IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
REVIEW PETITION (DIARY) NO. 37946 of 2018
IN
WP (C) NO. 273/2006

Argument notes by Shri Mathews J. Nedumpara, arguing counsel for the Review Petitioners

1. The instant note is prepared in light of the arguments on behalf of the Review Petitioners seeking the very same relief, namely, review of the judgment in the Sabarimala case (WP (c) no. 273/2006). The undersigned to a large extent disagree with the contentions put forward by the battery of eminent lawyers. None of them seriously questioned the jurisdiction of the Court under Article 32 to grant the reliefs sought for by the Original Petitioners which are in the nature of declaratory remedies affecting the freedom of conscience and the right to practice their faith of the millions of devotees of Lord Ayyappa at Sabarimala. They also did not question the competence and jurisdiction of this Hon’ble Court to answer the 7 questions of law referred to it for its opinion/adjudication. The contention of the undersigned is that this Hon’ble Court has no jurisdiction to grant the declaration which the Original Petitioners had sought, namely to declare Rule 3 of the Kerala Hindu Places of Public Worship Rules as unconstitutional. The core of the contention of the undersigned is that no writ under Article 32 will lie inasmuch as the jurisdiction under Article 32 is limited to the grant of the five writs for the enforcement of the fundamental rights, that too, primarily against the State and its instrumentalities. Before any relief could be granted under Article 32, this Hon’ble Court is duty bound to serve notice and hear all those persons whose interests are directly affected by the lis before it. The Original Petitioners did not seek any enforcement of their fundamental rights. They were busy bodies, to put it mildly. What they sought was a relief against the devotees of Lord Ayyappa, who hold the belief that the pratishta of Lord Ayyappa at Sabarimala is in the form of a Naishtika Brahmachari (an eternal celibate), and that, in accordance with this belief, women of a particular age group do not undertake the pilgrimage. The so-called PIL was not at the instance of devotees of Lord Ayyappa who had a contrary view. The Petitioners admittedly were not devotees. Assuming that the petition was at the instance of devotees who had a contrary belief, then there exists a lis. That being the case, the entire PIL is a gross abuse of the process of law, an enormous and unthinkable drain on precious judicial time.
2. Assuming that the Petitioners had a contrary belief, then the only course of action open to them was to institute a civil suit of representative nature before a Civil Court in Kerala within whose territorial limits the Sabarimala temple is located, invoking Section 92 of the CPC. Had such a suit been instituted, the Court would have directed notice to be served at the public at large and such a suit would have been conducted as a representative proceedings, and the decision of such a suit would have been binding on the devotees of Lord Ayyappa, those who believe in the prohibition and those who oppose it.
3. The Kerala High Court in S. Mahendran v. The Secretary, Travancore Devaswom Board (1991 SCC Online Ker 43) acted contrary to the fundamental principle that in an issue concerning faith, involving millions of people, no Court has the jurisdiction to embark upon an enquiry except in a representative suit. The Hon’ble Court entertained a letter as a PIL and rendered a judgment holding that Lord Ayyappa is a Naishtika Brahmachari and that a women of a particular age group are prohibited from visiting the shrine. The said judgement is one rendered void ab initio because a judgment of a court can only bind the parties before it and none else. Had the judgment of the High Court been rendered in a representative proceedings, it would have been binding on the devotees at large as res judicata. The undersigned hastens to add, not as judgment in rem, a concept which is grossly misunderstood, as could be found in a large number of judgments of this Hon’ble Court.
4. The reasons for which the undersigned faults with the judgment in S Mahendran as one rendered void ab initio, without jurisdiction and in violation of the principles of natural justice, applies with equal force to the judgment of this Court under review (the Sabarimala case). So far as the devotees of Lord Ayyappa are concerned, those who believe in the prohibition and those who do not, if at all any, the judgment in S. Mahendran, as also the judgement under review, are rendered void ab initio being res inter alios. Res inter alios stated in simple terms means nobody is bound by a judgment of which he is not a party. For them it is void.
5. The concept of PIL, as seen in practice today, is against the elementary principles of jurisprudence. There is a clear distinction between pro bono litigation and today’s PIL. Pro bono litigation, for instance, for the enforcement of the rights of an undertrial is no proceedings concerning the public at large. It is concerning the undertrial. The undertrial is the real petitioner. The activist who files such a petition is only a representative. In pro bono litigation, there is a person aggrieved, there exists a legal injury, the law thus provides for a remedy and where it is for the enforcement of a fundamental right, a pro bono litigation, now known as, ‘Public Interest Litigation’ under Article 32 lie. In matters concerning the public at large, only the Attorney General can invoke the jurisdiction of the Court, for he as the parens patriae, is the sole repository of public interest. In England, a qui tam proceedings, to compel a public authority to discharge its duty is well recognised. By virtue of the 5 writs expressly mentioned under Article 32, such a right in a citizen is reaffirmed. However, all those rights could only be invoked by a person aggrieved who has suffered a specific legal injury. Anything beyond this, done in the name of PIL, as is done today, is without jurisdiction and unconstitutional. In today’s PIL, the PIL activists, unhesitatingly step into the shoes of the Attorney General and often misleads the court to invoke its jurisdiction, even in matters of executive and legislative policy in furtherance of their political, ideological or personal agenda. It would be no exaggeration to assert that it is high time that the entire business of PIL is done away with.
6. The validity of a judicial precedent is not based on the strength of the bench or the inter se majority. What is binding in a judgment as a precedent to those who were parties to the same is the legal principle, if any, evolved for the first time where none existed or a principle which has been repeatedly and repeatedly reaffirmed. What matters is the reason for the decision, the ratio decidendi and nothing else. The concept of majority is absolutely relevant when it comes to res judicata. If 4 out of the 5 judges of a bench holds an innocent man guilty of murder and sentences him to death, he will be hanged, because what matters here is the majority. So far as the doctrine of precedent is concerned, the concept of majority or strength of the bench has no relevance, whatsoever.
7. The current practice of referring questions of law to larger benches is fraught with far reaching consequences. The full court of this Hon’ble Court in Kesavananda Bharti, by giving birth to a concept called basic structure has created a scenario where any busy body can invoke Article 32 claiming that none of its fundamental rights are infringed, but the basic structure is. The judgment in Kesavananda Bharati is so revered that no judge would ever ask “if the basic structure is infringed, but none of your rights are affected, how are you concerned?” Nor would a judge ask that, “if the real grievance is that your rights are infringed why would you not assert that instead of infringement of the basic structure?”. The basic structure doctrine has led to a long line of judgments which are contrary basic jurisprudence, which include the Judges-2 case, the NJAC case, the Madras Bar Association case, to name a few.
8. The judgments of the Supreme Court are not the “law of the land”, but are only binding precedents where it contains a valid principle. The concept of judicial review does not mean that the public at large can be made bound by a judgment of which they were not parties, they only bind the parties to the case. However, the judgments of superior courts all over the world command so much reverence and respect for its quality, erudition and objectivity, such that the people at large accept it as binding on them. That is not based on a legal principle but is an expression of the adulation towards the court.
9. The large number of judgements which came to be referred during the course of the hearing rendered are on the premise that the judgments laying down the law are judgments in rem and others are judgments in personam. Nothing could be a bigger misconception. For instance, a judgment in a suit for divorce between husband and wife, where divorce is granted is a judgment in rem, and where it is denied is a judgment in personem. In a judgment declining divorce, if a new principle has been evolved by this Court, that will be binding in future cases as precedent, despite the judgment being a judgment in personam.
10. Assuming that the Sabarimala case is based on real issues concerning faith and a large number of Ayyappa devotees are opposed to the prohibition, then the Court will have to decide the issue based on the principle of majority. All faith is blind. No court has the jurisdiction to adjudicate upon the correctness of faith because faith is not a disputable evidence which can be proved or disproved based on evidence. All that the Court can adjudicate upon is whether such a faith exists. The unkindest cut of all is that the protracted hearing of the case has led a great lot of judicial time being spend on an issue which is not a pressing one as compared to hundreds of criminal appeals, even involving death sentence, pending for years.
11. The undersigned begs to disagree with the contention that the devotees of Lord Ayyappa constitute a religious denomination. The issue before this Hon’ble Court is simple, one which requires application of practical wisdom and common sense. The large catena of judgements, the undersigned is afraid to say, has no relevance. If this Hon’ble Court in its judgment were to make a reference to the large number of judgements cited so far and those likely to be cited by the Respondents, it could lead to a scenario where a judgment running into hundreds of pages is rendered. One of the greatest challenges which our justice delivery system today faces is the sheer volume of precedents and the ever-increasing length of judgements.