TaxTMI 
TaxTMI 
2019 (11) TMI 1678
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....o a fire temple; and issues relating to female genital mutilation in the Dawoodi Bohra community. He has then outlined seven issues which may be referred to a larger 7-judge bench as also the apparent conflict between a 7-judge bench in the Shirur Mutt case 1954 SCR 1005 and the Durgah Committee case, (1962) 1 SCR 383. He then goes on to state, "the prospect of the issues arising in those cases being referred to a larger bench cannot be ruled out." The larger bench may then also consider it appropriate to decide all issues including the question as to whether the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 governs the temple in question at all. He then states, "whether the aforesaid consideration will require grant of a fresh opportunity to all interested parties may also have to be considered." Hence the conclusion is that the review petitions and the fresh writ petitions may remain pending until determination of the questions indicated above by a larger bench as may be constituted by the Chief Justice of India in any of the aforesaid pending matters. 2. What this Court has before it is review petitions arising out of this Court's judgment in Indian....
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....ial fallibility. A mere repetition, through different Counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of Counsel's certificate which should not be a routine affair or a habitual step. It is neither fairness to the Court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for Counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be, as Counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage....
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....rameters that the arguments that have been made before us have to be judged. Before stating what these arguments are, it is important to first set down the summary of conclusions by all the Judges who formed the five-Judge Bench which delivered the judgment of 28.09.2018. Dipak Misra, C.J., speaking for himself and for Khanwilkar, J., formulated their conclusions in paragraph 144 of the judgment as follows: "144. In view of our aforesaid analysis, we record our conclusions in seriatim: (i) In view of the law laid down by this Court in Shirur Mutt [The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt, [1954] SCR 1005] and S.P. Mittal [S.P. Mittal v. Union of India, (1983) 1 SCC 51], the devotees of Lord Ayyappa do not constitute a separate religious denomination. They do not have common religious tenets peculiar to themselves, which they regard as conducive to their spiritual well-being, other than those which are common to the Hindu religion. Therefore, the devotees of Lord Ayyappa are exclusively Hindus and do not constitute a separate religious denomination. (ii) Article 25(1), by employing the expression 'all persons....
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....ionary practice has not been observed with unhindered continuity as the Devaswom Board had accepted before the High Court that female worshippers of the age group of 10 to 50 years used to visit the temple and conducted poojas in every month for five days for the first rice feeding ceremony of their children. (ix) The exclusionary practice, which has been given the backing of a subordinate legislation in the form of Rule 3(b) of the 1965 Rules, framed by the virtue of the 1965 Act, is neither an essential nor an integral part of the religion. (x) A careful reading of Rule 3(b) of the 1965 Rules makes it luculent that it is ultra vires both Section 3 as well as Section 4 of the 1965 Act, for the simon pure reason that Section 3 being a non-obstante provision clearly stipulates that every place of public worship shall be open to all classes and sections of Hindus, women being one of them, irrespective of any custom or usage to the contrary. (xi) Rule 3(b) is also ultra vires Section 4 of the 1965 Act as the proviso to Section 4(1) creates an exception to the effect that the regulations/rules made under Section 4(1) shall not discriminate, in any manner whatsoever, against any....
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....dia implies equal entitlement of all persons to profess, practice, and propagate religion, as follows: "291. The Constitution protects the equal entitlement of all persons to a freedom of conscience and to freely profess, protect and propagate religion. Inhering in the right to religious freedom, is the equal entitlement of all persons, without exception, to profess, practice and propagate religion. Equal participation of women in exercising their right to religious freedom is a recognition of this right. In protecting religious freedom, the framers subjected the right to religious freedom to the overriding constitutional postulates of equality, liberty and personal freedom in Part III of the Constitution. The dignity of women cannot be disassociated from the exercise of religious freedom. In the constitutional order of priorities, the right to religious freedom is to be exercised in a manner consonant with the vision underlying the provisions of Part III. The equal participation of women in worship inheres in the constitutional vision of a just social order." (emphasis in original) Thereafter, the learned Judge stated his conclusions as follows: "296. I hold and declare that....
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....faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical. (iv) The Respondents and the Intervenors have made out a plausible case that the Ayyappans or worshippers of the Sabarimala Temple satisfy the requirements of being a religious denomination, or sect thereof, which is entitled to the protection provided by Article 26. This is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction. (v) The limited restriction on the entry of women during the notified age-group does not fall within the purview of Article 17 of the Constitution. (vi) Rule 3(b) of the 1965 Rules is not ultra vires Section 3 of the 1965 Act, since the proviso carves out an exception in the case of public worship in a temple for the benefit of any religious denomination or sect thereof, to manage their affairs in matters of religion." 9. What emerges on a reading of the aforesaid four majority judgments is that there is a clear consensus on the following issues: 9.1. The devotees of Lord Ayyappa do not constitute a separate religious denomination and cannot, therefore, claim the benefi....
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.... does section 3(1)(f) authorise? After its amendment it does two things : first, it empowers the delegated authority to pick any section it chooses out of the Bihar and Orissa Municipal Act of 1922 and extend it to "Patna"; and second, it empowers the Local Government (and later the Governor) to apply it with such "restrictions and modifications" as it thinks fit. In the Delhi Laws Act case [[1951] S.C.R. 747], the following provision was held to be good by a majority of four to three : "The Provincial Government may ...... extend with such restrictions and modifications as it thinks fit ...... any enactment which is in force in any part of British India at the date of such notification." Mukherjea and Bose JJ., who swung the balance, held that not only could an entire enactment with modification be extended but also a part of one; and indeed that was the actual decision in Burah's case [5 I.A. 178], on which the majority founded : (see Mukherjea J. at page 1000 and Bose J. at pages 1106 and 1121). But Mukherjea and Bose JJ., both placed a very restricted meaning on the words "restriction" and "modification" and, as they swung the balance, their opinions must be accepted as t....
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.... of menstruation. According to him, the judgment of Malhotra, J. correctly referred to the Constituent Assembly Debates on this issue and arrived at the correct conclusion. Since the view of Chandrachud, J. cannot be said to be a possible view, it would amount to an error apparent on the face of the record. Shri Parasaran argued that "untouchability" is nomen juris and relied upon State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd., 1959 SCR 379, which held that the expression "sale of goods", being nomen juris, would not include works contracts. He further argued that it took a constitutional amendment to add Article 366(29-A) to expand the definition of "sale of goods" so as to include a works contract. 14. The majority judgments of Dipak Misra, C.J., Khanwilkar, J., and Nariman, J. did not find it necessary to opine on Article 15(2) and Article 17 of the Constitution in view of their findings on various other points. Nariman, J. alone referred to Article 15(1) of the Constitution when it came to striking down Rule 3(b) of the 1965 Rules. The observations of Chandrachud, J. on Article 17 of the Constitution cannot be said to be a material error manifest on the face of t....
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...., proper for me to explain the points of my disagreement." (at page 59) 17. The majority view of four Judges on this aspect is contained in paragraphs 110 to 122. In paragraphs 121 and 122, the majority concluded as follows: "121. On the basis of the materials placed before us viz. the Memorandum of Association of the Society, the several applications made by the Society claiming exemption under Section 35 and Section 80 of the Income Tax Act, the repeated utterings of Sri Aurobindo and the Mother that the Society and Auroville were not religious institutions and host of other documents there is no room for doubt that neither the Society nor Auroville constitute a religious denomination and the teachings of Sri Aurobindo only represented his philosophy and not a religion. 122. Even assuming but not holding that the Society or the Auroville were a religious denomination, the impugned enactment is not hit by Articles 25 or 26 of the Constitution. The impugned enactment does not curtail the freedom of conscience and the right freely to profess, practise and propagate religion. Therefore, there is no question of the enactment being hit by Article 25." This point also has to be r....
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....on the face of the record. 20. Extreme arguments were made by some learned counsel stating that belief and faith are not judicially reviewable by courts, and that this Court cannot interfere by stating that a particular section of persons shall not hold a particular belief and act in accordance thereto. Such arguments need to be rejected out of hand. Not only do they not constitute "errors apparent", but are arguments that fly in the face of Article 25. Article 25, as has been held by the majority judgments, is not an Article that gives a carte blanche to one particular section of persons to trample upon the right of belief and worship of another section of persons belonging to the same religion. The delicate balance between the exercise of religious rights by different groups within the same religious faith that is found in Article 25 has to be determined on a case by case basis. The slippery-slope argument, that this judgment will be used to undermine the religious rights of others, including religious minorities, is wholly without basis. The ratio of the majority judgments in this case is only that the exclusionary practice of keeping women from the ages of 10 to 50 from exerci....
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....of allowing persons of all faiths to enter and worship therein. There is no doubt that the temple at Sabarimala, being dedicated to a Hindu idol - Lord Ayyappa - is a Hindu public religious institution, like the other temples dedicated to Lord Ayyappa, which are undoubtedly Hindu public religious institutions. This argument must also be rejected. 24. An argument was made that there are gender restrictions in other places of worship, which, being essential religious practices, have not been interfered with. This is a general argument which needs to be rejected on the ground of vagueness, apart from the fact that this is not an argument which could be made in review. As and when such gender restrictions in other places of worship are tested, they will be decided on their own merits keeping in view the provisions of the Constitution. 25. Another plea of some of the review petitioners is that the Division Bench judgment in S. Mahendran v. Secretary, Travancore Devaswom Board, Thiruvananthapuram, AIR 1993 Ker 42 would be res judicata, as it was a Public Interest Litigation in which all necessary parties were joined and heard, and the same issues that were raised before this Court....
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....g which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land." (at page 836) In a recent judgment, namely, Canara Bank v. N.G. Subbaraya Setty & Anr., AIR 2018 SC 3395, this Court after referring to Mathura Prasad (supra), held: "(ii) An issue of law which arises between the same parties in a subsequent suit or proceeding is not res judicata if, by an erroneous decision given on a statutory prohibition in the former suit or proceeding, the statutory prohibition is not given effect to. This is despite the fact that the matter in issue between the parties may be the same as that directly and substantially in issue in the previous suit or proceeding. This is for the reason that in such cases, the rights of the parties are not the only matter for consideration (as is the case of an erroneous interpretation of a statute inter parties), as the public policy contained in the statutory prohibition cannot be set at naught. This is for the same reason as that contained in matters which pertain to ....
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....bodies, religious fanatics, cranks and persons with vested interests will be turned down by the Court at the threshold itself, by applying the parameters laid down in State of Uttaranchal v. Balwant Singh Chaufal and Ors. (2010) 3 SCC 402 (at paragraph 181). The fear expressed by the learned dissenting judge is therefore quite unfounded. As has been pointed by Nariman, J. in the majority judgment (at paragraph 175), the present case raises grave issues which relate to gender bias on account of a physiological or biological function which is common to all women. It is for this reason that a bonafide public-interest litigation was entertained by the majority judgment, having regard to women's rights, in the context of women worshippers as a class, being excluded on account of such physiological/biological functions for the entirety of the period during which a woman enters puberty until menopause sets in. 29. Given the consensus on the three issues delineated above by the four majority judgments, we find that no ground for review of the majority judgments has been made out. The review petitions are hence dismissed. Equally, all writ petitions filed under Article 32 of the Const....
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....involving a substantial question of law as to interpretation of the Constitution must be decided by this minimum number of Judges. 32. What is of particular importance in this case is Article 144 of the Constitution of India, which is set out hereinbelow: "144. Civil and judicial authorities to act in aid of the Supreme Court.-All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court." At this juncture, it is important to understand the true reach of Article 144 of the Constitution of India. What is of great importance is that it is not judicial authorities alone that are to act in aid of the Supreme Court - it is all authorities i.e. authorities that are judicial as well as authorities that are non-judicial. The expression "civil" is an expression of extremely wide import, and deals with anything that affects the rights of a citizen. Therefore, even textually, all "authorities" which exercise powers over the citizens in the territory of India are mandated to act in aid of the Supreme Court. 33. The expression "authority" is not defined by the Constitution of India. However, it is used in several Articles of the Constitution of I....
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....s competent to amend laws that are in force in the territory of India immediately before the commencement of the Constitution. 35. As against these Articles, other Articles speak of "authority" in a wide sense. Thus, under Article 12, when it comes to enforcing fundamental rights against a State, "local or other authorities" has been held to include all State instrumentalities, including government companies and cooperative societies, in which the State has a voice. As far back as in 1967, in Rajasthan State Electricity Board v. Mohan Lal, (1967) 3 SCR 377, the expression "other authorities" was held not to be construed as ejusdem generis with the preceding word, "local". Likewise, in Article 154(2)(a), the expression "any other authority" is used; and in Article 226 of the Constitution of India, when the High Court exercises its writ jurisdiction, it may do so against any person or authority. 36. A conspectus of the aforesaid Articles of the Constitution of India leads to the conclusion that the expression "authorities" in Article 144 is to be given the widest possible meaning. 37. In Supreme Court Bar Assn. v. Union of India, 1998 (4) SCC 409, this Court held that the Bar Coun....
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....ter from 1-10-2016 till 6-10-2016. We are granting this opportunity as the last chance and we repeat at the cost of repetition that we are passing this order despite the resolution passed by the Joint Houses of State Legislature of the State of Karnataka. We had clearly mentioned so in our earlier order, while we stated Annexure IV to IA No. 16 of 2016. We are sure that the State of Karnataka being a part of the federal structure of this country will rise to the occasion and not show any kind of deviancy and follow the direction till the report on the ground reality is made available to this Court." 40. The position under our constitutional scheme is that the Supreme Court of India is the ultimate repository of interpretation of the Constitution. Once a Constitution Bench of five learned Judges interprets the Constitution and lays down the law, the said interpretation is binding not only as a precedent on all courts and tribunals, but also on the coordinate branches of Government, namely, the legislature and the executive. What follows from this is that once a judgment is pronounced by the Constitution Bench and a decree on facts follows, the said decree must be obeyed by all pers....
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....for a Minister for a State:- swear in the name of God "I, A.B., do ----------------------------------------------- that I will solemnly affirm bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will faithfully and conscientiously discharge my duties as a Minister for the State of.............and that I will do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or ill-will." 43. Insofar as the Members of Parliament are concerned, i.e., the Members of both the Lok Sabha and the Rajya Sabha, Article 99, read with the Third Schedule, is as follows: "99. Oath or affirmation by members.-Every member of either House of Parliament shall, before taking his seat, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule." "THIRD SCHEDULE xxx xxx xxx III B Form of oath or affirmation to be made by a member of Parliament:- 'I, A.B., having been elected (or nominated) a member of the Council of States (or ....
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.... and MLAs to faithfully aid in carrying out decrees and orders passed by the Supreme Court of India when such decrees and orders command a particular form of obedience, even where they are not parties to the litigation before the Supreme Court. Any deviation from this high constitutional principle is in derogation of the oath taken by every Minister and Legislator during his term of office. Once this is clearly understood and followed, the rule of law is established, and the shameful spectacle of political parties running after votes, or instigating or tolerating mob violence, in defiance of decrees or orders passed by the Supreme Court of India does not reign instead. 46. The history of democratic nations shows that what our founding fathers handed to us in the form of the Constitution of India was the result of centuries of struggle in both England and the United States of America. The bloody revolutions that took place in France and Russia against absolute monarchs are a sober reminder to the people of the world that social transformation, which took place cataclysmically in rivers of human blood, is to be eschewed. An absolute monarch like Peter the Great of Russia, could....
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....ublished in 1885, gave three meanings to the rule of law. We are directly concerned with the second meaning that was thus given. He stated, "We mean in the second place, when we speak of the "rule of law" as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals." (at page 193) 51. The rule of law was first established against absolutist monarchs. Thus, in the Magna Carta, which was signed by King John of England on 15 June, 1215, it was stated: "39. No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. 40. To no one will we sell, to no one deny or delay right or justice." 52. Despite the fact that Pope Innocent III, by a papal bull, in August of that year, annulled the Magna Carta, the Magna Carta was repeatedly affirmed b....
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....nder Hamilton, in Federalist Paper No.78, had this to say: "Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." (emphasis supplied) 57. Given the fact that the U.S. Constitution did not contain any Article resembling Article 144 of our Constitution, the case of the Cherokee Indians vis-à-vis the State o....
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....ck, Arkansas. An uneasy tension prevailed as the students were prevented entry. However, President Eisenhower then despatched federal troops to the high school, as a result of which, admission of black students to the school was thereby effected. In 1958, the School Board and the Superintendent of Schools filed a petition in the District Court seeking postponement of their programme for desegregation. This was because of conditions at the ground level of "chaos, bedlam, and turmoil". The District Court granted the relief requested by the Board. The Court of Appeals for the Eighth Circuit stayed the aforesaid judgment. 59. In Cooper v. Aaron, 358 U.S. 1 (1958), ["Cooper"] the US Supreme Court, by a unanimous judgment, held: "The controlling legal principles are plain. The command of the Fourteenth Amendment is that no "State" shall deny to any person within its jurisdiction the equal protection of the laws. "A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person ....
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....cess of law. The Court may be asked to reconsider its decisions, and this has been done successfully again and again throughout our history. Or what this Court has deemed its duty to decide may be changed by legislation, as it often has been, and, on occasion, by constitutional amendment." "But, from their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised. 'Civilization involves subjection of force to reason, and the agency of this subjection is law.' (Pound, The Future of Law (1937) 47 Yale L.J. 1, 13.) The conception of a government by laws dominated the thoughts of those who founded this Nation and designed its Constitution, although they knew as well as the belittlers of the conception that laws have to be made, interpreted and enforced by men. To that end, they set apart a body of men who were to be the depositories of law, who, by their disciplined training and character and by withdrawal from the usual temptations of private interest, may reasonably be expected to be 'as free, impartial, and independent as the lot of humanity will admit.' So....
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....ooper (supra). Constitutional morality did ultimately triumph over racial discrimination. 62. In our country, an interesting incident took place in 1828, as a result of which, there was a direct confrontation between the Supreme Court at Bombay and Governor Malcolm. This incident is narrated in P.B. Vachha's book, "Famous Judges, Lawyers and Cases of Bombay" as follows: "In 1828, a few days after the death of West, the two remaining judges of the Supreme Court issued a writ of Habeas Corpus to the Poona court, for the production before them of one Moro, a boy of 14, who was in the guardianship of his uncle Pandurang, at the instance of the boy's father-in-law, who complained of the evil influences of the uncle on the minor. It seems that the jurisdiction of the Supreme Court was vaguely defined in its Charter; and Malcolm thought that the judges in issuing the writ had exceeded their powers. He regarded the occasion as a most favourable opportunity for striking a blow at the Supreme Court. "The opportunity of striking a blow at these courts," he wrote, "was given me, and to the utmost of my strength, I will inflict it." He issued orders instructing the Poona court to ignore....
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....pon the support of the home authorities. His friend, the Duke of Wellington, being now Prime Minister, Malcolm hastened to forward to London his own version of the case. Grant also had sent his protest to the Board of Control. After some interval, the long awaited despatch of the Board arrived. The Board condemned the attitude of the Supreme Court, fortified it seems by the Privy Council's ruling, that the writ was improperly issued by the Supreme Court over a person outside their jurisdiction. As stated before, the territorial limits of the jurisdiction of the Supreme Court had been illdefined in its Charter; and it is also possible that, since only the King's Court had power to issue a writ of Habeas Corpus, the judges might have thought that, in the matter of this writ at least, their jurisdiction extended beyond the town and island of Bombay. The despatch of the India Board further contained orders appointing Dewar, who was then AdvocateGeneral, as Chief Justice, and William Seymour, a barrister, as puisne judge, Chambers being dead. Lord Ellenborough, President of the Board of Control, expressed the hope that "these appointments will prevent all mischief in future; as Grant ....
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....rt is not being interfered with. Lord Atkin's famous words, in the case of Ambard v. Attorney-General for Trinidad And Tobago, [1936] A.C. 322, come to mind: "But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men." (at page 335) 64. Bona fide criticism of a judgment, albeit of the highest court of the land, is certainly permissible, but thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be cou....
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....lue, should be adopted. Consistent with the duties inhering in it, we expect the State government to ensure that the rule of law is preserved. All petitions are disposed of accordingly. 1 In the judgment of the learned Chief Justice, whether the 1965 Rules govern the temple in question at all is raised, which the larger bench, if constituted, may consider it appropriate to decide. This is will result in a piecemeal adjudication as a fresh opportunity to interested parties may then have to be given in the pending review petitions. The necessity for going into this question in the review petitions filed is itself questionable. On the assumption that the aforesaid Rule does not apply, the striking down of an inapplicable rule does not in any manner detract from the ratio of the majority judgment. The ratio of the majority judgment, insofar as this aspect of the case is concerned, is that Section 3 of the 1965 Act will apply by reason of the non-obstante clause contained therein, as a result of which every place of public worship which is open to Hindus or any section or class thereof is open to all Hindus to worship therein in the like manner and to the like extent as any other Hind....