New Delhi: Not only must justice be done; it must also be seen to be done.
This time-honoured principle appears to have prompted the Supreme Court to allow open court hearing of a clutch of review petitions against the Sabarimala verdict.
As the issue gets into the hugger-mugger of technicalities, the order by the Supreme Court has made a few things clear while deferring its views on some others.
The review petitions
The review petitions, as many as 49 in number, were examined by the five-judge bench in their chambers.
Under the Supreme Court rules, review petitions against the main judgment are usually decided by the judges sitting in their chambers during the lunch break between 1pm and 2pm.
Ordinarily, review petitions are tied up to the bench which had decided the main case. And if any judge of that bench has retired, a new judge takes his place.
The case files are circulated to the judges in their respective chambers and there is no need for the all the judges on the bench to sit together. Nor is there a requirement of lawyers to make oral arguments.
Only those, who were parties to the main case, are allowed to file review petitions unless the court specifically gives permission to any other party.
What the case papers need to demonstrate to the judges is that there was a grave error in deciding the case, either in law or on account of understanding of the facts, and that this error warrants a correction to meet the ends of justice.
Once the judges examine the petitions, each of them on the bench record his or her views. Finally, they all sign a common summary of the decision that comes out as the order in the review petition.
Open court hearing of review petitions
More often than not, review petitions also have a plea for an open court hearing since such an opportunity would help the lawyer concerned to put across the points in a more effective manner.
The applications for open court hearing accompany the substantial review petition. It is completely the discretion of the judges to decide whether the case deserves an open court hearing.
If the bench is of the view that an open court hearing furthers the interest of justice and it would assist the judges in their decision-making in a given case, the plea for an open court hearing can be accepted.
On Tuesday, the five-judge Constitution Bench examined the batch of review petitions on Sabarimala, and decided to give an open court hearing in the matter—a request made by each one of these petitions.
Allowing review petitions to be heard in open court signifies that the court wants to give sufficient opportunity to the petitioners to make out their case before the fate of the matter is eventually decided.
It would allow the lawyers to make oral arguments and this would be especially beneficial for the review petitioners who were not parties in the case earlier.
Out of 49 review petitions, more than two dozen petitioners were not there in the previous round and hence, they have to be first added as parties by a permission from the bench.
Lawyers for these parties have an advantage now to persuade the court through arguments as to why they should also be allowed to challenge the verdict.
The review petitions will be heard by the five-judge bench on January 22 when the lawyers of both sides get to argue on the merits of the case.
SC has not admitted the petitions so far
The review petitions on Sabrimala are yet to be admitted for hearing by the top court. It means that the Constitution Bench has not taken a decision so far whether the case is arguable or not.
On Tuesday, the bench allowed an open court hearing but no notices were issued and the case was not admitted for hearing.
It indicates that the top court has still not made up its mind on the strength of the review petitions and the merit in them to satisfy the limited grounds required for review of a judgment. This decision has been deferred till the petitions are heard in the open court.
Therefore, the petitioners will have to convince the court on January 22 that they have valid and good grounds for reconsideration of the September 28 judgment and hence, notices should be issued to Kerala government, Devaswom Board and other parties.
No stay of the main judgment
Most of the review petitions listed on Tuesday had also prayed for a stay on the September 28 verdict by the court, allowing women of all ages to enter Sabarimala temple.
But the Constitution Bench, in its order, has apparently shot down this plea. “We make it clear that there is no stay of the judgment and order of this court dated 28th September, 2018,” stated the court order.
This part of the order is evidently deliberate and wants to clear the air that the disposition to hear the matter in the open court will have no effect on the implementation of the September 28 judgment.
Notably, had the bench not stated anything on the stay, it would have still meant that the main judgment on Sabarimala stands firm. For, there cannot be an automatic stay of a judgment without a judicial order to that effect.
But the five-judge bench made it a point to specify there is no stay so as to communicate to everyone concerned that it was way too early to pre-judge the issue and warded off attempts to misconstrue Tuesday's order.
In the light of the order, no party can now make an argument that since the apex court has agreed to hear the review petitions, main judgment is rendered inoperative for the time being.
A direct order against stay further leaves no ground for confusion in so far as women's right to enter the temple is concerned as well as the duty cast upon the state government to enforce the Supreme Court's order in letter and spirit.
If the state government now fails in its duty, complaints can be made before the court on non-compliance and a contempt by those who are impeding the women's right to pray.
However, at this stage when no such complaints lie before it, the Supreme Court did not apparently deem it necessary and appropriate to seek for an interim compliance or any report from the state government or the Devaswom Board regarding the implementation of its verdict.