Guest Post: On the Unlimited Power of Review in Writ Proceedings

June 29, 2020 Gautam Bhatia3 Comments

[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.]

[This is a guest post by Krishnesh Bapat.]

In this belated post, I discuss the judgment of the Supreme Court passed in Kantaru Rajeevaru vs Indian Young Lawyers Association on 11^th of May 2020 (For the sake of convenience, hereinafter referred to as 11^th May order). In this order, a 9 Judge bench of the Supreme Court has detailed the reasons for holding that questions of law can be referred to a larger bench in a review petition. I specifically focus on the part of the order wherein the bench has held that there are no limitations on the Supreme Court in reviewing judgments in writ proceedings. The consequence of this ruling is that review petitioners in writ proceedings do not have to meet the high threshold of Order XLVII Rule 1 of the Code of Civil Procedure (“Code”). Order XLVII Rule 1 of the Code permits review of judgments only if there is discovery of new evidence or an error apparent on the face of the record or any other sufficient reason which is analogous to the first two. Indeed, parties have begun to rely on this order already. It is noteworthy to look at the brief written submissions of the review petitioners in Shantha Sinha and Another vs Union of India and Another. The review petitioners are seeking a review of Justice K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1. In their brief written submission they have pointed out that the Court is not hindered by Order XLVII Rule 1 of the Code. In Paragraph 7 they state:

A 9-Judge Constitution Bench of this Court in its Judgment dated 11.05.2020 in the case of Kantaru Rajeevaru v. Indian Young Lawyers Association and Ors, Review Petition (C) No. 3358/2018 in WP (C) No. 373/2006, while considering the maintainability of the reference, has held that in review petitions arising out of writ petition, this Court under Article 137 read with Article 141 and 142, has wide powers to correct the position of law. It further held that this Court is not hindered by the limitation of Order XLVII Rule 1 of the Code of Civil Procedure, 1908, since writ petition are not ‘civil proceedings’ as specified in Order XLVII Rule 1 of the Supreme Court Rules, 2013

In view of this, it is necessary to analyze the order.

BACKGROUND

Before I begin a critique of the 11^th May order, a recap of the ‘Sabarimala Dispute’ and a background of how the 9-Judge bench came to arrive at the aforementioned conclusion is necessary. Indian Young Lawyers Association had filed a Writ Petition challenging the validity of Rule 3(b) of the Kerala Hindu Places of Worship (Authorization of Entry) Rules, 1965 and sought directions to State of Kerala to permit female devotees between the ages of 10 to 50 years to enter Sabarimala temple without any restriction. The case was titled Indian Young Lawyers Association vs State of Kerela (“Indian Young Lawyers Association”). On 28^th September 2018, by a majority of 4:1 the Supreme Court allowed the Writ Petition and held inter alia that Rule 3(b) was violative of Article 25(1) of the Constitution of India ( Accordingly, women between the ages of 10 to 50 years were permitted to enter the Sabrimala temple.

A number of review petitions and writ petitions were filed against this Judgment. On 14^th November 2019, a Judgment in these review petitions was pronounced and was titled Kantaru Rajeevaru vs Indian Young Lawyers Association (“Kantaru Rajeevaru”). In Kantaru Rajeevaru the Judgment in Indian Young Lawyers Association was not stayed. However, a majority of three judges was of the view that the Court should ‘evolve a judicial policy’ and a larger bench of not less than seven judges should put at rest the conflict between Freedom of Religion and other Fundamental Rights guaranteed in Part III. Hence, the majority referred seven issues to a larger bench and stated that the review petitions and the writ petitions were to remain pending while the larger bench decides the reference. Nariman J and Chadrachud J dissented and held that neither were grounds for review made out nor was a reference to a larger bench called for (Kantaru Rajeevaru has been previously critiqued on this blog).

A bench of nine judges was thereafter constituted to answer the reference. When the hearing before the nine judge bench began, a number of parties raised an objection to the reference. They contended that the review petitions in Kantara Rajeevaru were not maintainable because of the limitations in Order XLVII of Supreme Court Rules and hence, the reference arising out of those review petitions was bad. In the alternative, they submitted that reference to a larger bench is permissible only after review is granted. They also contended that hypothetical questions of law should not be referred. On 10^th February 2020, the 9 Judge bench dismissed these contentions and through the 11^th May order the bench has provided their reasons. The reasoning of the bench in the 11^th May order proceeds in the following manner. The bench firstly referred to Order XLVII Rule 1 of the Supreme Court Rules, 2013 (Paragraph 11), which states:

The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule I of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.

By a literal interpretation of this rule, the bench held that the power to review judgments is plenary and limitations exist only in the context of civil proceedings and criminal proceedings (Paragraph 12). Writ Petitions filed under Article 32 of the Constitution do not fall within the purview of civil and criminal proceedings (Paragraph 14). The review petitions in Kantaru Rajeevaru had arisen from a Writ Petition under Article 32. (Paragraph 18). The bench then dismissed the alternative submission of the parties that reference can only be made after grant of review citing Order VI Rule 2 of Supreme Court Rules, 2013 and Article 142 of the Constitution (Paragraph 19 to 25). The bench then proceeded to hold that pure questions of law could be referred to and answered by a larger bench (Paragraph 25 to 29). Then in Paragraph 30 the bench concluded that the review petitions and the references arising from the review petitions were maintainable.

CONCERNS

In this post, I am primarily concerned with the observation made in Paragraphs 11 to 18 and the conclusion drawn in Paragraph 30 that the review petitions are maintainable. There are three concerns I have with the 11^th May Judgment which have been detailed below.

Firstly, there is the question of judicial propriety. In Kantaru Rajeevaru, a majority of three judges had referred questions of law to a larger bench while keeping the review petitions pending. They had not commented on the maintainability of the review petitions nor had they referred the question of maintainability to the larger bench. Therefore, strictly speaking, the nine judge bench by holding that the review petitions are maintainable, seems to have traversed beyond its brief and decided an issue pending before the 5 judge bench. The consequence of this ruling is that once the 9 judge bench does evolve a ‘judicial policy’ and the ‘Sabarimala dispute’ is sent back to the 5 Judge bench, that bench will not be able to decide on the maintainability of the review petitions. It is crucial to note that 2 judges of the bench in Kantaru Rajeevaru (Nariman J and Chandrachud J) had held that the grounds for review were not made out. More crucially, the majority had not commented on the maintainability of the review petitions.

Secondly, the manner in which the review petitions were held to be maintainable is also concerning. The bench has perhaps justifiably held that there are no express limitations on the power to review except in the context of civil and criminal proceedings. However, that ipso facto does not mean that review petition in Kantaru Rejeevaru should be admitted. In a catena of judgments over the years, the Supreme Court has repeatedly insisted that the power to review must be exercised sparingly. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, (1980) 2 SCC 167, for himself and Tulzapurkar, J. observed:

……Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except “where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility”: Sow Chandra Kantev. Sheikh Habib [(1975) 1 SCC 674 : 1975 SCC (Tax) 200 : (1975) 3 SCR 933] .

The 9 Judge bench throughout its 29 Page decision has not pointed out the ‘patent mistake’ or a ‘grave error’ that has been committed by the majority of 4 judges in Indian Young Lawyers Association that their judgment must be reviewed. On the other hand Nariman J in Kantaru Rajeevaru had painstakingly analysed all the judgments in Indian Young Lawyers Association, applied the standards of review and held that the grounds for review were not made out.

This leads me to my third concern. The 9 judge bench decision does not provide for any standards which the Court ought to apply while deciding whether to review a judgment arising out of writ proceedings. In the past the Court has applied standards similar to Order XLVII Rule 1 of the Code. For instance, in Sarla Mudgal vs Union of India (1995) 3 SCC 635, 4 Writ Petitions were filed questioning whether a husband, married under Hindu law, can solemnise a second marriage by embracing Islam and without dissolving the first marriage under law. The Court held that in such cases a second marriage would be invalid. In Lily Thomas vs Union of India (2000) 6 SCC 224, petitions were filed seeking review of the decision in Sarla Mudgal. R.P Sethi J, in his concurring judgment, put the contentions of the review petitioners to the standards Order XLVII Rule 1 of the Code and held:

Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal case [Sarla Mudgal, President, Kalyani v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569]. It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case [Sarla Mudgal, President, Kalyani v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569] . We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words “any other sufficient reason appearing in Order 47 Rule 1 CPC” must mean “a reason sufficient on grounds at least analogous to those specified in the rule” as was held in Chhajju Ram v. Neki [AIR 1922 PC 112 : 49 IA 144] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] . Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa [AIR 1954 SC 440 : (1955) 1 SCR 250] this Court held that such error is an error which is a patent error and not a mere wrong decision…….

Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarla Mudgal case [Sarla Mudgal, President, Kalyani v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569] . The petition is misconceived and bereft of any substance.

Indeed, as mentioned above, Nariman J in Kantaru Rajeevaru also put the contentions of the review petitioners through similar standards. The 9 Judge bench, however, by not undertaking such an exercise, has raised questions of what exercise ought to be undertaken. The judgment on a number of occasions has stated that Order XLVII Rule 1 of the Code is inapplicable to judgments arising out of writ proceedings. If that is the case, there needs to be clarity on the applicable standard. The need of having a standard cannot be understated. Order XLVII Rule 1 of the Code has ensured that there is a finality to judgments delivered by Court and at the same time has provided a mechanism to ensure that injustice is not committed. In absence of this Rule, any party dissatisfied with the decision of the Court will seek a re-hearing and the litigation will be endless.

CONCLUSION

To sum up, three concerns with the 11^th May Judgments have been pointed out above. The first pertains to which bench was the most suited to address the question of maintainability. The second concern points out the lackadaisical manner in which the 11^th May Judgment holds the Kantaru Rajeevaru review petitions to be maintainable. And lastly, the third concern raises a question for the future as there needs be clarity on the manner in which the Apex Court is going to entertain review petitions.

Guest Post: The Supreme Court’s Powers of Review – A Discordant Note

May 13, 2020 Gautam Bhatia4 Comments

[Editor’s 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.]

[This is a guest post by Ashwin Vardarajan.]

Introduction

A nine-judge bench (“9JB”) of the Supreme Court of India (“SC” or “Court”), on 11^th May, 2020, passed an order (for convenience, referred to as “the Order”) releasing the reasons why it is competent to decide on the questions referred to it vide the Sabarimala review judgment, a controversy concerning the entry of women into a temple located in Kerala. The review judgment (referred to as “Kantaru”) was passed on 14^th November, 2019 in pursuance of the decision of the SC in Indian Young Lawyers Assn. v. State of Kerala, which struck down the law prohibiting women to enter into the temple.

The majority in Kantaru, quite interestingly, did not decide upon the review petitions on their merits and kept them pending. Rather they formulated certain questions in relation to the interpretation of Articles 25 and 26 of the Constitution of India (“Constitution”) after discussing two things: firstly, the similarity of the Sabarimala issues with those concerning muslim women, Parsi women, and the practice of female genital mutilation in the Dawoodi Bohra community; and secondly, it noted that there “seem[ed] to be an apparent conflict” between the decisions of the SC in Durgah Committee and Shirur Mutt. Owing to this, the bench referred these questions, inter alia, pertaining to the interpretation of Articles 25 and 26 of the Constitution and the permissible extent of judicial intervention in religious matters.

The Preliminary Question before Nine-Judge Bench

When a 9JB was constituted to decide upon the questions framed and referred to by majority in Kantaru, it was contended that the reference was not maintainable. One of the contentions asserted by those objecting to the reference was that the reviews were not maintainable under Order XLVII of the Supreme Court Rules, 2013 (“SC Rules”). The 9JB rejected this argument and held that Order XLVII of the SC Rules do not limit the power of the court to review its own judgments and orders. In order to arrive at this conclusion, they relied upon an odd interpretation of Order XLVII, Rule 1 of the SC Rules. This article aims to critique this interpretation.

The Court’s Reasoning

Article 137 of the Constitution confers on the SC the power to review its own judgments, and the manner in which the SC exercises its review jurisdiction has been provided under Order XLVII of the SC Rules. Order XLVII Rule 1 reads as follows:

The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.

The SC noted that the language employed by Order XLVII Rule 1 of the SC Rules was wide enough to not restrict the power of the Court to review its judgments. In order to derive this conclusion, it looked at the disjunctiveness in the rule’s language and held that the phrase “the court may review its judgment or order” and the portion after the ‘comma’, which appears after the said phrase, separates the limitations which the Court is subject to for exercising its review jurisdiction. This essentially meant the phrase “The Court may review its judgment or order” is the rule, and “but no application for review…the face of the record”, in Rule 1, is the exception; and this exception only pertains to civil and criminal proceedings before the SC.

Further, to buttress this stance, the Court observed that writs under Article 32 of the Constitution do not amount to civil or criminal proceedings. The only source of distinction it noted, when distinguishing between writ, civil and criminal proceedings, was that they are governed under different parts within the SC Rules. It observed that:

13. Part II of the Supreme Court Rules deals with Civil Appeals, Criminal Appeals and Special Leave Petitions under Article 136 of the Constitution. Order XXI refers to Special Leave Petitions (Civil) and Order XXII covers Special Leave Petitions (Criminal) proceedings. Petitions filed under Article 32 of the Constitution are dealt with under Order XXXII in Part III of the Supreme Court Rules. Sub-Rule 12 of Order XXXVIII refers to Public Interest Litigation. Admittedly, Writ Petition (Civil) No. 373 of 2006 was filed in public interest. The review petitions arise out of the judgment in the said Writ Petition.

14. Civil proceedings and criminal proceedings dealt with in Part II of the Rules are different from Writ Petitions covered by Part III of the Supreme Court Rules. The exceptions carved out in Order XLVII, Rule 1 of the Supreme Court Rules pertain only to civil and criminal proceedings. Writ Petitions filed under Article 32 of the Constitution of India do not fall within the purview of civil and criminal proceedings…” (emphasis supplied)

Accordingly, the SC, by merely tracing its authority to review its judgments, held that the review is maintainable.

The Appraisal

First and foremost, for the SC, the only source of distinction between civil, criminal and writ proceedings seems to be the location of the proceedings within the SC Rules. Let us say, in a hypothetical situation, that civil and writ proceedings were dealt with in the same part of the SC Rules. In that situation, would writ proceedings be the same as civil ones? Upon a closer look of the Order, it seems like the SC distinguished between the three proceedings solely on the basis of positioning of the proceedings within the SC Rules without addressing substantive distinctions.

Further, the SC sidestepped its own decision in Kamlesh Verma v. Mayawati (“Kamlesh”) wherein the Court laid down the summary of principles it is required to follow when entertaining a review petition before it. Thus, if one was to contend for the review jurisdiction to be exercised, the Court ought to see whether such an argument falls within the one of the principles enumerated in Kamlesh.

The principles enumerated in Kamlesh and the interpretation of the Order cannot co-exist, as the latter completely does away with the former and makes it look like a dead letter on a parchment. Simply reasoning that the only limitation before the Court, bizarrely identified by it in the in the rule’s grammar, is in cases of criminal or civil proceedings, bypasses Constitutional and legal principles. Quite woefully, the 9JB observed that “there is no fetter in the exercise of the jurisdiction of this Court in review petitions of judgments or orders arising out of proceedings other than civil and criminal proceedings.” (paragraph 12 of the Order; emphasis supplied).

It is unclear why the SC did not acknowledge, or even pay heed to the principles developed by its past precedents on the exercise of review jurisdiction. The decision of the SC in Kamlesh was directly relevant, as it delved into several of the Court’s past decisions and derived the principles surrounding its powers to exercise review jurisdiction (see paragraphs 12-19 in Kamlesh) In fact, the minority in Kantaru strictly conformed to the principles enumerated in Kamlesh when dismissing the review petitions before it. Thus, the Order has not only created conceptual friction in relation to established principles of the Court’s exercise of review jurisdiction, but also is an example of how the institution fails to conform to, or even acknowledge, its own decisions.

Additionally, the SC initially held that it has no fetter on the powers to review its own decisions in relation to any proceedings except those relating to civil or criminal, and then distinguished only between writ, civil and criminal proceedings. What about, for instance, Presidential references under Article 143? Are they amenable to the unfetteringly exercisable review jurisdiction too, or are they civil proceedings? In the future, if a different set of judges feel differently about a certain decision, for personal or political reasons, and admit the matter for review, if and when contended before them in relation to such a Presidential reference then the judges need not even provide adequate reasons when exercising review jurisdiction in any proceedings other than civil or criminal ones. Such a lose interpretation even casts doubt on whether the SC actually aimed to provide adequate reasons in the present Order, or merely engage in a formality.

The SC, further, conferred on itself unlimited powers review any of its decisions – other and those relating to civil and criminal proceedings – without laying down adequate determining principles of exercising it whilst side-lining pre-established determining principles on exercising review jurisdiction. The Order seems to have opened the pandora’s box for the SC to exercise review jurisdiction on its whims and fancies without auditing accountability to any legal principles. This is very troubling, since the SC has, historically, disdained entertaining review petitions, often referring to them as a “serious step and [a] reluctant resort”.

Conclusion

At the end of the day, a judicial institution reviewing its own decision somewhere demeans their credibility of its own judges’ wisdom. Procedurally relaxing the power to do so begs the question as to whether the SC sees this issue the same way.

The author expresses his gratitude to Rupam Jha for her inputs on this essay.

Reference in Review: A Response

February 14, 2020February 14, 2020 Gautam Bhatia1 Comment

[Editor’s 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.]

[This is a Guest Post by Shivendra Singh.]

Background

An unexpected turn of events has led to the formulation of a preliminary question of law before the nine-judge Bench in Court No.1 of the Supreme Court of India. The issue formulated by the Hon’ble Court for adjudication is: “Whether this Court can refer questions of law to a larger Bench in a Review Petition”? Mr. Fali Nariman, Senior Advocate has essentially doubted the competence of a Bench hearing a Review Petition to refer questions of law to a larger Bench.

Scope of the Post

At the outset, I must clarify that this short article is being written as a response to Gautam’s post and I wish to express no opinion on the merits of the matter. This article is restricted only to the preliminary question before the Court on 6.2.2020 – which has now been answered in the affirmative.

Source of Review Jurisdiction of the Supreme Court

One of the issues that has arisen is the applicability of Order VI, Rule 2 of the Supreme Court Rules, 2013 (the “Supreme Court Rules”) to review petitions. The substantive source of the creation of the review jurisdiction of the Supreme Court is not to be traced to the Supreme Court Rules but Article 137 of the Constitution of India which reads as under:

“137. Review of judgments or orders by the Supreme Court- Subject to the provisions of any law made by Parliament, or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it”.

In fact, Article 145(1)(e) of the Constitution specifically provides as under:

“145. Rules of Court, etc.- 145. (1) Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including—

……

(e) rules as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review including the time within which applications to the Court for such review are to be entered.”

Interpretation of Order VI, Rule 2 of the Supreme Court Rules

One must look at Order XLVII of the Supreme Court Rules against the substantive backdrop of Article 137 read with Article 145(1)(e) of the Constitution. Order XLVII of the Supreme Court Rules is neatly divided into five sub-rules. Now the question is whether Order VI of the Supreme Court Rules which is titled ‘Constitution of Division Courts and Powers of a Single Judge’ would be applicable to Order XLVII of the Supreme Court Rules. Order VI, Rule 2 of the Supreme Court Rules reads as under:

“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 for it”.

The amplitude of the words ‘any cause’, ‘appeal’ or ‘other proceeding’ in Order VI, Rule 2 of the Supreme Court Rules is certainly wide enough to include review petitions under Order XLVII. Any other interpretation will not only be against the settled cannon of statutory interpretation that the rules in a subordinate legislation should be read holistically, but will also amount to imposing an artificial restriction on the untrammelled jurisdiction of the Supreme Court to refer matters of substantial public importance to a larger bench while considering review petitions under Order XLVII.

Prior Instance of Reference to a Larger Bench in Review Jurisdiction

Even otherwise, there has been at least one instance of the Supreme Court actually referring a question of law to a larger Bench/Constitution Bench in exercise of its review jurisdiction. I urge the readers to go through the judgment in Behram Khurshed Pesikaka v. The State of Bombay reported in [1955] 1 SCR 613 which was an appeal by special leave from a judgment of the Bombay High Court reversing the order of acquittal passed in favour of the appellant Behram Khurshed Pesikaka by the Trial Court, and, convicting him of an offence under section 66(b) of the Bombay Prohibition Act, 1949, and sentencing him to one month’s rigorous imprisonment and a fine of Rs. 500. A Bench of three learned judges heard the Special Leave Petition and dismissed it on 19.2.1954 by a majority of 2:1 (separate majority opinions of Justices Jagannadhadas and Venkatarama Ayyar). Justice Bhagwati, who dissented, allowed the appeal and acquitted the appellant Pesikaka. The majority judges, while maintaining the conviction, were pleased to reduce the sentence imposed upon Pesikaka to that already undergone by him. Being aggrieved, Pesikaka filed an application for review under Article 137 of the Constitution and Justice Bhagwati passed the following order on 28.4.1954 for the same Bench:

“58. We grant the review and reopen the case to enable us to obtain the opinion of a larger Bench on the constitutional question raised in the judgments previously delivered by us. Under proviso to article 145 of the Constitution, we refer the following question for the opinion of the Constitution Bench of the Court.

“What is the effect of the declaration in The State of Bombay and Another v. F. N. Balsara ([1951] S.C.R. 682) that clause (b) of section 13 of the Bombay Prohibition Act, 1949, is void, under article 13(1) of the Constitution, in so far as it affects the consumption or use of liquid medicinal or toilet preparation containing alcohol, on the ground that it infringes article 19(1)(f) of the Constitution?”

59. On receipt of the opinion the case will be taken up for further consideration.”

On 23.9.1954, the Constitution Bench gave its opinion on the referred question and on the very next day, the original Bench quashed the conviction of the appellant Pesikaka. It is also important to point out that the original Bench did not identify any error apparent on the face of the record or any other patent error to review its final order 19.2.1954. The tables were turned in favour of Pesikaka only because of the reference to the Constitution Bench, and the favourable opinion rendered by it on the question.

To conclude, there is no reason to hold that the Supreme Court cannot refer questions of law to a larger Bench in a review petition.

The Afterlife of the Sabarimala Review: On the “Preliminary Question” before the Nine-Judge Bench

February 5, 2020 Gautam Bhatia3 Comments

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.

A 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.

The Curious Continuing Afterlife of the Sabarimala “Review”

January 14, 2020 Gautam Bhatia6 Comments

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.

The Supreme Court, Convenient Emotions, and the Heckler’s Veto

December 14, 2019December 14, 2019 Gautam Bhatia4 Comments

[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.]

Last month, I had written that the Supreme Court’s “review” order in the Sabarimala Case was a strange one. The Court passed an order in flagrant disregard of the parametres of review jurisdiction (errors apparent on the face of the record, or an equivalent injustice), and referred some “questions” to a future seven-judge bench on the basis that they “may” arise in some other cases involving civil rights and religion, presently pending before the Court. I ended by noting that the order neither referred the correctness of the Sabarimala judgment itself, and nor did it stay the judgment. In law, therefore, the judgment continued to hold the field undisturbed.

In the aftermath of this “review” order, certain women attempted to pray at the Sabarimala shrine, but were advised by the police to turn back from the base of the hill, as no protection would be provided to them. This came on the heels of an opinion by the Advocate-General of Kerala, who cited the “review” order to argue that there was no obligation upon the State to enforce the judgment. In response, the women in question filed a petition before the Supreme Court for enforcement of its own judgment.

Now, the law on this should be clear. There exists a judgment of the Supreme Court. That judgment has not been stayed. The “review” order found no error in the judgment, and indeed, did not even refer the correctness of the judgment to a larger bench. There can be little doubt, then, that the judgment holds the field, and must be enforced by all parties.

An account of yesterday’s hearing before the Chief Justice’s bench reveals, however, that – not for the first time – the basic law we thought we learnt in the first year of Law School was a fiction. The Chief Justice refused to pass any order on the petition, and provided the following reasons for (not) doing so: first, that “this is an age old practice going on for thousands of years. Balance of conveniences requires that order should not be passed in your favour now. The matter is under reference and if it is ultimately decided in your favour, we will protect you“; secondly, that “it’s an emotive issue. Please be patient. We are not saying don’t allow her to go in, but we are not looking to pass any order right now”; and thirdly, “we know that the law is in your favour … however we’re using our discretion and will not be passing any order.”

Let us take each of these three justifications in turn. The first is utterly bewildering, as the Chief Justice appears to have conflated the beginning of the legal process (application for injunction) with its end (application for enforcement). The question of “balance of convenience” arises when a suit has been filed, and the plaintiff asks for interim relief pending a final decision. At that point, the Court asks which way the “balance of convenience” would lie – and on that basis, passes an order that holds the field until it finally decides the case. “Balance of convenience”, however, has nothing – nothing – to do with a case when it has already been decided after a detailed hearing, and the petitioner is only asking for its enforcement! At that point, the question of “convenience” doesn’t even arise, as the rights of the parties have already been settled according to law.

Of course, the Court’s reasoning on “balance of convenience” is equally troubling – not only does it appear to have arrived at this “balance” without a proper hearing on the subject, but also seems to have given no weight to the contrary rights at issue (apart from saying “be patient.”) The situation is starkly reminiscent of an incident recounted by Anupama Rao, in her book, Caste Question. In a 1927 case involving access to a village water-tank (which was placed off limits to Dalits), an injunction was granted to the upper castes on the basis that “if the injunction had not been granted and the suit decided in favour of the ‘touchables’ they will be put to considerable expense and inconvenience for ‘purifying’ the tank; while in the existing circumstances, if the untouchables win the suit the only effect will be to prolong by a year or so the oppression that has lasted centuries.” Readers will notice that even this atrocious order passed by a colonial judge seems to have more reasoning than the oral observations of the Bench in yesterday’s proceeding – not to mention that this was actually a case for an injunction where “balance of convenience” actually had some application, instead of a case for an enforcement. It is an open question whether we have progressed from 1927 – or indeed, whether we have regressed.

And lastly, what is even more problematic about this observation is that the question of whether the practice of excluding women from the Sabarimala temple did have the sanction of antiquity is itself a contested question; there was evidence both for and against the provenance of the practice, and the original judgment(s) in Sabarimala acknowledge this divergence of views. For the Chief Justice, therefore, to blithely state that the practice has been going on for “thousands of years” comes dangerous close to pre-judging the merits of that case, if indeed the case is going to be re-opened.

The second justification offered by the Chief Justice is, of course, both bewildering and alarming. What does the “emotiveness” of the issue have to do with anything at all? Since when do emotions operate as injunctions upon decided judgments? And more importantly, whose emotions count? Just a few months ago, when there were protests against the Supreme Court’s decision on the demolition of the Ravidasa Temple in Delhi, the Court responded thus: “Everything cannot be political. Our orders can’t be given a political colour by anybody on earth” and “don’t speak a word and don’t aggravate the issue. You are in for contempt. We will haul up your entire management. We will see what has to be done.” Where was the Court’s touching solicitude for emotions back then? And how many times has the Court otherwise told aggrieved parties that, like it or not, they need to lump it when it comes to obeying judgments? Is it the case that emotions acquire a particular force when they are backed up by organised and systematic violence? The Chief Justice’s reference to avoiding violence during the hearing suggests that; but if that was the case, then it is nothing more than the heckler’s veto replacing the rule of law: your emotions will be given sanctity by the Court if you are strong enough to express them violently. But if you’re too weak to be violent, or just law-abiding, then, well, you do indeed have to lump it. This is a strange stance to take for the “most powerful Court in the world” and the “last refuge of the oppressed and the bewildered.”

And it is the third justification that really puts a seal on things: because the Chief Justice admits – he actually admits – that the law is indeed in the applicant’s favour (there is a judgment, and no stay). Despite that, he says that the Court will use its “discretion”, and pass no orders. But what sort of discretion is this, exactly? The discretion to refuse to one’s own judgments? The discretion to say that the judgments of the Supreme Court are binding on all courts in the territory of India under Article 141 of the Constitution – but that Supreme Court benches themselves need not be bound to enforce them? It is very clear that there is no legal or judicial basis for this peculiar exercise of discretion: the only justifications that there are go back to the first two points discussed above.

Consequently, yesterday’s proceedings and order heap yet another irregularity upon the original sin that was the “review” order. To an external observer, it seems rather obvious that the Supreme Court now regards the original Sabarimala judgment as a millstone around its neck, and would evidently be rid of it. But to get there, it is undermining its own authority as well as the rule of law to a remarkable – and alarming – degree: reopening judgments in review jurisdiction without finding any “error” and then invoking “discretion” to decline to enforce judgments that hold the field. The question is no longer really about whether the original judgment was right or wrong, or whether the Court will now find a way to reverse it (it appears apparent that it will); the question is whether the damage that has been caused along the way will have been worth it – and whether this is now a Court that can regularly be held hostage to the heckler’s veto.

What is a “Review”?

November 14, 2019November 14, 2019 Gautam Bhatia19 Comments

[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 the 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.]

Article 137 of the Constitution of India allows the Supreme Court to “review” any judgment passed by it. According to the jurisprudence of the Court, a review is to be granted in exceedingly rare circumstances. In Union of India v Sandur Manganese and Iron Ores Ltd., for example, the Supreme Court restated the position of law as follows: a review could only be allowed in cases of “discovery of new and important … evidence“, an “error on the face of the record“, or another “sufficient reason” that had to be analogous to the first two.

In this context, today’s order in Kantaru Rajeevaru v Indian Young Lawyers’ Association, concerning the Supreme Court’s 2018 judgment in the Sabarimala Case, is a curious one. The Chief Justice begins his order by observing:

Ordinarily, review petitions ought to proceed on the principle predicated in Order XLVII in Part IV of the Supreme Court Rules, 2013. However, along with review petitions several fresh writ petitions have been filed as a fall out of the judgment under review. All these petitions were heard together in the open Court. (paragraph 1)

This is bewildering. Let us say that there are two sets of petitions before the Court. One set of petition seeks “review” of the impugned judgment, on the grounds set out at the beginning of this post. The other set comprises of fresh writ petitions that assail the correctness of the same judgment. “Hearing them together in open Court” makes no sense, because not only is the scope of arguments entirely different, the forum within which these cases have to be heard is different too! A review is heard by the same judges who delivered the original judgment (apart from those who may have retired). In this case, as the Sabarimala judgment was heard by a bench of five judges, the review would also be heard by five judges (and in this case, four of them – apart from the Chief Justice – were parties to the original judgment). A fresh writ petition, on the other hand, would have to go through an entirely different process: it would first come up before a division bench (two or three judges) of the Supreme Court, where the petitioner would have to make out an initial case for even having the petition admitted, given the existence of binding precedent to the contrary, on the same issue. If that was successful, the petitioner would then have to convince the division bench that there was a prima facie mistake in the earlier judgment, that required to be reconsidered by a larger bench (another substantial hurdle). The division bench would – if convinced – refer the matter to a five-judge bench, where the same process would be repeated; and then – if the petitioner was successful in each of these stages – would the matter go before a seven-judge bench to reconsider.

These processes are of fundamental importance. They are important because they preserve one of the crucial pillars of the justice system: the sanctity and finality of judgments (especially those of the Supreme Court). One may agree or disagree with a judgment, but in the interests of legal certainty and stability, the judgment (for better or for worse) is law, and remains law, unless there are powerful reasons to depart from it. Of course, no judgment is set in stone: that is why review jurisdiction exists, and that is why referrals exist. And both processes – as we have just seen – cast an onerous burden upon those who would have the Court revisit judgments that have attained finality.

The first problem with today’s order, then, is that it mixes up two things that are fundamentally different in character. Indeed, in no sense is this a “review” at all: the Court does not even attempt to point out “an error on the face of the record” in the original Sabarimala judgment that was ostensibly under review. But if this is actually a judgment about referral, then how did the writ petitioners short-circuit the entire process that exists for these cases, and land up directly before a five-judge bench in proceedings that everyone understood at the time to be proceedings in review?

That said, let us consider the substance of the order itself. In paragraph 3, the Court notes that issues surrounding the entry of women into religious spaces arise in respect of some pending cases before the Court, involving mosques and Parsi fire temples – and that there is also a pending case on the legality of female genital mutilation (FGM). In paragraph 4, the Court then observes: “it is time that this Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges … It is essential to adhere to judicial discipline and propriety when more than one petition is pending on the same, similar or overlapping issues in the same court for which all cases must proceed together.”

With respect, this is bizarre. What this appears to be is something wholly new, which we can perhaps define as an “anticipatory referral.” The Supreme Court is due to hear some cases that have overlapping issues. So before it hears those cases, a larger bench should decide those issues! But unless these different cases are all heard simultaneously, by different five-judge panels of the Court – which then throw up contradictory rulings – this has absolutely nothing to do with “judicial discipline and propriety” (in fact, some of the cases the Court mentions have not even been referred to larger benches!). Let us take a tangible example. Sabarimala was decided last year. Let’s say the next case to be heard is the Parsi Fire Temple case. To the extent that legal questions arise in the latter that have already been resolved in the former, the bench hearing the Fire Temple Case will be bound to follow them, unless it decides to refer the matter to a larger bench for resolution. That is how it has always worked. And there has never been a reason to depart from that practice – certainly not by ostensibly citing “judicial discipline and propriety”!

This is made clear by the fact that the Court goes on to note that the issues arising in these pending cases “may be overlapping and covered by the judgment under review.” Yes, exactly – and unless the “judgment under review” is set aside in review for having an error apparent on the face of the record, these pending cases will be bound by it! Which brings us back to what the Court was actually asked to rule on in this case, and which it simply did not do – decide the review!

The judgment then frames some issues that it says “could arise” in these pending cases, pertaining to the interplay between various constitutional articles. It also points to an apparent conflict between Shirur Mutt and Dawoodi Bohra, on the issue of “essential religious practices” (the conflict is more apparent than real, but that is a debate for another day), which needs to be resolved by a larger bench.

Notice, however – so far – that what has been referred to a larger bench are certain suggested constitutional questions that may have an impact on the Sabarimala judgment, but are not about that case. But it is now that we come to yet another bizarre part of this judgment. In the penultimate paragraph, the Court notes that “while deciding the questions delineated above, the larger bench may also consider it appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all. Whether the aforesaid consideration will require grant of a fresh opportunity to all interested parties may also have to be considered.“

But where on earth has this sprung from? It would be appropriate for this “larger bench” to consider this question – that was settled in Sabarimala – only if it was sufficiently proven to another bench – either in Review or in referral proceedings – that a mistake had been made that warranted reconsideration. But – as already indicated above – the Court does not even attempt to show that a mistake has been made, or may have been made. It simply decrees that the larger bench “may” consider it appropriate to decide “all” issues. How and why? It does not say. This is not how a Court is supposed to reason.

The Court then ends by noting that the review petition and writ petitions shall be kept pending until these “questions” are answered. So, once again, we are back to the same point: it is not the judgment in Sabarimala that has been referred for reconsideration, but certain “questions” that are common to Sabarimala and other pending cases – without any judicial finding that Sabarimala got them wrong! What on earth is happening here?*

The incoherence of this judgment is highlighted in the dissenting opinion authored by Nariman J., on behalf of himself and Chandrachud J. In paragraph 2, Nariman J. sets out the exact point that this blog post has been making:

What a future constitution bench or larger bench, if constituted by the learned Chief Justice of India, may or may not do when considering the other issues pending before this Court is, strictly speaking, not before this Court at all. The only thing that is before this Court is the review petitions and the writ petitions that have now been filed in relation to the judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018. As and when the other matters are heard, the bench hearing those matters may well refer to our judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018, and may either apply such judgment, distinguish such judgment, or refer an issue/issues which arise from the said judgment for determination by a larger bench. All this is for future Constitution benches or larger benches to do. Consequently, if and when the issues that have been set out in the learned Chief Justice’s judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning Muslims, Parsis and Dawoodi Bohras. What is before us is only the narrow question as to whether grounds for review and grounds for filing of the writ petitions have been made out qua the judgment in Indian Young Lawyers Association and Ors. v. State of Kerala.

And indeed, it is difficult to understand how it could be any other way. Nariman J. then actually goes on to write a judgment applying the standards required in a review, and finds that no grounds for review are made out (and that, at the same time, writ petitions directly attacking the judgment are not maintainable). A debate on this could have been had if the majority judgment had actually engaged with any of the points that Nariman J. makes. But of course, as we have seen, they do not. And finally, Nariman J. goes on to point out that arguments around the protests that followed the original Sabarimala judgment cannot possibly constitute a ground for the Court to retrace its steps, in a country governed by the rule of law.

It should therefore be clear that what the majority judgment does in this case is indefensible under any standard. One may agree or disagree with the original judgment in the Sabrimala case. But what a three-judge majority has done here – that is, exhibit a cavalier disregard for a reasoned judgment of a Constitution Bench, and invent a whole new method for people to collaterally challenge judgments they don’t like – cannot but have profound and dangerous consequences for the rule of law. In a Court of thirty-three judges – as I have pointed out before – these issues become particularly important. The more the gravitational force of precedent is weakened – either by declaring coordinate benches per incuriam, or by judicial pyrotechnics as in this case – the more we head towards a factionalised and divided Court, where judicial interpretation becomes less about principle and more about power-play. Sabarimala will be a small casualty in that conflagration.

*Incidentally, a corollary of this is that – for obvious reasons – the majority has not stayed the Sabarimala judgment itself. Until the seven-judge bench is constituted, therefore, the judgment remains good law, and binding and enforceable on all parties, including the State.

The Sabarimala Judgment – III: Justice Chandrachud and Radical Equality

September 29, 2018September 29, 2018 Gautam Bhatia16 Comments

Justice Indu Malhotra’s dissenting opinion sets up a crucial constitutional question: how do you reconcile the Constitution’s commitment to pluralism – which entails respect for group autonomy – with the claims of equality and non-discrimination, addressed from within those groups? It is this question that is at the heart of Justice Chandrachud’s concurring opinion.

Chandrachud J. sets up the issue in the introductory part of his judgment, where he observes that the Indian Constitution is transformative in two distinct ways: first, in setting up the governing institutions of an independent republic, transitioning from colonial rule; but also, “placing those who were denuded of their human rights before the advent of the Constitution – whether in the veneer of caste, patriarchy or otherwise – … in control of their own destinies by the assurance of the equal protection of law” (paragraph 2). The reference to caste and patriarchy is important, because it acknowledges that discrimination is not limited to State action, or even to hostile individual action, but that it also flows from institutional design: caste and patriarchy are neither “State” nor an agglomeration of individual acts where you can attribute discriminatory agency to identifiable individuals. They are social institutions.

And because they are social institutions, their impact upon the lives of the people that they touch is not merely a private matter. In paragraph 5, therefore, Chandrachud J. observes:

Essentially, the significance of this case lies in the issues which it poses to the adjudicatory role of this Court in defining the boundaries of religion in a dialogue about our public spaces. (paragraph 5)

The use of the word “public spaces” is crucial, and especially when you juxtapose it with Malhotra J.’s dissenting opinion, which we discussed in the previous post. Recall that for Malhotra J., there was a distinction between a “social evil” like Sati – where a Court could potentially intervene – and a case like Sabarimala, where the challenge was based on irrationality or immorality. It is this public/private binary – social evil (public) and bare immorality (private) – that Chandrachud J. rejects, by framing the issue as about access to public spaces.

It is within this framework that Chandrachud J. begins his substantive analysis.

Essential Religious Practices

After surveying the body of precedent concerning the ERP test – and also noting the shift from “essentially religious” to “essential religious”, that we have discussed on this blog – Chandrachud J.’s judgment has a section titled “The engagement of essential religious practices with constitutional values.” At the threshold, Chandrachud J. finds that the Respondents have failed to establish that the exclusion of women from Sabarimala is either an obligatory part of religion, or has been consistently practiced over the years. The evidence, at best, demonstrates the celibate nature of Lord Ayappa, but this in itself does not establish that exclusion of women is part of ERP (paragraph 51).

However, apart from the traditional and straightforward analysis of whether or not a religious claim amounts to an essential religious practice, Chandrachud J. also advances an important alternative argument: that “the test of essentiality is infused with … necessary limitations” (paragraph 50), limitations that are grounded in constitutional morality, and the constitutional values of dignity and freedom. So, at paragraph 55, Chandrachud J. notes:

The Respondents submitted that the deity at Sabarimala is in the form of a Naishtika Brahmacharya: Lord Ayyappa is celibate. It was submitted that since celibacy is the foremost requirement for all the followers, women between the ages of ten and fifty must not be allowed in Sabarimala. There is an assumption here, which cannot stand constitutional scrutiny. The assumption in such a claim is that a deviation from the celibacy and austerity observed by the followers would be caused by the presence of women. Such a claim cannot be sustained as a constitutionally sustainable argument. Its effect is to impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation from celibacy. This is then employed to deny access to spaces to which women are equally entitled. To suggest that women cannot keep the Vratham is to stigmatize them and stereotype them as being weak and lesser human beings. A constitutional court such as this one, must refuse to recognize such claims. (paragraph 55)

As a piece of discrimination law reasoning this is, of course, impeccable. But there is something more at work here, which I want to highlight. Chandrachud J.’s observation that the effect of the celibacy argument “is to impose the burden of a man’s celibacy on a woman” is the crucial link between the denial of the right to worship (which Malhotra J., in her dissent, regards as a private, internal matter to religion) and the public aspect of this case. What Chandrachud J. recognises is that the justification offered to exclude women is an integral part of a far broader discourse that is founded on the exclusion and subordination of women in social and community life. This becomes clear two paragraphs down, where he discusses the stigma around menstruation (another justification that was advanced by the Respondents), and observes:

The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. These beliefs have been used to shackle women, to deny them equal entitlements and subject them to the dictates of a patriarchal order. (paragraph 57)

The phrase “patriarchal order” is an important one. It indicates that the exclusion of women from Sabarimala is not simply – as Malhotra J. would have it – a unique and particular feature of that specific religious community, and something that can be isolated from the broader world around it. Rather, the exclusion of women from Sabarimala on the grounds of celibacy and menstruation is one among countless ways in which patriarchy – as a social institution – works to keep women in a position of subordination.

Justice Malhotra and Justice Chandrachud, therefore, come at the issue from opposite angles. What Malhotra J. sees as a claim requiring that religion be subordinated to the diktats of morality, Chandrachud J. understands as challenge to one manifestation of patriarchal subordination itself. According to Chandrachud J., you cannot divide social life into different silos, and say that discrimination and subordination are fine as long as they stay within a defined silo. At least as far as religion and society are concerned, in the context of India, the silos are forever merged. As Alladi Krishnaswamy Iyer said in the Constitutional Drafting Committee, “there is no religious question that is not also a social question.”

It perhaps needs to be noted that history is on Justice Chandrachud’s side. In India, temple-entry movements have a long history, and have always been framed in the language of civil rights, and access to public spaces. This was especially true of the great caste-based temple-entry movements of the 1920s and 30s (which are discussed later in the judgment). This substantiates the argument that in India, the “thick” character of religious life implies that you cannot simply wall it off from the rest of social life. Consequently, discrimination within religion is hardly an isolated event, like – for example – the non-appointment of a woman to a clerical post in an American Church, which was upheld by that Supreme Court. Rather, at the heart of Chandrachud J.’s judgment is the understanding that discrimination within religion both reinforces and is reinforced by, discrimination in broader social life.

Untouchability

This understanding is reinforced in what is undoubtedly the boldest and most radical part of Chandrachud J.’s judgment. An argument was made by the intervenors that the exclusion of women from Sabarimala amounts to “untouchability” within the meaning of Article 17. The Chief Justice and Nariman J. do not address this argument, and Malhotra J. rejects it on the ground that “untouchability” under the Indian Constitution is limited to caste-based untouchability.

Chandrachud J. disagrees. After a detailed survey of the Constituent Assembly Debates (which we have discussed previously on this blog, here), he correctly observes that there was no consensus in the Constituent Assembly over the precise scope and ambit of the phrase. But when you place the moment of constitutional framing within broader history, you have an answer:

The answers lie in the struggle for social emancipation and justice which was the defining symbol of the age, together with the movement for attaining political freedom but in a radical transformation of society as well. (paragraph 73)

And:

Reading Dr Ambedkar compels us to look at the other side of the independence movement. Besides the struggle for independence from the British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is the end product of both these struggles. It is the foundational document, which in text and spirit, aims at social transformation namely, the creation and preservation of an equal social order. The Constitution represents the aspirations of those, who were denied the basic ingredients of a dignified existence. (paragraph 74)

This reminiscent of Granville Austin’s famous line, that the fundamental rights chapter was framed amidst a history of fundamental wrongs. In these paragraphs, Justice Chandrachud argues that the meaning of fundamental rights ought be determined by asking the following question: what was the legacy of injustice that the Constitution sought to acknowledge, and then transform? That legacy was defined by social hierarchies and social subordination. At its most virulent form, this took the shape of caste untouchability. However, caste was not the only axis for exclusion from, and subordination within, the social order. There were others, prime among which was, of course, sex. Consequently, as Justice Chandrachud observes:

The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries’ old struggle of social reformers and revolutionaries. It is a move by the Constitution makers to find catharsis in the face of historic horrors. It is an attempt to make reparations to those, whose identity was subjugated by society. (paragraph 75)

It is, of course, important not to overstate the case. Not every form of discrimination or prejudice can fall within Article 17. The framers did after all use the specific word “untouchability”, limiting the sweep of the Article only to the most horrific kind of discrimination. Chandrachud J. is aware of this, because he then goes on to justify why exclusion based on menstruation falls within Article 17:

The caste system represents a hierarchical order of purity and pollution enforced by social compulsion. Purity and pollution constitute the core of caste. (paragraph 76)

And of course, it is purity and pollution that are at the heart of excluding menstruating women – not just from temples but, as regularly happens in our country – from all forms of human contact during the menstrual period. Chandrachud J.’s important insight, therefore, is this: the social exclusion of a set of people (who are in any event historically subjugated), grounded in ideas about purity and pollution, amounts to a manifestation of the kind of “untouchability” that the Constitution seeks to prescribe. This does not mean, of course, that it is not caste-based untouchability that is at the heart of Article 17; nor does it seek to dilute the severity of that institution, or the Constitution’s commitment to wipe it out. What it does acknowledge, however, is that the same logic that is at the base of caste-based untouchability, also takes other forms and other manifestations. These manifestations may not be at the core of Article 17, but they do deserve its protection:

Article 17 is a powerful guarantee against exclusion. As an expression of the anti-exclusion principle, it cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution. (paragraph 75)

And therefore:

The caste system has been powered by specific forms of subjugation of women. The notion of “purity and pollution” stigmatizes the menstruation of women in Indian society. In the ancient religious texts and customs, menstruating women have been considered as polluting the surroundings. Irrespective of the status of a woman, menstruation has been equated with impurity, and the idea of impurity is then used to justify their exclusion from key social activities. (paragraph 81) (internal footnotes omitted)

In an important way, this links back to the previous argument about essential religious practices. It is obviously absurd to compare the exclusion of women (and mostly upper-caste women at that) from a temple with “untouchability” as we understand it. But that is something that Chandrachud J. very consciously does not do. What he does do is to link the underlying basis of the exclusion in Sabarimala with something that goes far beyond, and permeates very layer of society: this is why he specifies that the idea of impurity justifies exclusion from “key social activities.” In other words, it is not about exclusion from worship, but – yet again – how that exclusion both reinforces and is reinforced by an existing and overarching set of discriminatory institutions and systems.

Exist, Pursued by a Bear: Narasu Appa Mali

There is one more important thing that Chandrachud J. does in his concurrence. Noting that the exclusion of women has also been justified on the basis of “custom”, he examines – and overrules – the Narasu Appa Mali judgment on the specific point that customs are not subject to fundamental rights.

In terms of outcomes, this is not new: in Madhu Kishwar v State of Bihar, the Supreme Court has already held that customs are subject to fundamental rights. However, that case did not examine Narasu: here, Chandrachud J. does, and specifically finds that its reasoning is flawed.

This is very important, because Narasu also held that “personal law” – that is, uncodified religious law – was outside the scope of fundamental rights review. The reasoning for that was the same, and so, also stands discredited. As Chandrachud J. points out, the reasoning given by the Bombay High Court in Narasu – that, for example, the existence of Article 17 shows that the framers intended to specifically include customs that they wished to proscribe – does not hold water. More importantly, however, is the affirmative case that Chandrachud J. advances:

Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution. (paragraph 99)

In other words, there cannot be islands of norms and prescriptions that are granted constitutional immunity. As with the ERP and the untouchability argument, the rationale is the same: the individual is the basic unit of the Constitution, and norms, practices, prescriptions, rules, commands and whatever else that have the potential to impair individual dignity or block access to basic goods in society, must pass constitutional scrutiny (paragraph 100).

And indeed, Chandrachud J. goes on step further with this thought, noting that the ERP test itself ought – in future – give way to a test that asks not whether a practice is “essential” (which is, after all, a question that the believers, and not the Court, should answer), but asks whether the impugned practice is socially exclusionary, and denies individuals access to the basic goods required for living a dignified life (Disclaimer: this part of the judgment cites an article of mine, and I will readily admit to being biased in favour of the anti-exclusion argument.)

Conclusion

In the previous post, we discussed Malhotra J.’s dissent. We saw how Malhotra J. raises an important question: how do we reconcile the Constitution’s commitment to pluralism with judicial intervention into internal religious affairs? We have now seen how Chandrachud J. has answered it: the commitment to pluralism and respect for group autonomy must be understood within a Constitutional framework that places individual freedom and dignity at its heart. The Constitution recognises group autonomy because, often, group life promotes individual freedom and dignity. Community, after all, is crucial to self-development. But groups can also restrict freedom and dignity, and it is in those circumstances that a Court must step in and balance the competing claims.

In Sabarimala, Chandrachud J. attempts to demonstrate how, in fact, the proscription in question does restrict freedom and dignity, and therefore, should be judicially invalidated. He does so by telescoping outwards from the singular event itself (exclusion from worship in one temple), and showing how this single event of exclusion is nested in an entire social and institutional order that is characterised by hierarchy, subordination, and exclusion. We may call this patriarchy, or we may call this something else, but the argument is clear: it’s not about worship at Sabarimala (which is what Malhotra J. limits it to, and therefore classifies it as simply about seeking morality or rationality), but about what exclusion from worship means in a broader context. To take an example: think of a Whites-Only signboard outside a restaurant in Apartheid South Africa. The point is not that one private restaurant owner has decided to exclude blacks from his private property. The point, rather, is how that signboard is an integral element of the practice and institution of apartheid. The crucial insight that Chandrachud J. brings in his judgment is that recognition of the institutional character of discrimination and inequality, and how that must be constitutionally combatted. As he notes, towards the end:

In the dialogue between constitutional freedoms, rights are not isolated silos. In infusing each other with substantive content, they provide a cohesion and unity which militates against practices that depart from the values that underlie the Constitution – justice, liberty, equality and fraternity. Substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses on not only distributive questions, but on the structures of oppression and domination which exclude these identities from participation in an equal life. An indispensable facet of an equal life, is the equal participation of women in all spheres of social activity. (paragraph 117)

It is that which makes it a transformative judgment.

The Sabarimala Judgment – II: Justice Malhotra, Group Autonomy, and Cultural Dissent

September 29, 2018October 6, 2018 Gautam Bhatia12 Comments

I had originally intended this series to follow a more familiar chronology – moving through the concurring opinions, and ending with Justice Indu Malhotra’s dissent. However, on a closer reading of the judgment, it strikes me that Malhotra J.’s dissent raises some crucial points, which remain unanswered in the opinions of the Chief Justice and Nariman J. – but are addressed in Chandrachud J.’s concurrence. For this reason, I will use this post to discuss the dissenting opinion, and flag its foundational arguments, and then – in the next post – examine Chandrachud J.’s concurrence.

Maintainability

How unusual – but how refreshing – to see a judge taking maintainability seriously, and that too in a PIL! Malhotra J. starts her analysis with the following observation:

The right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the Petitioners’ personal rights to worship in this Temple have been violated. The Petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have manifested himself as a ‘Naishtik Brahmachari’. To determine the validity of long-standing religious customs and usages of a sect, at the instance of an association/Intervenors who are “involved in social developmental activities especially activities related to upliftment of women and helping them become aware of their rights”, would require this Court to decide religious questions at the behest of persons who do not subscribe to this faith. (paragraph 7.2).

Malhotra J. goes on to warn that the issue of maintainability is not a “mere technicality” in this case, but something more important. It would open the floodgates for “interlopers” to question all kinds of religious beliefs and practices, something that would cause even graver peril for “religious minorities.” (paragraph 7.3) Malhotra J. then sums up:

The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practises which are found to be oppressive or pernicious. (paragraph 7.4).

While Malhotra J.’s concern about the floodgates is well-taken, I am not sure that that, by itself, can be a ground for rejecting the PIL on the basis of maintainability. However, I believe that in observing that “[The Article 14 claim] has to be adjudged amongst the worshippers of a particular religion or shrine“, Malhotra J. articulates a crucial point, which demonstrates why, even in the PIL era, the issue of maintainability is particularly crucial to this case.

To understand why, let us examine the nature of the claim. The claim is for women between the ages of ten and fifty to be allowed to enter Sabarimala. This claim is set up against the argument of the Sabarimala priest (and certain other devotees), that the entry of women is barred by religious custom. Sabarimala, therefore, is a classic example of what Madhavi Sundar calls “cultural dissent“: norms and values defined and imposed by cultural gatekeepers and dominant groups, have been challenged.

That cultural dissent is at the heart of Sabarimala is recognised by both the Chief Justice and Nariman J., in their opinions. The Chief Justice notes that Article 25(1) protects both inter-group and intra-group rights. In a very interesting observation, Nariman J. suggests that when there is internal dissent about a practice, its “essential” character to the religion (and therefore, its claim to protection under Article 25(1)) will be thrown in doubt. However, what is crucial to note is this: by its very nature, a claim to cultural dissent has to be articulated by the dissenters themselves. Because what is under challenge – as Justice Malhotra recognises – is the question of whether certain practices – internal to the religion – are “oppressive” or not. And given that religions are self-contained and self-referential systems of belief and practice, the question of what constitutes “oppression” will, in most cases, be an internal question.

Let me be clear: this is not an argument against the Courts interfering in religious practices on the touchstone of equality and non-discrimination. Quite the opposite: when marginalised groups within cultures or religions challenge oppressive norms or practices, more often than not, they will need an external authority (such as Courts, acting under the Constitution) to support them in that struggle. But what I am saying is that the claim must originate from the marginalised groups themselves. An external authority cannot assume the mantle of speaking on their behalf.

There is, of course, a significant exception to this: when the marginalised group is (literally) silenced from articulating its claims. But I feel considerable hesitation in applying that standard to Sabarimala. Are we going to say that every woman devotee at Sabarimala is either too brainwashed or too terrorised to approach the Court for her rights? That would seem to me to be not only factually incorrect, but highly demeaning as well – a saviour complex redolent of Lila Abu-Lughod’s excoriation of liberal interventionism in her tellingly-titled article, “Do Muslim Women Really Need Saving?“

I recognise that this is an unpopular position, I believe that the Majority should have voted with Malhotra J. to dismiss the PIL on grounds of maintainability, while granting liberty to any affected party to approach the Court through a writ petition.

Group Autonomy

Running through Malhotra J.’s judgment is a vision of group autonomy. She believes that the Constitution’s religious freedom clauses act to insulate religious groups from having their beliefs and practices subjected to constitutional scrutiny. As she observes:

It would compel the Court to undertake judicial review under Article 14 to delineate the rationality of the religious beliefs or practises, which would be outside the ken of the Courts. It is not for the courts to determine which of these practises of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati. (paragraph 8.2)

The devil, of course, is in the detail. Malhotra J. concedes that practices that are “pernicious, oppressive, or a social evil” can be reviewed by Courts. But that, indeed, was the Petitioners’ argument in Sabarimala: excluding women from the temple was a pernicious and oppressive practice, even though it did not (of course) reach the level of Sati. How does Malhotra J. respond to this? There is no immediate answer, but we do get something of an answer late in the judgment. In paragraph 10.13, Malhotra J. observes:

Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of Courts. (paragraph 10.13)

The argument, therefore, appears to be this: a practice like Sati is not simply “religious”. In actually killing women, its impacts go far beyond, and into the “real world.” The question of the right to worship at Sabarimala, however, remains a question internal to the religion: its a moral issue, a question of whether within the community of Sabarimala devotees, men and women are treated equally. For Justice Malhotra, that is not something that Courts can go into. As she observes towards the end of the judgment:

Worship has two elements – the worshipper, and the worshipped. The right to worship under Article 25 cannot be claimed in the absence of the deity in the particular form in which he has manifested himself. (paragraph 13.9)

For Malhotra J., therefore, unlike Sati, Sabarimala is a pure question of faith, and therefore immune from judicial review and the application of constitutional norms of equality and non-discrimination.

Why is this so? Malhotra J. buttresses this point by two further arguments, both of which are grounded in principles of group autonomy. The first is that of “essential religious practices” [ERPs]. Malhotra J. takes strong issue with the Majority for holding that the exclusion of women is not an essential religious practice (and therefore not protected by Article 25(1)), and argues, instead, that this determination should be left solely to the religious community itself (paragraph 10.10). In the present case, Malhotra J. relies upon the statements of the Sabarimala Thanthri and the Travancore Devaswom Board to the effect that “the limited restriction on access of women during the notified age of 10 to 50 years, is a religious practise which is central and integral to the tenets of this shrine, since the deity has manifested himself in the form of a ‘Naishtik Brahmachari’.” (paragraph 13.7)

This is an important point, because it goes entirely against the grain of six decades of ERP jurisprudence, where the Court – relying upon textual and scriptural materials – makes this determination. It is also, in my opinion, correct (as I have pointed out on this blog before): the Courts – as a number of scholars have argued for a while now – is entirely unequipped to make determinations about what practice is or is not “essential” to religion: it lacks both the competence and the legitimacy to do so.

There is, of course, a latent peril in advocating this view: and that is that in any community (religious or otherwise) norms and practices are inevitably imposed top-down by dominant groups, who are invariably male. But this is exactly where Malhotra J.’s initial point about maintainability comes in: it is one thing when within a group, norms and practices are challenged, and the marginalised sub-groups invoke the Court’s aid. But it is another thing when an external party comes to Court, and is opposed by the religious community’s gatekeepers: in that situation, Malhotra J.’s views about the nature and scope of the ERP test make eminent sense.

The second argument advanced by Malhotra J. pertains to constitutional pluralism. It was argued by the Petitioners that discrimination against women runs counter to constitutional morality. Malhotra J. turns this argument on its head, noting that constitutional morality in India’s plural society requires respect and tolerance for different faiths and beliefs, which have their own sets of practices that might nevertheless appear immoral or irrational to outsiders (paragraphs 11.2, 11.4, 11.6 & 11.8).

The full argument, therefore, is this: our Constitution respects religious pluralism. Pluralism entails granting to the diverse religious groups and communities within our nation, the freedom of internal self-government, and the freedom to decide what norms and practices are integral to their existence and functioning. Where these norms or practices result in actual social harm, the Court can step in; however, the Court cannot intervene when the grounds of challenge are limited to bare immorality, irrationality, or unequal treatment. And the Court can especially not do so when the challenge is brought by external parties.

Religious Denomination

Malhotra J. then addresses the statutory point: that is, the question of whether, in view of Section 3 of the 1965 Act (guaranteeing non-discriminatory access to “all” classes), whether Rule 3(b) (that allows for excluding women if custom demands it) is ultra vires. Malhotra J. holds that it is not, on the ground that the worshippers of Lord Ayappa at Sabarimala constitute a separate “religious denomination”, and is therefore exempted from the operation of Section 3 as per the Act itself (through a specific proviso).

Unfortunately – and in stark contrast with the rest of Malhotra J.’s judgment – this part is disappointingly sketchy. On the basis of a Government notification, Malhotra J. asserts that the worshippers of Lord Ayappa at Sabarimala “follow a common faith, and have common beliefs and practises.” (paragraph 12.3) She then goes on to note, on the basis of precedent, that:

If there are clear attributes that there exists a sect, which is identifiable as being distinct by its beliefs and practises, and having a collection of followers who follow the same faith, it would be identified as a ‘religious denomination’. (paragraph 12.8)

Malhotra J. recognises, however, that this is a considerably more relaxed threshold than that articulated by previous judgments, and followed by the Majority. She tries to get around this by once again implicitly invoking the group autonomy principle, and arguing that a “liberal” interpretation should be accorded to the question of what constitutes a “religious denomination.” But this will not do: unlike the question of essential religious practices, which are required for threshold protection under the Constitution’s religious freedom clause, religious denominations are entitled to special and differentiated rights under Article 26: maintenance of institutions, acquisition and administration of property, and (textually) a greater autonomy in determining internal religious matters. For this reason, the critique of the essential religious practices standards cannot be uncritically applies to the definition of religious denominations: there are good reasons for a higher threshold, adjudicated by Courts. To depart from that principle would require a detailed and persuasive argument, which Malhotra J. does not offer. And indeed, she appears to recognise this herself, when she notes at paragraph 12.10:

The proper forum to ascertain whether a certain sect constitutes a religious denomination or not, would be more appropriately determined by a civil court, where both parties are given the opportunity of leading evidence to establish their case.

Miscellaneous

Malhotra J. makes two further findings. She rejects the argument – advanced by Amicus Curae – that Article 15(2) includes temples under the definition of “places of public resort.” And she also rejects the argument – advanced by the Interveners – that exclusion of women on grounds of menstruation amounts to “untouchability” under Article 17 of the Constitution. Both these arguments are based on the structure and the drafting history of the Constitution. With respect to Article 15(2), I believe the Malhotra J. is unarguably correct. Article 17 will be addressed in the next post.

Conclusion

Justice Malhotra’s dissent is powerful and persuasive on many counts. On maintainability, on essential religious practices, and on constitutional pluralism, I believe that her arguments are correct, and truer to the constitutional text and history than prevailing Indian religious freedom jurisprudence, which the opinions of CJI Misra and Nariman J. closely hew to.

Where then lies the disagreement? At one level, it is statutory: if Malhotra J.’s religious denomination argument is incorrect, then her case falls purely on statutory grounds, and the Majority is vindicated. I have a deeper disagreement, however, with the foundational assumption of Malhotra J.’s dissent, which comes through in her paragraph differentiating Sabarimala and Sati: the assumption is that in India, you can cleanly separate the religious and the social. This is a reality that has been recognised throughout history: in the Drafting Committee, Alladi Krishnawamy Iyer wryly remarked that “there is no religious matter that is not also a social matter.” In the Constituent Assembly, Ambedkar memorably spoke about how vast religious conceptions are in India, covering everything from birth to death. In his dissenting opinion in Saifuddin, Chief Justice Sinha discussed how religious excommunication had a debilitating impact upon civil rights. And so on. The point is this: it is a mistake to uncritically assume that Sabarimala is simply a right-to-worship case, a straightforward internal dispute within a religious community. It is a mistake, because it ignores how deeply intertwined religious, social, and public life is in India, and how discrimination within one sphere inevitably spills over into other spheres. Therefore, Malhotra J. is entirely correct when she says that practices that are “pernicious, oppressive, or a social evil” can be subjected to judicial review. But the question of what constitutes “oppressiveness” is more nuanced and complex than she allows.

It is that nuance which forms the heart of Chandrachud J.’s concurrence, which is what we shall turn to in then ext post.

The Sabarimala Judgment – I: An Overview

September 28, 2018September 28, 2018 Gautam Bhatia5 Comments

Earlier today, a Constitution Bench of the Supreme Court held, by a 4 – 1 Majority, that the Sabarimala Temple’s practice of barring entry to women between the ages of ten and fifty was unconstitutional. While the case raised a host of complex issues, involving the interaction of primary legislation (statute), subordinate legislation (rules), and the Constitution, the core reasoning of the Majority was straightforward enough. On this blog, we will examine the Sabarimala Judgment in three parts. Part One will provide a brief overview of the judgment(s). Part II will examine some of the issues raised in the concurring judgment of Chandrachud J. And Part III will analyse the dissenting opinion of Indu Malhotra J.

Let us briefly recapitulate the core issue. The exclusion of (a class of) women from the Sabarimala Temple was justified on the basis of ancient custom, which was sanctioned by Rule 3(b), framed by the Government under the authority of the 1965 Kerala Hindu Places of Worship (Authorisation of Entry Act). Section 3 of the Act required that places of public worship be open to all sections and classes of Hindus, subject to special rules for religious denominations. Rule 3(b), however, provided for the exclusion of “women at such time during which they are not by custom and usage allowed to enter a place of public worship.” These pieces of legislation, in turn, were juxtaposed against constitutional provisions such as Article 25(1) (freedom of worship), Article 26 (freedom of religious denominations to regulate their own practices), and Articles 14 and 15(1) (equality and non-discrimination).

In an earlier post, I set out the following map as an aid to understanding the issues:

(1) Is Rule 3(b) of the 1965 Rules ultra vires the 1965 Act?

(2) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women from temples – constitutionally valid?

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article 25(1) of the Constitution?

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an “essential religious practice” protected by Article 25(1)?

(5) If the answer to (4) is “yes”, then is the exclusion of women nonetheless barred by reasons of “public order”, “health”, “morality”, or because of “other clauses of Part III”, which take precedence over Article 25(1)?

(6) Do Sabarimala worshippers constitute a separate religious denomination under Article 26?

(7) If the answer to (6) is yes, then is temple entry a pure question of religion?

While the judgments are structured slightly differently, this remains a useful guide. Here is a modified map, with the answers:

(1) Does the phrase “all classes” under the Act include “gender”? By Majority: Yes.

(2) Do Sabarimala worshippers constitute a separate religious denomination under Article 26, and are therefore exempted under the Act from the operation of Section 3? By Majority: No. Malhotra J. dissents.

2(a) Is Rule 3(b) of the 1965 Rules therefore ultra vires the 1965 Act? By Majority, logically following from (1) and (2): Yes. However, Nariman J., instead of holding it ultra vires, straightaway holds it unconstitutional under Articles 14 and 15(1). Malhotra J. – also logically following from 2 – dissents.

(2b) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women from temples – constitutionally valid? Does not arise.

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article 25(1) of the Constitution? Per Misra CJI and Khanwilkar J.: Yes, in theory. Per Chandrachud J.: No, because it violates constitutional morality. Per Nariman J.: No, because it violates Article 25(1), which stipulates that all persons are “equally entitled to practice religion.” Malhotra J.: Yes.

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an “essential religious practice” protected by Article 25(1)? Per Misra CJI and Khanwilkar J.: No, on facts. Per Nariman J.: Assuming the answer is yes, (3) answers the point. Per Chandrachud J.: No, on facts. Per Malhotra J.: Yes, on facts.

An overview of the judgments handed down by the CJI and Khanwilkar J., and Nariman J., is provided below:

Misra CJI and Khanwilkar J.

Misra CJI and Khanwilkar J. hold that the devotees of Lord Ayappa at Sabarimala have failed to establish that they constitute a “separate religious denomination” (paragraph 88 onwards). This is because the test for “separate denomination” is a stringent one, and requires a system of distinctive beliefs, a separate name, and a common organisation. The Sabarimala Temple’s public character (where all Hindus, and even people from other faiths) can go and worship, along with other temples to Lord Ayappa where the prohibition of women does not apply, leads the two judges to hold that it does not constitute a separate “denomination.” Misra CJI and Khanwilkar J. then hold that the fundamental rights chapter applies to the Temple, as it is governed by a statutory body (the Devaswom Board). Consequently, women have an enforceable Article 25(1) right to entry. This right is not undermined by a contrary right of exclusion because, on facts, excluding women does not constitute an “essential religious practice” that is protected by Article 25(1). This is because no scriptural or textual evidence has been shown to back up this practice (paragraph 122), and it is not possible to say that the very character of Hinduism would be changed if women were to be allowed entry into Sabarimala (paragraph 123). Moreover, on facts, this practice appears to have commenced only in 1950, and therefore lacks the ageless and consistent character that is required of an “essential religious practice” (para 125). Therefore – Misra CJI and Khanwilkar J. hold – since Section 3 of the 1965 Act prohibits discrimination against “any class” of Hindus, and the Temple is not a denominational temple, Rule 3(b) is ultra vires the parent Act, and therefore must fall (paras 132 and 141 – 142).

Nariman J.

Nariman J. accepts, for the purposes of argument, that barring women of a certain age from accessing Sabarimala is an essential religious practice, and therefore protected by Article 25(1) (paragraph 25). However, he agrees with Misra CJI and Khanwilkar J that Sabarimala fails the rigorous test for a “separate denomination.” Article 26, therefore, is not attracted, and the proviso to S. 3 of the Act is not attracted (paragraphs 26 – 27). Therefore, even if there is an essential religious practice excluding women, this practice is hit by Section 3 of the Act, which provides for non-discriminatory access to all “classes” of Hindus (paragraph 28). This is further buttressed by the fact that the 1965 Act is a social reform legislation, and therefore, under Article 25(2)(b) of the Constitution, can override the right to religious freedom (paragraph 28).

However, Nariman J. adds that even otherwise, this case involves a clash of rights under Article 25(1): the right of women to worship, and the right of the priests to exclude them. The text of Article 25(1) – which uses the phrase all persons are “equally entitled” to practice religion, decides the clash in favour of the women. (paragraph 29).

Even otherwise, the fundamental right of women between the ages of 10 and 50 to enter the Sabarimala temple is undoubtedly recognized by Article 25(1). The fundamental right claimed by the Thanthris and worshippers of the institution, based on custom and usage under the selfsame Article 25(1), must necessarily yield to the fundamental right of such women, as they are equally entitled to the right to practice religion, which would be meaningless unless they were allowed to enter the temple at Sabarimala to worship the idol of Lord Ayyappa. The argument that all women are not prohibited from entering the temple can be of no avail, as women between the age group of 10 to 50 are excluded completely. Also, the argument that such women can worship at the other Ayyappa temples is no answer to the denial of their fundamental right to practice religion as they see it, which includes their right to worship at any temple of their choice. On this ground also, the right to practice religion, as claimed by the Thanthris and worshippers, must be balanced with and must yield to the fundamental right of women between the ages of 10 and 50, who are completely barred from entering the temple at Sabarimala, based on the biological ground of menstruation.

And insofar as Rule 3(b) is concerned, Nariman J. holds it directly contrary to Article 15(1), and strikes it down.

Consequently, like the Majority – but using a different approach – Nariman J. holds in favour of the right of women to enter Sabarimala.

Constitutional Law and Philosophy

Issues in Contemporary Constitutional Law, with a Special Focus on India and Kenya

Tag: sabarimala

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