New Delhi: The Supreme Court’s five-judge bench, comprising the Chief Justice of India Ranjan Gogoi, and Justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, on Tuesday agreed to hear the review petitions against the September 28 judgment in Sabarimala case.
The five judges, who met at the CJI’s chamber, stated in their order that the review petitions, along with all pending applications, would be heard in open court “before the appropriate bench” on January 22, 2019.
In the meantime, the bench has ruled out any stay of the judgment and order of the court, which allowed entry of women of all ages to the Sabarimala temple, thus lifting the ban on the entry of women of menstruating age between ten and 50 years.
Review petitions are normally listed before the same bench which heard and decided the main matter. If a judge, who decided the main matter, retired during the interregnum between the pronouncement of the judgment in the main matter, and the hearing of the review petition, the vacancy is filled by the Chief Justice of India. As the then CJI Dipak Misra retired on October 2, CJI Gogoi filled the vacancy today. The composition of the bench, which heard the review petitions today, therefore, did not cause any surprise.
Also read: Video of BJP State Chief on Orchestration of Sabarimala ‘Game Plan’ Kicks up Row
But the surprise came with the bench’s decision to hear the petitions in the open court. Normally, review petitions, considered by the judges in circulation among themselves, without the presence of the arguing counsel, are dismissed with a cliché thus:
“We have perused the review petitions and are convinced that the order of which review has been sought does not suffer from any error apparent warranting its reconsideration.”
The complete absence of any reasoning in the orders dismissing the review petitions has often given rise to considerable dissatisfaction among the litigants, who are aggrieved that the judges do not apply their minds to the contents of the petitions within the limited time which they get during the lunch hour, when they devote just about a minute to consider a review petition. It is thus significant that the review petitions in the Sabarimala case were considered by the bench in the post-lunch session at 3 pm.
However, in certain exceptional cases, when errors, inadvertently missed by the court earlier, are pointed out, and which have the potential of influencing the outcome, the court agrees to hear the case afresh, but only confines itself to the errors, as claimed, and takes corrective steps in the review judgment.
Also read: The Politics of Sabarimala in the Aftermath of the SC Verdict
So is there any hope that the September 28 judgment in the Sabarimala case may be reviewed by another bench on January chance, and even be reversed by it?
The scope of review petition is not to re-argue the matter on merits, which has already been decided by a detailed judgment.
As reported by Bar and Bench recently, a bench of justices U.U. Lalit and Ashok Bhushan decided to hear a review petition in open court, after the review petitioner, Avinash Kumar, made a convincing plea in his petition to reopen the case, decided by the bench of Justice Adarsh Kumar Goel and Justice Lalit on August 25 last year. Avinash Kumar was not a party in the main case – a service matter – in which the bench directed the recruitment of another person, who claimed age relaxation for appointment, for the post held by him. Avinash Kumar’s plea that he was likely to lose his job, because of the order, made the bench to reconsider its order.
Of the five judges, Justice Gogoi is the only judge who did not hear and decide the main case. The current composition of the bench, therefore, indicates that there are indeed three Judges who have lifted the ban on the women of the menstruating age from entering the Sabarimala temple, namely, Justices Nariman, Khanwilkar and Chandrachud.
Also read: Some Puzzling Aspects of the Sabarimala Controversy
Of the three, only Justices Nariman and Chandrachud wrote separate concurring judgments, with Justice Khanwilkar choosing to endorse Chief Justice Dipak Misra’s judgment. Justice Indu Malhotra was the lone dissenting judge in the case, having opposed judicial interference in religious matters. The question remains whether Justice Khanwilkar, with no strong views of his own on the matter, is likely to be persuaded to change his views during the open hearing on January 22.
It will also be interesting to watch how CJI Gogoi considers the different contentions in the case, and whether he could tilt the scales either way in case of a tie. Justice Gogoi is not opposed to reconsider judgments, in the light of new pleas, in cases where he himself had given the main judgment. In the case of laying down guidelines for government-funded advertisements in print and electronic media, limiting the use of photographs of politicians, he agreed to hear the Centre’s review petition in the open court. But in that case, both the petitioners and the respondent – the central government – sought a review of the judgment on different grounds and the bench found no option but to agree to it.