TaxTMI 
TaxTMI 
2019 (11) TMI 1678
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....arried to non-Parsis and their entry into 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 aris....
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....e or like grave error has crept in earlier by judicial 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 w....
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.... (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived." 5. It is strictly within these parameters 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. There....
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....ond Ananda Marga case, the exclusionary practice being followed at the Sabarimala Temple cannot be designated as one, the non-observance of which will change or alter the nature of Hindu religion. Besides, the exclusionary 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. ....
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....ala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is unconstitutional being violative of Article 25(1) and Article 15(1) of the Constitution of India." 7. Chandrachud, J. concluded, in paragraph 291, that Article 25 of the Constitution of India 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 ....
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....ticle 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion. (iii) Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their 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 fo....
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....a Administration Committee, Patna and Ors., (1955) 1 SCR 290, this Court had to consider the judgment in Re Delhi Laws Act, [1951] SCR 747, in which seven separate judgments were delivered on the vexed question of the legislature's power to delegate essential legislative functions. In attempting to cull out a common ratio, this Court enunciated a working test as follows: "Now what exactly 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 ....
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....n, J., when it comes to Article 17. Chandrachud, J. alone expounded on Article 17, and according to Shri Parasaran, this exposition amounts to an error apparent on the face of the record inasmuch as the expression "untouchability" would refer only to the discrimination meted out to Harijans, regardless of their sex, and would, therefore, not embrace members of the female sex alone who are regarded as "untouchables" during their period 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....
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....y held that the views of Chinnappa Reddy, J. are dissentient, as was recognized by Chinnappa Reddy, J. himself. The learned Judge in his first paragraph states: "I have the good fortune of having before me the scholarly judgment of my brother Misra, J. I agree with my brother Misra, J. that the writ petitions must fail. With much that he has said, also, I agree. But with a little, to my own lasting regret, I do not agree. It is, therefore, 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 onl....
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....ion of statutes. Constitutional law keeps evolving keeping in view, among other things, the felt necessities of the time. As has been explained in some of our judgments, "constitutional morality" is nothing but the values inculcated by the Constitution, which are contained in the Preamble read with various other parts, in particular, Parts III and IV thereof. This again is a mere rehash of what was argued earlier, and can by no means be said to be an error apparent 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 bal....
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....l arguments that have been made at the initial stage, and are fully dealt with by all the judgments. Re-arguing this aspect of the matter obviously does not fall within the parameters of a review petition. 23. One more extreme argument that was made is that since worshippers from all faiths come to Sabarimala, Sabarimala cannot be held to be a Hindu temple. This argument, again, has no legs to stand on. A Christian church cannot be said to be any the less a church on account 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 restriction....
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....nnot be made applicable in each and every public interest litigation, irrespective of the nature of litigation itself and its impact on the society and the larger public interest which is being served." (at page 331) This Court, in Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B. Jeejeebhoy, (1970) 3 S.C.R. 830, ["Mathura Prasad"], had held: "Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something 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 eff....
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.... of the review petitioners. Indu Malhotra, J. in her dissenting judgment, has held that to entertain a public-interest litigation at the behest of persons who are not worshippers at Sabrimala temple would open the floodgates of petitions to be filed questioning the validity of religious beliefs and practices followed by other religious sects. We have pointed out in this judgment that the majority judgment cannot be used to undermine the religious rights of others, including, in particular, religious minorities. Besides, busybodies, 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 ....
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....ithin the territory of India, which ensures that the Supreme Court, being the final arbiter of disputes, will lay down law which will then be followed as a precedent by all courts and tribunals within the territory of India. Article 142 of the Constitution confers upon the Supreme Court the power to make such decree or order as is necessary for doing complete justice in any cause or matter pending before it. By Article 145(3), a minimum number of five Judges are the last word on the interpretation of the Constitution, as any case 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 Suprem....
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....urposes of Articles 301 to 304, which speak of trade, commerce and intercourse within the territory of India, and consequently, deal with the economic unity of the nation. Article 329(b) speaks of a quasi-judicial authority before which an election petition may be presented. Article 353(b) and Article 357(1)(b) speak of authorities of the Union, as contradistinguished with authorities of the State. Article 356(1)(a) speaks of State authorities, when contradistinguished with Union authorities. Article 372(1) has reference to a "competent authority", being an authority which is 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....
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....nd to act in aid of the Supreme Court. Needless to say, they are bound to obey the orders of the Supreme Court and also, if required, render assistance and aid for implementation of the order(s) of this Court, but, unfortunately, the State of Karnataka is flouting the order and, in fact, creating a situation where the majesty of law is dented. We would have proceeded to have taken steps for strict compliance with our order, but as we are directing the Cauvery Management Board to study the ground reality and give us a report forthwith, we reiterate our earlier direction that the State of Karnataka shall release 6000 cusecs of water 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 ....
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....tion and the law, without fear or favour, affection or ill-will." 42. Insofar as their oath to uphold and defend the Constitution of India is concerned, the Chief Ministers of the several States, together with Ministers of their cabinets, are bound by Article 164(3), read with the Third Schedule, to uphold and defend the Constitution in the following terms: "164. Other provisions as to Ministers.- xxx xxx xxx (3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. xxx xxx xxx" "THIRD SCHEDULE xxx xxx xxx V Form of oath of office 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 Cons....
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....l bear true faith and allegiance to the Constitution of India as by law established, but also that they will do right to all manner of people, in accordance with the Constitution and the law, without fear or favour, affection or ill will. The same goes for the oath taken by the Chief Ministers and Ministers within the States. Read with Article 144, this would mean that it is the bounden duty of every Minister, whether Central or State, to follow Article 144 in letter as well as spirit, and to do what is right to all manner of people, in accordance with the Constitution and the law, which means in accordance with the interpretation of the Constitution declared by the law laid down by the Supreme Court. It is, therefore, incumbent upon the executive branch of Government and all MPs 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 cle....
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....aw' by Brian Z. Tamanaha, Aristotle is reported to have said: "It is better for the law to rule than one of the citizens...so that even the guardians of the law are obeying the laws." 48. John Locke had stated, in 1690, in his Second Treatise of Government, Chapter XVII, page 400, that, "wherever law ends, tyranny begins". 49. In the year of the American Declaration of Independence, i.e. 1776, Thomas Paine, in his book, "Common Sense", at page 34, stated: "...In America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other." 50. Prof. A.V. Dicey, the Vinerian Professor of English Law at the University of Oxford, in his book, "An Introduction to the Study of the Law of the Constitution", published 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....
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.... suspend laws without the consent of Parliament was condemned as illegal. Personal liberty and security were protected by prohibiting the requirement of excessive fines, the imposition of excessive bail, and the infliction of cruel and unusual punishments. 55. In the United States, the rule of law was established by the Constitution of the United States, 1789. In particular, Article VI of the U.S. Constitution states: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." 56. When it came to the judicial branch of Government, Alexander 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 Constitutio....
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....to extend their laws over all persons living within their boundaries. So, a judgment of the highest court of the land was blatantly disobeyed by the State of Georgia, with the backing of the President of the United States. 58. One hundred and twenty years later, the U.S. Supreme Court, in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), overruled a long-standing precedent of 1896, namely, Plessy v. Ferguson, 163 U.S. 537 (1896), to now declare that there shall be desegregation of black and white students in state schools. A constitutional crisis was reached, when the Governor of Arkansas openly flouted the desegregation order mandated by the U.S. Supreme Court in Brown (supra). In 1957, as stated hereinabove, the Governor of Arkansas and officers of the Arkansas National Guard obstructed black children from entering the high school at Little Rock, 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 i....
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.... law, judicially pronounced, was last sought to be justified before this Court, views were expressed which are now especially relevant: "The historic phrase 'a government of laws, and not of men' epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights, he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. 'A government of laws, and not of men,' was the rejection in positive terms of rule by fiat, whether by the fiat of governmental or private power. Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process 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." ....
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....cial segregation in the public schools in cities with Negro populations of large proportions. Compliance with decisions of this Court, as the constitutional organ of the supreme Law of the Land, has often, throughout our history, depended on active support by state and local authorities. It presupposes such support. To withhold it, and indeed to use political power to try to paralyze the supreme Law, precludes the maintenance of our federal system as we have known and cherished it for one hundred and seventy years." (emphasis supplied) (at page 26) 61. The aftermath of this decision was the enactment of the Civil Rights Act by the U.S. Congress in 1964. It was thanks to the decision in Cooper (supra) that the U.S. Congress finally outlawed racial discrimination in every form, including segregation of races at schools. Social transformation, therefore, took place as a result of the decisions in Brown (supra) and Cooper (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 Malc....
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.... Corpus was forthcoming, owing to the obstruction of the government, Grant issued a fresh writ returnable immediately, with a penalty of Rs. 10,000 in case of disobedience. A special constable was sent to Poona with authority to seek military aid, if the civil authorities obstructed him in the discharge of his duty. The Commander of the Bombay forces, Sir Thomas Bradford, who was at first disposed to support the government, now veered round to the side of the judiciary, declaring that to oppose the writ was to oppose the King, and he would call out the military to enforce His Majesty's writ. Malcolm retorted by declaring that, if the Commander interfered, he would "deport him bag and baggage" out of India, regardless of all consequences. Grant then took the extreme measure of going on strike with his entire staff, and locked up the High Court, suspending its functions for a period of about five months. Malcolm, of course, was banking upon 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 inte....
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....utional oath to uphold, preserve, and defend the Constitution of India. So far as the citizens of India are concerned, we would do well to remind them of the fundamental duties of citizens laid down in Article 51A of the Constitution, in particular, clauses (a), (e), and (h) thereof, which state: "51A. Fundamental duties.-It shall be the duty of every citizen of India- (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; xxx xxx xxx (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; xxx xxx xxx (h) to develop the scientific temper, humanism and the spirit of inquiry and reform; xxx xxx xxx" (emphasis supplied) We may, at this juncture, make it clear that the freedom to criticise the judgments of this Court 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....
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....e and a decision is pronounced, it is the decision of the Supreme Court and binds everyone. Compliance is not a matter of option. If it were to be so, the authority of the court could be diluted at the option of those who are bound to comply with its verdicts. 66. The State of Kerala is directed to give wide publicity to this judgment through the medium of television, newspapers, etc. The government should take steps to secure the confidence of the community in order to ensure the fulfillment of constitutional values. The State government may have broad-based consultations with representatives of all affected interests so that the modalities devised for implementing the judgment of the Court meet the genuine concerns of all segments of the community. Organised acts of resistance to thwart the implementation of this judgment must be put down firmly. Yet in devising modalities for compliance, a solution which provides lasting peace, while at the same time reaffirming human dignity as a fundamental constitutional value, 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 dis....