Sabarimala dissenting view: What Justices Nariman, Chandrachud said

Apurva Vishwanath
Justices D Y Chandrachud and R F Nariman (Illustration by Suvajit Dey)

While the 3:2 majority opinion on pleas seeking a review of the Sabarimala judgment referred key issues to a larger Bench, the dissent, authored by Justice R F Nariman on behalf of himself and Justice D Y Chandrachud, simply dismissed the review petitions.

Sabarimala verdict: What does the dissenting opinion say?

Justice Nariman and Justice Chandrachud differed with the majority opinion that certain legal issues needed to be considered by a larger Bench. The judges said there is no occasion for the court to recalibrate judicial decisions on legal issues such as the essential religious practice test.

“What this Court has before it is review petitions arising out of this Court’s judgment in Indian Young Lawyers Association and Ors v State of Kerala WP (C) No.373 of 2006, which was delivered on 28 September, 2018, with regard to the Sabarimala temple dedicated to Lord Ayyappa. What a future constitution bench or larger bench, if constituted by the learned Chief Justice of India, may or may not do when considering the other issues pending before this Court is, strictly speaking, not before this Court at all,” the minority view said. “Consequently, this judgment will dispose of the said review petitions and writ petitions keeping the parameters of judicial intervention in such cases in mind.”

Why did the minority opinion focus only on deciding the Sabarimala review?

A petition filed seeking a review of a judgment is filed under Article 137 of the Constitution, read with Order XLVII of the Supreme Court Rules, 2013.

Quoting a previous ruling, the minority judges said: “A review is entertained on narrow grounds when there is a discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; mistake or error apparent on the face of the record and any other sufficient reason”. The minority also said that “a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error”.

“The mere possibility of two views on the subject cannot be a ground for review. The error apparent on the face of the record should not be an error which has to be fished out and searched,” the minority said, citing a 2013 SC ruling in Union of India v Sandur Manganese & Iron Ores Ltd.

At the Sabarimala Temple in Kerala. (Reuters Photo/File)

The minority opinion referred to the grounds raised by the review petitioners as a mere “rehash of arguments” and “re-argument of the arguments heard and considered earlier” while dismissing them. The dissenting judges said that when the process of adjudicating a case is complete and a decision is pronounced, the decision of the Supreme Court and binds everyone. “Compliance is not a matter of option,” the judges said.

Also read | Sabarimala verdict: How majority view echoes dissent of 2018

What did the minority opinion say on the 2018 Sabarimala verdict?

The minority opinion on Thursday, while concluding that the review petitioners have failed to show an error apparent on the face of law in the 2018 majority opinion, also engaged with several issues that had been raised in Justice Indu Malhotra’s lone dissent in the 2018 verdict.

Justice Malhotra had 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.

The judges reiterated that the Sabarimala 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 bona fide 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”.

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