A 9-judge Constitution bench said Thursday it will answer the contentious legal issue on February 10 whether the Supreme Court can refer questions of law to a larger bench while exercising its limited power under review jurisdiction in the Sabarimala case.
The bench, headed by Chief Justice S A Bobde, said it will pronounce the order on Monday as also frame larger issues for evolving of a judicial policy to deal with discrimination against women in various religions.
The 9-judge bench said it would commence day-to-day hearing from February 12 on the issues which were referred by a 5-judge Constitution bench headed by the then Chief Justice Ranjan Gogoi (since retired) on November 14, 2019.
Besides Sabarimala case, the verdict had also referred issues of entry of Muslim women into mosques and dargahs and of Parsi women, married to non-Parsi men, being barred from the holy fire place of an Agiary, to the larger bench.
The bench, also comprising Justices R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, said it would answer preliminary objection raised by some senior lawyers with regard to its power of reference to a larger bench while exercising authority under review jurisdiction.
During day-long hearing, senior lawyers like F S Nariman, Rajeev Dhavan, Indira Jaising and Shyam Divan vehemently argued that the 5-judge bench was wrong in making a reference to a larger bench without deciding the review petitions challenging the 2018 Sabarimala verdict, which had allowed women of all age group to enter the hill-top shrine.
Nariman said the scope of writ petition is different from review petitions and "in writ the top court had all the powers to refer it to a larger bench but in exercise of review jurisdiction, this court cannot refer the issues to a larger bench".
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He referred to the 2018 findings of a 5-judge bench in the Sabarimala case and said it was held that the followers of Lord Ayyappa did not form a separate religious denomination entitled for protection under the Constitution to continue with the old tradition under which women of certain age group were disallowed the entry to sanctum sanctorum of the temple.
Nariman further said this finding was under review of another bench in 2019, which had a limited scope to say whether their was any error apparent on the face of record in the 2018 verdict, but it "erroneously" broadened the scope and framed seven legal questions to be answered by a larger bench.
"The review petition was not answered in 'yes' or 'no'. The 2018 findings could have been overruled but erroneously larger issues were framed and reference was made to a larger bench," he said.
To this, the bench said that during the hearing of the Sabarimala review petition the court learned that there were similar issues pending before it.
Therefore, it decided to first have an authoritative pronouncement and then deal with all these issues which are related to interpretation of Article 25 and 26 (right to religion) and their inter-play with other fundamental rights, the bench added.
Nariman replied that then there are too many questions and wondered how the court will deal with these issues without knowing the facts of each case.
"This will render the entire exercise to be purely accademic," he said, adding that the academic questions cannot be referred to a larger bench.
The bench then said there is a judgement (in Sabarimala case) and the writ petitions which are sworn documents before the court and they can be relied upon by it.
Nariman's view were largely supported by Dhavan, Jaising, Divan and senior advocate Rakesh Dwivedi to canvas their arguments that while exercising power of review, the apex court cannot make any reference to a larger bench.
Kerala government also opposed the reference in a review petition saying the Sabarimala matter is a decided case and cannot depend upon the outcome of the reference to be given by the nine-judge bench.
Senior advocate Jaideep Gupta, appearing for Kerala, said the conflict is that you cannot decide the review petition based on the reference, it has to be decided based on the old law.
Solicitor General Tushar Mehta argued that the apex court was right in referring questions of law to larger bench.
"As custodian of fundamental rights, it was the duty of the court to lay down an authoritative pronouncement on these questions of law," he said.
He said powers of the Supreme Court, being the top court of the land, is "unfettered" with regard to larger question, "if they require an authoritative pronouncement in the interest of justice".
"Your Lordships are duty bound as custodians for posterity. Issues regarding review, reference, curative, these cannot be gone into. If there is a question of law, the court has the liberty to constitute a larger bench to settle the issues," Mehta said.
Mehta's views were supported by senior advocates K Parasharan, A M Singhvi, Ranjit Kumar, V Giri and others, who said the court had all the powers to make a reference in the interest of justice.
Singhvi referred to the gay rights case and said in that matter, even the review petition of an NGO was dismissed and curative plea was pending, but the top court decided to refer fresh pleas on the issue to a 5-judge Constitution bench for an authoritative pronouncement.