SC not to review Sabarimala case
A nine-judge Bench led by Chief Justice of India (CJI) Sharad A. Bobde on 13 January 2020 said its objective was not to review the Sabarimala women entry case but examine “larger issues” of law like the prohibition of women from entering mosques and temples to genital mutilation among Dawoodi Bohras and the banning of Parsi women who married inter-faith from entering the fire temple. Instead, the Bench would examine the legality and essentiality of religious beliefs which prohibit women from entering into mosques and temples; which allow genital mutilation by Dawoodi Bohras; and which ban Parsi women who married inter-faith to enter the fire temple.
- The Bench, however, clarified that it would not go into the legality of issues such as the practice of polygamy and ‘nikah-halala’ in Islam.
- Chief Justice Bobde explained that the basis of the Bench's judicial enquiry would be seven questions referred to a larger Bench by a five-judge Bench on November 14, 2019.
- On November 14, the five-judge Bench led by the then Chief Justice Ranjan Gogoi, instead of deciding the Sabarimala review entrusted to it, sought an “authoritative pronouncement” on the Court's power to decide the essentiality of religious practices.
- Framing seven questions, the Bench referred them to a seven-judge Bench. These referral questions included whether “essential religious practices” be afforded constitutional protection under Article 26 (freedom to manage religious affairs).
- Chief Justice Bobde, who succeeded Justice Gogoi, formed a Bench of nine rather than seven judges to examine these referred questions which concern multiple faiths.
- On 13 January 2020, Solicitor General Tushar Mehta said the referred questions were too broad and needed fine-tuning.
Senior lawyers’ contention
- Senior lawyers like Indira Jaising and Rajeev Dhavan said the Supreme Court cannot decide on the essentiality of religious practices. It was outside its jurisdiction. This Court cannot tell how religion is to be practised.
- They drew the Bench's attention to the Shrirur Mutt judgment of the Supreme Court of 1954. According to the 62-year-old verdict, the essentiality of religious practices should be decided in accordance with the religious doctrines of each faith. The Supreme Court has limited power of judicial review.
- The 1954 judgment held that any regulation could only extend to religious practices and activities which were economic, commercial or political in their character.
- Lawyers even asked whether the numerically stronger nine-judge Bench was formed to test the Shrirur Mutt verdict delivered by a seven-judge Bench, which had reduced the court's role and left the question of essentiality of religious practices to the wisdom of religious texts.
- The only reason to refer this to a nine-judge Bench seems to be that Shirur Mutt was decided by a seven-judge Bench. But no one has questioned that judgment.
What is a review petition?
- A judgment of the Supreme Court becomes the law of the land, according to the Constitution.
- It is final because it provides certainty for deciding future cases. However, the Constitution itself gives, under Article 137, the Supreme Court the power to review any of its judgments or orders.
- This departure from the Supreme Court’s final authority is entertained under specific, narrow grounds. So, when a review takes place, the law is that it is allowed not to take fresh stock of the case but to correct grave errors that have resulted in the miscarriage of justice.
- The court has the power to review its rulings to correct a “patent error” and not “minor mistakes of inconsequential import”.
- In a 1975 ruling, Justice Krishna Iyer said a review can be accepted “only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility”.
- It is rare for the Supreme Court to admit reviews.