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Browse Law School Education Constitutional Law Discussion on the Sabarimala Case

Charu Mathur: And now moving to the review. Can you tell our viewers the actual procedure of review generally before the Supreme Court or it was heard in the open court.

Prashant Padmanabhan: Usually it is not heard in the open court. Any lawyer or law student would know review under Order 47 Rule 1 CPC—it is filed for correcting an error apparent on the face of record. If there is an error which you can prima facie see in the judgment, then you can file a review, say, to tell the judges that you kindly relook at the matter because whatever recorded is prima facie or not. So the same standard applies in the Supreme Court cases also. In the Supreme Court if you file a review against the judgment, it is not for rehearing. It is usually only to correct another. So after this Sabarimala judgment, I must admit that in Kerala most of the people did not expect this kind of a judgment. People like me were very few—Minority—who wondered or who expected that the court may allow. So around 60 review petitions were filed in the Supreme Court. They all wanted the Supreme Court to review the order and reverse the judgment not to allow women of that age group.

Charu Mathur: Alright.

Prashant Padmanabhan: So what the court did, they have circulated the review petition in the chamber and decided to hear it in the open court. It was placed in the open court and heard for one full day when Chief Justice Gogoi was CJ. He along with the other previous four members, all of the five judges sat and heard all the review petitions for one full day. And reserved the judgment sometimes in February 2019. And the judgment came in November 2019. Hearing in open court was like on all the points, it was somewhat like a rehearing but anyway that was heard and we expected the court would say either the review is dismissed or the review is allowed for so and so reasons. What the court has done while passing the order in referring the matter to a larger Bench, it has done something which has not happened in the Supreme Court history in the past. It has framed a completely new set of questions and held that these questions may come up in the Supreme Court in future and some of the issues are already pending and some of these questions may come up again, it is better that an authoritative pronouncement is made by a larger Bench and, therefore, all these questions are referred to a larger Bench; the CJ may constitute a larger Bench.

Charu Mathur: But this is again by 3:2.

Prashant Padmanabhan: That is only three judges held this view. Justice Gogoi, Justice Indu Malhotra who dissented earlier along with Justice Khanwilkar who was the part of the original judgment.

Charu Mathur: He was on the majority side.

Prashant Padmanabhan: He was earlier in the majority but in the review order, he also signed along with Chief Justice Gogoi and Justice Indu Malhotra and held that all these questions need to be answered.Charu Mathur: And Justice Chandrachud and Justice Nariman.

Prashant Padmanabhan: Justice Rohinton Nariman has given a beautiful and long judgment giving reasons why this should not be done. He says there are so many other issues pending in this court. This is not an intra court appeal and those cases whenever it comes before that respective Benches, that will take a view based on the present position of law.