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Sabarimala: Supreme Court to pronounce order on maintainability of reference on Feb 10

Shruti Mahajan

A nine-Judge Bench of the Supreme Court today reserved its order on the maintainability of the reference made in Sabarimala's review judgment. The order will be pronounced on Monday, February 10.

The Bench headed by Chief Justice SA Bobde also said that the issues to be considered by the nine-Judge Bench on the larger question of women's rights vis-a-vis religious rights under Articles 25 and 26 will also be declared on Monday along with the order on maintainability. The hearing on those issues will commence on Wednesday, February 12.

the nine-Judge Bench constituted to hear the reference made during Sabarimala review.
the nine-Judge Bench constituted to hear the reference made during Sabarimala review.

The nine-Judge Bench which was set up to hear these larger Constitutional questions referred in the review order of Sabarimala case today carried out a day long hearing to address the issue of the maintainability of such a reference. 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.

Senior Counsel Nariman had opposed the maintainability of the reference, arguing that the scope of a review petition is very narrow and limited to any error in the main judgment. He submitted that the five-Judge Bench headed by the then CJI Ranjan Gogoi could not have made a reference of questions to a larger Bench while adjourning the review proceedings.

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 told the Court that review ands 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 future decision of the nine-Judge Bench.

Divan also argued against the maintainability of the reference on the grounds that the scope of review jurisdiction is very limited and that the powers of the Court to refer a matter to a larger Bench are subject to Order 47 of the Code of Civil Procedure and Article 145(3) of the Constitution.

Senior Advocate Abhishek Manu Singhvi, who favoured the reference, argued that there is no express bar on the Court from exercising its jurisdiction to refer questions to a larger Bench. Singhvi argued that the five-Judge Bench has sought "guidance" from a larger Bench to be able to decide on a matter of review. After the larger questions are settled by the nine-Judge Bench, the review petitions in Sabarimala will be reverted to the "review Bench" to decide the review finally.

Solicitor General Tushar Mehta also argued before the Court that the nomenclature of "review" petition was a mere technicality and that the Court cannot be stopped from doing complete justice based on a mere technicality. As the custodian of fundamental rights, the Supreme Court has the duty to lay down an authoritative judgment in questions of fundamental rights for posterity, Mehta had argued.

In addition to Nariman, Jaising, Divan, and Gupta, Senior Advocates Rakesh Dwivedi and Rajeev Dhavan also made their submissions opposing the maintainability of the reference.

Besides Singhvi and SG Mehta, the battery of Senior Advocates in favour of the maintainability of the reference included K Parasaran, CS Vaidyanathan, Ranjeet Kumar, V Giri, Arvind Datar and PS Narasimhan

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