Sc we will confer and frame the issues. On Thursday, we will fix the allocation of time (among counsel). The hearing will start next week”, stated the CJ as the bench rose.

The 9-judge bench of the Supreme Court, constituted to consider the issues referred by the 5-judge bench in Sabarimala review order, has decided to frame the issues by themselves, after the lawyers in the case could not reach a consensus on that.
Solicitor General Tushar Mehta submitted that the bench may fix the issues in chamber- “Issues were suggested by everyone but we couldn’t agree. The suggestions are anyway subject to Your Lordships approval. So instead of debating here, knowing that we won’t agree, Your Lordships may fix the issues in chamber”

“We have talked about it. There is no point holding up everything for the sake of the issues. We will decide the issues with the rider that there may be additional issues at any time under Order 14”, agreed Chief Justice S. A. Bobde.

Senior Advocate Fali S. Nariman argued on propriety of the reference to 9-judge bench-
“In rendering an opinion on review, there cannot be any going beyond the scope of the review. There cannot be any abstract questions which are not arising in the case itself. This has been the practice of your Lordships of the Privy Council, of the House of Lords …Questions in the Sabarimala case were referred to a five-judge bench by a three-judge bench. And the five-judge bench answered these questions by 4:1. They said you are not a separate sect because you are worshipping a particular idol…The heading is ‘Sabarimala case’! It is a review petition. It cannot be A v. B. There have to be some facts!…The scope of a decision in review is extremely limited- is the answer to a question correct or not! Is the decision correct or not! The suggestion of CJ Gogoi made an extraordinary rule. Unlike the Bombay High Court, we don’t have a practice of originating summons…”

“Besides Sabarimala, we also have other cases before us…”, ventured the CJ.

“One provision of the Supreme Court Rules will assist Your Lordships- Order 6 Rule 2. If you feel there will be a larger debate on the contours of Articles 25, 26 and the PIL jurisdiction, you can refer matters even other than Sabarimala to the larger bench”, supplemented the SG. “Your Lordships had clarified and segregated on the previous occassion that those individual cases will not be touched and that only those papers will be kept…”, he continued.

When the CJ observed that they have a referral order, Mr. Nariman advanced, “Actually, it s an adjournment order that the review cannot be decided right now…”

“The fact of the matter is that we have questions referred to us by a five-judge bench. What is referred to us is not the review petitions”, noted the CJ. “but these questions don’t arise in the Sabarimala case”, insisted mr. Nariman.

“Questions some of which arose in the Sabarimala case, others in the mosque entry case, the FGM and the Parsi woman matters. Now the bench found that the answer to each case would involve Article 25 and other fundamental rights- balancing, as they call it. That is why the questions were referred to us. We don’t have the review before us. The order says that the review will be decided at a later stage. We don’t believe that we are deciding the Sabarimala review. We propose to only answer the questions”, iterated the CJ.

“In 2017, a three-judge bench of the then CJ Dipak Misra and Justices R. Banumathi and Ashok Bhushan had referred the Sabarimala matter to a larger bench, framing 5 questions. These questions were answered by the five-judge bench headed by CJ Misra. It was this decision which was sought to be reviewed., which is governed by Order 47 (of the CPC). Its scope is very restrictive”, pressed Mr. Nariman.

“Is it the contention that while hearing the review of one judgment, the court cannot refer to a larger bench some questions which also arise in other cases?”, asked CJ Bobde.
“Yes! It is beyond the purview! I am not suggesting Your Lordships should not constitute a 9-judge bench. That is Your Lordships’ privilege. But this will set a precedent in law”, said Mr. Nariman.

“We said we are not deciding the review petition, the Agyari case (Parsi women case) etc. We are only on the interpretation of Articles. We will have the hearing in a preliminary, cursory manner”, repeated the CJ. “That is what! Speaking without deciding!…Without any facts, it is difficult”, argued Mr. Nariman.

“We will frame what Mr. Nariman is arguing as a separate issue. And we will hear it along with the reference”, suggested the CJ. “But Your Lordships have to decide the preliminary issue before hearing others”, intervened Senior Counsel Indira Jaising.

“We will do that. What Mr. Nariman says is correct- to decide the issues as and when they arise in each case. That is the usual practice. But what will happen is that these issues will arise again and again, resulting in a reference”, reflected the CJ.
“No issue can be decided without facts. For instance, in the Parsi woman case, the question is whether the woman could be said to lose her religion upon marriage. It is unconnected with 25 and 26. Once that question is answered, then 25, 26 come in”, urged Ms. Jaising.

“The mosque entry case was before me and Justice (Abdul) Nazeer. There was a section which said that they don’t allow the entry. Some say that enter the mosque but not along with a man. Now all of this we won’t decide. In any case, we are not deciding the petitions”, said CJ Bobde.

“To say something de hors the facts will present a dangerous situation! If a 9-judge bench of the Supreme Court says something, it will have ramifications across the entire country, across all religions!”, interjected Senior Advocate Kapil Sibal.

“Give an example of what you are saying”, demanded the CJ.
” (Articles) 21, 14, 17 have to be seen in the context of religious practices. Any statement you make will impact every community across the board! The right to dignity will impact the entire caste system!”, contended Mr. Sibal.

“Also, in the FGM case, if you say that which is a crime is not protected under 25, 26…?”, added Ms. Jaising.

“If we say crime is not covered under 25 and 26, that will not impact any factual situation. We will say crimes are not protected”, assured the CJ.

“They are taking us back to the review. And asking not to do anything else. Is that permissible?”, wondered the SG.

“We assembled to decide broadly what to decide- the issues. Now we are hearing if at all to decide. The question of reference to this 9-judge bench may not be open at all! Now we are not only the review of the 5-judge bench decision but also the review of the 9-judge bench’s last order! Your Lordships should consider framing a broad charter from the two sets of issues, converging the two…(in suggesting the issues) I have tried to maintain fidelity to CJ Gogoi. I have tried to keep them case-neutral, fact-neutral, and they can be ironed out further in the course of the hearing. Otherwise, we will keep arguing on whether to hear!”, began Senior Counsel Abhishek Manu Singhvi.

“This reference is permissible. But when there is a decided case and a review is pending, there cannot be an appeal. Once a case is decided, it goes into a character of its own. It cannot be adjourned or postponed…the reference is correct because in our view, the Essential Practices doctrine of the 50s is wrong (‘Not our view’, clarified Ms. Jaising). It is a fraud approach…in the 1990 cases, ‘integral’ was added to ‘essential’. Then there is the concept of ‘particular significance’ and ‘comparative significance’…can the court have the right to tell one what their religion is? All across the world, it is bona fide! (‘This would be excellent for a book’, commented Ms. Jaising)… My view is that the reference to this bench, in the light of the 7-judge bench in Shirur Mutt, in the cases not decided is perfectly valid. Your Lordships may do what was done in TMA Pai, that these are our answer and now smaller benches can decide particular cases…Religion is the same as free speech, restricted only for public order, etc”, submitted Senior Advocate Rajeev Dhawan.

“Secular practices?”, asked the CJ. “Practice is one part, limitation another. Your Lordships have to consider the constitutional limitations from the point of 14, 17, etc and then x-ray the religions from the view of the limitations. That is the balance you have to achieve. If your Lordships say that this is not your religion, you are killing something at the threshold!…the distinction between Sabarimala and the other cases is that Sabarimala is decided”, replied Dr. Dhawan. When the CJ spoke of not deciding the Sabarimala review either, Dr. Dhawan remarked that the Sabarimala case would then be left in limbo.

“It is nowhere said that the judgment is erroneous on the face of it. Unless you find fault with the judgment, the reference question doesn’t arise. Whether it is right or wrong? What is the infirmity?”, stressed Senior Counsel Rakesh Dwivedi, backing Mr. Nariman.
“One of the petitions (on mosque entry of women) was before us. We were planning to refer it to a larger bench”, said CJ Bobde. When a Senior Advocate pointed out that the reference had not actually been made, CJ Bobde commented, “But it was going on in our minds”.

When Mr. Sibal mentioned the upholding of the Essential Religious Practices, the CJ explained, “We will go into what is essential. Which particular practice is essential”. “The Muslim Personal Law Board has said in its affidavit that the entry is allowed”, advanced Mr. Sibal.
“If it is not an issue, then we won’t raise it”, assured the CJ.

“14 deals with state action. It means the law. 25 gives protection from the law. But many petitions have come without reference to any law. How will you deal with that? Someone is saying Halala is bad. Who are they to say that?”, continued Mr. Sibal.

“The principle of harmonious construction will have to be applied. In every other aspect, the denomination will have its practice, but in respect of entry, 25 will prevail”, it was suggested.

“The bar and the bench must understand what is the issue. And to approve or disapprove it. We need not go into facts”, noted the CJ.

Indicating the order of reference of November 14, 2019 , Senior Counsel Shyam Diwan pointed out that there were two sets of case before the court- the review petitions and a series of writ petitions. He stressed on CJ Gogoi’s averment that since certain issues in the Sabarimala case “may be” overlapping with those in the matters of FGM, Parsi woman married to a Hindu and mosque entry, the “prospect” of their reference to a larger bench “cannot be ruled out”. Highlighting the phraseology employed in the reference order, such as “seem to be in apparent conflict”, he submitted, “Nothing is certain. Everything in the reference order is in the nature of speculation, surmise”

“‘Maybe’ was used because, like Mr. Sibal said, there is no issue at all…that the issues arise is not conjecture. Only the reference is…The only thing the court was not certain about is whether the questions are to be referred to a larger bench. Because that had not been done. But it was known that the petitions are pending and that the questions will arise! Only the prospect of reference was hypothetical!”, corrected CJ Bobde.

“9-judge benches are rare and therefore, the issues need to be construed in the narrowest manner possible”, continued Mr. Diwan.
“We are glad you pointed this out. We will keep them as narrow as possible…but we see nothing in the order which may concern the writ petitions that are pending”, stated CJ Bobde.

“CJ Gogoi notes that there are review petitions before us as well as writ petitions. He says they may remain pending until the questions are decided. In the review petitions, there is a narrow jurisdiction. In the writ petitions, there is no jurisdiction. In the non-maintainable writ petitions, there is no question of reference! You could have done it by the September, 2018 judgment in the Sabarimala case!”, answered Mr. Diwan.

“What is the law restraining the court from making a reference where a review is pending?”, probed CJ Bobde.
“It would have an enormous destabilising effect on the rule of law if in a review, reference is made to a 7 or a 9 judge bench”, said Mr. Diwan. 
After the submissions, the CJI said that the bench will frame the issues by themselves. The CJI also indicated that the bench will consider the preliminary issue of whether the reference is maintainable.
On January 13, the nine-judge bench led by CJI SA Bobde had asked the lawyers in the case to have a conference for re-framing the issues. This was after the bench agreed with the submissions that the 7 questions referred in the order passed by the Sabarimala review bench on November 14, 2019 were too broad.

After that, the lawyers had a conference on January 17, but could not reach a common ground regarding the issues.
“These are all possible points. Let’s keep that as an issue. But we won’t decide this now”, said CJ Bobde.

“Instead of framing this as an issue, hear both sides first on the set of preliminary issues. Because if you will have a full hearing, then the point of a preliminary issue is lost…You are plenary in a manner of speaking because you are the apex court and also have the 32 jurisdiction. But to answer questions which may or may not arise, to lay down the law for posterity, this is advice Your Lordships should decline immediately!”, asserted Mr. Diwan.

Even as CJ Bobde clarified that the reference order in fact said that the issues may or may not be referred to a larger bench and not that they may or may not arise, the SG countered that “these observations against judges were uncalled for” and could amount to “contempt”.

“We will proceed in accordance with the issues we determine after this hearing”, observed the CJ.

“Please let there not be open-ended questions. Please don’t frame questions like those being suggested by the counsel in this proceeding. It is a review proceeding at the end of the day!”, pressed Mr. Diwan.

At the plea of another advocate, the bench agreed to consider if question no. 7 of the 2019 reference order, “What would be the permissible extent of judicial recognition to 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?”, could also be regarded as a preliminary issue.

Further, Senior Advocate K. Parasaran took to the decisions in Sheela Barse and Bandhua Mukti Morcha to distinguish between Public Interest Litigation and ordinary litigation-
“PIL is an innovative jurisdiction, a constitutional jurisdiction. There does not have to be a one-shot disposal. Any question can be answered, any procedure can be followed. Your Lordships have the jurisdiction but it is upto you whether to exercise it or not”

“Sabarimala, the mosque entry case, FGM are all Public Interest Litigations. Even in the Parsi case, there is an element of public interest involved”, concurred CJ Bobde.

With regard to Mr. Diwan’s contention as to issues which have not yet arisen, he relied on the 1992 Mandal Commission case, where Mr. Parasaran’s own claim that the matter was confined to question of reservation in recruitment and did not extend to the stage of promotions was overruled, with the court declaring that “…it must be remembered that reference to this larger Bench was made with a view to ‘finally settle the legal position relating to reservations’. The idea was to have a final look at the said question by a larger Bench to settle the law in an authoritative way…”

“New developments are coming. It is better to remedy early than late. That there can be no reference in a review is a restrictive argument!”, he submitted.

“Your Lordships have clarified that the review petitions and the writ petitions in Sabarimala are pending and are not to be decided. Any opinion on these questions won’t dispose off anything so there is no need to harbour any anxiety!”, buttressed Senior Advocate V. Giri.

Senior Counsel K. Radhakrishnan also relied on the 2019 reference order in as much as it read that “…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. Indubitably, decision by a larger bench will also pave way to instil public confidence and effectuate the principle underlying Article 145(3) of the Constitution…”

“Either there is no limit as to remedy, as in a PIL, or if there is a private dispute, like the Parsi woman’s case, Your Lordships may treat it as a representative case. Order 1 Rule 8 can be taken recourse to to hear other people”, ventured Dr. Dhawan.

Senior Counsel Ranjit Kumar insisted that if the conflict is between a 7-judge bench in Shirur Mutt and a 5-judge bench in Dargah Committee, then the question of the present bench not deciding does not arise as the conflict can be resolved only by a 9-judge bench.

He further relied on Order 38 Rule 1 of the Supreme Court Rules which states that “Every petition under Article 32 shall be heard by a Division Court of not less than five Judges” unless it does not raise a substantial question of law as to the interpretation of the Constitution. Besides, Order 55 Rule 6 announces that “Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court”, “So Your Lordships can say the Bombay High Court has originating summons and you don’t”, argued Mr. Kumar.

When a “woman devotee” sought permission to file issues, urging that if she wasn’t allowed to do so, “where is the justice?”, the CJ rebuked her for casting aspersions.

“So we will confer and frame the issues. On Thursday, we will fix the allocation of time (among counsel). The hearing will start next week”, stated the CJ as the bench rose.

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