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[Sabarimala] Not necessary to refer to facts to decide pure question of law: SC explains why question of law can be referred to larger Bench

The Supreme Court has explained why it took upon the task of defining the scope and ambit of the right to religion and whether a PIL can lay down questions on a religious custom.

Debayan Roy

A nine-judge bench of the Supreme Court today gave a detailed explanation for its February 10 order by which it held that questions of law can indeed be referred to a larger bench. (Kantara Rajeevaru v. Indian Young Lawyers Association and ors - Supreme Court Order - May 11)

This order was passed in the review petitions filed against the Apex Court's November 2019 decision to allow entry of women into the Sabarimala Temple.

Through its detailed order passed today, the Bench headed by led by Chief Justice of India SA Bobde has explained why it took upon the task of defining the scope and ambit of the right to religion and whether a PIL can lay down questions on a religious custom.

After ruling that the Sabarimala review petitions can be referred to a larger bench, the nine-judge bench has stated that the Courts can do complete justice in a case while invoking powers under Article 142 of the Constitution, which includes referring issues to a larger bench.

The Court has noted that there cannot be any matter which is beyond the jurisdiction of the Supreme Court.

"No matter is beyond the jurisdiction of a superior Court of record unless it is expressly shown to be so, under the provisions of the Constitution. In the absence of any express provision in the Constitution, this Court being a superior Court of record has jurisdiction in every matter and if there is any doubt, the Court has power to determine its jurisdiction."
Supreme Court

During arguments, the counsel appearing in the case had urged the Court that pure questions of law cannot be referred to a larger bench.

However, the CJI led nine-judge bench has held that a reference to facts is not needed to decide on a pure question of law.

"Regarding the contention that pure questions of law cannot be referred to a larger bench, it was argued that it is not possible for the Court to decide the reference without any facts of a particular case before it. We do not agree. It is not necessary to refer to facts to decide pure questions of law, especially those pertaining to the interpretation of the provisions of the Constitution."

The order states that "reference of pure questions of law have been answered by this Court earlier."

Some such instances were when the Court was convinced that a larger Bench has to discern the true scope and interpretation of Article 30 (1) of the Constitution of India.

On another occasion, an eleven-Judge Bench was constituted for the purpose and eleven questions of law were framed and answered in TMA Pai Foundation v. State of Karnataka. Further, the Court has stated,

"The question whether there is a constitutionally protected right to privacy was decided by a nine Judge Bench of this Court in Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. without reference to any facts."

It added that the determination of the scope of Articles 25 and 26 is of paramount importance. Thus, to adjudicate the reference, there is no requirement to refer to any disputed facts, the Court has held.

The Court then addressed the argument that reference to a larger bench in accordance with the proviso to Article 145(3) of the Constitution. can be made only in appeals and not in any other proceedings. Dismissing this contention, the order reads,

"However, the proviso deals with a situation when reference has to be made by a bench of less than five Judges. The present reference is made by a bench of five Judges and, therefore, the proviso to Article 145 (3) is not applicable."

Thus, it was held that the Sabarimala review petitions and the reference arising from the review petitions are maintainable.

The order was passed by a Bench of CJI Bobde and Justices R Banumathi, Ashok Bhushan, L Nageswara Rao, Mohan M Shantanagoudar, S Abdul Nazeer, R Subhash Reddy, BR Gavai, and Surya Kant.

Before the Court had delivered its order on the maintainability of the plea and reference to a larger Bench on February 10, the Court on February 6 held a day-long hearing to determine whether pure questions of law can be referred to a larger bench.

The issue of maintainability was raised by Senior Counsel Fali Nariman when this Bench had assembled on February 3 to hear all the parties on framing of issues.

Nariman found support from Senior Counsel Indira Jaising and Shyam Divan, with Jaising arguing that the order passed by the Supreme Court on November 14, 2019 is ambiguous on the aspect of whether the order comes on the review petitions or on the writ petitions and whether the order amounts to an adjournment order.

Senior Counsel Jaideep Gupta on February 6 had told the Court that review and reference matters are like "chalk and cheese" and that the decision in a review matter cannot be dependent on the outcome of a reference. He pointed out that in the instant case, the verdict on the review has been made dependent on the future decision of the nine-Judge Bench.

[Read the order]

Kantara Rajeevaru v. Indian Young Lawyers Association and ors - SC Order - May 11 .pdf
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