Majority order on Sabarimala sans jurisdiction

Rakesh Dwivedi
Senior Advocate, Supreme Court

The majority order in Sabarimala review petitions is beyond the scope of Article 137 of the Constitution which confers power of review on the Supreme Court. The reviewing power is subject to law made by Parliament and Rules made by the Supreme Court under Article 145 of the Constitution [Order 47 embodied in the Supreme Court Rules, 2013]. The ambit of the review power is limited. Review is not an appeal or a de novo consideration of the matter. The review court must ascertain if the judgment under review suffers from glaring omission or patent mistake or grave error apparent on the face of record. With reference to Sow Chandra Kanta vs Sheikh Habib (1975), Article 137 would not permit ordering of a fresh hearing by a larger Bench without scrutiny of judgment under review and without pointing out the grave error apparent on the face of record. 

However, this is precisely what the majority order does. It does not scrutinise the majority judgment dated September 28, 2018; it points out no error in the said judgment; it does not endorse the dissenting judgment of Justice Indu Malhotra. Instead, it takes note of other matters where entry of women in mosque and agyari as well as mutilation of female genital in the Dawoodi Bohra community are involved and merely makes a reference of certain framed issues for authoritative pronouncement by a larger Bench.

However, it does not refer the review petitions to the larger Bench but keeps them pending until determination by a larger Bench. It also seeks to empower the larger Bench to decide all issues and consider granting fresh opportunity to all interested parties if it considers that to be appropriate. So, judgment under review has been sidelined without scrutiny.

In an extremely strong dissent against the reference to a larger Bench, reminiscent of dissents in US Supreme Court cases, Justices RF Nariman and DY Chandrachud said that “what this court has before it is review petitions arising out of the court judgment dated 28.09.2018 in Indian Young Lawyers Association vs State of Kerala”, and “what a future Constitution Bench or larger Bench, if constituted by the learned CJI, may or may not do when considering the other issues pending before this court is, strictly speaking, not before this court at all.”

This is significant as the other cases were not even there before the review Bench and nobody addressed the court on the issues that may be involved in the cases pertaining to mosques, agyari or Dawoodi Bohra actions. In fact. clearly the majority order in review has meandered out and away from the limits of review jurisdiction. 

The majority referral points out apparent conflict between Shirur Mutt case (seven-judge Bench) and Durgah Committee case (five-judge Bench). 

First of all, if there is a conflict, then Shirur Mutt prevails. 

Secondly, Shirur Mutt did not involve a conflict between Articles 25 and 26 with other fundamental rights with respect to worship by women of the same community. Therefore, Shirur Mutt did not discuss the express subservience of Article 25(1) to the other fundamental rights in Part III of the Constitution as indicated by the expression, “Subject to  public order, morality and health and to  the other provisions of this part…”  

Thirdly, there was no occasion for the court to determine whether and to what extent it could examine and determine whether a practice was an essential religious practice based on denominational doctrines. 

Fourthly, relation of Article 26 with Article 25(2)(b) was not involved. 

Fifthly, the court had no occasion to consider right to human dignity which is a recent evolution in Puttaswamy’s (Aadhaar) case penned by a nine-judge Bench. Dominance of Article 25(2)(b) pertaining to throwing open Hindu religious institution to all classes and sections of Hindus was laid down only in the Sri V Devaru’s case in 1958 and followed in Sastri Yagnapurushadji in 1966. The judgments in the Sabarimala case have considered the entire evolution of law. In the Durgah Committee case, the debate did not focus on the scope of Article 25. Focus was on Article 26(c) and (d). It did not, in particular, decide about essential religious practices. There is nothing in the Durgah Committee case which is in conflict with Shirur Mutt. The majority order is, therefore, completely wrong in this respect. 

Sabarimala was the first case where rights of women to enter place of worship came up for consideration. Articles 25 and 26 had to be considered in the light of fundamental rights of women under Article 25(1) as well as Articles 14 and 21 which protect their dignity and equality. Then CJI Dipak Misra and Justice AM Khanwilkar said: “The subversion and repression of women under the garb of biological or physiological factors cannot be given the seal of legitimacy. Any rule based on discrimination or segregation of women pertaining to biological characteristics is not only unfounded, indefensible and implausible but can also never pass the muster of constitutionality.” Disconcertingly, Justice Khanwilkar joined the majority order rendered by then CJI Ranjan Gogoi. 

Now, with this referral twist to the Sabarimala story, we find a hesitancy and reluctance on the part of the Supreme Court to open doors of places of worship to women. It took a valiant step forward only to take two steps backward. 

As of now, there is no majority judgment or dissent on merits of review petitions. The majority-minority dichotomy rests only on reference issue. On merits, there is only one judgment of two judges which has rejected the review petitions. So, on merits, there is no dissent. The majority order has also not passed any direction of interim stay. Earlier, a five-judge Bench had, in an order dated November 13, 2018, refused a prayer for stay of the main judgment. Hence, the main judgment dated September 28, 2018, continues to operate and all concerned must act to implement it.