Parturient montes, nascetur ridiculus mus
-Mathews J Nedumpara
The National Ayyappa Devotees’ Association (NADA) was the first entity to challenge the judgment of the Five-Judge Constitution Bench in WP No. 373/2006 (the Sabarimala case) holding that Rule 3(b) of the Kerala Places of Public Worship (Authorization of Entry) Rules, 1965, which restricts women of menstruating age from entering the shrine of Lord Ayyappa at Sabarimala, as unconstitutional. The Review Petition filed by it was the second of the large number of Review Petitions seeking review of the judgment in the Sabarimala case. In the petition instituted under Article 32, the NADA sought a declaration that the judgment in the Sabarimala case is one rendered void ab initio, being vitiated by errors apparent on the face of the record. In other words, it is a judgment rendered by the Supreme Court in gross violation of the principles of natural justice, without hearing not even a single devotee of Lord Ayyappa and thus denying the right to be heard to millions of devotees, without them as the parties arrayed and thus in violation of the principles of natural justice, nay, judicial procedure to be followed; that the Supreme Court was invested of no jurisdiction to render a judgment which would violate the faith of millions of devotees of Lord Ayyappa; that it is the ordain of Lord Ayyappa himself that women of menstruating age shall not enter his shrine, he being a Naishitika Brahmachari (eternal celibate); that no judgment, as in the Sabarimala case, which violates the faith of the devotees could ever be rendered without them as the parties arrayed, at least in a representative capacity, while asserting that even in a representative proceeding the Court is vested with no jurisdiction, for, the determinative test in deciding whether a judgment is one rendered in personam or in rem is not whether it is instituted in a representative capacity or otherwise, but the nature of remedies sought. The NADA pleaded that no Court is vested with the jurisdiction to pronounce upon the faith of the devotees because the cause of action is a disputed evidence and the function of the Court is to allow the parties to adduce evidence for and against and based on the evidence determine what is the truth, and the disputed cause of action, faith being not based on any evidence and, on the contrary is often contrary to evidence and science, is non-justiciable. The NADA cited the example of the effect of a judgment in a petition for divorce between husband and wife, which is not representative in nature where if divorce is granted, the judgment is in rem and if divorce is declined the judgment is in personam, to fortify its plea that in matters of faith the Court cannot enter into a finding even if the proceeding is a representative one.
The NADA in its Review Petition raised the very same pleas to seek a declaration that the judgment in the Sabarimala case is void. It was pleaded in unmistakable terms that if a judgment of a Court, even of the Full Court of the Supreme Court, is rendered without jurisdiction, in violation of the principles of natural justice, contrary to express statutory provision or in ignorance thereof, such a judgment is void ab initio, non est, one which never ever existed in the eye of law and the validity of the same could be questioned whenever and wherever it is sought to be enforced, in a direct or collateral proceeding. It was pleaded that the most appropriate forum to seek a declaration that the judgment in the Sabarimala case is unconstitutional and void is the Civil Court of competent jurisdiction. It was further pleaded that though institution of a suit for such a declaration would be the most appropriate procedure, such a course of action being contrary to the common psyche, separate petitions under Article 32 (writ) and Article 137 (review) are instituted. The specific plea of the NADA was that procedure does not matter and what matters is the substance. Article 137 is a mere procedural right. The substantive remedy sought for is a declaration that the judgment in the Sabarimala case is void ab initio, unconstitutional and non est. In its petition under Article 32 none of the five writs referred therein was sought for. What was sought for was a declaration. However, neither in the judgment of the majority at the hands of Chief Justice Ranjan Gogoi nor of the minority any specific mention was made about the plea of the NADA. There was some reference to their plea, but it was indirect and vague. The Five-Judge Constitution Bench headed by Chief Justice Gogoi in fairness ought to have taken notice of the plea of the NADA and set aside the majority judgment of Justice Dipak Misra. However, unfortunately, it was not destined to be so. Instead, a reference was made as vague as “vagueness ever could be”, to borrow an expression from Chief Justice Pradeep Nandrajog of the Bombay High Court. The practice of making reference to a larger Bench from the point of view of deciding a particular case on facts or law cannot be faulted. However, the practice of referring a judgment to a larger Bench so as to render the said judgment as a precedent or law of the land under Article 141 is in ignorance of the first principle of jurisprudence. The reason is simple. What is a precedent is the principle which the Court has evolved for the first time and that principle will apply as a precedent in future cases, and it is for the Judge before whom such a precedent is cited, be it a Magistrate, a High Court Judge or a Supreme Court Judge, to follow that precedent or not. The practice of referring a judgment to a larger Bench for laying down the law of the land, which was the pronounced purpose of reference at the hands of the majority, is an exercise in futility, namely, parturient montes, nascetur ridiculus mus – mountains will be in labour, and an absurd mouse will be born (all that work and nothing to show for it), to borrow a maxim from Homer.
As aforesaid, the real issues were a) whether faith is justiciable b) if justiciable, was it not imperative that both sides were heard, namely, those who believe that the restriction is the ordain of Lord Ayyappa himself and those who dispute the same, the answer of which could only be in the affirmative which is impossible to carry out, except in a representative capacity and whether such a representative proceedings would be a writ or a suit and assuming that even a writ proceedings in this court as an original proceedings will lie, and whether such a judgement will bind the posterity. Such a proposition that it would bind even non-parties is against the first principles of the concept of judgement in rem, for a representative proceedings will not necessarily make a judgement one rendered in rem, while even a non-representative suit, depending on the nature of the reliefs granted could be judgement in rem. The issues dealt with in the previous sentence are complex. However, it is submitted with utmost respect to the doyens of bar who are appearing for rival parties that they have failed to raise it. The NADA which i am representing is not allowed to raise it because i am barred from appearing. It is extremely agonizing that even those who oppose the faith of the devotees have failed to raise the plea that nothing could be more absurd than to say that no review will lie, because the devotees were not parties to the original judgement, that the plea for review was the re-argument of the plea that was rejected by the majority. It is beyond comprehension how the devotees who were not parties and who were not heard could have raised any argument which could be castigated as a re-argument of the lost plea or re-arguing as if in an appeal. The plea that a petition under Article 32 will not lie is an affront to reason, for Article 32 is used, nay, abused, even to declare a Constitution amendment as void as in the NJAC case. The NADA did not seek any writ, much less a writ of certiorari impugning the judgement of the Sabarimala case. What was sought for, was a declaratory remedy not a writ, namely that the judgement in the Sabarimala case is one rendered null and void ab initio, unconstitutional. It is childish to plead that no Article 32 petiton will lie against the judgement of a coordinate bench relying on the judgement of the 9 judge bench in Naresh Mirajkar’s case. In Naresh Mirajkar’s case, the SC did not hold that no declaratory remedy will lie. All that was said was that no writ of certiorari will lie. I have no quarrel with the said proposition. Those who plead that no review under Article 137 or declaration under Article 32 will lie, have not shown the courage to suggest what the alternative procedure open to the devotees is. There ought to be a forum open to the faithful for ‘ubi jus, ibi remedium’, where there is a right, there is a remedy or ‘equity will not suffer a wrong to be without remedy’. If those who oppose the devotees would show the courage to say that the devotes have no right and much less any forum, candidly, i will appreciate
The preliminary objection of Shri Fali S Nariman that no order to make a reference could have been passed in a order in review is against the first principle is that what matters is substance, not the form.
One thing is certain, the lawyers representing both sides have, so far not raised the real legal issues which are required to be raised and determined. In the hearing held on 3rd of February, the devotees who were denied representation by the lawyer of their choice ventured to hand over across the bar, the fundamental questions which are required to be discussed. Nothing could be more painful than that the said draft issues were refused to be taken on record. I fear that catastrophe is a fait accompli as in the NJAC case where the humble self repeatedly ventured to raise the issue of non-maintainability of the challenge by the Supreme Court Advocate on Record Association (SCOARA) of the NJAC which was to replace the collegium. The collegium came into existence only because Shri Parasaran failed in 1993 to raise the issue of the very non-maintainability of the SCOARA’s petition seeking rewriting of the constitution by a judgement. I part with in the unstinted faith that the this brief article would help those representating the faith to raise the real issues atleast now.
Mathews J Nedumpara