Sabarimala Reference order: Will the expansion of the Supreme Court's jurisdiction open the floodgates?

On November 14, 2019 the Supreme Court, while adjourning review and writ petitions filed against the judgment passed by a Constitution Bench in Indian Young Lawyers Association and Ors. v. State of Kerala, (better known as the Sabarimala case) framed various issues for constitutional interpretation and made a reference to a larger bench comprising nine judges to adjudicate upon the issues.

The final adjudication in the review and writ petitions were made subject to the outcome of the reference and those petitions were left pending.

While hearing the reference, a nine-judge Bench headed by the Chief Justice of India was called upon to first decide the maintainability of the review petitions as well legality of the reference to the larger bench.

On February 10, it held that the Supreme Court can refer questions of law to a larger bench while hearing review petitions. However, the Court didn’t provide any reasons in the said order and stated that the reasons will follow.

Eventually, on May 11, 2020, the reasoned judgment was published by the Court.

Maintainability of the Review Petitions

Article 145 of the Constitution empowers the Supreme Court to frame rules of practice and procedure, including procedure for deciding review petitions. Pursuant to this power, the Court framed the Supreme Court Rules, 2013 (SCR) which provides the procedure to decide review petitions under Order XLVII. Rule 1 reads as follows:

“The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record. The application for review shall be accompanied by a certificate of the Advocate on Record certifying that it is the first application for review and is based on the grounds admissible under the Rules.”

While deciding the issue of maintainability of the Sabarimala review petitions, the Court noted that review was sought of a judgment arising out of a writ petition, whereas the conditions imposed on grounds of review by Order XLVII Rule 1 of the SCR was limited to civil and criminal proceedings.

Part II of the SCR deals with civil and criminal appeals, and special leave petitions; whereas Part III of the SCR deals with writ petitions. The Court therefore held that only Part II deals with civil or criminal ‘proceedings’ which were distinct from writ petitions under Part III.

Therefore, it held that the restriction on grounds of review imposed by Order XLVII Rule 1 of the SCR would not be applicable to review petitions arising out of writ petitions.

This finding appears to be contrary to a procedural aspect of practice before the Supreme Court itself. Writ petitions are categorized as either civil or criminal by the Registry of the Supreme Court itself. However, this is mere procedure which would not act as a fetter to reach the conclusion that the Court reached in the present case.

However, in the case of SAL Narayan Row v. Ishwarlal Bhagwandas, the Supreme Court held that any proceeding for relief against infringement of civil right of a person is a civil proceeding. Furthermore, the Court while interpreting the term “civil proceedings” under Article 133(1) held that the same will include writ proceedings before the High Court under Article 226. It held that:

“11. By a petition for writ under Article 226 of the Constitution, extraordinary jurisdiction of the High Court to issue high prerogative writs granting relief in special cases to persons aggrieved by the exercise of authority statutory to otherwise by public officer or authorities is invoked. This jurisdiction is undoubtedly special and exclusive, but on that account the nature of the proceeding in which it is exercised is not altered.…

...16. On a careful review of the provisions of the Constitution, we are of the opinion that there is no ground for restricting the expression civil proceeding only to those proceedings which arise out of civil suits or proceedings which are tried as civil suits, nor is there any rational basis for excluding from its purview proceedings instituted and tried in the High Court in exercise of its jurisdiction under Article 226, where the aggrieved party seeks relief against infringement civil rights by authorities purporting to act in exercise of the powers conferred upon them by revenue statues.”

The SAL Narayan Row case was decided by a Bench of five judges, and technically the nine-judge Bench was not bound by it. However, the Court did not even discuss the said judgment. It neither distinguished it from the present case nor expressly overruled it.

So the end result is a conflict of opinion with regard to treatment given to the nature of writ petitions under Article 226 in the above mentioned case, and the nature of writ petitions under Article 32 in the present case.

The Court also contradicts itself in the same judgment when it comes to the interpretation of the term ‘proceedings’. On one hand, it restricts the meaning of ‘proceedings’ in Order XLVII Rule 1 of the SCR to only civil and criminal appeals, and special leave petitions. On the other hand, in paragraph 21 of the judgment, it finds that:

"21. … The term ‘proceeding’ is a very comprehensive term and generally speaking, means a prescribed course of action for enforcing a legal right. It is a term giving the widest freedom to a Court of law so that it may do justice to the parties in the case."

By this interpretation, even writ petitions under Article 32 would fall within the purview of civil or criminal proceedings mentioned in Order XLVII Rule 1 of the SCR. The above finding is also in line with the judgment in the SAL Narayan Row case.

Reference in a pending Review Petition

Another contention raised before the nine-judge Bench was that reference to a larger bench cannot be made in a pending review petition. The Supreme Court, while rejecting the contention, held that:

“No matter is beyond the jurisdiction of a superior Court of record unless it is expressly shown to be so, under the provisions of the Constitution. In the absence of any express provision in the Constitution, this Court being a superior Court of record has jurisdiction in every matter and if there is any doubt, the Court has power to determine its jurisdiction.”

The Court relied upon its judgment in Delhi Judicial Service Association v. State of Gujarat to reach the conclusion that it has the jurisdiction to make a reference on questions of law even in pending review petitions.

It is pertinent to note that the Delhi Judicial Service Association case pertained to the Supreme Court’s power to punish criminal contempt of subordinate courts. The Court had held that as a court of record, it has protective jurisdiction even over subordinate courts under Article 129, in addition to supervisory jurisdiction under Article 136, therefore empowering it to punish acts of criminal contempt against any subordinate court.

While the said judgment discussed in detail how such jurisdiction was inherent in the Supreme Court vis-a-vis the facts and circumstances of the case, the present judgment does not discuss how this principle can be made applicable to references in pending review petitions other than by invocation of Article 142 of the Constitution. It held that:

“24. Furthermore, the reference can be supported by adverting to Article 142 of the Constitution of India which enables this Court to make any order as is necessary for doing complete justice in any cause or matter pending before it. The expression ‘cause’ or ‘matter’ would include any proceeding pending in Court and it would cover almost every kind of proceeding pending in this Court including civil or criminal proceedings. As such, the expression ‘cause or matter’ surely covers review petitions without any doubt. Therefore, it is well within the province of this Court to refer questions of law in pending review petitions.”

Conclusion

The nine-judge Bench failed to note that in Kamlesh Verma v. Mayawati, the Supreme Court had laid down the principles as to which grounds of review would be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

It held that the words “any other sufficient reason” mean “a reason sufficient on grounds at least analogous to those specified in the rule”.

It further provided the principles as to when a review would not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications;

(ii) Minor mistakes of inconsequential import;

(iii) Review proceedings cannot be equated with the original hearing of the case;

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice;

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error;

(vi) The mere possibility of two views on the subject cannot be a ground for review;

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched;

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition;

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negated.

The dissenting opinion of Justices Rohinton F Nariman and DY Chandrachud in the reference order relies upon the principles laid down in the Kamlesh Verma case to find that review petitions were not maintainable against the Sabarimala judgment. They held that it is strictly within these parameters that the arguments that had been made in the review petitions had to be judged.

In our view, even the nine-judge Bench should have followed these principles in deciding the maintainability of the review petitions, and before expanding its jurisdiction to enable references in pending review petitions. It should have reached its conclusions only if the principles laid down in the Kamlesh Verma case were attracted at the threshold.

Even otherwise, this finding would open the floodgates where aggrieved parties may argue that this inherent power to determine its own jurisdiction should also be exercised in cases where alternate efficacious remedies exist. There is also uncertainty over the limits to this power in the absence of explicit guidelines for the exercise of the same.

Chitranshul Sinha is a Delhi-based advocate. Akshay Sharma is a student at National University of Study and Research in Law (NUSRL) Ranchi.