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Can Questions Of Law Be Referred In Review Petition? Supreme Court Reserves Judgment

The court reserved its order on whether it can frame questions of law while hearing review plea and refer them to a higher bench.

Cameras lined up outside the Supreme Court of India. (Source: PTI)
Cameras lined up outside the Supreme Court of India. (Source: PTI)

The Supreme Court today reserved its judgment on whether it can frame questions of law while hearing review petitions and refer them to a higher bench.

The question arose after a five-judge constitution bench of the apex court, while hearing the review petition against its Sabarimala judgment delivered in September 2018, decided to keep the case pending while referring the question of interpretation of Articles 25 and 26 of the Indian Constitution to a nine-judge bench.

Article 25 of the Indian Constitution gives freedom to an individual to freely practise, profess and propagate their religion while Article 26 allows religious denominations to manage their own affairs. A nine-judge bench will rule on the interpretation of these Articles as referred to it by the bench hearing the review petition in Sabarimala case—which pertains to permitting women worshipping in the hill-shrine in Kerala.

At the start of today’s hearing, Solicitor General Tushar Mehta said that the question of religious freedom and religious denominations to manage their own affairs is pending in a number of cases such as the entry of Parsi women in fire temples or the practice of female genital mutilation. It was the duty of the court to lay down an authoritative pronouncement on this question of law and thus there was nothing wrong with the referral to the nine-judge bench, the solicitor general said.

However, Senior Advocate Fali S Nariman, who’s opposing the referral, said this cannot be done in a review petition where the court must judge on very limited grounds. Nariman argued that in the Sabarimala case, the top court had found the devotees of Lord Ayappa to not be a separate religious denomination and therefore was not eligible for protection of Article 26. The review petition, Nariman said, must be limited to determining whether there was an error apparent in that judgment.

“In every review, outside material which has nothing to do with the errors in the case cannot come in,” Nariman said. “You cannot indulge in the exposition of law outside the facts of the case.”

Senior Advocate Shyam Divan, who is appearing in the Female Genital Mutilation case, also argued that the court must not have referred questions of law while hearing the review petition as the jurisdiction of courts in a review petition is very narrow. This undermines predictability and certainty, he said.

Divan explained that if courts allow this procedure it would amount to an appeal in disguise and re-hearing of the case whereas review only allows the court to see if there’s any error apparent in the judgment with a very narrow scope.

A five-judge bench of the Supreme Court in September 2018 had permitted the entry of women in the temple, which led to a challenge through a review petition. On Nov. 5, three out of five judges on the bench, including then Chief Justice of India ruled in favour of keeping the case pending while referring the question of interpretation of constitution to a nine-judge bench. Justice Rohinton Nariman and Justice DY Chandrachud, who were part of the bench that delivered the original judgement, dissented and favoured dismissing the review petitions.

“What’s before us is only the narrow question as to whether grounds for review and grounds for filing of the writ petitions have been made out qua the judgment in Indian Young Lawyers Association and Ors. v. State of Kerala,” Justice Nariman said in the review judgement of November 2019. “Consequently, this judgment will dispose of the said review petitions and writ petitions keeping the parameters of judicial intervention in such cases in mind.”

The nine-judge bench hearing the case today included Chief Justice of India SA Bobde, Justice R Banumathi, Justice Ashok Bhushan, Justice L Nageswar Rao, Justice Mohan M Shanatangoudar, Justice S Abdul Nazeer, Justice R Subhash Reddy, Justice BR Gavai and Justice Surya Kant.