Sabarimala Reference : 9-Judge Bench To Frame Issues On Faith & Rights By Themselves [Court Room Exchange]

The 9-judge bench of the Supreme Court, constituted to consider the issues referred by the 5-judge bench in Sabarimala review order, has decided to frame the issues by themselves, after the lawyers in the case could not reach a consensus on that.Solicitor General Tushar Mehta submitted that the bench may fix the issues in chamber- "Issues were suggested by everyone but we couldn't agree. The suggestions are anyway subject to Your Lordships approval. So instead of debating here, knowing that we won't agree, Your Lordships may fix the issues in chamber" "We have talked about it. There is no point holding up everything for the sake of the issues. We will decide the issues with the rider that there may be additional issues at any time under Order 14", agreed Chief Justice S. A. Bobde. Senior Advocate Fali S. Nariman argued on propriety of the reference to 9-judge bench- "In rendering an opinion on review, there cannot be any going beyond the scope of the review. There cannot be any abstract questions which are not arising in the case itself. This has been the practice of your Lordships of the Privy Council, of the House of Lords ...Questions in the Sabarimala case were referred to a five-judge bench by a three-judge bench. And the five-judge bench answered these questions by 4:1. They said you are not a separate sect because you are worshipping a particular idol...The heading is 'Sabarimala case'! It is a review petition. It cannot be A v. B. There have to be some facts!...The scope of a decision in review is extremely limited- is the answer to a question correct or not! Is the decision correct or not! The suggestion of CJ Gogoi made an extraordinary rule. Unlike the Bombay High Court, we don't have a practice of originating summons..." "Besides Sabarimala, we also have other cases before us...", ventured the CJ. "One provision of the Supreme Court Rules will assist Your Lordships- Order 6 Rule 2. If you feel there will be a larger debate on the contours of Articles 25, 26 and the PIL jurisdiction, you can refer matters even other than Sabarimala to the larger bench", supplemented the SG. "Your Lordships had clarified and segregated on the previous occassion that those individual cases will not be touched and that only those papers will be kept...", he continued. When the CJ observed that they have a referral order, Mr. Nariman advanced, "Actually, it s an adjournment order that the review cannot be decided right now..." "The fact of the matter is that we have questions referred to us by a five-judge bench. What is referred to us is not the review petitions", noted the CJ. "but these questions don't arise in the Sabarimala case", insisted mr. Nariman. "Questions some of which arose in the Sabarimala case, others in the mosque entry case, the FGM and the Parsi woman matters. Now the bench found that the answer to each case would involve Article 25 and other fundamental rights- balancing, as they call it. That is why the questions were referred to us. We don't have the review before us. The order says that the review will be decided at a later stage. We don't believe that we are deciding the Sabarimala review. We propose to only answer the questions", iterated the CJ. "In 2017, a three-judge bench of the then CJ Dipak Misra and Justices R. Banumathi and Ashok Bhushan had referred the Sabarimala matter to a larger bench, framing 5 questions. These questions were answered by the five-judge bench headed by CJ Misra. It was this decision which was sought to be reviewed., which is governed by Order 47 (of the CPC). Its scope is very restrictive", pressed Mr. Nariman. "Is it the contention that while hearing the review of one judgment, the court cannot refer to a larger bench some questions which also arise in other cases?", asked CJ Bobde. "Yes! It is beyond the purview! I am not suggesting Your Lordships should not constitute a 9-judge bench. That is Your Lordships' privilege. But this will set a precedent in law", said Mr. Nariman. "We said we are not deciding the review petition, the Agyari case (Parsi women case) etc. We are only on the interpretation of Articles. We will have the hearing in a preliminary, cursory manner", repeated the CJ. "That is what! Speaking without deciding!...Without any facts, it is difficult", argued Mr. Nariman. "We will frame what Mr. Nariman is arguing as a separate issue. And we will hear it along with the reference", suggested the CJ. "But Your Lordships have to decide the preliminary issue before hearing others", intervened Senior Counsel Indira Jaising. "We will do that. What Mr. Nariman says is correct- to decide the issues as and when they arise in each case. That is the usual practice. But what will happen is that these issues will arise again and again, resulting in a reference", reflected the CJ. "No issue can be decided without facts. For instance, in the Parsi woman case, the question is whether the woman could be said to lose her religion ...

Sabarimala Reference : 9-Judge Bench To Frame Issues On Faith & Rights By Themselves [Court Room Exchange]

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