Thread by @legaljournalist

#Sabarimala: Hearing before 9-judge bench of SC commences on the issue of whether a review bench has powers to frame legal questions and refer it to a larger bench.

Solicitor General Tushar Mehta making submissions. @htTweets

Solicitor General Tushar Mehta says that the powers of Supreme Court to refer a matter to larger bench is unfettered even if its a review petition or curative petition.

#Sabarimala: SG Tushar Mehta referring to an earlier judgment of SC in which a larger bench had observed that even though reference to it was not proper, since the matter was before it, the larger bench will hear the matter.

#Sabarimala: Therefore, to say that reference was not possible because it was a review petition is absurd.

#Sabarimala: Technicalities should not come in the way of Your Lordships' way to discharge justice for the posterity, Tushar Mehta says.

#Sabarimala: SG Mehta cites Section 377 case of Navtej Singh Johar in which SC had entertained fresh writ petitions and referred it to constitution bench even though curative petition against 2013 judgment in Suresh Kumar Koushal in which SC had upheld s. 377, was still pending.

#Sabarimala: SG Tushar Mehta concludes; Sr adv. Fali Nariman, who is opposing the reference, commences arguments.

#Sabarimala: Your Lordships should please keep out of your mind that CJI Gogoi was to retire in 3 days after judgment was delivered.

This judgment is of the court, two other judges had also signed it, says Nariman.

#Sabarimala: The scope of a review is not the scope of the writ petition. Review is not a continuation of the writ proceedings.

The review proceedings have to confirm to Order 47 Rule 1 of CPC and Article 137 of Constitution, says Fali Nariman.

#Sabarimala: Articles 25 and 26 apply only to religion, religious denominatioms or sects.

Devotees of a temple do not constitute a sect, says Nariman.

#Sabarimala: This question was answered by the court (in 2018 judgment of SC), Nariman says.

#Sabarimala: Nariman says the questions referred cannot be answered divorced from facts.

CJI Bobde does not seem to agree to that proposition.

#Sabarimala: Question relating to ayyappa devotees being a sect has been considered and answered in Sept 2018 judgment. Hence, questions relating to Article 25 and 26 are only academic. Academic questions cannot be raised in review petitions, Fali Nariman.

#Sabarimala: In a review, court ia asked to take a second look at the judgment for errors.

It is not a plenary power, says Nariman.

#Sabarimala: A review is not a rehearing. It is only for determining if there are any glaring errors, Nariman reading out judgments on scope of review jurisdiction.

#Sabarimala: Fali Nariman concludes. The most interesting point made by him was that the Nov 2019 order of review bench was an administrative order in the guise of a judicial order.

#Sabarimala: Indira Jaising appearing for one of the two women in the case says arguments of both Tushar Mehta and Fali Nariman are correct.

#Sabarimala: Jaising says most of the review petitioners were not parties to the original case. Most review petitions were filed with the leave of the court.

Simultaneously writ petitions were also filed challenging the 2018 judgment.

#Sabarimala: All these were decided together by the review bench.

Hence, there is no clarity on whether the Nov 2019 order of review bench is on review petitions or writ petitions, submits Jaising.

#Sabarimala: In a writ petition, the court can frame questions and refer to larger bench but not in review, says Jaising.

#Sabarimala: There was no finding or decision on review petitions. It was, as Nariman rightly pointed out, simply adjourned, says Jaising.

#Sabarimala: It has to be decided whether the order was passed in review or in writ petitions, says Jaising.

#Sabarimala: Assuming the order was passed in writ petitions, the same are not maintainable since their claim is that judicial order violates fundamental rights. No writ is maintainable against a judicial order of this court, says Jaising.

#Sabarimala: Hearing such petitions will amount to intra-court appeal, Jaising argues.

#Sabarimala: Rajeev Dhavan appearing for an intervenor begins arguments.

Sabarimala is a decided case. It is binding on everybody. I disagree with the judgment but it is binding on me, says Dhavan.

#Sabarimala: Has any judge said in the reference order that the judgment in Sabarimala is wrong? No error in the 2018 judgment has been pointed out in the reference order of review bench, Dhavan says.

#Sabarimala: A writ petition cannot question a judgment of this court, Dhavan concludes.

#Sabarimala: Inherent powers of SC cannot be exercised to expand the scope of review jurisdiction, Rakesh Dwivedi argues.

#Sabarimala: Assuming that there is a power for review bench to refer matters, it cannot simply refer. It has to doubt the correctness of the judgment under review, says Dwivedi.

#Sabarimala: The review bench in this case has not said anything to that effect, Dwivedi argues.

#Sabarimala: Kerala govt tells Supreme Court that a reference cannot be made in review.

#Sabarimala: In a review, the court can only look into whether there is an error apparent on the face of record, Jaideep Gupta for Kerala.

#Sabarimala:Kerala says if in reference SC changes the law, then parties will ask for new law to be applied in review

Of course they will, says CJI Bobde

Kerala: That can't be allowed because review should be decided only on error apparent as law stood when main case was heard

#Sabarimala: Based on a subsequent change in law, an earlier lis will not be reopened, Jaideep Gupta argues for Kerala govt.

#Sabarimala: The review is not dependent upon reference. Here, the review will become dependent upon reference, says Jaideep Gupta.

#Sabarimala: Once reference is decided, what will be scope of review powers, asks Justice Nageswara Rao.

Same power of review - to decide whether there is an error apparent on the face of record, says Gupta.

#Sabarimala: Shyam Divan commences arguments.

#Sabarimala: Unless the case is reopened by saying there is an error apparent, there cannot be a review, says Shyam Divan.

#Sabarimala: Challenge to female genital mutilation, entry of muslim women into mosques and parsi women into Agyari were not before the review bench, says Divan.

#Sabarimala: The issue today is could a refernce have been made to a larger bench given that the review had not yet been decided, Dr. AM Singhvi.

#Sabarimala: If during the course of hearing of review, the judges have a doubt, then can they not ask a larger bench to clear the doubt, asks Dr. AM Singhvi.

#Sabarimala: The other side has argued that this is a defacto intra court appeal, and review must be decided and guidance cannot be sought by review bench from 9-judge bench, Singhvi says.

#Sabarimala: What if in another case, these issues are heard by a 9-judge bench and the outcome is then brought to the notice of review bench, can the review bench ignore the law laid down by 9-judge bench, asks Dr. Singhvi.

#Sabarimala: War of words between Indira Jaising and Dr. AM Singhvi. Jaising objects to certain statements by Singhvi.

Jaising says she has to face such remarks by male colleagues every time.

#Sabarimala: This court is the highest court of the land with unlimited jurisdiction.

Unless there is an express bar in the Constitution on jurisdiction of SC, nobody can argue that SC does not have jurisdiction, submits K Parasaran.

#Sabarimala: By making this reference, the court has not prejudicially affected anybody's rights. It might at the most be an innovative procedure, says CJI SA Bobde.

#Sabarimala: Even if a Constitutional amendment is made affecting the jurisdiction of this court, it will be unconstitutional for affecting the independence of judiciary, says K Parasaran.

#Sabarimala: K Parasaran concludes; CS Vaidyanathan commences arguments.

#Sabarimala: 9-judge bench of SC reserves order on whether a review bench can frame questions of law and refer it to larger bench.

"Order will be pronounced on Monday.

Issues will be framed on Monday", says CJI Bobde.