SC reserves order on whether it can refer question of law to larger bench in review jurisdiction

A nine-judge Constitution bench of the Supreme Court reserved its order yesterday on the legal issue of whether the top court can refer questions of law to a larger bench while exercising its review jurisdiction.

A bench headed by Chief Justice S A Bobde said yesterday that it will pronounce the order on Monday and will accord day-to-day hearing from 12th of February. The bench said, on the larger question of women’s rights vis-a-vis religious rights under Articles 25 and 26 will also be declared on Monday along with the order on maintainability.

Solicitor general Tushar Mehta argued in favour of referring the Sabrimala review and related petitions to a larger bench, while senior advocates Fali Nariman, Indira Jaisingh and Jaideep Gupta differed.

Mehta said, as custodian of fundamental rights, it is the duty of the court to lay down an authoritative pronouncement on these questions of law adding that no technical fetters should restrict the courts to do complete justice.

Senior Counsel Nariman opposed the maintainability of the reference, arguing that the scope of a review petition is very narrow and limited to any error in the main judgment.

Jaideep Gupta told the Court that review and reference matters are not same and that the decision in a review matter cannot be dependent on the outcome of a reference. He said the review bench should have decided the Sabarimala review and then probably referred the other related questions to a larger bench.

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