Sabarimala Review: The majority judgment sets a dangerous precedent; it undermines the rule of law

The recent majority judgment of the Supreme Court on a batch of review petitions and fresh writ petitions that had been filed against its judgment to allow the entry of women of all age groups into the Sabarimala temple in Kerala not only undermines the rule of law, it also opens a floodgate to writ petitions that could be filed challenging the court's order – ordinarily not permissible in law.

Let us first set out the majority judgment.

Authored by the CJI Ranjan Gogoi for himself and Justices A M Khanwilkar and Indu Malhotra, the majority left the Sabarimala review petitions and writ petitions pending till the determination of common issues, which, according to them, might arise in other pending cases such as Muslim women in dargahs and mosques, Parsi women married to a non-Parsi in the Agyari and the practice of female genital mutilation in the Dawoodi-Bohra community. The prospect of these issues arising in those cases and being referred to a larger bench could be ruled out, they said.

The issues as laid out by the majority decision for a possible reference to a larger bench are:

• The interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
• The sweep of the expression 'public order, morality and health' occurring in Article 25(1) of the Constitution.
• The expression 'morality' or 'constitutional morality' has not been defined in the Constitution. Is it an over-arching morality in reference to the Preamble of the Constitution of India or limited to religious beliefs or faith. There is a need to delineate the contours of that expression, lest it becomes subjective.
• The extent to which the court can enquire into the issue of whether a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.
• What is the meaning of the expression 'sections of Hindus' appearing in Article 25(2)(b) of the Constitution?
• Whether the "essential religious practices" of a religious denomination or even a section thereof are afforded constitutional protection under Article 26.
• What would be the permissible extent of judicial recognition of PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

The majority judgment also noted that the decision of the seven-judge bench of apex court in Commissioner, Hindu Religious Endowments, Madras vs Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) holding that the question of essential religious practices of a particular religious denomination should be left to be determined by that denomination and the subsequent view of a five-judge bench in Durgah Committee, Ajmer vs Syed Hussain Ali & Ors.carving out a role for the court in this regard to exclude what the courts could determine to be secular practices or superstitious beliefs seemed to be in apparent conflict, requiring the  consideration by a larger bench.

"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 the grant of a fresh opportunity to all interested parties may also have to be considered", the majority judgment said.

But what was it that the Supreme Court was being asked to review and what did it actually do?

The majority judgment violates the parameters of the court's review jurisdiction

The court was hearing a batch of review petitions and also fresh writ petitions that had been filed against its judgment allowing the entry of women of all age groups into Kerala's Sabarimala temple. Article 137 of the Constitution confers the power of review on the Supreme Court. There can, therefore, be no doubt that the court was well within its jurisdiction to hear and decide the review petition.

However, Order 47 Rule 1 of the Code of Civil Procedure (CPC) read with Order XLVII in Part IV of the Supreme Court Rules, 2013, fetters the review jurisdiction of the court. Thus, to maintain a review petition, there has to be a discovery of new and important matters or evidence which, after the exercise of due diligence was not within the petitioner's knowledge or could not be produced at the time the decree was passed or order made. A person may also apply for a review of a judgment if there is a mistake or error apparent on the face of the record, or for any other sufficient reason.

The majority judgment, which is nine pages long nowhere, mentions or attempts to deal with any of these three factors to decide on the review petitions. This is what it says instead:  "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". 

A bare perusal of the very first paragraph of the majority judgment would indicate that the three judges themselves concede that they had not dealt with the review petitions in accordance with the law prescribed for deciding review petitions. The decision is instead influenced or coloured by the pending writ petitions against the Sabarimala judgment.

The majority has commented on sub judice matters

The most worrying part of the majority judgment is that it has commented on matters that are sub judice, pending either before a division bench or a five-judge bench. It goes on to presuppose that the prospect of the issues arising in those cases being referred to a larger bench could not be ruled out. Such an observation coming from a five-judge bench has the potential to prejudice those pending cases.

Pertinently the Sabarimala case hasn't been referred to a larger bench but the issue involved in it and other similar cases have. The question then would be which case will a larger bench treat as the lead case to decide all of these issues?

Writ petition against a judgment not maintainable

Further, the emphasis on the several fresh writ petitions filed along with the review petitions in the majority judgment to skirt the parameters of  review petitions is without merit. It is settled law that an Article 32 petition does not lie against the judgment of a court. The Supreme Court more recently reiterated this position in National Lawyers Campaign For Judicial Transparency And Reforms & Ors vs Union of India [Writ Petition (C) NO. 191 OF 2019 ]

The majority judgment, however, takes note of the fresh writ petitions that were filed challenging the court's order to deflect the main issue that was before it. That, in effect, is a review of the court's order.

If at all, the writ petitions had to be examined, then, the ordinary procedure ought to have been followed. That is to say, those writ petitions should have been placed before a division bench of the apex court which could, in its wisdom, have chosen to refer them to a larger bench.

Justice Rohinton Nariman who authored the dissenting judgments for himself and Justice D Y Chandracud rightly observed-

"… 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. …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. Consequently, this judgment will dispose of the said review petitions and writ petitions keeping the parameters of judicial intervention in such cases in mind".

A dangerous precedent

By giving importance to and keeping the writ petitions pending, the Supreme Court has set a very dangerous precedent which could be detrimental to the rule of law. Once a judgment is pronounced, it becomes binding on everyone because of Article 141 of the Constitution which says the law declared by the Supreme Court shall be binding on all courts, which includes tribunals, within the territory of India.

The law, however, provides that an aggrieved party may resort to the review jurisdiction of the court and if the review petition does not succeed, then the aggrieved may file a curative petition. There is a proper channel/procedure in place, which ensures legal certainty and stability of a judgment.

In the Sabarimala case, the aggrieved filed both review petitions and writ petitions against the judgment. The review petitions should never have been heard along with the writ petition because the apex court in both the cases is guided by different parameters.

A review petition has to be decided strictly in terms of Order 47 Rule 1 of the Code of Civil Procedure (CPC) read with Order XLVII in Part IV of the Supreme Court Rules, 2013 which provide very narrow grounds to review a judgment if there is discovery of new evidence, mistake or error apparent on the face of record and sufficient reasons warranting the review.

To maintain a writ petition under Article 32, on the other hand, the petitioner has to show a violation of fundamental rights. It is well-settled law that a judgment cannot be said to have violated the fundamental right of a citizen. The writ petitions so filed should have been dismissed on this ground alone.

The majority judgment, however, in breach of settled law has set a dangerous precedent: now any person aggrieved with any judgment can turn up in court with a writ petition, and the court instead of dismissing it will be able to hear it even though there is no good reason in law.

One may recall that the Supreme Court while deciding the validity of Section 377 of the Indian Penal Code (homosexuality) had not disturbed the pending curative petition filed against the apex court's order upholding homosexuality as a crime. The reason was obvious. A curative petition stands on a different footing altogether.

A three-judge of the apex court in Navtej Singh Johar vs Union of India had made a reference to the larger bench after taking the note of the nine-judge bench decision in Justice K.S.Puttaswamy (Retd.) and another vs Union of India and others [privacy judgment-2017]  wherein it was observed that equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.

As a result, the matter was heard by a five-judge bench, which in per curiam decision read down Section 377 of the IPC.

In the Sabarimala case, on the other hand, the majority judgment failed to distinguish between the review petitions and the writ petitions and heard both categories of cases together, leading to an outcome that violates the rule of law.

Reliance on the sole dissent in Sabarimala                               

On a substantive issue, the review petitioners stressed heavily on the sole dissenting judgment of Justice Indu Malhotra who had held that Ayyappans or worshippers of the Sabarimala temple satisfied the requirements of being a religious denomination, or sect thereof, which was entitled to the protections provided by Article 26 of the Constitution.

The majority, on the other hand, in judgment under review had held that the devotees of Lord Ayyappa did not constitute a separate religious denomination and could not, therefore, claim the benefit of Article 26 or the proviso to Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.

Manifest error in Justice Indu Malhotra's dissent

Justice Malhotra in holding that Ayyappans satisfied the requirements of being a religious denomination, or sect thereof, had relied on the dissenting opinion of Justice Chinnappa Reddy in S.P. Mittal vs Union of India as a concurring opinion. Senior advocate Indira Jaising while arguing against the review petitions had brought this fact to the notice of the court.

Justice Nariman in the Sabarimala review, thus, observed-

"Ms Indira Jaising, learned Senior Advocate appearing on behalf of the intervenors in I.A. Nos. 21515 and 21521 of 2019, specifically referred to and relied upon the judgment of one of us, Nariman, J., where it was made clear that the judgment of Chinnappa Reddy, J. in S.P. Mittal v. Union of India, (1983) 1 SCC 51, was a dissenting judgment… According to her, in two places, the dissenting judgment of Malhotra, J. has strongly relied upon the judgment of Chinnappa Reddy, J. …  stating that the judgment of Chinnappa Reddy, J. is a concurring judgment on the aspect of religious denomination. Therefore, on the contrary, the conclusion of Malhotra, J., based on the observations contained in the dissenting judgment of Chinnappa Reddy, J., could not be said to be a possible view on this aspect. Without entering further into this controversy, we may only reiterate that the majority Judges have correctly held that the views of Chinnappa Reddy, J. are dissentient, as was recognized by Chinnappa Reddy, J. himself."

Justice Malhotra's dissent in the judgment under review quite clearly suffers from manifest error on the face of the record for treating the dissenting opinion of Justice Chinnappa Reddy in S P Mittal case as a concurring opinion. Her conclusion that the worshippers at the Sabarimala temple constituted a religious denomination based on the dissenting views of Justice Chinnappa Reddy must, therefore, be called into question.

More importantly, the majority judgment in the Sabarimala review case violates several procedural and substantive norms. It undermines the rule of law.

(The author is a practising advocate at Supreme Court of India. He assisted the senior advocate Indira Jaising in Sabarimala case)