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On this blog, I have previously discussed – and criticised – the “review” judgment in the Sabarimala case, as well as the Supreme Court’s subsequent actions in constituting a nine-judge bench to address some of the questions that arose out of that judgment. Earlier this week, during the course of oral argument, senior counsel brought up some of these issues – pointing out, in particular, that the five-judge bench could not, in the course of a review order, have “referred” legal questions to a larger bench. As a result, the nine-judge bench framed a “preliminary question”, which will be heard tomorrow: “whether this Court can refer questions of law to a larger bench in a review petition?”

Facts and Norms

This week’s hearing itself revealed two issues with the original “review” judgment, that we can take in turn. The first is the speculative character of the questions themselves, which go against the grain of how constitutional adjudication should normally happen. Doctrines of law evolve out of specific factual situations before the Court, and not out of abstract abstract philosophical enquiry. This is because, ultimately, doctrine has to be responsive to the wide range of factual disputes that could – and do – come up before the Court. In such a situation, a Court that deals in abstraction will inevitably create one of two undesirable situations: either it would have framed doctrine in such abstract terms, that it will be of no use in hearing and deciding the case before it; or it would have framed it in such concrete terms, that it would tie the hands of future benches in adapting doctrine to fit the peculiar facts that are before it in any given case.

To take the example of this case, the “referred” questions – that are about the intersection between religious freedom and gender equality – exist in a domain where there are a bewildering variety of social and religious practices. Take, for example, the religious practice of madesnana, that Suhrith and I discussed here (it is not about gender equality, but raises substantively similar questions); it should be obvious that practices of this kind are so particular and specific in character, that constitutional doctrine can only make sense if it flows from a careful consideration of the legal issues that they present, rather than first laying down abstract law, and seeing which side madesnana falls. In fact, in Sabarimala itself – as I have previously discussed – there wasn’t a whole lot of difference between the majority opinions and Malhotra J.’s dissent on the correct legal test – both sets of judgments agreed that religious practices that were oppressive or harmful to human dignity would fail the test of constitutionality. The only disagreement was whether in the specific facts of the Sabarimala case, the disputed practice fell within that definition or not. And that is exactly how adjudication should normally proceed.

In this context, the Chief Justice’s comment in Court – that the reason for this nine-judge bench hearing was that “these issues will arise again and again, resulting in a reference” – is an important one. Because that is precisely why, in fact, this nine-judge bench should not be hearing this case. The very fact that “these issues” (i.e., the interplay between women’s right to equality and religious freedom) will arise again and again is the reason that they should be decided as they arise, because the issues that they present to the Court will be layered, nuanced, and will require sensitive adjudication that is cognisant of those nuances. And as they arise, the judges who deal with them will – in the normal course of things – engage with existing precedent; they may agree with that precedent, they may disagree with it but nonetheless – exercising judicial discipline – follow it, or – if they think it is too wrong to follow – refer the issue for reconsideration. Once again, it is important to emphasise that this is how constitutional adjudication happens in the normal course of things, and that is entirely fit and appropriate: the law develops incrementally, responsive to facts, and gives judges the flexibility and the scope to modify, adapt, or alter doctrine as time goes by. It is that crucial flexibility – the hallmark of constitutional adjudication – that will be threatened if a practice of settling abstract questions in advance of concrete cases takes root in the Court.

Jurisdiction

While the first issue is one of desirability – i.e., that the Court should not decide these questions sitting as a nine-judge bench – there was, of course, a deeper issue raised by counsel in this week’s hearing: that the review judgment could not have “referred” legal questions to a larger bench. As discussed previously on this blog, that issue stems from the limited character of review jurisdiction, which is confined to checking if the original judgment suffered from an “error on the face of the record.”

It was contended by the Solicitor-General, in response, that Order VI(2) of the Supreme Court Rules, 2013, states that: “Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it.” The argument, thus, is that the phrase “any cause, appeal or other proceeding” includes proceedings in review.

To understand why this argument is flawed, we need to go back to the basics. How – and why – does a referral happen in the normal course of things? It happens when, while hearing a case, it is brought to the judges’ attention that there is a legal issue – most often, a conflict – that has a bearing upon the case, which they cannot resolve, and which only a larger bench can resolve (because – presumably – the bench hearing the case is of too small a size). The issue of referral, therefore, is bound up with the process of deciding a case.

review, on the other hand, takes place after the case has been decided. And at that point, the bench is no longer considering what the legal answer to the case before it is. What it is considering is whether the reasoning that led to the decision was so fundamentally flawed, in some manner that is present “on the face of the record” (and therefore, by implication, requires no “interpretation”), that it simply cannot stand.

The distinction is crucial, because it demonstrates how the reasoning process that (potentially) leads to a referral, and the reasoning process that leads to a review, are fundamentally different – and that, by definition, the latter excludes the former. Because it is critically important to recall that a Review is not a “re-hearing” of the original case. If it was, then of course, all arguments in a hearing would be open to be re-litigated in Review. A Review is limited to a situation where the error is on the face of the record, i.e., so obvious that there can be no two ways about it. But an argument for referral always – and by definition – has two ways about it: the existing doctrine – which binds the bench hearing the case – and the interpretation that the bench may be persuaded to accept, but cannot, and is therefore referring the issue to a larger bench to decide.

Consequently, even if the Review bench believes that the original judgment answered the legal question before it incorrectly, that is not a ground for it to reopen the question; the only ground is a finding that there is an “error on the face of the record” in the original judgment (which, as we have seen, the Sabarimala Review order did not even attempt to demonstrate).

While this distinction may appear pedantic, it is of vital importance in a judicial system bound to the rule of law and the doctrine of precedent. A fundamental building block of this system is the importance of consistency in precedent. So, while the Court can always revisit – and overrule – its previous judgments, there exists a set procedure for doing so, which acts to ensure that such decisions are not taken lightly. So, in the normal course of things, if there is a five-judge bench decision holding “X”, then for it to be overruled, petitioners would have to (a) convince a two-judge bench to admit a case arguing for interpretation “Y”; (b) in a referral hearing – which can be opposed by the other side – convince the two-judge bench to refer it to a three-judge bench; (c) convince the three-judge bench to refer it to a five-judge bench; (d) convince the five-judge bench to refer it to a seven-judge bench; (e) convince the seven-judge bench to overrule the original decision. These hoops exist for the simple reason that without them, the law would be in a perpetual state of unsettled chaos, where individual judges would be perpetually at odds with one another, tugging at the law in different directions.

What the Sabarimala Review order did, on the other hand, was to short-circuit this entire process, and effectively sanction a “Sabarimala Round 2” without going through the inbuilt checks and balances that the legal system provides. This is presumably what Mr. Fali Nariman meant in Court when he said that it would set a “bad precedent”, and this is also why Order VI(2) of the Supreme Court Rules ought not to extend to hearings in Review: what it would then sanction, going forward, would indeed be a situation where Review hearings would become a “Round 2” – where speculative legal questions could be raised even after the original case had been decided – and thus seriously undermine the sanctity of precedent.

Conclusion

As discussed previously, the issues at present are no longer about the merits of the original Sabarimala judgment. They are about something deeper, and more institutional: in a poly-vocal Court of thirty-five judges, where the Office of the Chief Justice wields tremendous administrative power in selections of cases and benches, how do we ensure that the Court remains a coherent institution, and does not break down into competing factions? The present institutional structure of the Court – with its number of judges and small panels – makes judicial discipline and adherence to conventions around precedent even more crucial than in a more traditional Court (such as the US or South African apex Courts) that sits en banc, and speaks as one. From that perspective, the nine-judge bench has an onerous responsibility to discharge when it hears the preliminary question tomorrow.