Sabarimala: A Hotch-Potch Review

“Hotch-potch”, traditionally refers to a kind of pudding, and is a term used in English property jurisprudence to denote a state of “blending and mixing of property belonging to different people in order to divide it fairly.” Much to the dismay of constitutional law puritans, a hotch-potch is exactly what appears to have happened in the majority decision of the Supreme Court in the Sabarimala review petition. Various issues, functions, and roles of the Supreme Court have been tossed together, perceptibly, for the sake of arriving at a ‘fair’ decision.

Review before the Supreme Court occurs in exceptionally rare circumstances where a previously delivered judgment is re-examined, mostly by the same bench, unless a previous member has retired. The grounds for review are narrowly prescribed as being the discovery of new and important matter or evidence which was not within the parties’ knowledge or could not be produced when the original decree was passed, or a mistake or error apparent on the face of the record, which has resulted in a wrong verdict being passed.

This begs the question: what were these apparent legal errors or new facts that compelled the re-examination of the Sabarimala judgment?

It is important to highlight that normally, once a judgment is rendered by the Supreme Court, no appeal by way of the writ petition is maintainable. Challenge only lies by way of a review and eventually a curative petition. But recently a disturbing new trend of filing writ petitions, alongside the review or curative petition, has started as was also witnessed in the Section 377 case. Innumerable decisions have held that a review is not a fresh hearing or a re-agitation of the same issues.

Ignoring these important parameters, the opening sentence of the majority decision notes that “[o]rdinarily, review petitions ought to proceed on the principle predicated in Order XLVII in Part IV of the Supreme Court Rules, 2013.” The use of the word “ordinarily” suggests that there are other principles on which a review may be conducted, which is again contrary to the current legal position and thus leads one to question the very premise of the majority opinion. Rather than referring to any apparent legal error, the verdict refers to a slew of pending cases pertaining to the validity of religious practices relating to the entry of women to Durgahs/Mosques, the entry of Parsi women married to non-Parsis into the holy fireplace of an Agyari, and female genital mutilation in Dawoodi Bohra. As these cases are pending before the Apex Court, and by implication cannot constitute a legal precedent till they are finally decided, the Court proceeded to invoke its plenary powers “to do substantial and complete justice” for “an authoritative enunciation of the constitutional principles.” The reasoning being that these cases “may be overlapping and covered by the judgment under review”, without actually holding that such issues do, in fact, overlap.

The majority decision continues to expound upon an “apparent conflict” between two judgments and also observes that a larger bench “may also consider it appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all.” In light of that, it opines that based on the outcome of the ruling of a larger bench that will be constituted in the future, the Court should determine whether to grant a fresh opportunity to all interested parties in the Sabarimala case. All this is without precedence and not provided for in our constitutional mechanism.

Notably, the same week as the Sabarimala review decision, another three-judge bench of the Supreme Court, while refusing to refer the Karnataka MLA disqualification case to a larger bench, observed that “if the questions having a determining effect on the final outcome have already been decided by a conclusive authority, then such questions cannot be called as “substantial questions of law” and further stipulated that “casual and cavalier references should not be undertaken by this Court in view of conditions prescribed under Article 145(3) of the Constitution, which mandates a responsibility upon this Court not to indulge in excessive academic endeavors and preserve precious judicial time, and effectively dispense justice in a timely fashion.” Incidentally, in the Sabarimala Review case, the three-judge majority of the five-judge bench places reliance on the same Article of the Constitution, which is really not applicable when the Supreme Court is exercising its review jurisdiction, to arrive at a different outcome and refer the case to a bench larger than itself, i.e. seven judges.

In stark contrast, the minority decision correctly notes what the Court had before it was only the narrow question as to whether grounds for review and for filing of writ petitions qua the judgment in Sabarimala case have been made.

“What a future constitution bench or larger bench may or may not do when considering the other issues pending before this Court is, strictly speaking, not before this Court at all.”

The minority decision then goes on to observe that as and when the other pending matters relating to Muslims, Parsis and Dawoodi Bohras are heard, the concerned bench may well refer to the Sabarimala judgment, and “may either apply such judgment, distinguish such judgment, or refer an issue/issues which arise from the said judgment for determination by a larger bench. All this is for future Constitution benches or larger benches to do.” Dismissing the review petition, the minority decision also notes that all the writ petitions filed attacking the majority decision of 2018 are also dismissed as not being maintainable. Thereby reiterating the position of law as postulated by a five-judge constitutional bench in the landmark Ashok Hurra case that an order passed by the Supreme Court was not amenable to the writ jurisdiction under Article 32 of the Constitution.

Owing to the above differing views, the overall result of the Sabarimala review decision, as confusing as it may be, is that the original constitution bench decision has not been set aside in review, and, resultantly the original five-judge decision is still good law. The review has been kept pending till questions which ‘may’ be overlapping and which ‘may’ be referred to a larger bench are decided either by the current constitution bench hearing such matters, or upon reference to a seven-judge constitution bench as the Sabarimala review majority decision suggests. Under such circumstances, and notwithstanding public sentiment, it is difficult to accept the Kerala Government’s stand of not permitting the 319 women who are registered for darshan to be turned away. More so when the minority decision makes it amply clear that the Kerala government must give wide publicity to the September 2018 judgments which at present is the law of the land.

It is also confusing on whether there’s been a mixing up of the responsibilities of the Chief Justice on the administrative side, as the Master of the Roster, in referring matters to larger benches and clubbing cases together, with his judicial function, while sitting as a replacement to the erstwhile Chief Justice hearing the Sabarimala review petition. One wonders, if the Chief Justice who headed the bench hearing the review petition, had not been the one who replaced the previous Chief Justice and had the bench consisted of any other puisne Judge, in such circumstance would it have still been appropriate for the Court to have passed such order (as the majority has in the Sabarimala review) taking into account matters pending before different judges/benches.

The U.S. Supreme Court Judge Oliver Wendell Holmes Jr. was right in observing that “hard cases make bad law” meaning that “an extreme case is a poor basis for a general law that would cover a wider range of less extreme cases.”

Indeed, Courts should tread cautiously when dealing with religious issues. And no matter what one felt about the original Sabarimala verdict, it needs to be remembered that just because a Court is confronted with sensitive religious issues is not an adequate reason to give a go-by to established legal principles or precedents.

As Chief Justice Gwyer speaking for the Federal Court observed, “it would in our opinion be intolerable and most prejudicial to the public interest if cases once decided by the Court could be re-opened and re-heard.” Relying on the maxim “Interest Reipublicae Ut Sit Finis Litium” which means that it is in the interest of the society as a whole that litigation must come to an end, one should remember that doubts shouldn’t and can’t be cast on the finality of court decisions. Or else, the resultant harm is always going to be greater than the ill at hand that is sought to be addressed.

Satvik Varma is a litigation counsel and corporate attorney based in New Delhi. A graduate of Harvard Law School, he’s licensed to practice both in India and New York.