[Sabarimala Reference] "Lay Down The Law Only When Facts Come In": Fali Nariman Tells Nine Judge Bench

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."The question (framed by the 9-judge bench for consideration today) doesn't depict the correct situation. The reference was not made in the review. ('That is the whole argument', remarked Chief Justice S. A. Bobde)...It is an inherently faulty premise on which the argument is based. if we cross this hurdle. no question remains to be answered", began SG Tushar Mehta."What is the petition on which the reference is based?", asked Justice L. Nageswara Rao."The review petitions and the writ petitions. Let's not go by nomenclature but the content...", said the SG. "But that bench (the 5-judge bench headed by CJ Ranjan Gogoi which had made the reference in November, 2019) was in fact hearing the review (of the 2018 Sabarimala judgment) only and it was in the order in the review that they decided to make a reference", noted CJ Bobde."These questions (framed in the reference order) have nothing to do with the Sabarimala review...it has been categorically mentioned that the questions arise in other cases invoking Articles 25 and 26 also, and that the reference is to deal with the 'wider issue de hors the review'", advanced the SG."The CJI, exercising the power as the CJI, though sitting on a bench, made this reference! The CJI never sits alone anyway, always on a bench! But he doesn't cease to be the CJI just because he is sitting on bench!", he submitted."Why are you saying this? Only the CJI has this power", asked CJ Bobde. The SG conceded that even the rest of the bench could wield this power. "And it is a judicial order", pointed out Justice Rao."You are saying that though the order was passed in the review petition, it was passed under (Order 6 Rule 2 of the Supreme Court Rules)?", questioned the CJ."it is based on the general principles of 25 and 26 and the conflict between Shirur Mutt and Dargah Committee which the court felt on several occasions", replied the SG. Indicating the said rule, he advanced that if, in the course of the hearing in any "cause, appeal or other proceeding", the bench is of the view that the matter requires consideration by a larger bench, he may make a reference for the CJI to constitute the bench. "'Any cause'- that is very wide...and the bench can also make a reference but here incidentally the CJ happened to be presiding the bench. When he sits on the judicial side and presides over a bench, he does not cease to be the CJ", said the SG. "So there was no question of a reference? it was not necessary to place the matter before the CJ?", reflected CJ Bobde. "And a bench is not constituted by a judicial order. There was no question of this 9-judge bench coming to be because of that order. This could have been done by the CJ only under Order 6...the order may have been the stimulating factor for the constitution of the bench but the power is with the CJI...the CJ can refer a matter to a larger bench even without an order of reference", added Justice Ashok Bhushan. CJ Bobde agreed that there cannot be a constitution of a bench by a judicial order, stating, "You may make an alternative argument that the reference was not made in the review. We may say that it was not necessary to frame this issue"When the CJ asked about a 'cause', an 'appeal' or a 'suit', the SG responded, "it can even be a curative petition. Your power is unfettered. You just need to be satisfied that there are substantial questions, that there is a conflict between a 5-judge bench and a 7-judge bench and that there is need to lay down the law authoritatively for posterity...""If the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing", he quoted from the 2004 apex court decision in Central Board of Dawoodi Bohra Community v. State of Maharashtra."Even where Your Lordships felt that the reference is not proper, you said that now that we, as a larger bench, are seized of the issue, we will answer it...It is the responsibility of the court to do so! I can never argue about the number of judges or the bench! I am before the Supreme Court of India! It is absurd to say that it was a review, and hence, there cannot be a reference! If it was said that there is a...

[Sabarimala Reference] "Lay Down The Law Only When Facts Come In": Fali Nariman Tells Nine Judge Bench

MEHAL JAIN

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