A three judge bench of Ranjan Gogoi, then CJ, and A.M. Khanwilkar and Indu Malhotra, JJ 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. According to them, the determination of the questions of law referred to a larger bench would have a bearing on pending writ petitions relating to entry of Muslim women in durgahs/mosques, the entry of Parsi women married to non-Parsis into the holy fire place of Agyari and the challenge to the practice of female genital mutilation in Dawoodi Bohra Community. Further, the conflict of opinion between the judgments in Commissioner Hindu Religious Endowments, Madras vs. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt 1 , and Durgah Committee, Ajmer vs. Syed Hussain Ali & Ors.  pertaining to the role of the Court in matters which are essential religious practices had to be resolved. Therefore, certain questions of law were referred to a larger bench of nine judges and the review petitions were adjourned till the determination of the questions by a larger bench.

By an order dated 10 February 2020, the nine-judge bench rejected the preliminary objection on the maintainability of the reference by holding that questions of law can be referred to a larger bench in a review petition. It also reframed the issues referred to this Bench as follows:

• What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
• 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?
• 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?
• 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?
• 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?
• What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
• 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?

Reasons for holding that questions of law can be referred to a larger bench in a review petition

Proposition 1:  The review petitions is not maintainable as it does not satisfy the requirement of Order XLVII Rule 1 of Supreme Court Rules.

Held : It is clear from a plain reading of Order XLVII, Rule 1 that 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. It is clear that 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. However, the review petitions have arisen from a judgment in a Writ Petition filed under Article 32 of the Constitution of India to which the provisions of Order XLVII, Rule 1 of CPC are not applicable,

Proposition 2: Assuming that reference to a larger bench can be made in a review petition, it is permissible only after grant of review and not in a pending review petition.

Held : Although support for the proposition was sought from a judgment of this Court in Behram Pesikaka v. State of Bombay where the reference in the said case was made after grant of review. But that does not mean that reference cannot be made in a pending review petition.

Being a superior Court of record, it is for this Court to consider whether any matter falls within its jurisdiction or not. Unlike a Court of limited jurisdiction, the superior Court of record is entitled to determine for itself questions about its own jurisdiction. Order LV Rule 6 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.

Proposition 4 : Only appeals can be referred to a larger bench in accordance with the proviso to Article 145 (3) of the Constitution of India.

Held : The proviso deals with a situation when reference has to be made by a bench of less than five Judges. The present reference is made by a bench of five Judges and, therefore, the proviso to Article 145 (3) is not applicable.

The provision in the Supreme Court Rules, 2013 pertaining to reference to a larger bench is Order VI rule 2 which reads as:- “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.” Reference to a larger bench can be made in any cause or appeal as well as in any ‘other proceeding’. The term ‘proceeding’ is a very comprehensive term and generally speaking, means a prescribed course of action for enforcing a legal right. It is a term giving the widest freedom to a Court of law so that it may do justice to the parties in the case. There cannot be any doubt that the pending review petition falls within the purview of the expression “other proceeding”. The reference has been made in the course of pending review petitions. Therefore, the reference cannot be said to be vitiated for lack of jurisdiction.

Furthermore, the reference can be supported by adverting to Article 142 of the Constitution of India which enables this Court to make any order as is 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 and it would cover almost every kind of proceeding pending in this Court including civil or criminal proceedings. As such, the expression ‘cause or matter’ surely covers review petitions without any doubt. Therefore, it is well within the province of this Court to refer questions of law in pending review petitions.

Proposition 6 : Pure questions of law cannot be referred to a larger bench. It is not possible for the Court to decide the reference without any facts of a particular case before it. This Court should not give speculative opinions or answer hypothetical questions.

Held : It is not necessary to refer to facts to decide pure questions of law, especially those pertaining to the interpretation of the provisions of the Constitution. In fact, reference of pure questions of law have been answered by this Court earlier. One such instance was when this Court was convinced that a larger bench has to discern the true scope and interpretation of Article 30 (1) of the Constitution of India. An eleven Judge Bench was constituted for the purpose and eleven questions of law were framed and answered in T.M.A. Pai Foundation v. State of Karnataka ^[1]. Yet another case where there was a reference of pure questions of law for the larger bench needs mention. Finding a conflict between the judgments of this Court in M. P. Sharma and Others v. Satish Chandra^[2] and Kharak Singh v. State of Uttar Pradesh^[3], a three Judge Bench of this Court referred the matter to a larger bench of five Judge Constitution Bench, which referred the issue relating to the existence of the fundamental right to privacy in Article 21 of the Constitution of India to a nine Judge Bench. The question whether there is a constitutionally protected right to privacy was decided by a nine Judge Bench of this Court in Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. without reference to any facts.

The reference of questions of law pertaining to the scope of Articles 25 and 26 of the Constitution of India are of utmost importance requiring an authoritative pronouncement by a larger bench, especially in light of the view of the reference Bench that there is a conflict between the Court’s judgments in Shirur Mutt and Durgah Committee . An objection similar to the one in this case was taken in Indra Sawhney vs. Union of India , which was rejected on the ground that the reference in that case was made to finally settle the legal position relating to reservations. Therefore, the reference in this case cannot be said to be suffering from any jurisdictional error.

Footnote

[1] (2002) 8 SCC 481

[2] 1954 SCR 1077

[3] 1964 SCR (1) 332 [21]

Read Less-