The Curious Continuing Afterlife of the Sabarimala “Review”

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

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Previously on this blog, I had noted how the “review” order in the Sabarimala judgment flouted all known principles governing the Supreme Court’s review jurisdiction. In the wake of that order, things have moved fast. Two women approached the Supreme Court, pointing out that as there was no stay on the original Sabarimala judgment, their right to access the temple continued to stand, and that the state of Kerala was bound to implement the original judgment. During that hearing, as I noted, the Court refused to pass any orders, only making a series of remarks that appeared to have little to do with the actual issues in the case. Subsequently, however, the Chief Justice established a nine-judge bench to hear the issue, which sat for the first time yesterday.

We will get to the proceedings of the nine-judge bench in a moment, but to begin with, I want to note that the leap from the five-judge bench that wrote the Sabarimala review order straight to a nine-judge bench, is an odd one. In the review order of the five-judge bench, it was observed that there might be a possible conflict between the seven-judge bench decision in Shirur Mutt and the five-judge bench decision in Durgah Committee, on the question of the role of the Court in determining the “essential practices” of a religion. Notice, however, that the Sabarimala bench did not deliver any finding on the issue (as indeed it couldn’t, as the question was not before it). Consequently, if a five-judge bench had noted a possible discrepancy between previous seven-judge and five-judge benches, then the correct course of action would have been for the Chief Justice to convene a seven-judge bench, that would have (a) heard arguments on the issue of whether there was indeed a conflict, (b) if it found there was, heard arguments on whether Shirur Mutt was correct (and that therefore, by extension, Durgah Committee had incorrectly gone against a binding judgment), or (c) if it doubted the correctness of Shirur Mutt, to then refer the question to a nine-judge bench to decide. Instead of this judicial consideration of the issues, what we got was an administrative decision of the Chief Justice to constitute a bench of nine judges off the bat, which could now directly overrule Shirur Mutt if it so decided.

This is not pedantic hair-splitting. On the contrary, it is deeply important, because respect for precedent is at the bedrock of our judicial system, and of the rule of law. Ordinarily, prior judgments of the Supreme Court are binding, and meant to be followed: this is what provides the system the stability and continuity that differentiates the rule of law from the rule of judges. Now if a later bench of the Court wants to go against binding precedent, a series of ground-rules exist to ensure that this can only happen after careful consideration and reflection, and in judicial proceedings where both sides can put their case. These ground rules stipulate, for example, that if a smaller bench feels that the binding decision of a previous, larger bench is incorrect, it “refers” the case to a larger bench to consider; and in general, this referral takes place incrementally (for example, from two judges to three, three to five etc. – although there have, of course, been exceptions). The reason for this – to reiterate – is that respect for precedent requires, logically, that settled law be disturbed only when there are weighty reasons for doing so.

However, let us now come to the proceedings of the nine-judge bench itself. When the case was first listed on the Supreme Court’s website, there was a note below it that specified that the nine-judge bench would only be considering the reference questions that the Sabarimala review order had listed, and would not be entertaining arguments on the merits of the Sabarimala petitions themselves. This, as things went, was entirely appropriate: as I pointed out in my original piece, the Review Order had not even doubted the correctness of the Sabarimala judgment, let alone refer it to a larger bench; it had, rather, referred certain “questions” that it felt might be relevant for certain other cases (involving female genital mutilation, entry of Parsi women to fire temples, and entry of women to mosques). Thus, whatever the irregularities of the Review order, a limited consideration of those referred questions was the only issue that was actually before the larger bench.

When the matter was heard yesterday, however, events took a decidedly different turn. During the course of arguments, the Chief Justice indicated that the bench intended to hear not just the referral questions, but all the cases that the referral order believed might be impacted by those questions: female genital mutilation, entry of Parsi women to fire temples, and entry of women to mosques. The hearing closed with the bench directing counsel for all parties to meet and – if necessary – reframe and fine-tune the questions for decision.

While this in itself is unexceptionable (the original questions, as anyone can see, were much too broad and academic), the devil – as always – is in the details. In this case, it lies in the last line of the nine-judge bench’s order, which states:

List these matters along with Writ Petition (C) No.472 of 2019, SLP(C) No.18889/2012 and Writ Petition (C) No.286 of 2017, on 03.02.2020.

 

What are these petitions? These are the three petitions involving – as indicated above – female genital mutilation, entry of Parsi women to fire temples, and entry of women to mosques. In other words, therefore, it appears that – despite originally stating (rightly) that it would only hear the reference questions, the Court now appears to have placed the pending petitions before itself. But this is absolutely unprecedented – these cases were pending before their respective (smaller) benches, and there is no order of reference asking them to be placed before this nine-judge bench.

However, there is something more concerning here. If the nine-judge bench is no longer restricting itself to the reference questions – but intends to hear these petitions as well – then it at least potentially follows that the Sabarimala petitions – out of which the review order arose – will also now be the subject matter of the hearing. This would be truly extraordinary: a final judgment of the Court (five judges) would be effectively re-heard by a nine-judge bench, against all existing norms and conventions. Recall that no judgment has yet doubted the correctness of the original Sabarimala decision, or made a reference to have it reconsidered. In other words, this “second round” with a larger bench is taking place purely by virtue of the Chief Justice exercising his administrative fiat.

It should be obvious by now that this is no longer about whether the original judgment in Sabarimala was right or wrong. People can – and do – have different views about that, and it would be entirely open to later benches to reconsider it, following proper procedures. But what is at stake here is something deeper: it is whether precedent continues to have any meaning at the Supreme Court, or whether what we are witnessing is a gradual metamorphosis of the Supreme Court of India into the Supreme Chief Justice of India (a point I have written about before). Because what has happened here is that a number crucial issues that required judicial consideration in a proper way (whether there is a conflict between Shirur Mutt and Durgah, requiring resolution; whether the referred questions actually affect the pending cases; and whether Sabarimala ought to be reconsidered) have been implicitly decided through the constitution of a nine-judge bench, by administrative fiat.

Admittedly, a lot of these problems arise out of the bizarre character of the original Sabarimala “review” order, which I have discussed before. However, in subsequent proceedings, these problems appear only to have been compounded. On the next date of hearing, therefore, it remains to be seen whether the Court will, in the end, confine itself to answering the reference questions posed in Sabarimala (which, it may be recalled, it need not even do so) – or to take upon itself a broader role that will severely compromise the already-damaged idea of precedent at the Supreme Court.