1. The 9 judge bench of SC constituted to hear larger issues of Fundamental rights under Art 25 & 26 and authority of court to determine essentiality of religious practices assembled on 3rd Feb to frame broader questions on matters referred to it by the Sabarimala review verdict
2. During this hearing it was argued that the scope of review jurisdiction is very limited and the review Bench could not have framed new issues for reference to a larger Bench.
3. This preliminary question was considered on 6th Feb 2020. SG Mr. Tushar Mehta first addressed the Court and submitted that besides Senior Counsel Fali Nariman, it is nobody’s stand that reference to 9 judges’ Bench was made in pending review petition.
4. At this, Justice Nageswara Rao enquired in which matter the SG suggests the matter was referred to current Bench. Mr. Mehta submitted that reference was made during the proceeding of review petition but the questions framed were not specific to the matter pending for review
5. The CJI, Justice Bobde commented that the reference was definitely made by the 5 judges Bench hearing review in Sabarimala Case. Mr. Mehta then read out Paras 4, 5 and 6 from the majority order delivered by the Sabarimala Bench on 14th November 2019.
6. He further submitted that the issue under review was not referred to the larger Bench but the broader, substantial questions on right to freedom of religion and judicial intervention in religious matters were referred.
7. Citing Order 6 Rule 2 of the Supreme Court Rules 2013, the SG referred to the review jurisdiction of the SC and that the then CJI himself felt the need to refer the broader issues to the larger Bench is indisputable and clear from the judgment.
8. He further stressed that the reference was not pertaining to the whole judgment in Sabarimala case, but only to the issues framed.
9. At this juncture, CJI Bobde requested the counsels to finish the argument on the question of validity of reference by review Bench by the end of the day.
10. The SG then commented that it unfortunate that few litigants who were not part of the original litigation are raising objections on the jurisdiction of this Bench.
11. The SG submitted that there were two judgments of 7 and 5 judges’ Benches of SC which have conflicting implications and therefore the larger issues dealt therein need to be authoritatively ruled on by the current Bench for posterity.
12. He further submitted that the power of the SC, irrespective of the proceedings, to refer questions of law to a larger Bench are unfettered. He gave the example of curative petitions for invention of jurisdiction when needed.
13. Citing the Dawoodi Bohra Judgment, the SG explained that the Court has always felt free to refer matter to larger Benches. The strength of the larger Bench is however the prerogative of the CJI appointing such Bench.
14. Mr. Mehta said that the SC Rules are not a limitation on the powers of the Court or the CJI. He read out the Order 6 Rule 2, pointing out to the Bench that the words used are “Where in the course of the hearing of any cause…”
15. He submitted that terms ‘any cause’ & ‘other proceedings’ mean a suit before the Court at any stage, which is inclusive of a review. There are only two exceptions to statutory rule which grant flexibility in procedure of constitution of larger Benches to deal with references
16. He said that first exception is discretion of CJI while constituting such a Bench regarding number of judges and other exception being in case of suo motu cognizance by the SC to form a larger bench to give authoritative pronouncement on certain questions of law
17. The SG submitted that the highest Court of the land as custodian of Fundamental Rights for posterity, has responsibility of ensuring ‘justice’ is done. Issues regarding procedures in review, reference & other jurisdictions cannot be kept before duty of Court towards justice
18. He cited Mineral Area Development Authority v SAIL (2011), West UP Sugar Mills Assn v State of UP (2012), UoI v Raghubir Singh (1989) & Naz Foundation Case (2013), to stress on duty of SC to lay down authoritative judgment on matters that keep arising under on or other case
19. He added that the Court owes duty towards protection of law and justice first and later towards adherence to procedures or technicality.
20. Citing the Navtej Singh Johar Case (2018) the SG further submitted that even if the reference to a larger Bench is made in a curative petition, the power of the Court is unfettered.
21. Quoting Justice Gogoi, the counsel submitted that the preference is always to refer to the largest Bench possible when the issue at hand is constitutional and more if it pertains to Fundamental Rights.
22. At this juncture, the CJI pointed out that the SC has residuary powers and inherent powers that in absence of a set procedure make it easy for the Court to take suo motu cognizance.
23. Mr. Mehta agreed and referred to Order 55 Rule 6 of the SC Rules which provide that “nothing in the rules can limit the inherent powers of the SC to make such orders that may be necessary to meet ends of justice”. At this the SG, Mr. Mehta concluded his arguments on the issue
24. Senior Counsel @DrAMSinghvi then rose to start his arguments before the Bench but the CJI requested Senior Counsel Fali Nariman to submit his arguments against the maintainability of the reference first.
@DrAMSinghvi 25. Mr. Nariman submitted that many frivolous arguments have been made by SG in favour of the validity of reference. The senior counsel said that the five judges Bench while giving the judgment in 2018, had cited the Shirur Mutt Judgment that was decided by a full Bench of the SC
@DrAMSinghvi 26. Referring to the Article 145 (3), Mr. Nariman said that the provision asks for a five judge Bench because the strength of the SC at the time of Constitution being promulgated was only 8 judges. Therefore, the Shirur Mutt is a full bench authoritative judgment.
@DrAMSinghvi 27. He added that the Sabarimala case was being dealt by 3 judges and was referred to a constitutional bench of 5 judges. The 5 judges delivered a judgment that was well founded. Then the review was filed. The scope of a review is not same as the original petition.
@DrAMSinghvi 28. Mr. Nariman submitted that this review is not continuation of the existing proceedings, it is unlike appeal. The CJI asked the senior counsel if the review meant that the case was reopened and so is the appeal.
@DrAMSinghvi 29. Mr. Nariman answered that a review is entirely a different proceeding conforming to the Order 47 Rule 1 of the CPC. The case is reopened only if the review is allowed. But the matter no more remains X vs. Y, it more a reconsideration by the Court itself.
@DrAMSinghvi 30. He further submitted that the issue essential to the case was whether the devotees of the Ayyappa Temple are a ‘religious denomination’ or ’a sect thereof’ or not. That question had been answered clearly in 2018.
@DrAMSinghvi 31. He submitted that since Art 25 & 26 apply only to ‘religious denominations or sects thereof’, right in question has been addressed. Devotees of particular Temple or idol in specific cannot be a sect to which these Articles may apply. The case of Parsis is entirely different
@DrAMSinghvi 32. At this point, the CJI pointed out to the Counsel that the question of ‘religious denomination’ is not an issue before the 9 judge Bench. The question to be addressed today is merely whether the reference was made in the review petition itself.
@DrAMSinghvi 33. The CJI further added that review Bench in para 5 of its Nov 2019 order suggests that it kept the decision on hold so that more important & constitutional issues connected to their decision on review as well as other pending matters of similar nature needed to be settled 1st
@DrAMSinghvi 34. Mr. Nariman asked the Bench, whether such issues can be decided for the other writs without going into the facts of that case. The senior counsel added that the Court cannot find a law without adjudicating over the facts first.
@DrAMSinghvi 35. He submitted that the paras 2-8 of the November order as well as the question framed deal only with the Sabarimala matter.
@DrAMSinghvi 36. He submitted that review petitions have a narrow scope than writ petitions. Review petitions are for correction of an error on face of record. Error of law has not been pointed out. Therefore, it is safely said that matters were settled by 2018 judgment and it stands final
@DrAMSinghvi 37. Mr. Nariman further submitted that the Court cannot now use its inherent powers to unsettle what was settled by it. Since the review is pending and no error was pointed out in the November order, there is no power to refer.
@DrAMSinghvi 38. The CJI remarked that constitution Bench is an independent authority & they may have wanted to depart from ordinary to do justice to the matter. To this Mr. Nariman said that review Bench was not merely deciding A v B, there were other pending matters added to the scope
@DrAMSinghvi 39. He submitted that how can that Court or this Bench decide issues for those additional Writs without hearing them on facts first.
@DrAMSinghvi 40. The CJI enquired that with reference to a case that Mr. Parasaran had cited in the previous hearing, how should the Court proceed with a reference if the review is still pending? To this Mr. Nariman responded that the Court should hear the review first.
@DrAMSinghvi 41. Dealing with the scope of review petitions, Mr. Nariman said that how previous Benches of 5 and more judges have dealt with similar situations is important to note. He said that there are many cases on the principle that no new material can be admitted at the stage of review.
@DrAMSinghvi 42. He submitted that the Court is free to constitute Benches and pronounce its opinion on questions of law, but cannot adjourn an existing proceeding to give that opinion. Inherent powers of SC cannot be evoked unless there is a special case where procedure is not provided for
@DrAMSinghvi 43. The CJI then enquired if the counsel is referring to the Manohar Lal Chopra Case (1961).
@DrAMSinghvi 44. To this, Mr. Nariman replied that the case was also relevant. He further said that the processes of the Court that are covered by a statute or rules should not be disturbed by using inherent powers.
@DrAMSinghvi 45. Referring to the Kerala Education Bill Case (1958), Mr. Nariman further submitted that with respect to its advisory opinion as a court of reference, the Court can only rule if it is moved. It cannot become a forum of reference by itself.
@DrAMSinghvi 46. He added that there should not be an exposition of law at large by ignoring the facts at hand
@DrAMSinghvi 47. The CJI said that if the contention made by Mr. Nariman is to be taken as correct, then in this case where there is absence of a procedure for reference by a review Bench the Court can use its inherent powers to overcome this anomaly.
@DrAMSinghvi 48. He then cleared that the 9 judges’ Bench does not intend to deal with facts at all.
@DrAMSinghvi 49. Mr. Nariman pointed out that if the Court does so, it will affect many other pending review cases. The CJI remarked that the last argument of Mr. Nariman that the inherent powers of SC cannot be used for reference will be considered by the Bench.
@DrAMSinghvi 50. Ms. @IJaising then requested the Bench for time to be heard as she represents the two women who were able to enter the Sabarimala Temple.
@DrAMSinghvi @IJaising 51. Sr Counsel Rajiv Dhavan then submitted that he supports the arguments of Mr. Nariman. At this point, Ms. Jaising too added that she supports the arguments of both Mr. Nariman & Mr. Mehta and that she should be allotted time to explain her point. She was hence allotted 10 mins
@DrAMSinghvi @IJaising 52. Ms Jaising pointed out to the Court that the cause-title of the matter includes both review petitions as well as several writ petitions.
@DrAMSinghvi @IJaising 53. She further added that various writs had been filed before the review Bench challenging the 2018 judgment, and the review Bench had decided to take them all together while making the November 2019 order.
@DrAMSinghvi @IJaising 54. She submitted that there was no clarity in the order to whether the review Bench preferred this reference in the pending writs or in the review matter or both.
@DrAMSinghvi @IJaising 55. She then added that since the Court has the power to make reference in the fresh writs but not in the review matters, it safe to assume that it would have been the former case. But even that cannot have been done without hearing the cases first on facts.
@DrAMSinghvi @IJaising 56. Ms. Jaising said that she agrees with this line of argument of Mr. Mehta and added that she also agrees with Mr. Nariman’s submission that the review petitions were adjourned and not allowed or dismissed, on the other hand the fresh writs were tagged along which is erroneous.
@DrAMSinghvi @IJaising 57. Ms. Jaising admitted that even if it was to be accepted that the Court in its inherent powers can refer while hearing a review, the error of law in the case has to pointed out and the review atleast admitted.
@DrAMSinghvi @IJaising 58. She submitted that if it has to be accepted that the reference has been made in the case of the fresh writs, then the Court should have dealt with maintainability of those writs in its order.
@DrAMSinghvi @IJaising 59. She added that it is important to for this Bench to decide in which matter the reference has been made to it. Otherwise this proceeding is nothing but an intra-court appeal.
@DrAMSinghvi @IJaising 60. Ms. Jaising added that there is no conflict between the Dargah and Shirur Mutt Case. The CJI at this point remarked that even if there is a single procedure or rule through which this reference can be maintained, the Bench will preside.
@DrAMSinghvi @IJaising 61. Ms. Jaising then retorted that it would be impermissible for the Court to do so. If done, the Court would be acting without jurisdiction. She asserted that there is a jurisdiction issue here and that judgment of nine judges will not be binding and remain advisory in effect.
@DrAMSinghvi @IJaising 62. She continued that without jurisdiction, with lack of jurisdiction, for want of jurisdiction, the SC is resorting to this reference. That she will not shy away from saying it aloud unlike Mr. Nariman.
@DrAMSinghvi @IJaising 63. The CJI commented that Mr. Nariman did not shy away or dodge such submission, rather he did not make any such submission. Ms Jaising further submitted that if Bench resorted to reference * passed a judgement thereby inventing a new procedure, it will affect other review cases
@DrAMSinghvi @IJaising 65. As senior counsel Rajeev Dhavan began making his arguments, the SG Mr. Mehta pointed out to the Court that being an intervenor’s counsel, Mr. Dhavan should not be allowed to argue at this stage.
@DrAMSinghvi @IJaising 66. Mr. Parasaran too raised the question whether an intervenor make submissions regarding hearing of the either review or reference. However, the Bench decided to hear Mr. Dhavan.
@DrAMSinghvi @IJaising 67. Mr. Dhavan submitted that a review lies only when the Court finds an error of law, and that no error has been pointed out in the main judgment of Sabarimala Case.
@DrAMSinghvi @IJaising 68. On maintainability of fresh writs, he submitted that the locus is very important. He said that a writ cannot be sustained only to challenge a judgment of this Court. With this he concluded his brief arguments.
@DrAMSinghvi @IJaising 69. Senior Counsel Rakesh Dwivedi started making submissions. He submitted that order of reference cannot keep the review pending. The review ought be granted first in order to reopen the case. The CJI remarked that the Bench was ready to override that requirement and proceed.
@DrAMSinghvi @IJaising 70. He further submitted that the Shirur Mutt Judgment is a full bench judgment and that it should be followed.
@DrAMSinghvi @IJaising 71. He said that it would be wrong to decide the judicial policy and then hear the case. Inherent powers of the court cannot be used to expand the scope of review jurisdiction. Mr. Dwivedi read out the dissenting opinion of Justice Nariman in the November 2019 order.
@DrAMSinghvi @IJaising 72. The senior counsel added that the Order 6 Rule 1 & 2 of the SC Rules deal with original cases filed in the Court. To this CJI pointed out to the counsel that ‘other proceeding’ in Rule 2 would mean proceedings other than expressly mentioned therein.
@DrAMSinghvi @IJaising 73. Mr Dwivedi insisted that ‘other proceedings’ term will not include review. The CJI clarified that the Bench will not rule against the reference on merely this ground.
@DrAMSinghvi @IJaising 74. To this another counsel Mr. Surendranath added that subjective grounds cannot be made basis of the reference. The Bench preferred the sequence for arguments of the counsels thereafter, starting with Jaideep Gupta, followed by Shyam and then Manu Singhvi.
@DrAMSinghvi @IJaising 75. Senior Counsel Jaideep Gupta argued that the nature of review petition and reference are totally different.
@DrAMSinghvi @IJaising 76. He submitted that they are in conflict as between the parties to original litigation, the issues can be reviewed only if parameters of a review petition are met. If the grounds have to be met and the error on the face of record has to be shown.
@DrAMSinghvi @IJaising 77. Mr. Gupta said that a reference can change the questions of law involved but review cannot. A reference judgment will be binding for future case, but a review only parties to litigation are affected.
@DrAMSinghvi @IJaising 78. He further submitted that a review cannot be decided post reference because the question of law decided in reference will be binding on a review Bench and expands the scope of review. The Bench rose for lunch.
@DrAMSinghvi @IJaising 79. Adv. Jaideep Gupta resumed his arguments after lunch. He submitted that the matter when reopened in review does not tag along every other matter involving similar issues of law. It is not within the purview of the review proceedings to make a reference to larger Bench.
@DrAMSinghvi @IJaising 80. The CJI asked the senior counsel if he meant to suggest that the review Bench is not entitled to have a doubt on questions of law. Mr. Gupta responded in negative.
@DrAMSinghvi @IJaising 81. He explained that in absence of an error of law in the 2018 judgement being pointed out by the review Bench the review jurisdiction also does not stand.
@DrAMSinghvi @IJaising 82. He further submitted that a review cannot be dependent upon a reference Bench judgment but it has been made to be in the current case. Inherent powers of the Court cannot be used to result in such an anomaly.
@DrAMSinghvi @IJaising 83. The CJI remarked that inherent powers are available to the Court in both proceedings of review as well as reference, in any proceeding at any stage while exercising its power of decision making.
@DrAMSinghvi @IJaising 84. Mr. Gupta submitted that a review cannot be decided based on a newly laid down legal principle in a reference. No Bench will accept a review of its judgment and then keep it pending in wait for a future law.
@DrAMSinghvi @IJaising 85. The CJI enquired why would review Bench or any other Bench be prevented frm applying what 9 judge Bench rules. To this Mr. Gupta responded in affirmative & explained that change of law after admitting review cannot have impact on nature of original lis before the review Bench
@DrAMSinghvi @IJaising 86. The CJI stressed that all subsequent decisions of this Court will be bound by their ruling including that of the review Bench.
@DrAMSinghvi @IJaising 87. Senior Counsel Shyam Divan then stood up to make his submissions. The SG, Mr. Mehta objected saying Mr. Divan was not party to the original proceeding and he can only argue on the issue of FGM when the reference Bench hears arguments on merits.
@DrAMSinghvi @IJaising 88. Mr. Divan thanked Mr. Mehta for reminding everyone of the parties he represents and started making submissions. He refers to the case of Behram Khurshed Pesikaka (1954) wherein the Court had granted the review before making a reference.
@DrAMSinghvi @IJaising 89. He submitted that Justice Bhagwati on the original Bench had held that the Bench has to grant the review to reopen the case to enable themselves to obtain opinion of a larger Bench by way of reference.
@DrAMSinghvi @IJaising 90. Mr. Divan stressed that the reference was made in the original matTer of the criminal appeal and not in the review petition.
@DrAMSinghvi @IJaising 91. The CJI enquired if the senior counsel is submitting that only because the review Bench did not point out the error of law in its 2018 judgment, they are devoid of the power to refer to a larger Bench.
@DrAMSinghvi @IJaising 92. Justice Bhushan commented that the judgment that Mr. Divan is citing only talks of a practice and it is not the ratio of the judgment that a reference cannot be made without deciding on review first.
@DrAMSinghvi @IJaising 93. Mr. Divan agreed that it was not the ratio of the cited judgment, but he asserted that a practice is established. He then submits that the Order 47 of the CPC defines the grounds on which a review can be entertained.
@DrAMSinghvi @IJaising 94. He added that the reference made by the Bench in the Pesikaka Case was well founded on the Proviso to the Article 145(3).
@DrAMSinghvi @IJaising 95. Senior Counsel K. Parasaran intervened to point out that the CJI has power to refer to any Bench when he feels the grounds for such action are present. Mr. Divan submitted that notices were also not issued by the review Bench indicating that the review was not granted.
@DrAMSinghvi @IJaising 96. The CJI enquired the counsels if notice was issued on review petitions. Mr. Singhvi and Mr. Parasaran informed the Court that an order was passed and circulated for open Court hearing. Mr. Singhvi clarified that de-facto notice was issued and all Counsels were heard in detail
@DrAMSinghvi @IJaising 97. Mr. Divan again submitted that no formal notice was issued as confirmed by Mr. Singhvi and the two judges out of the Bench of five had dismissed the review petitions at the threshold.
@DrAMSinghvi @IJaising 98. He said the minority dissent in the review order is self-explanatory why the review petitions could not have been considered
@DrAMSinghvi @IJaising 99. He further submitted that in absence of a review technically granted yet, all the Court has in hand is the final judgment of 2018. The CJI commented at this point that the reference being preferred to nine judges’ Bench does not pertain only to the Sabarimala matter.
@DrAMSinghvi @IJaising 100. Mr. Divan then referring to the doctrine of merger of cause of actions, submitted that matters could not have been clubbed by the review Bench without having kept the cause of action the matter before themselves open first.
@DrAMSinghvi @IJaising 101. He then added that the review Bench had no power to merge the other three causes without dealing with the review pending before itself.
@DrAMSinghvi @IJaising 102. Citing the Gulabchand Chhotelal Parikh Case (1965), Mr. Divan submitted that the finality of the 2018 judgment remains until there is an explicit order directing for its reopening by the review Bench. That the reference currently preferred is like an appeal in disguise.
@DrAMSinghvi @IJaising 103. Mr. Divan submitted that since the 9 judges’ Bench is a rarity, the scope is very narrow. Review is a very narrow and tight jurisdiction and there cannot be much differences allowed even in the cases of PILs.
@DrAMSinghvi @IJaising 104. He added that it is inexcusable that the Court does not state the grounds for allowing a review.
@DrAMSinghvi @IJaising 105. The senior counsel then cited the Puttuswamy judgment (2018) authored by Justice Bobde himself which says that the scope of questions of law referred to a 9 judges’ Bench is limited. He refers to the doctrine of precedence which binds the judges now.
@DrAMSinghvi @IJaising 106. He said that Justice Bobde himself has held that even the cases involving Fundamental Rights will always be decided on case by case basis, then why this clubbing of matters.
@DrAMSinghvi @IJaising 107. Mr. Divan further submitted that writs filed aft final judgment of 2018 were not maintainable as they only intended to oppose the judgment of this Court. Northern India Caterers case (1979) was cited. The CJI asked Mr Divan to submit list of cases he wanted the Bench to read
@DrAMSinghvi @IJaising 108. Sr Counsel @DrAMSinghvi then began his submissions. He objected to the 90% of the submissions made since morning that in pendency of review, a reference cannot be made. He submitted that the Constitution does not put any such bar on the powers of this Court.
@DrAMSinghvi @IJaising 109. The CJI enquired the Senior Counsel about the maintenance of ‘discipline of the law’. He said that the review Bench could not have thought that let us refer it to larger Bench but not admit it in review.
@DrAMSinghvi @IJaising 110. Mr. @DrAMSinghvi agreed with the CJI and submitted that the burden of proving non-maintainability of this reference was on the other side and so far they have not been able to point out to an express bar on the rights of this Court to refer in pendency of a review.
@DrAMSinghvi @IJaising 111. Mr. Singhvi then asked the Court to assume that in a hypothetical case where the judgment of a constitution Bench has been delivered and the review petition along with many other writs are made to the Bench.
@DrAMSinghvi @IJaising 112. And that if that review Bench needs guidance to decide on that review, whether that Bench of the highest Court had no power to seek for guidance from a larger Bench.
@DrAMSinghvi @IJaising 113. He then asked when a constitution Bench is in a difficult position in respect of two conflicting precedents, can it not seek for guidance?
@DrAMSinghvi @IJaising 114. Mr. @DrAMSinghvi then submitted that to even spell out the error of law and clarity on larger issues for itself, can the Bench not seek for guidance. The reference Bench will only give that guidance and the matter will be decided by the Review Bench only.
@DrAMSinghvi @IJaising 115. He further submitted that there is no bar in the constitution or law to such a procedure. The CJI added that the Court cannot ask its larger Benches for guidance in its own matters but ironically it is competent to give guidance to the President in national matters.
@DrAMSinghvi @IJaising 116. He said that the Order 47 Rule 1 of the CPC nor the SC Rules can be used to fetter the power of five judges’ Bench to seek guidance nor the powers of the nine judges’ Bench are bound by those provisions.
@DrAMSinghvi @IJaising 117. Mr. Singhvi submitted that the entire argument of the other side has been two-fold. First that the reference amounted to an intra-court appeal and second that the review needs to be decided before seeking reference.
@DrAMSinghvi @IJaising 118. The guidance cannot be sought because the matter is pending before you, but why else would a constitution Bench seek guidance if not decide the matter before it?
@DrAMSinghvi @IJaising 119. The senior counsel added that the guidance is sought to assist the review Bench in deciding on the review only and nothing else. At this, Justice Surya pointed out that there is no other superior forum.
@DrAMSinghvi @IJaising 120. Mr. Singhvi clarified that even within SC all benches are Supreme and there is no superiority. It is the Court seeking guidance amongst its own judges. The CJI too added that guidance is being sought for cases before it only.
@DrAMSinghvi @IJaising 121. Mr. Singhvi submitted that the arguments being made by the other side would amount to subversion of the majesty of the SC. The CJI then referred to the plenary powers of the SC under Article 142 which have not been even mentioned yet.
@DrAMSinghvi @IJaising 122. He agreed and submitted that other laws and rules like in CPC cannot be used to put the authority of the Court into a straight jacket. Justice Bhushan then asked Mr. Singhvi to make his arguments pertaining to the Article 145(3).
@DrAMSinghvi @IJaising 123. Mr Singhvi submitted that the Article provides for the bench of not less than 5 judges. He said the in the instant case, the reference has been made by a five judges’ Bench.
@DrAMSinghvi @IJaising 124. He then refers to the use of the term ‘case’ which would include every proceeding pending before the Court including review. He said the term is very wide in implication.
@DrAMSinghvi @IJaising 125. He further submitted that neither Art 145 nor 147 have an explicit bar and a bar is being read into it by other side counsels. That too on the powers of the Apex Court. He submitted that there cannot be any bar on the inherent powers of the SC in its endeavour to do justice
@DrAMSinghvi @IJaising 126. The CJI agreed with the Counsel and said that the powers of the Court cannot be taken away by mere implied procedures. Mr. Singhvi submitted that to suggest that there are two kinds of benches, minority and majority within the same court, is completely an absurd argument.
@DrAMSinghvi @IJaising 127. Mr. Singhvi said that there is a new trend of filing PILs without any right being affected by state’s law. Assertion of right is being done these days in 90% case where there is an alleged ‘bad practice’ and the aggrieved person ends up becoming the respondent in such cases
@DrAMSinghvi @IJaising 128. He submitted that the PIL procedure is so liberal that it takes away all the restrictions of locus and of procedural requirements and the petitioners are happy when it favors them.
@DrAMSinghvi @IJaising 129. But when once the Court tries to flex the procedural requirements for its own guidance, the petitioners have a problem. They are even denying the SC its jurisdiction.
@DrAMSinghvi @IJaising 130. Mr. Singhvi then cited the Navtej Singh Johar Case (2013) where a reference was made when a curative was pending. The larger Bench heard on broader issues of privacy without hearing on the facts of the case pending curative petition.
@DrAMSinghvi @IJaising 131. Ms. @IJaising objected to the submission made by Mr. @DrAMSinghvi suggesting that it was a similar case. She said that the senior counsel was misleading the Court by putting the curative and review on the same footing.
@DrAMSinghvi @IJaising 132. When Mr. Singhvi mentions that Ms. Jaising was part of the case, Ms. Jaising objects that she was not and Mr. Anand Grover was a counsel on that case. Ms Jaising went on to say that Mr. Singhvi was being a typical ‘male chauvinist’ and misleading the Court.
@DrAMSinghvi @IJaising 133. He replied that he compared the two cases because in current case in the pendency of final proceeding of review a reference has been made and a curative is the extreme finality a proceeding in this Court can achieve. He read out dates of orders from Navtej Singh Johar case
@DrAMSinghvi @IJaising 134. Bandhua Mukti Morcha Case (1983), Rural litigation and Entitlement Kendra Case (1985) and other cases were cited to show the laxity of proceedings in PIL cases. Mr. Singhvi concluded his arguments.
@DrAMSinghvi @IJaising 135. Senior Counsel K Parasaran then began his submissions. He said that SC is the highest court of land and has plenary jurisdiction. The SC has discretion with regard to its procedure and in accordance with Article 145, it frames the rules of procedure for itself.
@DrAMSinghvi @IJaising 136. At this juncture, the CJI pointed out that Mr. Fali Nariman himself had argued in the Delhi judicial Services Case (1991) that the SC has all the powers unless an express bar. Does that argument not apply in this case according to him?
@DrAMSinghvi @IJaising 137. Mr. Nariman responded that it ‘may’ apply. Mr. Parasaran then continued his submission that the inherent powers of the SC along with the jurisdiction it has under Article 32 are the highest and the most flexible ones.
@DrAMSinghvi @IJaising 138. The CJI commented that by exercising those powers and making this reference, the Court has not prejudicially affected anyone’s rights. He added that the method adopted by the Court may be called innovative but nobody’s rights are affected.
@DrAMSinghvi @IJaising 139. Mr. Parasaran agreed with CJI and submitted that review Bench has asked for clarity on precedence. Only questions of law have been referred not the case at hand. He further submitted that review Bench has only suggested that 3 pending cases would also benefit from guidelines
@DrAMSinghvi @IJaising 140. The senior counsel also asserted that provisions of CPC and SC Rules cannot be quoted to limit constitutional powers of SC. He requested the Bench to refer to the list of cases and a separate compilation as submitted to the Court. With this Mr. Parasaran concluded.
@DrAMSinghvi @IJaising 141. After this, Senior Counsel CS Vaidyanathan started making submissions. He submitted that the jurisdiction of this Court cannot be questioned merely for absence of a formal notice or a minor procedural flexibility adopted in a case under Article 32.
@DrAMSinghvi @IJaising 142. He submitted that the jurisdiction SC has under Article 32 and the duty upon it is separate and larger than any other jurisdiction. The court while making a reference in a pending review, is not curtailing any rules.
@DrAMSinghvi @IJaising 143. Mr. Vaidyanathan added that the review suit dealing with rights under Article 32 is neither a civil nor criminal suit. It is sui generis, special jurisdiction. Citing the AR Antulay Case (1988) Mr. Vaidyanathan said that a review can be done suo motu.
@DrAMSinghvi @IJaising 144. The Cauvery judgment (2018) and the Shivnandan Paswan Case (1986) were cited by the counsel to support his arguments on SC’s inherent jurisdiction and review jurisdiction. Mr. Vaidyanathan concluded.
@DrAMSinghvi @IJaising 145. Senior counsel Ranjeet Kumar then started his submissions by saying that Article 32 that falls in Part III of the Indian Constitution is a Fundamental Right and the SC is the first and last forum to guarantee that right.
@DrAMSinghvi @IJaising 146. The CJI added that the Article ensures guaranteed jurisdiction of SC. Mr. Kumar agreed and submitted that even Article 145 (3) cannot limit this jurisdiction and in no situation can the Apex Court become powerless and helpless.
@DrAMSinghvi @IJaising 147. The Rupa Ashok Hurra Case was cited to affirm the power of the SC to invent jurisdiction when required. Mr. Kumar concluded his brief submissions.
@DrAMSinghvi @IJaising 148. Senior Counsel V Giri then made brief submissions on few points not covered by other counsels. He submitted that the review jurisdiction is a constitutional jurisdiction and not subservient to any laws or rules. The Constitution is the supreme law.
@DrAMSinghvi @IJaising 149. He added that the other three Writs that have been discussed in the review Bench’s order of November 2019 are the cases which involve similar issues.
@DrAMSinghvi @IJaising 150. The review Bench did not make direct referral but suggested CJI to constitute the largest Bench to answer broad questions of law for posterity. Neither of the issues framed by review Bench are binding on this 9 judges’ Bench, this Bench & CJI is free to frame its own issues
@DrAMSinghvi @IJaising 151. With this Mr. Giri concluded his arguments. Senior Counsel PS Narsimhan then made a submission that the review Bench had no other option but to refer the matter to a larger Bench to clarify its doubts, as the Fundamental Rights of both parties were involved.
@DrAMSinghvi @IJaising 152. At this point Mr. Fali Nariman remarked that no counsel has addressed his arguments fully.
@DrAMSinghvi @IJaising 153. Senior Counsel Arvind Dattar then submitted that para 3, 4 and 5 of the majority order (review Bench) are relevant to understand that the CJI then (Justice Gogoi) knew that the decision of the review Bench will affect the other cases.
@DrAMSinghvi @IJaising 154. He even recognised the three specific Writ petitions that would be affected by the 2018 decision in Sabarimala Case, therefore he suggested the CJI to form a larger Bench to guide the review Bench.
@DrAMSinghvi @IJaising 155. With this the hearing concluded. The 9 judge Bench has reserved its order on the issue of maintainability of the reference and will announce the same on Monday i.e. 10th February 2020. The CJI also said that the issues for the hearing on merits will be announced on Monday.
