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No Restrictions On Referring Questions Of Law in Review Petitions To Larger Bench

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The Supreme Court has opined that its 5-judge bench was well within in its rights and powers to refer the questions of law to a larger bench for adjudication in the Sabarimala Temple entry case in review petition. “There is no fetter on the exercise of discretion of this Court in referring questions of law to a larger bench in review petitions,” the Court said.

A nine-judge Bench of the Supreme Court in a judgment in February explained why the Bench had decided to go ahead and examine “larger issues” of religious freedom across multiple faiths in connection with the Sabarimala review. The apex court through its nine-judge bench has passed its order with a detailed explanation for why questions of law can be referred to a larger bench and why it has decided to take up the task of defining the scope of right to religion. The order has been passed with reference to the review petitions that were filed against the Supreme Court’s verdict in the Sabrimala Issue.

The order was passed by a Bench of CJI Bobde and Justices R Banumathi, Ashok Bhushan, L Nageswara Rao, Mohan M Shantanagoudar, S Abdul Nazeer, R Subhash Reddy, BR Gavai, and Surya Kant.

Earlier,a three- judge bench of the Supreme Court while hearing the Sabrimala issue had referred the Writ petitions filed seeking directions to permit female devotees between the ages of 10 to 50 years to enter the Sabarimala temple without any restrictions, to a larger bench for resolution of the questions raised.

Following which the matter was placed before a Constitution Bench of five Judges who by a majority of 4:1, allowed the Writ Petition and held the following-

·         The devotees of Lord Ayyappa do not constitute a separate religious denomination and therefore cannot claim the benefit of Article 26 of the Constitution of India.

·         Exclusion of women between the ages of 10 to 50 years from entry into the temple is violative of Article 25 of the Constitution of India.

·         Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is violative of Article 25 (1) to the Constitution of India and ultra vires Section 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.

When Review petitions were filed against the judgement, the three judges namely, the then Chief Justice Ranjan Gogoi , Justice A.M. Khanwilkar and Justice Indu Malhotra, were of the opinion that the scope of the freedom of religion guaranteed under Articles 25 and 26 of the Constitution needs an authoritative pronouncement by a larger bench of not less than seven Judges, along with scope of judicial review in matters pertaining to essential religious practices .

The Seven questions of law were framed and the review petitions were adjourned till the time these questions were determined by a larger bench,

The Chief Justice of India had then constituted a nine Judges Bench to answer the reference, and framed another issue as to whether the Court can refer questions of law to a larger bench in a review petition was framed.  The Court had issued an order on Feb 10th answering this question,  holding that questions of law can be referred to a larger bench in a review petition, and also reframed the following issues to be referred to a larger bench :

1.      What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?

2.      What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?

3.      Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?

4.      What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?

5.      What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?

6.      What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?

7.      Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?

The Order of the Nine judge bench has noted that even though the preliminary point for adjudication was if the questions of law can be referred to a larger bench in a review petition, both the sides made submissions regarding the maintainability of the review petitions. The reason for doing this was that no reference can be made in review petitions which were not maintainable. Since, the review petitions are kept pending till the questions of law which have been referred to this Bench are decided, it is necessary to decide the maintainability of the review petitions without commenting on the merits of the review petitions.

The Order holds that the Supreme Court Rules, put no restrictions on the power of the Supreme Court to review its judgment or order and the  exceptions to the general power of review only relate to review of civil and criminal proceedings which are different from Writ Petitions covered by Part III of the Supreme Court Rules. The exceptions will therefore not apply as Writ Petitions filed under Article 32 of the Constitution of India do not fall within the purview of civil and criminal proceedings.

The Supreme Court Rules clearly state that reference to a larger bench can be made in any cause or appeal as well as in any ‘other proceeding, the term ‘proceeding’ giving the widest freedom to a Court of law to do justice to the parties.

“Where in the course of the hearing of any case, appeal or other proceedings the bench considers that the matter should be dealt with by a Larger Bench, it shall refer the matter to the Chief Justice,  who shall thereupon constitute such a bench for the hearing of it” – Supreme Court Rules

According to the Apex Court, 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 and in the absence of any such provision the Supreme Court being Superior Court of record has jurisdiction in every matter and also the power to determine its jurisdiction in case of any doubt.

“Prima facie, no matter is deemed to be beyond the jurisdiction of a superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior Court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court.” – Halsbury’s Laws of England

Therefore, the Court has held that there is no bar on the exercise of jurisdiction for referring questions of law in a pending review petition. The Apex Court acted well within its power in making the reference and the reference cannot be said to be vitiated for lack of jurisdiction.

The order has also cited observation of the Court in the case of  S. Nagaraj v. State of Karnataka, stating that the Supreme Court is not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice

The Court disagreed with the argument that it is not possible for the Court to decide the reference without facts of a particular case before it, and stated that it is not necessary for the Court to refer to facts to decide pure questions of law, especially the ones regarding the interpretation of the  Constitutional provisions. The Court has previously constituted an eleven Judge Bench for a similar purpose and eleven questions of law were framed and answered in T.M.A. Pai Foundation v. State of Karnataka.

-India Legal Bureau

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