remain disputed then; facts will have to be determined for any decision

Nariman had concluded his arguments.

Senior Counsel Indira Jaising begins to make her submissions

Jaising refers to the cause-title of the matter to point out that it includes review petitions as well as writ petitions

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The main decided case of 2018 had held by a 4:1 majority that the devotees of Lord Ayappa did not constitute a religious denomination and this was under review... Various of the petitions were for leave to file review, Jaising

Review was filed and simultaneously many number of writ petitions were also filed challenging the same judgment and were placed on board together, Jaising

There is no clarity on whether the (November 14, 2019) order of the Court was passed in review petitions or writ petitions or both, Jaising

It needs to be determined whether the order was in review or writ petitions since the scope of the same is substantially different, Jaising

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Jaising says that she concedes that the Court may refer the questions even in a review petition but adds that the scope of the hearing will be different.

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Jaising agrees with Nariman on the point that the review petitions were adjourned without allowing or dismissing the same

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Jaising adds that there is no conflict between the decisions in Shirur Mutt case and Dargah Committee case

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Scope of review jurisdiction as pointed out by Nariman is determined hy the Rules of this Court, will not revisit the sane, Jaising says

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This is nothing but an intra-Court appeal, Jaising

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Either first decline the reference or if that's not done, de-tag the writ petitions from the review and hear them separately before passing an order in the review, Jaising

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Jaising concludes her arguments while saying that she agrees with SG Tushar Mehta on the point that the order of reference was not passed in the review petition.

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Senior Counsel Rajeev Dhavan begins making his submissions.

Dhavan says a review lies when the Court finds that there is an error and no erorr has been pointed out in the main judgment in the Sabarimala case.

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Dhavan says that a writ petition by itself cannot question the judgment of this Court; concludes his brief submissions

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Senior Counsel Rakesh Dwivedi makes his submissions now.

Dwivedi says he disagrees with the procedure sought to be followed where judicial policy will be decided first and then the case decided.

There is a seven Judge Bench decision in Shirur Mutt case which should be followed, Dwivedi

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Senior Counsel Jaideep Gupta argues that questions can be reopened only if the parameters of review are not met.

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Nature of review and nature of reference are very different, Dwivedi argues; adds that the Court could not have made the reference before deciding the Sabarimala review itself

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CJI Bobde says we are not going to dispose of the review, but we are going to answer only the questions referred to us

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Bench rises for lunch.

Hearing to continue in the post office lunch session.

Bench assembles for the post lunch session.

Jaideep Gupta resumes his submissions.

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Gupta argues that a review is not dependent upon reference but in the instant case th review will be rendered dependent on the outcome of the reference.

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Gupta says that a review cannot be decided based on a newly laid down legal principle in a reference.

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Gupta concludes his arguments.

Senior Counsel Shyam Divan begins making his submissions.

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Divan refers to a judgment where the Court granted the review, reopened the criminals appeal and justice Bhagawati had said that a reference cannot be made till the review is decided.

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Divan argues that the scope of review is very narrow and refers to Order 47 of the Supreme Court rules which enumerates the grounds on which review can be entertained.

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CJI Bobde asks if notice was issued on the review petitions.

Senior Counsel K Parasaran tells the Court that an order was passed in circulation in chamber for an open Court hearing

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Senior Counsel Abhishek Manu Singhvi says that there was no formal notice issued but all the Counsel were heard in detail.

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Divan continues and summarises that not only was there no formal notice as confirmed by Singhvi, but two of the five Judges on the Bench had dismissed the review petitions at the threshold.

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Divan invokes the Doctrine of merger and said that if a judgement nis to be re-opened, then the original cause of action remains otherwise there is a merger of the cause of action.

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Divan refers to the 1965 judgment in the Gulabchand case, says the final judgment remains unless there is a specific and explicit order directing for it to be reopened.

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Divan argues on the review jurisdiction to say that it is jurisdiction under A.136 and says that once judgment is rendered, it's the parameters of review alone that matter.

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Order 47 Rule 1 of the CPC lays doen the grounds on which review petitions can be entertained, Divan

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It is pertinent that the Court records the grounds on which review is allowed before making a reference, Divan

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Allowing a reference on a question of law in the guise of the a review would amount to an appeal and thus, review is not maintainable, Divan argues

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Answering the question posed hy CJI Bobde on the Writ petitions that were filed, Divan says the fresh writ petitions were filed after the September 2018 main judgment assailing the same and has been taken note of by both the majority and minority opinions in the review order

Divan cites the opinion authored by CJI Bobde in the Puttaswamy judgment on right to privacy issue and submits that he opposes the argument that a law should be laid down for posterity.

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Divan concludes his arguments.

Senior counsel Abhishek Manu Singhvi begins to make his submissions. Singhvi opposes the contention that the reference is not maintainable since the review is pending.

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Singhvi argues that the Counsel arguing against maintainability of the reference have the burden on them to show that there is an express bar on the Court from entertaining such a reference; says there isn't any such bar.

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Singhvi tells the Court that the constitution bench (with one judge changed) had convened to decide whether the September 2018 needed to be reviewed and if there was an error apparent.

The review bench makes a reference to a larger Bench for guidance on account of want of answers on larger issues, Singhvi says

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Once the reference is decided by the larger Bench an guidance provided then the review goes back to the same review Bench to decide whether there was an error this way or that way, Singhvi says

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In the steps enumerated, where is the bar on a Constitution Bench from referring a question for guidance to a larger Bench, Singhvi asks

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It was argued that this is an intra-Court appeal and that reference can't be made merely because review is pending and that's why guidance cannot be sought, Singhvi says about the main arguments advanced by the other side opposing the maintainability of the reference

Most important thing that is being forgotten is that the request for guidance is made by a Bench and the guidance will be an input for the decision of the review.

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Saying that the Supreme Court cannot seek guidance of a larger Bench for deciding a matter is subversion of the majesty of this Court, Singhvi

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On the application of Article 145(3), Singhvi says that the same applies to Benches of strength less than five Judges. In the instant case, the reference is made by a five-Judge Bench.

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Singhvi says that neither Order 47 of CPC nor A.145(3) of the Constitution impose any bar on the Court; a bar is being read into and an ouster cannot be assumed.

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Singhvi argues that the Supreme Court also has an inherent power on account of which there cannot be a bar.

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Over 90% of the cases concerning Articles 25 and 26 arise when an aggrieved person challenges the statutory provisions of statues governing religious bodies, Singhvi

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A strange trend has begun where a PIL is filed in the absence of a statute and an alleged bad practice is sought to be banned. The aggrieved persons in such matters become the Respondents, Singhvi

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Singhvi now cites the example of Navtej Singh Johar case which was entertained despite the dismissal of review petition in the Naz Foundation case. The Curative petition in Naz remained pending at the time.

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Singhvi says that the situation is "identical" since in Sabarimala the reference is made pending review, in Section 377 case, reference was made pending curative in Naz Foundation case.

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After the decision was rendered by the five-Judge Bench in Navtej Singh Johar reading down section 377 of the IPC, in September 2018, the curative petition in Naz Foundation case was withdrawn.

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Singhvi concludes his arguments.

Senior Counsel K Parasaran begins his submissions.

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Parasaran says Supreme Court is the highest Court of the land and has unlimited jurisdiction

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CJI Bobde says that by exercising this procedure for reference, the Court has not prejudicially affected any person's rights; the method may have been innovative but nobody's rights are affected.

Parasaran agrees

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Parasaran concludes his arguments.

Senior Counsel CS Vaidyanathan making his submissions now.

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CSV argues that A. 137 is governed by Order 47; says jurisdiction under A. 32 has been considered for grounds for review under Order 47.

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CSV says A.32 jurisdiction of the Supreme Court is a "sui generis" jurisdiction and cannot be compared with other jurisdictions.

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Senior Counsel Ranjeet Kumar making his submissions now, says A.32 is under Part 3 of the Constitution of India, and therefore SC becomes the first and last Court for questions on fundamental rights; there is guaranteed jurisdiction.

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Ranjeet Kumar concludes his brief submissions.

Senior Counsel V Giri makes submissions now; says writ petitions which involved similar issues as review petitions in Sabarimala were taken note of by the Court.

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Giri says that once reference is decided, the review will return to the five-Judge Bench for decision on the issues under review; concludes arguments.

Senior Counsel PS Narsimhan makes his submissions now; says that there was no other choice other than making a reference to a larger Bench since the questions pertain to Fundamental rights.

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Senior Counsel Arvind Datar submits that questions pertaining to various faiths will also be covered under the reference and points out that the then CJI Ranjan Gogoi knew and mentioned the exact writ petitions that raised questions pertaining to women of other faiths

Senior Advocates Fali Nariman and Indira Jaisong make their brief rejoinder submission.

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Supreme Court reserves its order on the issue of whether questions of law can be referred to a larger Bench in a review petition.

Order to be pronounced on Monday.

Court also said that the issues to be heard by the Court will be announced on Monday, Feb 10.

Hearing on the larger issues thus framed will begin from Wednesday, Feb 12.

Court hints at the hearing to be conducted on a day to day basis for all five working days of the week.

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Sabarimala: Supreme Court to pronounce order on maintainability of reference on Feb 10
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