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Browse Law School Education Constitutional Law Discussion on the Sabarimala Case

Charu Mathur: So even when the large Bench of nine judges which is now hearing this matter.

Prashant Padmanabhan: Yes.

Charu Mathur: None of the original judges in the five Bench are part of this Bench?

Prashant Padmanabhan: Yes, that is the prerogative of the Chief Justice.

Charu Mathur: Of course!

Prashant Padmanabhan: And the Chief Justice has constituted a completely new Bench of nine new judges. And even though there was a preliminary objection—not with regard to the composition of the Bench, with regard to the scope of review petitions. We have argued and some other senior counsels on both sides, they argued that those issues are pending before other Benches.

Charu Mathur: Right.

Prashant Padmanabhan: And in a review petition while hearing the review court ought not to have framed fresh questions of law and referred it to a larger Bench. And then, the nine-judges’ Bench heard that argument for one day; they reserved the judgment on the preliminary objection and they overruled the preliminary objection.

Charu Mathur: With reasons to follow in the matter.

Prashant Padmanabhan: Yes! Reasons are not yet out but they held that of course.

Charu Mathur: We can hear...

Prashant Padmanabhan: The Supreme Court can refer to a fresh question of law even while hearing a review.

Charu Mathur: So I think that goes against the basic design of the constitutional scheme because...

Prashant Padmanabhan: Yes it is of course! The judgment of course, we have to accept. But the problem is that it will look like an Intra Court Appeal. The Supreme Court is final and respected by everybody.

Charu Mathur: Right.

Prashant Padmanabhan: Because it is final. And if suppose tomorrow a five-judge Bench is holding something and in review somebody is saying to refer it to a seven-judges’ Bench, then what is the sanctity attached to the finality of a Supreme Court view? That is the concern.

Charu Mathur: Right. So even the advisory jurisdiction is only limited to the President.

Prashant Padmanabhan: Yes. Advisory jurisdiction is different.

Charu Mathur: So the Supreme Court cannot have advisory jurisdiction on itself.

Prashant Padmanabhan: Correct.

Charu Mathur: I mean, If I am right, I mean this is for only academic purposes.

Prashant Padmanabhan: No, academically you are absolutely right. This is a fair criticism because a court decides questions of law in the light of facts.

Charu Mathur: True.

Prashant Padmanabhan: It can’t just write something, what is the interplay between 25 and 26 there are enough judgments. For example, questions like—What is the scope and ambit of Article 25 or What is the interplay between the right of believers in Article 25 and the right of religious denominations under Article 26? These are purely academic questions. One counsel argued that you can write three chapters in a book on that inter relation between Articles 25 and 26. But the Supreme Court has to give an answer on the facts of a case.

Charu Mathur: Right.

Prashant Padmanabhan: So for resolving a dispute, the court has to come to a conclusion. Now this nine-judges Bench is not seized of that review. They will give answers to these questions—it is reframed after the nine-judges Bench was constituted. And then they will refer it back, that is the present idea. Reviews are pending, so the nine-judges’ Bench will decide the questions of law and say that now the smaller Bench will decide the review in the light of these answers.

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