The Judgement in Sabarimala Case Constitutes to be No Res Judicata and Is Not Executable

The Judgement in Sabarimala Case Constitutes to be No Res Judicata and Is Not Executable.

 Mathews J. Nedumpara

16th November, 2019

    What prompts me to pen these few lines is the news item in today’s (16.11.2019) Times of India, Cochin Edition, under the caption “Government must read dissenting ruling in Sabarimala case: Nariman.  Cannot allow violation of extremely important ruling: Judge”.

2. Francis Bacon, Lord Chancellor of England, said de fide et officio judicis non recipitur quaestio; sed de scientia, sive error sit juris sive facti – the honesty and integrity of a Judge cannot be questioned, but his decision may be impugned for error either of law or fact, which is a maxim of great sanctity and a fundamental principle of law. The right to dissent is the very essence of the democracy and the freedom of speech and expression enshrined in Article 14, nay, the very right to life under Article 21 of the Constitution, which takes within its ambit the right to criticize and dissent judgments of Courts, including of the Supreme Court. Justice Nariman who wrote the dissenting judgment of 14th November, 2019 for himself and Dr. Justice Chandrachud, in paragraph 63 thereof, has acknowledged this principle even by making a reference to the celebrated judgment of the House of Lords in Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 at 335). Justice Nariman in his dissenting judgment has in categorical terms made it clear that the majority judgment rendered in October, 2018 has declared that the restriction to the entry of menstruating women to Sabarimala shrine is unconstitutional and any breach thereof by the authorities will have dire consequences. In paragraph 41 thereof, His Lordship has even reminded the executive, political class, that no one, including the Prime Minister, can ill afford to disregard the binding judgment of the Supreme Court.
3. I am in full agreement with Justice Nariman that a judgment of a Court, not merely of the Supreme Court but even of the lowest Court, if final, authoritative and binding, ought to be implemented in accordance with law. Even ad-interim, nay, temporary orders of the lowest judicial Tribunal is required to be given effect to in the manner prescribed by law. While agreeing with Justice Nariman to the extent as above, I beg to say that I am in complete disagreement with the majority judgment rendered in October, 2018 and the dissenting minority judgment rendered on 14th November, 2019. I do so with utmost respect which, as a lawyer and a citizen, I am duty bound to pay when it comes to judicial pronouncements.
4. While reiterating once again my greatest regard and respect to Justices Nariman and Chandrachud, I beg to submit that it may not have been very appropriate for Justice Nariman to make the observation which, if the news report referred to above is true, His Lordship was pleased to make while hearing the case of the Enforcement Directorate seeking cancellation of the bail granted to the Karnataka Congress leader D.K. Shivakumar. I am not questioning the freedom or wisdom of the Judge to make any observation which he pleases in the course of a judicial proceeding. Our Judges enjoy absolute immunity. The lay people, who may read this article, may be shocked if they were told that even if a Judge were to maliciously convict an innocent person and send him to the gallows, he is immune and no civil or criminal proceeding will lie against him. That is the meaning of the expression fiat justitia ruat caelum in Latin – “may justice be done though the heavens fall.”
5. In the Sabarimala case, as a counsel for National Ayyappa Devotees’ Association (NADA), a Mumbai based organization, the primary premise on which I sought a declaration that the majority judgment of October, 2018 is void by recourse to Article 137 (review) and Article 32 (writ) was that whether or not Lord Ayyappa does not want women of menstruating age to visit him is a matter of faith, falling in the exclusive domain of faith; that even assuming that a section of devotees consider that Lord Ayyappa has not imposed any such restriction and to hold so is a false myth, vast majority, including an overwhelming majority of women devotees too whose right is said to have been denied, bona fide believe that it is the ordain of Lord Ayyappa himself, and the controversy is not justiciable at all. I beg to submit with utmost respect that the proposition that faith is justiciable and that the Court has power to decide whether a particular belief or practice is a mere superstition or an essential religious practice, a proposition which a Seven-Judge Constitution Bench in Shirur Mutt case, was pleased to propound, is contrary to the first principle of jurisprudence.
6. Faith is not justiciable at all. The reason is simple, but cogent. Let me explain. Cause of action is a disputable evidence. The job of the Court is to find out the truth by allowing the parties to the lis or dispute to adduce evidence in support of their case and contradict the evidence appearing against them, and that truth is a judgment or a decree of the Court. The cause of action, which is a disputable evidence, in the process of a trial transforms into a judgment or decree of a Court, of “uncontrollable verity”, to borrow an expression of Chief Justice Edward Coke, and the correctness thereof cannot be questioned anywhere, except by the mechanism of an appeal or revision, if the statute provides for one. The cause of action ceases to exist and merges with a judgment or decree of a Court, the latter alone will thereafter exist. The majority judgment rendered in October, 2018 which is, I beg to submit with utmost respect, one rendered void ab initio, being without jurisdiction, without observing the principles of natural justice, even if assumed to be final and authoritative, as understood by the whole world, with myself and NADA to be the exception, with the majority judgment of 14th November, 2019, the former judgment is no longer final and authoritative. In my humble opinion, even prior to 14th November, 2019, the said judgment was one rendered void ab initio, without jurisdiction, faith being non-justiciable, and in violation of the principles of natural justice because not a single Ayyappa devotee was ever heard. However, subsequent to 14th November, 2019, there can be no dispute as to the finality, authoritativeness and binding nature of the majority judgment of October, 2018, notwithstanding the assertion of Justice Nariman in his dissenting judgment and the comments made by His Lordship in the open Court, as reported in the news item.
7. When it comes to res judicata, namely, finality and authoritativeness of a judgment, what matters is numbers. Justice Nariman is in minority. The majority judgment of 14th November, 2019 has put the authoritativeness and finality of the majority judgment of October, 2018 into jeopardy. Nobody can claim any right to enter the Sabarimala shrine based on the majority judgment of October, 2018 and the dissenting judgment of 14th November, 2019. I concede that every woman of menstruating age, who bona fide believe that the restriction is a false myth and it amounts to a violation of her fundamental right under Articles 14, 19 and 21, can approach a Court for enforcement of the same, but no fundamental rights are absolute. In the case on hand, enforcement of the fundamental right, which a woman may complain of, comes in conflict with the fundamental right of freedom of faith and belief of millions of Ayyappa devotees who consider that entry of women of menstruating age is contrary to the ordain of Lord Ayyappa himself. Since the said controversy falls in the exclusive province of faith, no Court has jurisdiction to decide whether that faith is right or wrong. Faith is blind and could even be contrary to reason, science and logic and thus not justiciable at all.
8. Personally, I am not against women of all ages entering the Sabarimala shrine, but that cannot be by offending the faith and belief of millions of Ayyappa devotees. The reformists have knocked at the wrong door, the Court. They should educate the devotees themselves and mobilize public opinion. That alone is the way open for those who consider that the practice is discriminatory. I personally believe that no question of any discrimination based on biology or sex arises. These kinds of litigations are wholly uncalled for, which are instituted to hog headlines. As a lawyer I am very much pained. The job of a Court is to resolve crises, being peace and not to pave way for social unrest by entertaining petitions of the one like entry of women into Sabarimala shrine, entry of Muslim women into mosques etc., controversies which do no good to the country. My humble opinion, nay, I pray, that Courts should devote their time to dispose of long pending cases of undertrial prisoners languishing in prison for decades awaiting decision on their appeals and the like who cry for justice rather than rendering judgements without trenching into the domain of legislation.

Mathews J. Nedumpara