Updated: February 4, 2020 6:56:55 am
Despite objections from some senior advocates, a nine-judge Constitution Bench of the Supreme Court decided Monday to go ahead with the framing of legal issues to be adjudicated upon in the Sabarimala reference on the larger question of discrimination against women at different religious places. The Bench said it will also hear arguments on whether a reference can be made from a pending review petition.
“We will not abort hearing… We will frame the issues ourselves,” said the Bench of Chief Justice of India S A Bobde and Justices R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant. It will meet again on February 7 to decide allocation of time for hearing different sides.
The Sabarimala reference to the nine-judge Bench followed the September 19, 2019 decision of a five-judge Bench, headed by then CJI Ranjan Gogoi, to keep review petitions, challenging its September 28, 2018 order that lifted age restrictions on the entry of women to the hill shrine in Kerala, pending till a larger bench took a call on certain questions arising from it.
The five-judge Bench pointed out that petitions seeking entry of women to mosques, challenging female genital mutilation among Dawoodi Bohras and practices in the Parsi community were still pending and these could be impacted by questions raised in the Sabarimala matter.
On Monday, the nine-judge Bench clarified it won’t be deciding the review petition but only lay down the general law to be followed.
“We are not looking at it as negative as you are. We think it is good for many future situations that we lay down the law… We are only going to decide the interpretation of those Articles which have been invoked in Sabarimala and other cases… We are deciding the larger issue. That’s what we propose to do,” CJI Bobde said when senior advocate Kapil Sibal said the court could not decide any reference without a factual situation to back and that any observation may have widespread ramifications on facts in related matters.
Senior advocate K Parasaran tried to assail the reference order made on the review petition and said the question was whether this would be beyond the scope of a review.
Senior advocate F S Nariman said the five-judge Bench, in a 4-1 judgment, had already answered the questions in the Sabarimala matter. “The scope of a decision in review is extremely limited: Is the answer right or not? Whether there is an error apparent?”
He said the bench headed by then CJI Gogoi had made the reference to a larger bench by listing seven questions.”This is not the practice which has been adopted by the Supreme Court since Privy Council days and there are several judgments to this effect,” Nariman said.
Backing the nine-judge Bench taking up the reference, Solicitor General Tushar Mehta said the cases involve questions which may require a larger debate on the contours. “The contours would be decided which will be applied to the cases,” he said.
CJI Bobde said “what have been referred to us are not the main petitions, but some questions”. At this, Nariman said “but these questions don’t arise in the Sabarimala matter”.
The Bench asked Nariman if he was trying to say that while deciding review in a matter, the court cannot refer questions to a larger bench along with questions that have arisen in another case. “Yes, that’s outside the scope of review,” Nariman said, adding he was not questioning the power to set up the nine-judge Bench.
Senior advocate K Radhakrishnan, while supporting the reference order, said it will settle once and for all the recurring issues under Articles 25 and 26. He pointed out that the reference order will also help instil public confidence by settling those issues.
Senior advocate Shyam Divan said the court should not go ahead with the framing of issues, but first hear objections to the maintainability of the reference order. He said the reference raised speculative issues that may arise in future. This, he said, was not possible under the law.
Parasaran countered this, saying those questioning the reference order were forgetting that this was not an ordinary litigation, but a PIL. In a PIL, the court’s powers, he said, were innovative and limitless and it was up to the court to exercise it or not. In a PIL, the court can look at the past, present and take the future into account, he said.
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