The majority order in Sabarimala Review Petitions is beyond the scope of Article 137 of the Constitution which confers power of review on the Supreme Court.
The reviewing power is subject to law made by the Parliament and Rules made by the Supreme Court under Article 145 of the Constitution. [Order 47 embodied in the Supreme Court Rules, 2013]. The ambit of the review power is limited and circumscribed. Review is not an appeal or a denovo consideration of the matter. Its not a rehearing. The review court must examine the correctness of the Judgment under review to ascertain if it suffers from glaring omission or patent mistake or grave error apparent on the face of record. Only such error can justify granting review which results in recall of judgement and a fresh consideration.
With reference to Sow Chandra Kanta vs Sheikh Habib (1975) 1 SCC 674 (per Krishna Iyer J), Article 137 would not permit ordering of a fresh hearing by a larger bench without scrutiny of judgment under review and without pointing out the grave error apparent on the face of record. However, this is precisely what the majority order does. It does not scrutinize the majority judgment dated 28.09.2018; it points out no error in the said judgement; it does not endorse the dissenting judgement of Justice Indu Malhotra. Instead it takes note of other matters where entry of women in Mosque and Agyari as well as mutilation of female genital in Dawoodi Bohra community are involved and merely makes a reference of certain framed issues for authoritative pronouncement by a larger Bench. It observes there is same apparent conflict between 7 judges judgment in Shirur Mutt case and the 5 judges judgement in Durgah Committee case. However, it does not refer the review petitions to the larger bench but keeps them pending until determination by larger bench. It also seeks to empower the larger Bench to decide all issues if it considers that to be appropriate and it may also consider granting fresh opportunity to all interested parties. So review petitions are not decided and they are kept pending but all issues are thrown open. No flaw in the judgement under review is pointed out but a fresh hearing is enabled. Such sidelining of main judgement without scrutiny is beyond the scope of Article 137.
In an extremely strong dissent against reference to larger Bench, reminiscent of dissents in US Supreme Court cases, Justices R.F.Nariman and D.Y. Chandrachud said that "what this court has before it is review petitions arising out of the Courts judgement dated 28.09.2018 in Indian Young Lawyers Association Vs. State of Kerala, and "what a future Constitution Bench or Larger Bench, if constituted by the learned CJI, may or may not do when considering the other issues pending before this Court is, strictly speaking, not before this Court at all". This is significant as the other cases were not even there before the review bench and nobody addressed the court on the issues that may be involved in the cases pertaining to Mosque, Agyari or Dawoodi Bohra actions. In fact I appeared for Sabarimala Board and I distinctly remember CJI Shri Ranjan Gogoi telling counsels to argue strictly within the parameters of review jurisdiction. Clearly the majority order in review has meandered out and away from the limits of review jurisdiction. If the majority was so minded, in fairness the matter should have been reheard with opportunity to parties.
More disconcerting is the joining of Justice Khanwilkar with the majority order rendered by CJI Sri Ranjan Gogoi as earlier in the judgment dated 28.09.2018 he had joined CJI Dipak Misra to hold in favour of entry of women aged 10 to 55 years in the temple of Lord Ayyappa. He needed to give reasons for his turn around and shift. We are entitled to know why he felt his earlier order was erroneous and needed reconsideration. In the past judges have changed their views but they always pen a concurring order explaining the change. But what we have here is a sub-silentio turn around even while maintaining the earlier signing with CJI Deepak Misra.
Another curious off the cuff logic in the majority order to support the reference is that Article 145(3) was crafted when Supreme Court strength at least 9 judges should hear and decide seminal Constitutional issues as is done by US Supreme Court. One wonders why we should not have 13 judges bench for such issues as in the Grand Chamber of European Court of Human Rights. Just a little back we had at least two Constitution Bench judgements telling us benches are for CJI to decide as a master of roster. Sabarimala was entrusted to 5 judges bench and hence review was rightly before 5 judges bench. One fails to understand how US Supreme Court en banc hearing's are relevant. We don't have the en banc system.
Majority referral points out some apparent conflict between Shirur Mutt case (7 JJ) and Durgah Committee (5 JJ). Firstly, if there is a conflict, then Shirur Mutt prevails. Secondly, Shirur Mutt did not involve a conflict between Article 25 and 26 with other fundamental rights with respect to worship by women of same community. Therefore Shirur Mutt did not discuss the express subservience of Article 25(1) to the other fundamental rights in Part III of the Constitution as indicated by the expression "Subject to public order, morality and health and to the other provisions of this part…." Even in the absence of such expression Fundamental rights of two sections have to be balanced when found in conflict. Thirdly, there was no occasion for court to determine whether and to what extent it could examine and determine whether a practice was an essential religious practice based on denominations doctrines. It also did not involve relation of Article 26 with Article 25(2)(b). It did not consider Right to human dignity which is a recent evolution in Puttaswamy's (Aadhar) case penned by a 9 JJ bench. Dominance of Article 25(2)(b) pertaining to throwing open Hindu Religions Institution to all classes and sections of Hindus was laid down only in Sri V. Devaru's Case in 1958 and followed in Sastri Yagnapurushadji in 1966. The 3 Judgements in Sabarimala case have considered the entire evolution of law. Durgah Committee followed Shirur Mutt. It involved a dispute as regards sharing of offerings made in or outside the Shrine. Debate did not focus on scope of Article 25. Focus was on Article 26(c) and (d). It did not, in particular, decide about essential religious practices. There is nothing in Durgah Committee which is in conflict with Shirur Mutt. The majority order is therefore completely wrong in this respect.
Sabarimala was the first case where rights of women to enter plea of worship came up for consideration. Article 25 and 26 had to be considered in the light of fundamental rights of women under Article 25(1) as well as Articles 14 and 21 which protect their dignity and equality. Said Dipak Misra, CJI and A.M. Khanwilkar, J. "The subversion and repression of women under the garb of biological or physiological factors cannot be given the seal of legitimacy. Any rule based on discrimination or segregation of women pertaining to biological characteristics is not only unfounded, indefensible and implausible but can also never pass the muster of constitutionality ".
But now with this referral twist to the Sabarimala story we find a hesitancy and reluctance on the part of Supreme Court to open doors of place of worship to women. It took a valiant step forward only to take two steps backward.