Justice (retd.) AP Shah
Justice (retd.) AP Shah

Sabarimala Review: The Supreme Court has upended assumptions about its judgments being final, Justice AP Shah [Watch Video]

The retired judge also took critical note over the impunity of the government in ignoring the 2018 Sabarimala verdict.

Bar & Bench

Hours after a nine-judge Bench of the Supreme Court decided that there was no legal infirmity in referring questions to a larger Bench in a review petition, former Chief Justice of the Madras and Delhi High Courts Justice (retd.) AP Shah expressed his doubts over the same.

Speaking at the fourth LC Jain Memorial lecture on Monday, Justice Shah questioned the majority decision to defer the Sabarimala review until larger questions concerning religious rights and equality under the Constitution were answered by a larger Bench. The retired judge opined,

"The majority’s order in the Sabarimala review petitions seems to be beyond the scope of Article 137 of the Constitution."
Justice (retd.) AP Shah

Yesterday, a nine-judge Bench of the Supreme Court rejected a contention challenging the legality of referring questions to a larger Bench in a review petition, and having issues so framed decided first, before deciding on the review pleas challenging the 2018 Sabarimala verdict.

[Watch the video]

During his lecture, Justice Shah pointed out that the majority Bench had kept the issue immediately before it in limbo, even refraining to express whether it supported or disagreed with Justice Indu Malhotra’s sole dissent when the 2018 Sabarimala judgment was passed.

Referring to the curious order of the Supreme Court passed in the matter (Kantaru Rajeevaru v Indian Young Lawyers Association) Justice Shah pointed out,

“Review powers are used rarely, only when there is an error apparent on the face of the record, or a glaring omission or mistake. A review is not an appeal or a fresh consideration of a case. However, in Kantaru Rajeevaru, the Court directed a fresh hearing of the Sabarimala matter, by a larger Bench, without any reasons for the review, and without pointing out any grave errors in the judgment under review."

The retired judge also proceeded to take critical note of the impunity of the government in ignoring the 2018 Sabarimala verdict, which had allowed the entry of women into the Temple, regardless of age.

"The aftermath of the Sabarimala judgment has given rise to various causes of concern, including the impunity of the Central Government in ignoring the judgment of the Supreme Court, the re-opening of the judgment through a referral in the guise of a review, and the implications for the rule of law."
Justice AP Shah

He added that it also raises questions about the perceived finality of Supreme Court judgments.

The Supreme Court has often been characterised as supreme in the sense of final, but not infallible. The Court’s order in Kantaru Rajeevaru has now upended the assumptions about its judgments being final.”

[Read the full speech)

LCJain Memorial Lecture dt.10.02.2020.pdf
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