To uphold, preserve and defend the Constitution

Sir Edward Coke, one of the greatest jurists in England who dared to limit the unhindered powers of the King of England, remarked, “how long soever it hath continued, if it be against reason, it is of no force in law.”

The Supreme Court seemed to echo this sentiment in its landmark decision in the Sabarimala case by recognizing that a certain section of women could not be prevented from entering the temple merely because tradition and custom prevented it for hundreds of years. Last week, the Court, by a narrow margin of 3:2, allowed a review of this judgment.

Article 137 of the Constitution of India bestows upon the Supreme Court the power to review its own judgment. The grounds for review are laid down in the Supreme Court Rules, 2013. In criminal proceedings, review is only allowed if error is apparent on the face of the record. Meanwhile, Order 47 of the Code of Civil Procedure is applicable in civil proceedings. It states that review can take place on three grounds – if there is discovery of new and important evidence, if there has been some error, which is apparent on the face of the record, or any other sufficient reason. The dissent of Justice Rohinton Fali Nariman and Justice Dhananjaya Yeshwant Chandrachud rightly observes that in the case of Chajju Ram v. Neki, “any other sufficient reason” has been interpreted to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The strict interpretation of “sufficient reason” makes it clear that a review can be allowed in very limited cases. It is also a well-settled principle that a review does not permit rehashing of the arguments that have been put forth before the court previously. It is only allowed in a case where no appeal is possible. Therefore, a review is different from an appeal, as an appeal involves assessing the soundness of the decision of a lower court on the same arguments, while a review does not permit the repetition of arguments.

But allowing a review, in the absence of cogent reasons such as production of new evidence or express judicial error, reflects poorly on the credibility of the Court. For this reason, Justice Krishna Iyer in Sow Chandra Kante v. Sheikh Habib held that “review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility”.

Review is a power that is to be used sparingly. However, the Court seems to have thrown caution to the wind by allowing this review petition on unnecessary grounds. It has taken one step forward through its decision to permit women into Sabarimala and five steps backward by allowing the review petition.

First, the Court has transgressed the legal principles of review by allowing reconsideration of issues that were already argued and decided by it. No new evidence has been raised nor has there been a mistake on the face of the record. The fundamental question involved in Sabrimala is simple and remains the same – whether the ban on entry of women of menstruating age into the temple violates their right to equality and their freedom to worship. The arguments, which have already been heard by the Court, will be recycled again.

Second, it is attempting to restart a debate about the validity of discriminatory social practices under the garb of religion, which has been long settled. Anthropologists and sociologists like Malinowski and Durkheim, who have extensively studied the role of religion in primitive and urban societies, are of the view that it plays an integral role in reinforcing social norms. Religion and matters of faith cannot be separated from social realities as they are inherently related. It would do well to remember that practices like sati, honour killing, child marriage and dowry were once matters of faith and had religious sanction.

Even a condemnable practice like female foeticide will find support in the Hindu shastras, which expressly call the girl child a bane and cause for misery. It is only when the State intervened and put a halt to such practices that the condition of women considerably improved. The bench deciding Sabarimala kept this in mind when advocating equal entry into the temple. Till date practices exist where women, inter alia, are not allowed to enter temples or cook food in the kitchen when menstruating. Underlying this practice is the belief that menstruation, a biological function, is a dirty, impure and polluting aspect of womanhood. The temple entry ban in Sabarimala is no different and to argue otherwise is to deceive oneself. Faith has historically been used as an excuse to justify such oppressive and discriminatory practices against women and the Sabrimala verdict had decisively pierced through this façade by recognizing them as unconstitutional.

Third, every time an issue is rehashed before the Court, precious court time is squandered. With 58,669 cases pending in the Supreme Court, can we afford 7 of our judges sitting to hear a matter that has been extensively argued and conclusively decided by a 5-judge bench, including the Chief Justice? Moreover, the majority opinion has allowed the review on the basis that the contradiction in the law laid down in the cases of Shirur Mutt and Dargah Committee, regarding the authority of the Court to decide on matters of faith, needs to be re-evaluated. The Shirur Mutt case was decided by a 7-judge bench and Constitutional propriety demands that a review be done by a larger bench. Thus, a 9-judge bench must be constituted to effectively address the ambiguities of the Shirur Mutt case and the 7-judge bench constituted will not suffice.

Fourth, this review raises some serious questions regarding the credibility of the Court. As the concept of review inherently acknowledges, judges are also human and prone to fallibility. However, judges, unlike the public, are not allowed to change their minds on a whim. They are given the time and opportunity to hear both sides and trained to apply their mind to all relevant facts and come to a reasoned conclusion. For this reason they are held to a much higher standard, and rightly so, as they are the foremost bastions of justice. While Justice Nariman and Justice Chandrachud have stood firm in their opinion, the radical shift in Justice Khanwilkar’s stance, without any justification, is surprising. Further, by allowing this review, the Court has conveyed to the people of India that its ability to remain decisive in the face of criticism and protests is waning.

Finally, after the Sabarimala debacle, the message is loud and clear – the emancipation of women is secondary to political considerations. Statewide protests saw many political parties and organisations like the Congress and the RSS backtracking and refusing to support the entry of women.  The BJP treated this as an opportunity to make political inroads into Kerala. Meanwhile, the Kerala government, which was the only institution to fully respect the Supreme Court decision, has now withdrawn its support to women after the Supreme Court failed to stand its ground.

So what do we, as women and as equal citizens of the country do, when the Courts trade their mandate of justice for appeasement? What do we do when institutions blatantly flout the orders of the Supreme Court for political gains? At this juncture, we can only urge our leaders and our judges to remember that their paramount duty lies towards the Constitution of India and not the will of the majority. As Justice Nariman and Justice Chandrachud put it, “Let it be said that whoever does not act in aid of our judgment, does so at his peril…they would violate their constitutional oath to uphold, preserve, and defend the Constitution of India.”

(The author Abha Singh is an advocate. The views in the article are her own and do not reflect those of DNA)