Judges: S.A. Bobde, C.J.I., R. Banumathi, Ashok Bhushan, L. Nageswara Rao, Mohan M. Shantanagoudar, S. Abdul Nazeer, R. Subhash Reddy, B.R. Gavai and Surya Kant, JJ.

Facts:

Indian Young Lawyers Association filed Writ Petition challenging the validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (1965 Rules). A further direction to the Respondents also sought to permit female devotees between the ages of 10 to 50 years to enter the Sabarimala temple without any restrictions. By an order dated 30th October 2017, a three Judge bench of this Court referred the matter to a larger bench. The Writ Petition was placed before a Constitution Bench. By a majority of 4:1, this Court allowed the Writ Petition and held that 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. It was also concluded that 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. Further, Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 was declared as 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.

Several review petitions were filed wherein majority of judges opined 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. The review petitions were adjourned till the determination of the questions by a larger bench. The bench of nine Judges was constituted by the Chief Justice of India to answer the reference. A preliminary objection challenging maintainability of reference has been raised.

Issues:

(i) Whether this Court can refer questions of law to a larger bench in a review petition was framed.

Law:

Constitution of India - Article 145 - Gives power to the Supreme Court to make Rules for regulating the practice and procedures in the Court.

Constitution of India - Article 145(1) (e) - Pertains to the Rules relating to the conditions subject to which any judgment or order pronounced by the Court may be reviewed and the procedure for such review including the time within which applications to the Court for such review are to be entertained.

Constitution of India - Article 145(3) - Minimum number of Judges to decide any case involving substantial questions of law as to the interpretation of the Constitution or for the purpose of hearing a reference Under Article 143 shall be five. Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this Clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.

Contentions:

Against Reference

(i) The review petitions are not maintainable in view of the limitations in Order XLVII of the Supreme Court Rules, 2013. As the review petitions are liable to be dismissed, the reference is bad. Assuming that reference to a larger bench can be made in a review petition, it is permissible only after the review is granted and not during the pendency of a review petition. The hypothetical questions should not be answered by this Court.

(ii) Abstracted questions of law without facts cannot be the subject matter of reference. The reference is vitiated as no reasons were recorded justifying the prima facie view that there is a conflict of opinion in the judgments in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. MANU/SC/0136/1954 and The Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors. MANU/SC/0063/1961.

(iii) Only appeals can be referred to a larger bench in accordance with the proviso to Article 145 (3) of the Constitution of India.

In favour of Reference

(i) There are no limits to the jurisdiction of this Court which is a superior Court of record. This Court can determine its own jurisdiction for exercise of its inherent powers. This Court can make any order which is necessary to do complete justice under Article 142 of the Constitution of India. The power of this Court cannot be fettered by Order XLVII of the Supreme Court Rules.

(ii) In any event, there is no bar in the Supreme Court Rules preventing this Court from making a reference in a review petition. Review petitions emanate from a judgment in a Writ Petition, filed in the form of a Public Interest Litigation, to which the Rules of procedure do not strictly apply.

(iii) Seminal questions of utmost importance arise for consideration which require authoritative pronouncement of a larger bench. Therefore, the reference has to be answered to meet the ends of justice.

Analysis:

(i) Article 137 of the Constitution of India empowers the Supreme Court to review any judgment pronounced or order made by it subject to the provisions of any law made by the Parliament or any Rules made Under Article 145.

(ii) As per Order XLVII, Rule 1 of CPC, there are no restrictions on the power of this Court to review its judgment or order. The exceptions to the general power of review relate to review of civil proceedings which can be entertained only on grounds mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 and to review of criminal proceedings which can be entertained only on the ground of an error apparent on the face of record. There is no fetter in the exercise of the jurisdiction of this Court in review petitions of judgments or orders arising out of proceedings other than civil and criminal proceedings.

(iii) Furthermore, Article 142 of the Constitution of India enables this Court to make any order as was 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 including civil or criminal proceedings. Thus, it also covers review petitions. Therefore, it was well within the province of this Court to refer questions of law in pending review petitions.

(iv) Order 55 Rule 6 of CPC makes it crystal clear that the inherent power of this Court to make such orders as may be necessary for the ends of justice shall not be limited by the Rules. A reference of questions of law can be made in any pending proceeding before this Court, including the instant review proceedings, to meet the ends of justice.

(v) It was not necessary to refer to facts to decide pure questions of law, especially those pertaining to the interpretation of the provisions of the Constitution. The determination of the scope of Articles 25 and 26 of Constitution was of paramount importance. To adjudicate the reference, there was no requirement to refer to any disputed facts by this Court.

(vi) The proviso to Article 145(3) of Constitution deals with a situation when reference had to be made by a bench of less than five Judges. The present reference was made by a bench of five Judges and, therefore, the proviso to Article 145(3) was not applicable.

Conclusion:

(i) Review petitions and the reference arising from the review petitions are maintainable.

Important Precedents:

(i) The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. MANU/SC/0136/1954

(ii) The Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors. MANU/SC/0063/1961