In the case of Kantaru Rajeevaru v. Indian Young Lawyers Association through its General Secretary Ms. Bhakti Pasrija and Ors., the Supreme Court on 11.05.2020 stated that no matter is beyond its jurisdiction unless shown to be so, under the provisions of the Constitution.
Brief facts of the case
Ranjan Gogoi CJ, and A.M. Khanwilkar and Indu Malhotra, JJ opined that the scope of the freedom of religion guaranteed under Articles 25 and 26 of the Constitution needs an authoritative pronouncement. This should be by a larger bench of not less than seven Judges. The contours of judicial review on essential religious practices was another issue which was to be adjudicated upon by a larger bench.
Another issue which was to be decided is the general outline of judicial review on essential religious practices.
The determination of the questions of law referred to a larger bench would have impact on pending writ petitions. This is 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. In such view, reference of certain questions of law to a larger bench was important.
By this order, the Court is giving reasons to support the order dated 10.02.2020 by which it held that this Court can refer questions of law to a larger bench in a review petition.
Arguments before the Court
As objections, it was argued that the review petitions are not maintainable. Also, reference to a larger bench is permissible only after the review is granted and not during the pendency of a review petition. Further, abstract questions of law without facts cannot be the subject matter of reference. Another submission was that, only appeals can be referred to a larger bench under the proviso to Article 145 (3) of the Constitution of India.
Supporting side stated that there are no limits to the jurisdiction of this Court which is a superior Court of record. This Court can make any order which is necessary to do complete justice under Article 142 of the Constitution of India. It was submitted that the 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 apply.
Supreme Court’s Observations
The Court first decided upon the maintainability of the review petitions in view of the submissions made by the parties.
The Court mentioned that the exceptions carved out in Order XLVII, Rule 1 of the Supreme Court Rules pertain only to civil and criminal proceedings. So, these limitations in do not apply to review petitions filed against judgments or orders passed in Writ Petitions filed under Article 32 of the Constitution of India.
Furthermore, Article 142 of the Constitution of India enables this Court to make any order as is necessary for doing complete justice in any cause or matter pending before it.
For the second issue the Court stated, “In fact, reference of pure questions of law have been answered by this Court earlier.”
When the true scope and interpretation of Article 30 (1) of the Constitution of India in T.M.A. Pai Foundation v. State of Karnataka. Also, a conflict between two judgments of this Court, it dealt with the issue relating to the existence of the fundamental right to privacy in Article 21 of the Constitution of India. This was in Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors without reference to any facts.
The third issue is that of the reference to a larger bench under the proviso to Article 145(3). And that it can take place only in Appeals and not in any other proceedings. But, the proviso deals with a situation when reference has to be made by a bench of less than five Judges.
It is not necessary to refer to facts to decide pure questions of law. Especially those about the interpretation of the provisions of the Constitution. The present reference is by a bench of five Judges and, thus, the proviso to Article 145 (3) is not applicable.
Thus, the reference arising from the review petitions is maintainable.
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