[Sabarimala Reference] Court Has Not Prejudicially Affected Anyone's Rights By Making The Reference : CJI Bobde

During the hearing of the maintainability of Sabarimala reference before the 9-judges bench, CJI SA Bobde, heading the bench, commented that by making a reference, the Court has not 'prejudicially affected anybody's rights'."By making a reference order, the court has not prejudicially affected anybody's rights! At the most, it is an innovative procedure", opined the CJResponding to the preliminary objection against the reference being made in a review, the CJI remarked :"We have said that in the reference, we won't go into the facts. Your argument would be correct if we disposed off the review. We will only answer the questions, then different benches can decide the review...why can't we say in a review that the judgment requires a re-look?"Earlier, Senior Advocate Fali S Nariman had elaborately argued against the reference, while the Solicitor General, appearing for the Centre supported the same.Following that, Senior Advocate Indira Jaising, asserting that the entry of women belonging to a specific age group to the Sabarimala Temple is a disputed fact, submitted that "unless the facts are determined, the questions don't arise"."The SG has a point in saying that the order of reference is not passed in the review. Look at the cause-title- it is an exhaustive title consisting of review petitions as well as writ petitions. These writ petitions under 32, directly challenging the judgment, were allowed to be filed even though the review is not decided", she advanced."There is no clarity as to the order of November 14, 2019 making the reference has been passed int he review petition or the writ petitions or both. That is for you to decide as the scope of a review petition and a writ potion are substantially different. A review has a very, very limited scope which is not necessarily true for a writ petition. in the writ petition, the court could conceivably make a reference and frame questions...", she explained."Even without deciding the review?", asked Chief Justice S. A. Bobde. "No...", replied Ms. Jaising."The bench should have either set out the error in the judgment in review and addressed it or dismissed the review petitions. There has neither been a disposal nor a finding that the judgment was erroneous. The review petitions are only adjourned. There is no conflict between Shirur mutt and Dargah Committee. But saying there is a conflict abstractly is of no use...secondly if the order was passed in the writ petitions, the court has to decide if the writ petitions are maintainable". "The referring bench should have read the content of the writ petitions", she submitted."Why should we decide all this? Even if the reference was made in a single proceeding, we can decide it. Unless the reference was made in the review, and we come to the conclusion that it could not have been so made without deciding the review first...", observed the CJ."Your Lordships may either decline the reference, or de-tag the review from the writ petitions and decide the review in accordance with the law and then place it on board", responded the Senior Counsel.Next, as Senior Advocate Rajeev Dhavan sought to make a brief submission, SG Tushar Mehta brought to the court's attention that he was an intervenor on behalf of himself. "I have addressed the court earlier also. And I am also the intervenor for the former Secretary General of the Lok Sabha", replied Dr. Dhavan, even as the CJ raised doubts about one who was not party to the earlier proceedings."The CJ has the power to make a reference without a judicial order? In every case that the SG cited, there was a judicial order. otherwise, I could just seek an appointment in the CJI's chambers and say that there is no such order but can you in your judicial capacity make a reference?", commenced Dr. Dhavan."Sabarimala is a decided case and it is binding. The reference order does not say that the judgment is wrong. Which means that it is good law! There is no concept of inter-court appeals here...', he expounded. "Maintainability is the prelude to every writ petition. There has to be locus, as also a writ petition cannot question a judgment of the court", he concluded.Then, Senior Advocate Rakesh Dwivedi began his arguments- "In Pesikaka case, the order of reference doesn't keep the review pending. 'granting' the review means allowing it. The original matter is opened for reconsideration. the matter is alive. Then any reference can be made""It is a case of residual power...an a technicality may be overridden in the interest of justice", noted the CJ."The inherent power cannot expand the scope of a review", replied Mr. Dwivedi.Indicating Order 6 Rule 2 of the Supreme Court Rules, which provides 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, he advanced that "other proceeding cannot mean a review or a revision". ...

[Sabarimala Reference] Court Has Not Prejudicially Affected Anyone's Rights By Making The Reference : CJI Bobde

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