Bench – 9J – S A Bobde, R Bhanumati, Ashok Bhushan, L Nageshwar Rao, Mohan M Shantanagoudar, S Abdul Nazeer, R Subhash Reddy, B R Gavai, Surya Kant JJ.
Decided on – 11th May 2020
Decided under inherent jurisdiction of the SC. This was a review based upon the maintainability of the reference to a larger bench when review of Sabarimala case was still pending.
Brief Facts –
- Indian Young Lawyers Association filed Writ Petition challenging the validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. They demanded to direct the respondents to allow women between the age group 10-50 to worship in the Ayyappa Temple. A3 J bench of this Court referred the matter to a larger bench of 5J.
- In Sabrimala in a 4:1 majority it was held that the devotees of Lord Ayyappa did not constitute a separate religious denomination and couldn’t claim the benefit of Article 26. Exclusion of women between the ages of 10 to 50 years from entry into the temple was violative of Article 25 Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 was declared as violative of Article 25 (1) as well as ultra vires Section 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.
- Ranjan Gogoi CJ, and A.M. Khanwilkar J. and Indu Malhotra J. held that the scope of the freedom of religion guaranteed under Articles 25 and 26 of the Constitution needed an authoritative pronouncement by a larger bench of not less than seven Judges. They also held that the contours of judicial review in matters pertaining to essential religious practices needed to be authoritatively established. Conflict of opinion between the judgments in Commissioner Hindu Religious Endowments, Madras vs. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt, 1954, and Durgah Committee, Ajmer vs. Syed Hussain Ali, 1962 pertaining to the role of the Court in matters which are essential religious practices needs to be harmonized.
- R.F. Nariman J. and D.Y. Chandrachud J. dissented and held that there was no requirement for the review.
The Nine judge bench held that questions of law could be referred to a larger bench in a review petition. The issues were reframed as –
- What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
- What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
- Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
- What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
- What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
- What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
- Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?
Constitutional Provisions discussed in the judgement
- Article 137 empowers the Supreme Court to review any judgment pronounced or order made by it subject to the provisions of any law made by the Parliament or any rules made under Article 145.
- No law has been made by the Parliament as contemplated in Article 137.
- Article 145 of the Constitution of India gives power to the Supreme Court to make rules for regulating the practice and procedures in the Court.
- Article 145 (1) (e) says the rules relating to the conditions subject to which any judgment or order pronounced by the Court may be reviewed and the procedure for such review including the time within which applications to the Court for such review are to be entertained.
Supreme Court Rules, 2013 discussed in the judgement
- Order XLVII Rule 1 of the Supreme Court Rules, 2013 says “The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record. The application for review shall be accompanied by a certificate of the Advocate on Record certifying that it is the first application for review and is based on the grounds admissible under the Rules.”
- There is no restrictions on the power of this Court to review its judgment or order. The exceptions related to review of civil proceedings which can be entertained only on grounds mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 and review of criminal proceedings which can be entertained only on the ground of an error apparent on the face of record.
- Part II of the Supreme Court Rules talks about Civil Appeals, Criminal Appeals and Special Leave Petitions under Article 136 of the Constitution. Order XXI refers to Special Leave Petitions (Civil). Order XXII covers Special Leave Petitions (Criminal) proceedings. Petitions filed under Article 32 of the Constitution are dealt with under Order XXXII in Part III of the Supreme Court Rules. Sub-Rule 12 of Order XXXVIII refers to Public Interest Litigation. Writ Petition was filed in public interest. The review petitions arise out of the judgment in the Writ Petition. Civil proceedings and criminal proceedings in Part II of the Rules are different from Writ Petitions covered by Part III of the Supreme Court Rules. The exceptions carved out in Order XLVII, Rule 1 of the Supreme Court Rules pertain only to civil and criminal proceedings.
- Writ Petitions filed under Article 32 of the Constitution of India do not fall within the purview of civil and criminal proceedings. Therefore, the limitations in Order XLVII, Rule 1 do not apply to review petitions filed against judgments. While construing Order XLVII, Rule 1 of the SC Rules, punctuation should be interpreted properly. ( For example: comma after the words “the Court may review its judgment or order” is disjunctive from the rest of the rule).
- The words “but no application for review will be entertained in a civil proceeding except on ground mentioned in Order XLVII, Rule 1 of the Code and in a criminal proceeding except on the ground of an error apparent on the face of record” are exceptions to the opening words of Order XLVII Rule 1, namely, “the Court may review its judgment or order”. Therefore, no limitation for the exercise of power by SC in review petitions filed against judgments and orders in proceedings other than civil proceeding or criminal proceedings.
Punctuation in statute
- In Aswini Kumar Ghose and another vs. Arabinda Bose and another. 1953 it was held that punctuation might have its uses in some cases, but it could not certainly be regarded as a controlling element and could not be allowed to control the plain meaning.
- Punctuation cases – Dr. M.K. Salpekar v. Sunil Kumar Shamsunder Chaudhari and Mohd. Shabir v. State of Maharashtra, 1979 about Section 27 of the Drugs and Cosmetics Act.
Reference after the grant of review
- A reference can be made only after the grant of review and not in a pending review petition as per Behram Pesikaka v. State of Bombay, 1955. In this case reference was made after grant of review. But that does not mean that reference cannot be made in a pending review petition.
Discussions on Order VI rule 2 and the term “proceeding”
- Supreme Court Rules, 2013 pertaining to reference to a larger bench is Order VI rule 2 which reads as:- “Where in the course of the hearing of any case, appeal or other proceedings the bench considers that the matter should be dealt with by a Larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a bench for the hearing of it.”
- Reference to a larger bench can be made in any cause or appeal as well as in any ‘other proceeding’. Babu Lal vs. Hazari Lal Kishori Lal it was held that ‘proceeding’ was a term giving the widest freedom to a Court of law so that it might do justice to the parties in the case. In Keshav Singh case, 1965 and Naresh Mirajkar v. State of Maharashtra, (1966) it was held the superior Court of record was entitled to determine for itself questions about its own jurisdiction. In Delhi Judicial Service Association v. State of Gujarat (1991) it was held that the absence of any express provision in the Constitution, the Supreme Court of record had jurisdiction in every matter and if there was any doubt, the Court had power to determine its jurisdiction.
Discussions on A142
- The reference can be supported by falling on Article 142 which enables the Supreme Court to make any order as is necessary for doing complete justice in any cause or matter pending before it. In Monica Kumar (Dr.) v State of UP, 2008 it was held that the expression cause’ or ‘matter’ included any proceeding pending in Court and it would cover almost every kind of proceeding pending in the Supreme Court including civil or criminal proceeding.
- Order LV Rule says the inherent power of the Supreme Court to make such orders as may be necessary for the ends of justice shall not be limited by the Rules.
- In S. Nagaraj v. State of Karnataka, 1993 it was held that no statutory provision & no rules were framed by the highest Court to rectify its orders, even then the Courts had culled out such powers to avoid abuse of process or miscarriage of justice. Court was not precluded from recalling or reviewing its own order if it.
- In Central Bank of India v. Workmen, 1960 it was held that SC should not give speculative opinions or answer hypothetical questions. The reference of questions of law pertaining to the scope of Articles 25 and 26 were of utmost importance requiring an authoritative pronouncement by a larger bench, in light of the view of the reference Bench that there was a conflict between the Court’s judgments in Shirur Mutt and Durgah Committee. An objection similar to the one in this case was taken in Indra Sawhney vs. Union of India, 1992.
Discussions on Facts and Law
- TMA Pai Foundation v State of Karnataka says it is not necessary to refer to facts to decide pure questions of law, especially those pertaining to the interpretation of the provisions of the Constitution.
- Justice K.S. Puttaswamy (Retd.) and Anr. v. UoI says because of conflict between the judgments of the Supreme Court in M. P. Sharma and Others v. Satish Chandra, 1954 and Kharak Singh v. State of Uttar Pradesh, 1964, a three Judge Bench of the SC referred the matter to a larger bench of five which further referred the issue relating to the existence of the fundamental right to privacy in Article 21 of the Constitution of India to a nine Judge Bench.
Discussion on A145
- Article 145 empowers SC to make Rules for regulating the practice and procedure of the Court. The proviso to Article 145 (3) is as follows: “Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.”
- The contention was that reference to a larger bench in accordance with the proviso to Article 145(3) can be made only in Appeals and not in any other proceedings. However, the proviso deals with a situation when reference has to be made by a bench of less than five Judges. The present situation is a classic case of legal vacuum. A145(3) does not say what procedure to follow if a five judge bench wants to refer a matter to a higher bench. The present reference is made by a bench of five Judges and, the proviso to Article 145 (3) is not applicable.