Sabarimala Review Petitions: An attempt to unlock the intricacies of law

The Sabarimala judgment passed by the Supreme Court held the notifications dated 21 October 1955 and 27 November 1956 issued by the Travancore Devaswom Board, prohibiting the entry of women between the ages of ten and fifty, are ultra vires Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965 and are even otherwise unconstitutional. The court had arrived in the said conclusion thereby rejecting the contentions of respondents wherein they strongly contended that the Sabarimala Temple, dedicated to Lord Ayyappa, is a prominent temple in Kerala which is visited by over twenty million pilgrims and devotees every year. As per a centuries-old tradition of this temple, and the ‘acharas’, beliefs and customs followed by Sabarimala temple, there is a limited restriction to the women in the age group of 10 to 50 years from darshan of the Lord Ayyappa. This limited restriction is attributable to the manifestation of the deity at the Sabarimala temple which is in the form of a ‘Naishtik Bramhachari’, who practices strict penance, and the severest form of celibacy. It’s worthwhile to mention that the Hon’ble Apex Court verdict allowing entry of young women in to Sabarimala evoked spontaneous reactions from womens group itself and lakhs of women took to the streets chanting the name of Lord Ayyappa (Naam Jaap) requesting and praying for preserving the centuries old custom based on the Bhava of presiding deity. Its pertinent to mention that there was no individual or Public movement in the Southern India, ever, demanding an entry for young women in to Sabarimala. The uniqueness of Sabarimala custom was respected and revered in devotion just like unique festivals of Attukal and Chakkulathukavu Devi temples both in Kerala, which have large gatherings of women only festivals.

The State of Kerala witnessed a mass uprising by devotees mainly women, demanding a Review Petition before the Hon’ble Apex Court. The State Government declined to file a Review Petition and also ensured that the Tranvancore Devaswom Board, too did not file a Review Petition, the TDB is in charge of administration of the temple Affairs and both the State of Kerala as well as TDB were arraigned as Respondents in the Public Interest Litigation, seeking entry of young women in to Sabarimala.

Further, the Petitioners had prayed for the issuance of a Writ of Mandamus to the State of Kerala, the Travancore Devaswom Board, the Chief Thanthri of Sabarimala Temple and the District Magistrate of Pathanamthitta to ensure that female devotees between the age group of 10 to 50 years are permitted to enter the Sabarimala Temple without any restriction.

The Petitioners challenged the Constitutional validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (hereinafter referred to as “the 1965 Rules”), which restricts the entry of women into the Sabarimala Temple as being ultra vires Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 (hereinafter referred to as “the 1965 Act”).

The demand for Review Petitions came in the back ground of the differing stances taken before the Apex Court by the respective State Governments, in favour of and opposing the young women entry in Sabarimala. The Left Governments, consistently favoured the entry of young women and consequently filed affidavits expressing the said intention before the Apex Court, where as, the devotees staunchly believed that if the Left Government had properly apprised the Apex Court of diverse customs prevailing all across in Kerala Temples, depending upon the dhyana of deity and the form in which deity has been consecrated, it would have helped in proper dispensation of justice, as there are umpteen instances where, the women devotees are on a higher pedestal in various temples but these are not seen through the spectrum of gender biasness against men.

The Apex Court was flooded with Review Petitions more than 60 Review Petitions and Writ Petitions were filed consequent to the judgement of the 5 bench Constitution Bench.

When a Review Petition is maintainable?

The Hon’ble 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. In a criminal proceeding, the review lies on the ground of an error apparent on the face of the record. The Application for review shall be filed within thirty days from the date of the judgment or order sought to be reviewed and the grounds have to be set clearly. The Hon’ble Court unless otherwise ordered disposes of a Review Application by circulation without any oral arguments, the Court may dismiss the petition or direct notice to the opposite parties. An application for review as far as practicable be circulated before the same Judge or Bench which delivered the judgment or order which is sought to be reviewed.

The Hon’ble Court has laid down through a catena of judgments when a Review is actually maintainable under Article 137 of the Constitution. The Hon’ble Court framed certain guidelines in Kamlesh Verma v Mayawati (2013) 8 SC 320 for maintainability of the review petition. The Hon’ble Court has reiterated that old and overruled arguments are not enough to reopen concluded adjudications, minor mistakes of inconsequential import won’t make any room for review. Review proceedings cannot be equated with the original hearing of the case and review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. The Hon’ble Court reminded a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. Moreover, the mere possibility of two views on the subject cannot be a ground for review. The error apparent on the face of the record should not be an error which has to be fished out and searched. 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.

Northern India Caterers (India) … vs Lt. Governor Of Delhi on 21 December, 1979 Equivalent citations: 1980 AIR 674, 1980 SCR (2) 650 the Hon’ble Court while deciding on the maintainability of said Review Petition held: It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Sajjan Singh v. the State of Rajasthan. (1) For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment. G. L. Gupta v. D. N. Mehta.(2) The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O. N. Mahindroo v. Distt. Judge Delhi & Anr. (2) Power to review its judgments has been conferred on the Supreme Court by Art. 137 of the Constitution and that power is subject to the provisions of any law made by Parliament or the rules made under Art. 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in XLVII rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except “where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.” Chandra Kanta v. Sheikh Habib.(4) Now, besides the fact that most of the legal material so assiduously collected and placed before us by the learned Additional Solicitor General, who has now been entrusted to appear for the respondent, was never brought to our attention when the appeals were heard, we may also examine whether the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record.

All the Review Petitions were heard in open Court by the Hon’ble Apex Court and those who could not address the Hon’ble Court were given the opportunity to submit their written arguments. The Hon’ble Supreme Court pronounced its judgement on these Review Petitions on 14.11.2019 the Majority bench comprising Hon’ble Chief Justice Ranjan Gogoi, Justice A.M.Khanwilkar and Justice Indu Malhotra referred the cases to a larger bench and stressed on the probability of similar issues of overlapping nature pending before the Hon’ble Court to being referred to the larger Bench in future, for achieving finality in those contentious issues, like regarding entry of Muslim Women in Durgah/Mosque (being Writ Petition (Civil) No.472 of 2019); of Parsi Women married to a non-Parsi in the Agyari (being Special Leave Petition (Civil) No. 18889/2012); and including the practice of female genital mutilation in Dawoodi Bohra community (being Writ Petition (Civil) No.286 of 2017) . Justice Nariman authored the dissenting judgment for himself and Justice D.Y. Chandrachud and dismissed the Review Petitions.

The Supreme Court also culled out major issues which need to be settled in case of such a reference the following are the said issues.

The prospect of the issues arising in those cases being referred to the larger bench cannot be ruled out. The said issues could be:

(i) Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
(ii) What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.
(iii) The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over arching morality in reference to preamble or limited to religious beliefs or faith.
There is need to delineate the contours of that expression,lest it becomes subjective.
(iv) The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of
the section of the religious group.
(v) What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.
(vi) Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
(vii) What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

The Supreme Court stressed on the need to have a re-look on the composition and strength of its Bench in settling issues touching upon the rights flowing from Articles 25 and 26 of the Constitution of India in following words:

It is time that this Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges. The decision of a larger bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution of India. It is essential to adhere to judicial discipline and propriety when more than one petition is pending on the same, similar or overlapping issues in the same court for which all cases must proceed together. Indubitably, decision by a larger bench will also pave way to instil public confidence and effectuate the principle underlying Article 145(3) of the Constitution – which predicates that cases involving a substantial question of law as to the interpretation of the Constitution should be heard by a bench of minimum five judges of this Court. Be it noted that this stipulation came when the strength of the Supreme Court Judges in 1950 was only seven Judges. The purpose underlying was, obviously, to ensure that the Supreme Court must rule authoritatively, if not as a full court (unlike the US Supreme Court). In the context of the present strength of Judges of the Supreme Court, it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of Judges. That would ensure an authoritative pronouncement and also reflect the plurality of views of the Judges converging into one opinion. That may also ensure consistency in approach for the posterity.

Issues before the Supreme Court in Sabarimala Review Petitions

Many are baffled why the Supreme Court has kept the Review pending, the Hon’ble Court kept the Review pending thereby referring the following questions of seminal importance to be answered by a larger Bench. We have already discussed the tight rope walk to qualify for a review, the Supreme Court through its microscopic view meticulously analysis whether a Review is maintainable at all and if the answer is in affirmative it’s not on mere flimsy grounds but an absolute walk through the fire of maintainability and those alone who triumphantly walk through the fire of maintainability survives. Once, it’s found the Petition has raised mistake of fact or mistake of law or an error apparent on the face of it, the Supreme Court would review the judgment or Order under challenge. While considering the Review Petitions the Supreme Court found certain fundamental issues which needs consideration by the larger Bench in Sabarimala’s context.

In para 6 of the Judgment in Review Petitions the Supreme Court held In a legal framework where the courts do not have any epistolary jurisdiction and issues pertaining to religion including religious practices are decided in exercise of jurisdiction under Section 9 of the Civil Procedure Code or Article 226/32 of the Constitution the courts should tread cautiously. This is time honoured principle and practice.

In para 7. the Hon’ble Court further held In this context, the decision of the Seven Judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) holding that what are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself and the subsequent view of a Five Judges bench in Durgah Committee, Ajmer vs. Syed Hussain Ali & Ors carving out a role for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs seem to be in apparent conflict requiring consideration by a larger Bench.

Most importantly in para 8. The Apex Court held that While deciding the questions delineated above, the 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. Whether the aforesaid consideration will require grant of a fresh opportunity to all interested parties may also have to be considered. The Hon’ble Court has also referred a question whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all and opportunity has to be afforded to all those affected parties who were not heard when the decision was made. The Review Petitions and the consequent referral is certain to create a new epoch in the Legal History of the Supreme Court.