Sabarimala Reference : 9-Judge Bench Reserves Order On Maintainability Of Reference In Review; Verdict On Feb 10

After a marathon hearing session which lasted for the entire court hours on Thursday, the 9-judge bench of the Supreme Court constituted to answer the questions mentioned in the Sabarimala review reserved orders on the preliminary issue whether a reference is possible in a review petition. "Whether this Court can refer questions of law to a larger bench in a review petition?" - this was the preliminary issue considered by the Court.After the conclusion of arguments, the bench indicated that the hearing in the case is likely to commence from February 12.The arguments on Thursday was started by Solicitor General Tushar Mehta, who supported the reference on behalf of the Central Government.He said that the reference had nothing to do with Sabarimala review. The Sabarimala review bench had not referred the review to the larger bench, but certain larger questions on religious rights and scope of judicial interference on them.He said that technicalities should not fetter the jurisdiction of the Court. The decision of SC in Navtej Johar case, where a 5-judge bench struck down Section 377 of IPC even as the curative petition against the 2013 decision of 2-judge bench which had upheld the provision was pending, was cited by the SG to state that the Court can consider the issue, regardless of technical hurdles."If there's a question of law, the Court has the liberty to constitute a larger Bench to settle the issues. As custodian of Fundamental Rights, it is the duty of the court to lay down an authoritative pronouncement on these questions of law", SG said.SG : It is really unfortunate that few litigants who are not even a part of the case, are raising objections about whether this Bench should hear it or not. Even after all the time that has been spent.#Sabarimala— Live Law (@LiveLawIndia) February 6, 2020Senior Advocate F S Nariman submitted that the reference was not maintainable. It was submitted by the renowned jurist that the scope of review was very narrow to examine the correctness of the original judgment on limited grounds. Therefore, the review jurisdiction cannot be invoked to refer to larger bench certain questions of law, which are not directly arising from the original judgment, submitted Senior Advocate Nariman.He remarked that the order passed by the Sabarimala review bench on November 14, 2019 was an 'adjournment order' and not a reference."You cannot indulge in the exposition of law outside the facts of the case.", he said. Nariman also highlighted that there was no 'inherent' power of review.CJI asks Nariman about a case which was cited by Sr. Adv. Parasaran as a precedent. CJI: If your contention is correct that there is no provision for referring a matter before review is pending, what happens ?"When a review is pending, the idea is to hear it." Nariman say— Live Law (@LiveLawIndia) February 6, 2020Senior Advocate Indira Jaising submitted that it was not clear if the November 14, 2019 order in Sabarimala review was passed in the review petitions or in the writ petitions which were filed challenging the original judgment passed in September 2018. She supported Nariman's argument that such a reference in review was impermissible."Only after demonstrating that there is a prima facie error can a reference be made on the review", Jaising said.Senior Advocate Rakesh Dwivedi submitted that the "platform" of review cannot be used to decide the prospects of a future reference.Senior Advocate Jaideep Gupta, appearing for Kerala Government, opposed the reference. "Nature of review proceedings and that of reference are totally different. They are in conflict. As between the parties to the original litigation, the question can only be opened if parameters of review petition are met. The lis between the parties can't be reopened if there's no error on the face of the record. Reference will bind everyone in the future. But, in review, the parties to the litigation will be affected. Review cannot be decided post the reference. If it does, then the question of law which is decided in the reference, will become a ground in the review. It becomes an appeal", he said."If you hear the reference post the review, the lis will be opened again. It will no longer be res judicata between the parties. The conflict is that you cannot review a case based on law which is newly decided in the reference", Gupta continued.Permitting reference on a question of law in the guise of a review would amount to an appeal, submitted Senior Advocate Shyam Divan."We cannot have a catalog of questions which are randomly put up", Divan said, questioning the rationale of reference of questions of law in review, without finding fault in the original judgment. Senior Advocate Dr AM Singhvi supported the reference citing the inherent unlimited powers of the Court. Singhvi reminded the Court that the Sabarimala judgment came in a PIL, which used the liberal jurisdiction of the Court. Therefore, the petitioners cannot now turn around to plead ...

Sabarimala Reference : 9-Judge Bench Reserves Order On Maintainability Of Reference In Review; Verdict On Feb 10

Radhika Roy

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