[Nine-Judge Bench]: Reference of questions of law to larger Bench in Review Petition is maintainable, Supreme Court

The SC on May 11, 2020 {KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSOCIATION} held that Article 137 of the Constitution of India empowers the Supreme Court to review any judgment pronounced or order made by it subject to the provisions of any law made by the Parliament or any rules made under Article 145. It was held that no law has been made by the Parliament as contemplated in Article 137.

The Nine-Judge SC Bench, comprising of Chief Justice S.A. BOBDE, Justice R. BANUMATHI, Justice ASHOK BHUSHAN, Justice L. NAGESWARA RAO, Justice MOHAN M. SHANTANAGOUDAR, Justice S. ABDUL NAZEER, Justice R. SUBHASH REDDY, Justice B.R. GAVAI and Justice SURYA KANT, held that civil proceedings and criminal proceedings dealt with in Part II of the Rules are different from Writ Petitions covered by Part III of the Supreme Court Rules. It was held that the exceptions carved out in Order XLVII, Rule 1 of the Supreme Court Rules pertain only to civil and criminal proceedings. Further held that Writ Petitions filed under Article 32 of the Constitution of India do not fall within the purview of civil and criminal proceedings. It was held, therefore, the limitations in Order XLVII, Rule 1 do not apply to review petitions filed against judgments or orders passed in Writ Petitions filed under Article 32 of the Constitution of India. 

It was held that it is clear from a plain reading of Order XLVII, Rule 1 that there are no restrictions on the power of the Court to review its judgment or order. The Court held that 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. The SC held that it is clear that there is no fetter in the exercise of the jurisdiction of the Court in review petitions of judgments or orders arising out of proceedings other than civil and criminal proceedings.

The Court further held that Construction of Order XLVII, Rule 1 of the Supreme Court Rules should be made by giving due weight to the punctuation mark ‘comma’ after the words “the Court may review its judgment or order”.  It was held that the intention of the rule making authority is clear that the above mentioned part is disjunctive from the rest of the rule. Further held that the words “but no application for review will be entertained in a civil proceeding except on ground mentioned in Order XLVII, Rule 1 of the Code and in a criminal proceeding except on the ground of an error apparent on the face of record” are exceptions to the opening words of Order XLVII Rule 1, namely, “the Court may review its judgment or order”. Therefore, it was held that there is no limitation for the exercise of power by the Court in review petitions filed against judgments and orders in proceedings other than civil proceeding or criminal proceedings.

In the present reference, the bench of Nine Judges was constituted by the Chief Justice of India to answer the reference i.e. arising out of review petition, seeking review of judgment in the Sabarimala temple case which was rendered in Writ Petition under Art. 32. At the threshold, upon the objection raised by the parties taking exception to the reference, an issue as to whether the Supreme Court can refer questions of law to a larger bench in a review petition was framed. The request to hear the issue regarding the maintainability of the reference as a preliminary question was acceded to by the SC, and accordingly, it has been answered by Nine-Judge Bench of the SC.

The SC held that reference to a larger bench can be made in any cause or appeal as well as in any ‘other proceeding’. It was held that the term ‘proceeding’ is a very comprehensive term and generally speaking, means a prescribed course of action for enforcing a legal right. It was held that there cannot be any doubt that the pending review petition falls within the purview of the expression “other proceeding”.

Further held that being a superior Court of record, it is for the Court to consider whether any matter falls within its jurisdiction or not. It was held that unlike a Court of limited jurisdiction, the superior Court of record is entitled to determine for itself questions about its own jurisdiction. It was held that no matter is beyond the jurisdiction of a superior Court of record unless it is expressly shown to be so, under the provisions of the Constitution. 

It was held that undoubtedly there is no bar on the exercise of jurisdiction for referring questions of law in a pending review petition. Therefore, it was held that the reference cannot be said to be vitiated for lack of jurisdiction. It was held that the Court has acted well within its power in making the reference.

Furthermore, it was held that the reference can be supported by adverting to Article 142 of the Constitution of India which enables the Court to make any order as is necessary for doing complete justice in any cause or matter pending before it. It was held that as such, the expression ‘cause or matter’ surely covers review petitions without any doubt.

Further held that Order LV Rule 6 makes it crystal clear that the inherent power of the Court to make such orders as may be necessary for the ends of justice shall not be limited by the Rules. It was held that the logical extension to the above is that reference of questions of law can be made in any pending proceeding before the Court, including the instant review proceedings, to meet the ends of justice. 

The SC held that 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. It was held that reference of pure questions of law have been answered by the Supreme Court earlier. It was held that the present reference is made by a bench of five Judges and, therefore, the proviso to Article 145 (3) is not applicable. 

For the aforementioned reasons, it was held by the SC that the instant review petitions and the reference arising from the review petitions are maintainable. The preliminary objection as to the maintainability of the reference was rejected by the SC.