THE PUZZLING MAINTAINABILITY OF THE “REFERENCE IN REVIEW” OF SABARIMALA
Updated: Aug 2
THE AFTERMATH OF THE SABARIMALA VERDICT
On 28th September 2018, a Constitutional Bench handed down a ruling in Writ Petition (Civil) No. 373 of 2006 (The official title of the petition is of particular interest). Two notifications and a portion of a rule which barred the entry of women aged between ten to fifty years to the Sabarimala Temple was held to be ultra vires the enabling parent Act and the Constitution, by a 4:1 majority with Malhotra J. dissenting.
The decision evoked mixed reactions and as many as 50 odd petitions were filed calling for the Supreme Court to review the decision. Supreme Court Rules delineate the clear threshold requirements for the maintainability of a review petition. It prescribes different requirements based on whether the proceeding is Civil/Criminal in nature. For Criminal proceedings, the requirement is to demonstrate an error apparent on the face of the Record and for Civil proceedings it is necessary to either,
a) produce some new evidence which could not have been produced earlier, or
b) demonstrate an error or mistake apparent on the face of the record, or
c) other sufficient analogous reasons.
Thus, there was a clear and a high threshold requirement laid down for the maintainability of a Review Petition.
THE 'REVIEW ORDER'
The composition of the Bench hearing the Review had undergone a Change with Dipak Misra, CJI retiring and the succeeding CJI (Gogoi) took the latter’s place on the bench. With the possibility of establishing the threshold for maintainability of the review being bleak, there wasn’t much that could be done, but the Gogoi, CJI was unwilling to let the matter rest at that. The matter was listed for hearing in open Court and by a 3:2 majority, the Court kept the review pending while simultaneously referring a set of questions to a larger bench of not less than seven judges. Gogoi, CJI penned the majority order and was joined by Khanwilkar and Malhotra JJ.
There were two reasons which were relied on by the majority for treating the Review Petition differently. First, was the fact that there were other pending Writ Petitions which challenged certain religious practices along with fresh Writ Petitions which re-agitated the questions resolved in Sabarimala. Secondly, was the conflict between Shirur Mutt and Durgah, which the Majority felt ought to be resolved in order to evolve a consistent approach. 
In my opinion, both those reasons do not withstand scrutiny. The fresh petitions on Sabarimala, ought to have been dismissed as not maintainable. The conflict between Shirur Mutt and Durgah was irrelevant to the issue at hand and so were the distinct Writ Petitions which were pending. The Dissent authored by R.F. Nariman joined by D.Y. Chandrachud confined their analysis to the question of whether the threshold for maintainability of the review was met and categorically concluded that the review was not maintainable.
9-JUDGE BENCH 'REASONING' AWAY A LONGSTANDING JURISDICTIONAL LIMITATION
Either way, Gogoi CJI retired and the incoming CJI, Sharad Bobde constituted a 9 judge bench in furtherance of the reference and proceeded to hear the reference. In the preliminary stage of the hearing, the maintainability of the reference was assaulted by linking it to the maintainability of the review. The argument was that a reference was impermissible at the stage of a review and in the alternative, even if it were permissible, such a reference can be validly made only if the review was maintainable.
The first limb of the argument questions the jurisdictional limits of the Court at the stage of review. The second limb questions the very existence of the review jurisdiction in the instant case. The second argument made the maintainability of the reference to hinge on the maintainability of the review. As already noted the maintainability of the review was suspect and the reference was possibly made by Gogoi CJI in order to circumvent the apparent jurisdictional limitation. These preliminary objections however, played spoilsport.
Thus, this time around Bobde CJI and eight other judges were put in a situation where there was nothing much they could do, but they weren’t going to let the matter rest at that. On 10th February 2020, The Supreme Court dismissed these preliminary objections and proceeded to frame the issues by noting that a ‘reasoned’ order would follow. In my opinion, it is perhaps difficult to label what followed as a ‘reasoned’ order.
The ‘reasoned’ order stated that:
a) the Supreme Court could make a reference while exercising its review jurisdiction;
b) the threshold for review applied only to civil and criminal proceedings, and that since “Writ Petitions…do not fall within the purview of civil and criminal proceeding” there was no requirement for these thresholds to be met in order for them to be maintainable.
Both of these holdings are problematic but the second one is the most egregious among them. As a standard practice, the Supreme Court itself classifies Writ Petitions as civil and criminal and numbers them as either as “Writ Petition (Civil) xyz of 20xx” or “Writ Petition (Criminal) xyz of 20xx”. It is astonishing that in a case which is titled Review Petition (Civil) No. 3358 of 2018 in Writ Petition (Civil) No. 373 of 2006, that the Court goes on to hold that the case is neither civil nor criminal. The order upturns the well-established jurisprudence on the review jurisdiction of the Supreme Court on its head.
This was the largest bench to ever rule on the question of jurisdictional limitations at the stage of review, but for some inexplicable reason this order has been tagged as “Non-Reportable”. Does the ‘non-reportable’ nature of the Order confine the effect of the ruling to that case alone? Or does this mean that future benches need not pay any attention to Supreme Court Rules while entertaining Review petitions (of a 32 petition)? Can future benches review their judgments (on 32 petitions) at whim? Only time will tell!
DISCONCERTING STATE OF AFFAIRS
Thus, a Court which ought to have become functus officio post the disposal of the petition, has pulled all stops to be able to examine the matter afresh and in that endeavour sacrificed process values. There are several other concerns of judicial probity in the entire saga, such as Dipak Misra CJI’s controversial practice of picking Benches, Khanwilkar J’s inexplicable swing vote in the Reference Order and Successive CJI’s (Gogoi and Bobde) attempt to circumvent jurisdictional limitations
Whereas Gogoi, CJI cognisant of jurisdictional limitation attempted to carve out an exception, Bobde CJI took it a notch above and “reasoned” away jurisdictional limitations of any sort. Lastly, the fact that eight other Judges of the Supreme Court had no qualms in signing the “reasoned” order of Bobde, CJI is perhaps the most disheartening event of them all.
 Indian Young Lawyers Association v State of Kerala, (2019) 11 SCC 1, . (Hereinafter ‘Sabarimala’).  One on 21st October 1955 and the other on 27th November 1956, both issued by the Travancore Devaswom Board.  Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry Rules), 1965, framed by the State of Kerala.  The Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.  Supreme Court Rules, 2013, Order XLVII.  Id. Order XLVII Rule 1.  Id. read with Code of Civil Procedure, 1908, Order XLVII, Rule 1.  Kantaru Rajeevaru v. Indian Young Lawyers Association, (2020) 2 SCC 1. (Hereinafter ‘Sabarimala Reference’).  Id. Ranjan Gogoi at paragraph 3, makes reference to the cases which were challenging the practice of excluding women from Durgah/Mosque, rights of Parsi women married to non-Parsis and the practice of Female Genital Mutilation among the Dawoodi Bohra community. (All paragraph references are from the copy of the judgment made available by the Court on its website).  Id. Ranjan Gogoi at paragraph 1.
 The Commissioner, Hindu Religious Endowments, Madras v Lakshmindra Thirtha Swamiar of Shri Shirur Mutt, AIR 1954 SC 282. (Hereinafter ‘Shirur Mutt’).  Durgah Committee, Ajmer v. Syed Hussain Ali, AIR 1961 SC 1402. (Hereinafter ‘Durgah’).  Sabarimala Reference, supra note 8. Ranjan Gogoi at paragraph 7.  Id. RF Nariman at paragraph 29, cites Naresh Mirajkar v. State of Madhya Pradesh, (1996) 3 SCR 744 and Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388.  The Conflict had been noted long ago by Lakshmanan J. in Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta, (1983) 4 SCC 522. and was even referred to by D.Y. Chandrachud J. in his concurring opinion in Sabarimala, supra note 1. He, however, did not engage with the question as it did not directly arise for adjudication in the case.  See Order dated 10th February 2020 in R.P. (C) No. 3358/2018.paragraph 8 (Hereinafter ‘maintainability of reference in review').  See Record of Proceedings of R.P. (C) No. 3358/2018 on 10-2-2020.  Maintainability of reference in review, supra note 16. at paragraph 14.