advocatemmmohan
- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws. This blog is only for information but not for legal opinions
Wednesday, May 27, 2020
Wednesday, May 20, 2020
Dress Code
SUPREME COURT OF INDIA
F. No.06/Judl./2020
13th May, 2020
C I R C U L A R
It is notified for the information of all concerned that considering
the medical advice, as a precautionary measure to contain spread of
Coronavirus (COVID-19) infection under the prevailing conditions, the
Competent Authority has been pleased to direct that the advocates may
wear “plain white-shirt/white-salwar-kameez/ white saree, with a plainwhite neck band” during the hearings before the Supreme Court of India
through Virtual Court System till medical exigencies exist or until further
orders.
The above directions shall come into force with immediate
effect.
Sd/-
[Sanjeev S. Kalgaonkar]
Secretary General
Copy to:
1. The Secretary, Supreme Court Bar Association with five spare
copies of the Circular with a request that this may be displayed on
the Notice Board of the Bar Association for the information of the
Members of the Bar.
2. The Secretary, Supreme Court Advocates-on-Record Association
with five spare copies of the Circular with a request that this may be
displayed on the Notice Board of the Association for the information of
the Members of the Association.
3. The Branch Officer (CC) with a request to upload this Circular on
Supreme Court Website.
4. Filing and Re-filing Counters.
5. All concerned.
F. No.06/Judl./2020
13th May, 2020
C I R C U L A R
It is notified for the information of all concerned that considering
the medical advice, as a precautionary measure to contain spread of
Coronavirus (COVID-19) infection under the prevailing conditions, the
Competent Authority has been pleased to direct that the advocates may
wear “plain white-shirt/white-salwar-kameez/ white saree, with a plainwhite neck band” during the hearings before the Supreme Court of India
through Virtual Court System till medical exigencies exist or until further
orders.
The above directions shall come into force with immediate
effect.
Sd/-
[Sanjeev S. Kalgaonkar]
Secretary General
Copy to:
1. The Secretary, Supreme Court Bar Association with five spare
copies of the Circular with a request that this may be displayed on
the Notice Board of the Bar Association for the information of the
Members of the Bar.
2. The Secretary, Supreme Court Advocates-on-Record Association
with five spare copies of the Circular with a request that this may be
displayed on the Notice Board of the Association for the information of
the Members of the Association.
3. The Branch Officer (CC) with a request to upload this Circular on
Supreme Court Website.
4. Filing and Re-filing Counters.
5. All concerned.
A4 size papers
SUPREME COURT OF INDIA
F. No.05/Judl.2020
New Delhi,
Dated: 13th May, 2020
C I R C U L A R
It is notified for the information of all concerned that
considering the difficulties being faced by the members of the
Bar/parties-in-person with regard to use of A4 size paper in the wake of
lockdown related to Covid-19, the Competent Authority has been
pleased to direct that :
(i) all the cases which were filed before 01.4.2020, may be refiled
using either A4 size paper or legal size paper;
(ii) exemption from filing/re-filing fresh petitions etc. in A4 size
paper is granted upto 15.6.2020 only in those cases where
difficulties are being expressed to use A4 size paper. The
Advocate-on-Record/ Party-in-person may file an application
seeking exemption to use A4 size paper specifying the
circumstances to seek such exemption. The said application
shall be placed before the Additional Registrar Incharge, Filing
Counter, who is empowered to decide the same; and
(iii) no exemption will be granted in respect of cases filed through
efiling where A 4 size paper format shall be compulsory.
The above directions shall come into force with immediate
effect.
Sd/-
[Sanjeev S. Kalgaonkar]
Secretary General
Copy to:
1. The Secretary, Supreme Court Bar Association with five spare
copies of the Circular with a request that this may be displayed on
the Notice Board of the Bar Association for the information of the
Members of the Bar.
2. The Secretary, Supreme Court Advocates-on-Record Association
with five spare copies of the Circular with a request that this may be
-2-
displayed on the Notice Board of the Association for the information of
the Members of the Association.
3. The Branch Officer (CC) with a request to upload this Circular on
Supreme Court Website.
4. Filing and Re-filing Counters.
5. All concerned.
F. No.05/Judl.2020
New Delhi,
Dated: 13th May, 2020
C I R C U L A R
It is notified for the information of all concerned that
considering the difficulties being faced by the members of the
Bar/parties-in-person with regard to use of A4 size paper in the wake of
lockdown related to Covid-19, the Competent Authority has been
pleased to direct that :
(i) all the cases which were filed before 01.4.2020, may be refiled
using either A4 size paper or legal size paper;
(ii) exemption from filing/re-filing fresh petitions etc. in A4 size
paper is granted upto 15.6.2020 only in those cases where
difficulties are being expressed to use A4 size paper. The
Advocate-on-Record/ Party-in-person may file an application
seeking exemption to use A4 size paper specifying the
circumstances to seek such exemption. The said application
shall be placed before the Additional Registrar Incharge, Filing
Counter, who is empowered to decide the same; and
(iii) no exemption will be granted in respect of cases filed through
efiling where A 4 size paper format shall be compulsory.
The above directions shall come into force with immediate
effect.
Sd/-
[Sanjeev S. Kalgaonkar]
Secretary General
Copy to:
1. The Secretary, Supreme Court Bar Association with five spare
copies of the Circular with a request that this may be displayed on
the Notice Board of the Bar Association for the information of the
Members of the Bar.
2. The Secretary, Supreme Court Advocates-on-Record Association
with five spare copies of the Circular with a request that this may be
-2-
displayed on the Notice Board of the Association for the information of
the Members of the Association.
3. The Branch Officer (CC) with a request to upload this Circular on
Supreme Court Website.
4. Filing and Re-filing Counters.
5. All concerned.
Indian Young Lawyers Association filed Writ Petition (Civil) No. 373 of 2006 challenging the validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (for short, “the 1965 Rules”). A further direction to the respondents therein to permit female devotees between the ages of 10 to 50 years to enter the Sabarimala temple without any restrictions was sought in the Writ Petition. The following issues are framed for consideration by this Court: - 1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India? 2. What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India? 3. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health? 4. What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality? 5. What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India? 6. What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India? 7. Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL? The contention is that reference to a larger bench in accordance with the proviso to Article 145(3) can be made only in Appeals and not in any other proceedings. However, the proviso deals with a situation when reference has to be made by a bench of less than five Judges. The present reference is made by a bench of five Judges and, therefore, the proviso to Article 145 (3) is not applicable. [23] 30. For the aforementioned reasons, the instant review petitions and the reference arising from the review petitions are maintainable.
Indian Young Lawyers Association filed Writ Petition
(Civil) No. 373 of 2006 challenging the validity of Rule 3(b)
of the Kerala Hindu Places of Public Worship (Authorisation
of Entry) Rules, 1965 (for short, “the 1965 Rules”). A further
direction to the respondents therein to permit female
devotees between the ages of 10 to 50 years to enter the
Sabarimala temple without any restrictions was sought in
the Writ Petition.
The following issues are framed for consideration by this Court: -
1. What is the scope and ambit of right to freedom of religion under
Article 25 of the Constitution of India?
2. What is the inter-play between the rights of persons under Article
25 of the Constitution of India and rights of religious
denomination under Article 26 of the Constitution of India?
3. Whether the rights of a religious denomination under Article 26
of the Constitution of India are subject to other provisions of Part
III of the Constitution of India apart from public order, morality
and health?
4. What is the scope and extent of the word ‘morality’ under
Articles 25 and 26 of the Constitution of India and whether it is
meant to include Constitutional morality?
5. What is the scope and extent of judicial review with regard to a
religious practice as referred to in Article 25 of the Constitution of
India?
6. What is the meaning of expression “Sections of Hindus”
occurring in Article 25 (2) (b) of the Constitution of India?
7. Whether a person not belonging to a religious denomination or
religious group can question a practice of that religious
denomination or religious group by filing a PIL?
The contention is that reference to a larger bench in accordance with the proviso to Article 145(3) can be made only in Appeals and not in any other proceedings. However, the proviso deals with a situation when reference has to be made by a bench of less than five Judges. The present reference is made by a bench of five Judges and, therefore, the proviso to Article 145 (3) is not applicable. [23] 30. For the aforementioned reasons, the instant review petitions and the reference arising from the review petitions are maintainable.
Non-Reportable
IN THE SUPREME COURT OF INDIA
INHERENT/ CIVIL ORIGINAL JURISDICTION
REVIEW PETITION (CIVIL) No. 3358 OF 2018
IN
WRIT PETITION (CIVIL) No. 373 OF 2006
KANTARU RAJEEVARU ….. Petitioner
Versus
INDIAN YOUNG LAWYERS ASSOCIATION
THR. ITS GENERAL SECRETARY MS. BHAKTI
PASRIJA AND ORS. … Respondents
WITH
SLP(C) No. 18889/2012, W.P.(C) No. 286/2017, R.P.(C) No.
3359/2018 in W.P. (C) No. 373/2006, Diary No. 37946-2018,
R.P.(C) No. 3469/2018 in W.P.(C) No. 373/2006, Diary No.
38135-2018, Diary No. 38136-2018, R.P.(C) No. 3449/2018
in W.P.(C) No. 373/2006, W.P.(C) No. 1285/2018, R.P.(C) No.
3470/2018 in W.P.(C) No. 373/2006, R.P.(C) No. 3380/2018 in
W.P.(C) No. 373/2006, R.P.(C) No. 3379/2018 in W.P.(C) No.
373/2006, R.P.(C) No. 3444/2018 in W.P.(C) No. 373/2006,
R.P.(C) No. 3462/2018 in W.P.(C) No. 373/2006, Diary No.
38764-2018, Diary No. 38769-2018, Diary No. 38907- 2018,
R.P.(C) No. 3377/2018 in W.P.(C) No. 373/2006, Diary No.
39023- 2018,Diary No. 39135-2018,Diary No. 39248-2018,
Diary No. 39258-2018, Diary No. 39317-2018, W.P.(C) No.
1323/2018, W.P.(C) No. 1305/2018, Diary No. 39642-2018,
R.P.(C) No. 3381/2018 in W.P.(C) No. 373/2006, Diary No.
40056-2018, Diary No. 40191-2018, Diary No. 40405-2018,
Diary No. 40570-2018, Diary No. 40681-2018, Diary No.
40713-2018, Diary No. 40840-2018, Diary No. 40885-2018,
[1]
Diary No. 40887-2018, Diary No. 40888-2018,Diary No.
40898-2018, R.P.(C) No. 3457/2018 in W.P.(C) No. 373/2006,
Diary No. 40910-2018, Diary No. 40924-2018, Diary No.
40929- 2018, Diary No. 41005-2018, Diary No. 41091-2018,
W.P.(C) No. 1339/2018, Diary No. 41264-2018, R.P.(C) No.
3473/2018 in W.P.(C) No. 373/2006, Diary No. 41395-2018,
Diary No. 41586-2018, R.P.(C) No. 3480/2018 in W.P.(C) No.
373/2006, Diary No. 41896-2018, Diary No. 42085-2018,
Diary No. 42264- 2018, Diary No. 42337-2018, MA
No.3113/2018 in W.P.(C) No. 373/2006, Diary No. 44021-
2018, Diary No. 44991-2018, Diary No. 46720-2018, Diary
No. 47720-2018, Diary No. 2252-2019, R.P.(C) No. 345/2019
in W.P.(C) No. 373/2006, Diary No. 2998-2019, W.P.(C) No.
472/2019
ORDER
S.A.BOBDE, CJI
1. Indian Young Lawyers Association filed Writ Petition
(Civil) No. 373 of 2006 challenging the validity of Rule 3(b)
of the Kerala Hindu Places of Public Worship (Authorisation
of Entry) Rules, 1965 (for short, “the 1965 Rules”). A further
direction to the respondents therein to permit female
devotees between the ages of 10 to 50 years to enter the
Sabarimala temple without any restrictions was sought in
the Writ Petition. By an order dated 30th October 2017, a
three Judge bench of this Court referred the matter to a
[2]
larger bench for resolution of the questions raised in the
Writ Petition. The Writ Petition was placed before a
Constitution Bench consisting of five Judges. By a majority
of 4:1, this Court allowed the Writ Petition on 28.09.2018. It
was held by this Court that the devotees of Lord Ayyappa do
not constitute a separate religious denomination and
therefore cannot claim the benefit of Article 26 of the
Constitution of India. This Court also concluded that
exclusion of women between the ages of 10 to 50 years
from entry into the temple is violative of Article 25 of the
Constitution of India. Further, Rule 3 (b) of the Kerala Hindu
Places of Public Worship (Authorisation of Entry) Rules, 1965
was declared as violative of Article 25 (1) to the Constitution
of India and ultra vires Section 3 of Kerala Hindu Places of
Public Worship (Authorisation of Entry) Act, 1965.
2. Several review petitions were filed which were listed
along with fresh Writ Petitions in open Court and heard
together. Ranjan Gogoi CJ, and A.M. Khanwilkar and Indu
Malhotra, JJ were of the opinion that the scope of the
freedom of religion guaranteed under Articles 25 and 26 of
the Constitution needs an authoritative pronouncement by a
larger bench of not less than seven Judges. The contours of
[3]
judicial review in matters pertaining to essential religious
practices was another issue which was identified to be
adjudicated upon by a larger bench. According to them, the
determination of the questions of law referred to a larger
bench would have a bearing on pending writ petitions
relating to entry of Muslim women in durgahs/mosques, the
entry of Parsi women married to non-Parsis into the holy fire
place of Agyari and the challenge to the practice of female
genital mutilation in Dawoodi Bohra Community. In such
view, certain questions of law were referred to a larger
bench. According to the reference, the conflict of opinion
between the judgments in Commissioner Hindu
Religious Endowments, Madras vs. Shri Lakshmindra
Thritha Swaminar of Sri Shirur Mutt
1
, and Durgah
Committee, Ajmer vs. Syed Hussain Ali & Ors.
2
pertaining to the role of the Court in matters which are
essential religious practices had to be resolved.
3. The following issues were framed for consideration to
be decided by a larger bench:
(i) Regarding the interplay between the freedom
of religion under Articles 25 and 26 of the
1 [1954] SCR 1005
2 [1962] 1 SCR 383
[4]
Constitution and other provisions in Part III,
particularly Article 14.
(ii) What is the sweep of expression ‘public
order, morality and health’ occurring in Article
25(1) of the Constitution.
(iii) The expression ‘morality’ or ‘constitutional
morality’ has not been defined in the Constitution.
Is it over arching morality in reference to preamble
or limited to religious beliefs or faith. There is
need to delineate the contours of that expression,
lest it becomes subjective.
(iv) The extent to which the Court can enquire
into the issue of a particular practice is an integral
part of the religion or religious practice of a
particular religious denomination or should that be
left exclusively to be determined by the head of
the section of the religious group.
(v) What is the meaning of the expression
‘sections of Hindus’ appearing in Article 25(2)(b)
of the Constitution.
(vi) Whether the “essential religious practices” of
a religious denomination, or even a section thereof
are afforded constitutional protection under Article
26.
(vii) What would be the permissible extent of
judicial recognition to PILs in matters calling into
question religious practices of a denomination or a
section thereof at the instance of persons who do
not belong to such religious denomination?
[5]
The review petitions were adjourned till the
determination of the questions by a larger bench.
4. R.F. Nariman and D.Y. Chandrachud JJ did not agree
with the majority opinion, and rendered their separate
dissenting opinion. The Review Petitions were dismissed by
them as no ground for review was made out. The fresh Writ
Petitions filed under Article 32 of the Constitution were also
dismissed as not maintainable.
5. This bench of nine Judges was constituted by the Chief
Justice of India to answer the reference. At the threshold,
upon the objection raised by the parties taking exception to
the reference, an issue as to whether this Court can refer
questions of law to a larger bench in a review petition was
framed. Their request to hear the issue regarding the
maintainability of the reference as a preliminary question
was acceded to. We have heard the learned counsel for
both sides on the maintainability of the reference.
6. By an order dated 10.02.2020, we answered the
preliminary point by holding that questions of law can be
referred to a larger bench in a review petition. Reasons
[6]
were to follow later. On the same day we had also reframed the issues referred to this Bench as follows :
1. What is the scope and ambit of right to freedom of
religion under Article 25 of the Constitution of
India?
2. What is the inter-play between the rights of
persons under Article 25 of the Constitution of
India and rights of religious denomination under
Article 26 of the Constitution of India?
3.Whether the rights of a religious denomination
under Article 26 of the Constitution of India are
subject to other provisions of Part III of the
Constitution of India apart from public order,
morality and health?
4.What is the scope and extent of the word
‘morality’ under Articles 25 and 26 of the
Constitution of India and whether it is meant to
include Constitutional morality?
5. What is the scope and extent of judicial review
with regard to a religious practice as referred to in
Article 25 of the Constitution of India?
6.What is the meaning of expression “Sections of
Hindus” occurring in Article 25 (2) (b) of the
Constitution of India?
7.Whether a person not belonging to a religious
denomination or religious group can question a
practice of that religious denomination or religious
group by filing a PIL?
[7]
7. By this order, we are giving reasons to support the
order dated 10.02.2020 by which we held that this Court
can refer questions of law to a larger bench in a review
petition.
8. It was argued on behalf of those objecting to the
reference that the review petitions are not maintainable in
view of the limitations in Order XLVII of the Supreme Court
Rules, 2013. As the review petitions are liable to be
dismissed, the reference is bad. Assuming that reference to
a larger bench can be made in a review petition, it is
permissible only after the review is granted and not during
the pendency of a review petition. It was contended that
hypothetical questions should not be answered by this
Court. Another submission was to the effect that abstract
questions of law without facts cannot be the subject matter
of reference. The reference is vitiated as no reasons were
recorded justifying the prima facie view that there is a
conflict of opinion in the judgments in Shirur Mutt case
(supra) and the Durgah Committee case (supra).
Another submission was made that only appeals can be
[8]
referred to a larger bench in accordance with the proviso to
Article 145 (3) of the Constitution of India.
9. On the other hand, learned counsel supporting the
reference submitted that there are no limits to the
jurisdiction of this Court which is a superior Court of record.
This Court can determine its own jurisdiction for exercise of
its inherent powers. This Court can make any order which is
necessary to do complete justice under Article 142 of the
Constitution of India. The power of this Court cannot be
fettered by Order XLVII of the Supreme Court Rules. In any
event, according to the learned counsel, there is no bar in
the Supreme Court Rules preventing this Court from making
a reference in a review petition. It was submitted that the
review petitions emanate from a judgment in a Writ Petition,
filed in the form of a Public Interest Litigation, to which the
rules of procedure do not strictly apply. It was urged that
seminal questions of utmost importance arise for
consideration which require authoritative pronouncement of
a larger bench. Therefore, the reference has to be
answered to meet the ends of justice.
10. Though the preliminary point for adjudication is the
reference of questions of law to a larger bench in a review
[9]
petition, submissions were made by both sides regarding
the maintainability of the review petitions. Presumably, this
was done because no reference can be made in review
petitions which were not maintainable. Admittedly, the
review petitions are kept pending awaiting the
pronouncement on the questions of law which were referred
to this Bench. Therefore, we refrain from expressing any
view on the merits of the review petitions. However, it is
necessary for us to decide the maintainability of the review
petitions in view of the submissions made by the parties.
11. Article 137 of the Constitution of India empowers the
Supreme Court to review any judgment pronounced or order
made by it subject to the provisions of any law made by the
Parliament or any rules made under Article 145. No law has
been made by the Parliament as contemplated in Article
137. Article 145 of the Constitution of India gives power to
the Supreme Court to make rules for regulating the practice
and procedures in the Court. Article 145 (1) (e) pertains to
the rules relating to the conditions subject to which any
judgment or order pronounced by the Court may be
reviewed and the procedure for such review including the
time within which applications to the Court for such review
[10]
are to be entertained. The Supreme Court Rules which were
made in 1966 were repealed by the Supreme Court Rules
2013, which are in force. Order XLVII Rule 1 of the Supreme
Court Rules, 2013 reads as follows:
“The Court may review its judgment or order, but
no application for review will be entertained in a
civil proceeding except on the ground mentioned
in Order XLVII, rule 1 of the Code, and in a criminal
proceeding except on the ground of an error
apparent on the face of the record.
The application for review shall be accompanied
by a certificate of the Advocate on Record
certifying that it is the first application for review
and is based on the grounds admissible under the
Rules.”
12. It is clear from a plain reading of Order XLVII, Rule 1
that there are no restrictions on the power of this Court to
review its judgment or order. The exceptions to the general
power of review relate to review of civil proceedings which
can be entertained only on grounds mentioned in Order
XLVII, Rule 1 of the Code of Civil Procedure, 1908 and to
review of criminal proceedings which can be entertained
only on the ground of an error apparent on the face of
record. It is clear that there is no fetter in the exercise of
the jurisdiction of this Court in review petitions of judgments
[11]
or orders arising out of proceedings other than civil and
criminal proceedings.
13. Part II of the Supreme Court Rules deals with Civil
Appeals, Criminal Appeals and Special Leave Petitions under
Article 136 of the Constitution. Order XXI refers to Special
Leave Petitions (Civil) and Order XXII covers Special Leave
Petitions (Criminal) proceedings. Petitions filed under Article
32 of the Constitution are dealt with under Order XXXII in
Part III of the Supreme Court Rules. Sub-Rule 12 of Order
XXXVIII refers to Public Interest Litigation. Admittedly, Writ
Petition (Civil) No. 373 of 2006 was filed in public interest.
The review petitions arise out of the judgment in the said
Writ Petition.
14. Civil proceedings and criminal proceedings dealt with
in Part II of the Rules are different from Writ Petitions
covered by Part III of the Supreme Court Rules. The
exceptions carved out in Order XLVII, Rule 1 of the Supreme
Court Rules pertain only to civil and criminal proceedings.
Writ Petitions filed under Article 32 of the Constitution of
India do not fall within the purview of civil and criminal
proceedings. Therefore, the limitations in Order XLVII, Rule
1 do not apply to review petitions filed against judgments or
[12]
orders passed in Writ Petitions filed under Article 32 of the
Constitution of India.
15. When a statute is carefully punctuated and there is
doubt about its meaning, weight should undoubtedly be
given to the punctuation. (See:- Crawford: Interpretation
of Law (Statutory Construction)). However,
punctuation may have its uses in some cases, but it cannot
certainly be regarded as a controlling element and cannot
be allowed to control the plain meaning3
. Clause 13(3)(v) of
the C.P. and Berar Letting of Premises and Rent Control
Order, 1949 fell for interpretation of this Court in Dr. M.K.
Salpekar v. Sunil Kumar Shamsunder Chaudhari &
Ors4
. Clause 13 (3) (v) reads:
“that the tenant has secured alternative
accommodation, or has left the area for a
continuous period of four months and does not
reasonably need the house.”
This Court was of the opinion that the punctuation
mark ‘comma’ which appears in the sub-clause after
“alternate accommodation” and before the rest of the
sentence indicates that the last part of the sub-clause
3 Aswini Kumar Ghose and another vs. Arabinda Bose and another. 1953 (4) SCR 1
4 (1988) 4 SCC 21
[13]
namely ‘and does not reasonably need the house’ governs
only the second part of the sub-clause. Yet another case
where punctuation was relied upon for construing a
statutory provision is Mohd. Shabir v. State of
Maharashtra5
. Section 27 of the Drugs and Cosmetics Act,
1940 reads as under:
"Whoever himself or by any other person on his behalf
manufactures for sale, sells, stocks or exhibits for sale or
distributes-
(a) any drug-
(i) deemed to be misbranded under clause (a), clause
(b), clause (e), clause (d), clause (f) or clause (g) of
section 17 or adulterated under section 17B; or
(ii) without a valid licence as required under clause (c)
of section 18."
shall be punishable with imprisonment for a term which
shall not be less than one year but which may extend to
ten years and shall also be liable to fine;
Provided that the Court may, for any special reasons to be
recorded in writing, impose a sentence of imprisonment of
less than one year".
16. It was held that the words used in Section 27 namely,
“manufacture for sale”, “sells” have a comma after each
clause but there is no comma after the clause “stocks or
exhibits for sale”. The absence of any comma after the
5 (1979) 1 SCC 568
[14]
words ‘stocks’ clearly indicates that the clause “stocks or
exhibits for sale” is an indivisible whole.
17. Construction of Order XLVII, Rule 1 of the Supreme
Court Rules should be made by giving due weight to the
punctuation mark ‘comma’ after the words “the Court may
review its judgment or order”. The intention of the rule
making authority is clear that the above mentioned part is
disjunctive from the rest of the rule. Moreover, the words
“but no application for review will be entertained in a civil
proceeding except on ground mentioned in Order XLVII, Rule
1 of the Code and in a criminal proceeding except on the
ground of an error apparent on the face of record” are
exceptions to the opening words of Order XLVII Rule 1,
namely, “the Court may review its judgment or order”.
Therefore, there is no limitation for the exercise of power by
this Court in review petitions filed against judgments and
orders in proceedings other than civil proceeding or criminal
proceedings.
18. Submissions were made regarding the maintainability
of the review petitions for not satisfying the requirement of
Order XLVII Rule 1 CPC. This argument is on the basis that
the review petitions were filed against a judgment in a civil
[15]
proceeding. Several judgments were cited in support of this
contention. As we have held that the review petitions have
arisen from a judgment in a Writ Petition filed under Article
32 of the Constitution of India to which the provisions of
Order XLVII, Rule 1 of CPC are not applicable, it is not
necessary to refer to those judgments.
19. The alternate submission was that a reference can be
made only after the grant of review and not in a pending
review petition. Support for the proposition was sought
from a judgment of this Court in Behram Pesikaka v.
State of Bombay6
. It is true that reference in the said
case was made after grant of review. But that does not
mean that reference cannot be made in a pending review
petition.
20. The provision in the Supreme Court Rules, 2013
pertaining to reference to a larger bench is Order VI rule 2
which reads as:-
“Where in the course of the hearing of any case,
appeal or other proceedings the bench considers
that the matter should be dealt with by a Larger
Bench, it shall refer the matter to the Chief Justice,
6 (1955) 1 SCR 613
[16]
who shall thereupon constitute such a bench for
the hearing of it.”
21. Reference to a larger bench can be made in any cause
or appeal as well as in any ‘other proceeding’. The term
‘proceeding’ is a very comprehensive term and generally
speaking, means a prescribed course of action for enforcing
a legal right. It is a term giving the widest freedom to a
Court of law so that it may do justice to the parties in the
case7
. There cannot be any doubt that the pending review
petition falls within the purview of the expression “other
proceeding”. The reference has been made in the course of
pending review petitions.
22. In addition, there is no fetter on the exercise of
discretion of this Court in referring questions of law to a
larger bench in review petitions. Being a superior Court of
record, it is for this Court to consider whether any matter
falls within its jurisdiction or not. Unlike a Court of limited
jurisdiction, the superior Court of record is entitled to
determine for itself questions about its own jurisdiction8
.
7 Babu Lal vs. Hazari Lal Kishori Lal [1982] 1 SCC 525
8 Powers, Privileges and Immunities of State Legislatures,
In re (Keshav Singh case), (1965) 1 SCR 413.
See also Naresh Mirajkar v. State of Maharashtra, (1966) 3 SCR 744
[17]
23. No matter is beyond the jurisdiction of a superior Court
of record unless it is expressly shown to be so, under the
provisions of the Constitution. In the absence of any
express provision in the Constitution, this Court being a
superior Court of record has jurisdiction in every matter and
if there is any doubt, the Court has power to determine its
jurisdiction9
. It is useful to reproduce from Halsbury’s Laws
of England, 4th Edition Vol. 10, para 713, relied upon in the
aforementioned judgments, which states as follows:-
“Prima facie, no matter is deemed to be beyond
the jurisdiction of a superior Court unless it is
expressly shown to be so, while nothing is within
the jurisdiction of an inferior Court unless it is
expressly shown on the face of the proceedings
that the particular matter is within the cognizance
of the particular Court.”
Undoubtedly there is no bar on the exercise of
jurisdiction for referring questions of law in a pending review
petition. Therefore, the reference cannot be said to be
vitiated for lack of jurisdiction. This Court has acted well
within its power in making the reference.
9 Delhi Judicial Service Association v. State of Gujarat (1991) 4 SCC 406
[18]
24. Furthermore, the reference can be supported by
adverting to Article 142 of the Constitution of India which
enables this Court to make any order as is necessary for
doing complete justice in any cause or matter pending
before it. The expression ‘cause’ or ‘matter’ would include
any proceeding pending in Court and it would cover almost
every kind of proceeding pending in this Court including civil
or criminal proceedings10
. As such, the expression ‘cause or
matter’ surely covers review petitions without any doubt.
Therefore, it is well within the province of this Court to refer
questions of law in pending review petitions.
25. Order LV Rule 6 makes it crystal clear that the inherent
power of this Court to make such orders as may be
necessary for the ends of justice shall not be limited by the
Rules. In S. Nagaraj v. State of Karnataka11
, it was
observed that even when there was no statutory provision
and no rules were framed by the highest Court indicating
the circumstances in which it could rectify its orders, the
Courts culled out such power to avoid abuse of process or
miscarriage of justice. It was further held that this Court is
not precluded from recalling or reviewing its own order if it
10 Monica Kumar (Dr.) v. State of U.P. [2008] 8 SCC 781
11 1993 Supp. (4) SCC 595
[19]
is satisfied that it is necessary to do so for the sake of
justice. The logical extension to the above is that reference
of questions of law can be made in any pending proceeding
before this Court, including the instant review proceedings,
to meet the ends of justice.
26. By placing reliance on a judgment of this Court in
Central Bank of India v. Workmen12
, it was submitted
that this Court should not give speculative opinions or
answer hypothetical questions. The reference of questions
of law pertaining to the scope of Articles 25 and 26 of the
Constitution of India are of utmost importance requiring an
authoritative pronouncement by a larger bench, especially
in light of the view of the reference Bench that there is a
conflict between the Court’s judgments in Shirur Mutt
(supra) and Durgah Committee (supra). An objection
similar to the one in this case was taken in Indra Sawhney
vs. Union of India
13
, which was rejected on the ground
that the reference in that case was made to finally settle the
legal position relating to reservations. Therefore, the
reference in this case cannot be said to be suffering from
any jurisdictional error.
12 (1960) 1 SCR 200
13 [1992] Supp (3) SCC 217
[20]
27. Regarding the contention that pure questions of law
cannot be referred to a larger bench, it was argued that it is
not possible for the Court to decide the reference without
any facts of a particular case before it. We do not agree. It
is not necessary to refer to facts to decide pure questions of
law, especially those pertaining to the interpretation of the
provisions of the Constitution. In fact, reference of pure
questions of law have been answered by this Court earlier.
One such instance was when this Court was convinced that
a larger bench has to discern the true scope and
interpretation of Article 30 (1) of the Constitution of India.
An eleven Judge Bench was constituted for the purpose and
eleven questions of law were framed and answered in
T.M.A. Pai Foundation v. State of Karnataka14
. Yet
another case where there was a reference of pure questions
of law for the larger bench needs mention. Finding a
conflict between the judgments of this Court in M. P.
Sharma and Others v. Satish Chandra15 and Kharak
Singh v. State of Uttar Pradesh,
16 a three Judge Bench
of this Court referred the matter to a larger bench of five
14 (2002) 8 SCC 481
15 1954 SCR 1077
16 1964 SCR (1) 332
[21]
Judge Constitution Bench, which referred the issue relating
to the existence of the fundamental right to privacy in
Article 21 of the Constitution of India to a nine Judge Bench.
The question whether there is a constitutionally protected
right to privacy was decided by a nine Judge Bench of this
Court in Justice K.S. Puttaswamy (Retd.) and Anr. v.
Union of India and Ors.17 without reference to any facts.
As stated above, determination of the scope of Articles 25
and 26 is of paramount importance. To adjudicate the
reference, there is no requirement to refer to any disputed
facts by this Court.
28. The point that remains to be considered is the
submission pertaining to the proviso to Article 145 (3).
Article 145 of the Constitution of India empowers this Court
to make Rules for regulating the practice and procedure of
the Court. Article 145 (3) provides that the minimum
number of Judges to decide any case involving substantial
questions of law as to the interpretation of the Constitution
or for the purpose of hearing a reference under Article 143
shall be five. The proviso to Article 145 (3) is as follows:
“Provided that, where the Court hearing an appeal under
any of the provisions of this Chapter other than article 132
17 (2017) 10 SCC 1
[22]
consists of less than five Judges and in the course of the
hearing of the appeal the Court is satisfied that the appeal
involves a substantial question of law as to the
interpretation of this Constitution the determination of
which is necessary for the disposal of the appeal, such
Court shall refer the question for opinion to a Court
constituted as required by this clause for the purpose of
deciding any case involving such a question and shall on
receipt of the opinion dispose of the appeal in conformity
with such opinion.”
29. The contention is that reference to a larger bench in
accordance with the proviso to Article 145(3) can be made
only in Appeals and not in any other proceedings. However,
the proviso deals with a situation when reference has to be
made by a bench of less than five Judges. The present
reference is made by a bench of five Judges and, therefore,
the proviso to Article 145 (3) is not applicable.
[23]
30. For the aforementioned reasons, the instant review
petitions and the reference arising from the review petitions
are maintainable.
……..……………………….. CJI.
(S. A. BOBDE)
…………………………………..J.
(R. BANUMATHI)
…………………………………..J.
(ASHOK BHUSHAN)
…………………………………..J.
(L. NAGESWARA RAO)
…………………………………..J.
(MOHAN M. SHANTANAGOUDAR)
………..………………………...J.
(S. ABDUL NAZEER)
…………………………………..J.
(R. SUBHASH REDDY)
…………………………………..J.
(B.R. GAVAI)
New Delhi, ……………………..J.
May 11, 2020. (SURYA KANT)
[24]
IN THE SUPREME COURT OF INDIA
CIVIL INHERENT/ORIGINAL JURISDICTION
REVIEW PETITION (CIVIL) No. 3358 OF 2018
IN
WRIT PETITION (CIVIL) No. 373 OF 2006
KANTARU RAJEEVARU ….. Petitioner
Versus
INDIAN YOUNG LAWYERS ASSOCIATION THR.
ITS GENERAL SECRETARY MS. BHAKTI PASRIJA
AND ORS. … Respondents
WITH
SLP(C) No. 18889/2012, W.P.(C) No. 286/2017, R.P.(C) No. 3359/2018 in
W.P.(C) No. 373/2006, Diary No. 37946-2018, R.P.(C) No. 3469/2018 in
W.P.(C) No. 373/2006, Diary No. 38135-2018, Diary No. 38136-2018, R.P.
(C) No. 3449/2018 in W.P.(C) No. 373/2006, W.P.(C) No. 1285/2018, R.P.
(C) No. 3470/2018 in W.P.(C) No. 373/2006, R.P.(C) No. 3380/2018 in
W.P.(C) No. 373/2006, R.P.(C) No. 3379/2018 in W.P.(C) No. 373/2006,
R.P.(C) No. 3444/2018 in W.P.(C) No. 373/2006, R.P.(C) No. 3462/2018 in
W.P.(C) No. 373/2006, Diary No. 38764-2018, Diary No. 38769-2018,
Diary No. 38907-2018, R.P.(C) No. 3377/2018 in W.P.(C) No. 373/2006,
Diary No. 39023-2018,Diary No. 39135-2018,Diary No. 39248-2018,
Diary No. 39258-2018, Diary No. 39317-2018, W.P.(C) No. 1323/2018,
W.P.(C) No. 1305/2018, Diary No. 39642-2018, R.P.(C) No. 3381/2018 in
W.P.(C) No. 373/2006, Diary No. 40056-2018, Diary No. 40191-2018,
Diary No. 40405-2018, Diary No. 40570-2018, Diary No. 40681-2018,
Diary No. 40713-2018, Diary No. 40840-2018, Diary No. 40885-2018,
Diary No. 40887-2018, Diary No. 40888-2018,Diary No. 40898-2018, R.P.
(C) No. 3457/2018 in W.P.(C) No. 373/2006, Diary No. 40910-2018, Diary
No. 40924-2018, Diary No. 40929-2018,Diary No. 41005-2018, Diary No.
41091-2018, W.P.(C) No. 1339/2018, Diary No. 41264-2018, R.P.(C) No.
3473/2018 in W.P.(C) No. 373/2006, Diary No. 41395-2018, Diary No.
41586-2018, R.P.(C) No. 3480/2018 in W.P.(C) No. 373/2006, Diary No.
41896-2018, Diary No. 42085-2018,Diary No. 42264-2018, Diary No.
42337-2018, MA 3113/2018 in W.P.(C) No. 373/2006, Diary No. 44021-
2018, Diary No. 44991-2018,
Diary No. 46720-2018, Diary No. 47720-2018, Diary No. 2252-2019,
R.P.(C) No. 345/2019 in W.P.(C) No. 373/2006, Diary No. 2998-2019, W.P.
(C) No. 472/2019
[25]
O R D E R
We have heard the parties at length. For reasons to
follow, we hold that this Court can refer questions of law to a
larger bench in a Review Petition.
….………………………………..CJI.
[S.A. BOBDE]
….………………………………..J.
[R. BANUMATHI]
….………………………………..J.
[ASHOK BHUSHAN]
….………………………………..J.
[L. NAGESWARA RAO]
….………………………………..J.
[MOHAN M. SHANTANAGOUDAR]
….………………………………..J.
[S. ABDUL NAZEER]
….………………………………..J.
[R. SUBHASH REDDY]
….………………………………..J.
[B.R. GAVAI]
….………………………………..J.
[SURYA KANT]
NEW DELHI
FEBRUARY 10, 2020
[26]
IN THE SUPREME COURT OF INDIA
CIVIL INHERENT/ORIGINAL JURISDICTION
REVIEW PETITION (CIVIL) No. 3358 OF 2018
IN
WRIT PETITION (CIVIL) No. 373 OF 2006
KANTARU RAJEEVARU ….. Petitioner
Versus
INDIAN YOUNG LAWYERS ASSOCIATION THR.
ITS GENERAL SECRETARY MS. BHAKTI PASRIJA
AND ORS. … Respondents
WITH
SLP(C) No. 18889/2012, W.P.(C) No. 286/2017, R.P.(C) No. 3359/2018 in
W.P.(C) No. 373/2006, Diary No. 37946-2018, R.P.(C) No. 3469/2018 in
W.P.(C) No. 373/2006, Diary No. 38135-2018, Diary No. 38136-2018, R.P.
(C) No. 3449/2018 in W.P.(C) No. 373/2006, W.P.(C) No. 1285/2018, R.P.
(C) No. 3470/2018 in W.P.(C) No. 373/2006, R.P.(C) No. 3380/2018 in
W.P.(C) No. 373/2006, R.P.(C) No. 3379/2018 in W.P.(C) No. 373/2006, R.P.
(C) No. 3444/2018 in W.P.(C) No. 373/2006, R.P.(C) No. 3462/2018 in W.P.
(C) No. 373/2006, Diary No. 38764-2018, Diary No. 38769-2018, Diary
No. 38907-2018, R.P.(C) No. 3377/2018 in W.P.(C) No. 373/2006, Diary
No. 39023-2018,Diary No. 39135-2018,Diary No. 39248-2018, Diary No.
39258-2018, Diary No. 39317-2018, W.P.(C) No. 1323/2018, W.P.(C) No.
1305/2018, Diary No. 39642-2018, R.P.(C) No. 3381/2018 in W.P.(C)
No. 373/2006, Diary No. 40056-2018, Diary No. 40191-2018, Diary No.
40405-2018, Diary No. 40570-2018, Diary No. 40681-2018, Diary No.
40713-2018, Diary No. 40840-2018, Diary No. 40885-2018, Diary No.
40887-2018, Diary No. 40888-2018, Diary No. 40898-2018, R.P.(C) No.
3457/2018 in W.P.(C) No. 373/2006, Diary No. 40910-2018, Diary No.
40924-2018, Diary No. 40929-2018, Diary No. 41005-2018, Diary No.
41091-2018, W.P.(C) No. 1339/2018, Diary No. 41264-2018, R.P.(C)
No. 3473/2018 in W.P.(C) No. 373/2006, Diary No. 41395-2018, Diary
No. 41586-2018, R.P.(C) No. 3480/2018 in W.P.(C) No. 373/2006, Diary
No. 41896-2018, Diary No.42085-2018, Diary No. 42264-2018, Diary No.
42337-2018, MA 3113/2018 in W.P.(C) No. 373/2006, Diary No. 44021-
2018, Diary No. 44991-2018, Diary No. 46720-2018, Diary No. 47720-
[27]
2018, Diary No. 2252-2019, R.P.(C) No. 345/2019 in W.P.(C) No.
373/2006, Diary No. 2998-2019, W.P.(C) No. 472/2019
O R D E R
The following issues are framed for consideration by this Court: -
1. What is the scope and ambit of right to freedom of religion under
Article 25 of the Constitution of India?
2. What is the inter-play between the rights of persons under Article
25 of the Constitution of India and rights of religious
denomination under Article 26 of the Constitution of India?
3. Whether the rights of a religious denomination under Article 26
of the Constitution of India are subject to other provisions of Part
III of the Constitution of India apart from public order, morality
and health?
4. What is the scope and extent of the word ‘morality’ under
Articles 25 and 26 of the Constitution of India and whether it is
meant to include Constitutional morality?
5. What is the scope and extent of judicial review with regard to a
religious practice as referred to in Article 25 of the Constitution of
India?
6. What is the meaning of expression “Sections of Hindus”
occurring in Article 25 (2) (b) of the Constitution of India?
7. Whether a person not belonging to a religious denomination or
religious group can question a practice of that religious
denomination or religious group by filing a PIL?
….………………………………..CJI
[S.A. BOBDE]
[28]
….………………………………..J.
[R. BANUMATHI]
….………………………………..J.
[ASHOK BHUSHAN]
….………………………………..J.
[L. NAGESWARA RAO]
….………………………………..J.
[MOHAN M. SHANTANAGOUDAR]
….………………………………..J.
[S. ABDUL NAZEER]
….………………………………..J.
[R. SUBHASH REDDY]
….………………………………..J.
[B.R. GAVAI]
….………………………………..J.
[SURYA KANT]
NEW DELHI
FEBRUARY 10, 2020
[29]
(Civil) No. 373 of 2006 challenging the validity of Rule 3(b)
of the Kerala Hindu Places of Public Worship (Authorisation
of Entry) Rules, 1965 (for short, “the 1965 Rules”). A further
direction to the respondents therein to permit female
devotees between the ages of 10 to 50 years to enter the
Sabarimala temple without any restrictions was sought in
the Writ Petition.
The following issues are framed for consideration by this Court: -
1. What is the scope and ambit of right to freedom of religion under
Article 25 of the Constitution of India?
2. What is the inter-play between the rights of persons under Article
25 of the Constitution of India and rights of religious
denomination under Article 26 of the Constitution of India?
3. Whether the rights of a religious denomination under Article 26
of the Constitution of India are subject to other provisions of Part
III of the Constitution of India apart from public order, morality
and health?
4. What is the scope and extent of the word ‘morality’ under
Articles 25 and 26 of the Constitution of India and whether it is
meant to include Constitutional morality?
5. What is the scope and extent of judicial review with regard to a
religious practice as referred to in Article 25 of the Constitution of
India?
6. What is the meaning of expression “Sections of Hindus”
occurring in Article 25 (2) (b) of the Constitution of India?
7. Whether a person not belonging to a religious denomination or
religious group can question a practice of that religious
denomination or religious group by filing a PIL?
The contention is that reference to a larger bench in accordance with the proviso to Article 145(3) can be made only in Appeals and not in any other proceedings. However, the proviso deals with a situation when reference has to be made by a bench of less than five Judges. The present reference is made by a bench of five Judges and, therefore, the proviso to Article 145 (3) is not applicable. [23] 30. For the aforementioned reasons, the instant review petitions and the reference arising from the review petitions are maintainable.
Non-Reportable
IN THE SUPREME COURT OF INDIA
INHERENT/ CIVIL ORIGINAL JURISDICTION
REVIEW PETITION (CIVIL) No. 3358 OF 2018
IN
WRIT PETITION (CIVIL) No. 373 OF 2006
KANTARU RAJEEVARU ….. Petitioner
Versus
INDIAN YOUNG LAWYERS ASSOCIATION
THR. ITS GENERAL SECRETARY MS. BHAKTI
PASRIJA AND ORS. … Respondents
WITH
SLP(C) No. 18889/2012, W.P.(C) No. 286/2017, R.P.(C) No.
3359/2018 in W.P. (C) No. 373/2006, Diary No. 37946-2018,
R.P.(C) No. 3469/2018 in W.P.(C) No. 373/2006, Diary No.
38135-2018, Diary No. 38136-2018, R.P.(C) No. 3449/2018
in W.P.(C) No. 373/2006, W.P.(C) No. 1285/2018, R.P.(C) No.
3470/2018 in W.P.(C) No. 373/2006, R.P.(C) No. 3380/2018 in
W.P.(C) No. 373/2006, R.P.(C) No. 3379/2018 in W.P.(C) No.
373/2006, R.P.(C) No. 3444/2018 in W.P.(C) No. 373/2006,
R.P.(C) No. 3462/2018 in W.P.(C) No. 373/2006, Diary No.
38764-2018, Diary No. 38769-2018, Diary No. 38907- 2018,
R.P.(C) No. 3377/2018 in W.P.(C) No. 373/2006, Diary No.
39023- 2018,Diary No. 39135-2018,Diary No. 39248-2018,
Diary No. 39258-2018, Diary No. 39317-2018, W.P.(C) No.
1323/2018, W.P.(C) No. 1305/2018, Diary No. 39642-2018,
R.P.(C) No. 3381/2018 in W.P.(C) No. 373/2006, Diary No.
40056-2018, Diary No. 40191-2018, Diary No. 40405-2018,
Diary No. 40570-2018, Diary No. 40681-2018, Diary No.
40713-2018, Diary No. 40840-2018, Diary No. 40885-2018,
[1]
Diary No. 40887-2018, Diary No. 40888-2018,Diary No.
40898-2018, R.P.(C) No. 3457/2018 in W.P.(C) No. 373/2006,
Diary No. 40910-2018, Diary No. 40924-2018, Diary No.
40929- 2018, Diary No. 41005-2018, Diary No. 41091-2018,
W.P.(C) No. 1339/2018, Diary No. 41264-2018, R.P.(C) No.
3473/2018 in W.P.(C) No. 373/2006, Diary No. 41395-2018,
Diary No. 41586-2018, R.P.(C) No. 3480/2018 in W.P.(C) No.
373/2006, Diary No. 41896-2018, Diary No. 42085-2018,
Diary No. 42264- 2018, Diary No. 42337-2018, MA
No.3113/2018 in W.P.(C) No. 373/2006, Diary No. 44021-
2018, Diary No. 44991-2018, Diary No. 46720-2018, Diary
No. 47720-2018, Diary No. 2252-2019, R.P.(C) No. 345/2019
in W.P.(C) No. 373/2006, Diary No. 2998-2019, W.P.(C) No.
472/2019
ORDER
S.A.BOBDE, CJI
1. Indian Young Lawyers Association filed Writ Petition
(Civil) No. 373 of 2006 challenging the validity of Rule 3(b)
of the Kerala Hindu Places of Public Worship (Authorisation
of Entry) Rules, 1965 (for short, “the 1965 Rules”). A further
direction to the respondents therein to permit female
devotees between the ages of 10 to 50 years to enter the
Sabarimala temple without any restrictions was sought in
the Writ Petition. By an order dated 30th October 2017, a
three Judge bench of this Court referred the matter to a
[2]
larger bench for resolution of the questions raised in the
Writ Petition. The Writ Petition was placed before a
Constitution Bench consisting of five Judges. By a majority
of 4:1, this Court allowed the Writ Petition on 28.09.2018. It
was held by this Court that the devotees of Lord Ayyappa do
not constitute a separate religious denomination and
therefore cannot claim the benefit of Article 26 of the
Constitution of India. This Court also concluded that
exclusion of women between the ages of 10 to 50 years
from entry into the temple is violative of Article 25 of the
Constitution of India. Further, Rule 3 (b) of the Kerala Hindu
Places of Public Worship (Authorisation of Entry) Rules, 1965
was declared as violative of Article 25 (1) to the Constitution
of India and ultra vires Section 3 of Kerala Hindu Places of
Public Worship (Authorisation of Entry) Act, 1965.
2. Several review petitions were filed which were listed
along with fresh Writ Petitions in open Court and heard
together. Ranjan Gogoi CJ, and A.M. Khanwilkar and Indu
Malhotra, JJ were of the opinion that the scope of the
freedom of religion guaranteed under Articles 25 and 26 of
the Constitution needs an authoritative pronouncement by a
larger bench of not less than seven Judges. The contours of
[3]
judicial review in matters pertaining to essential religious
practices was another issue which was identified to be
adjudicated upon by a larger bench. According to them, the
determination of the questions of law referred to a larger
bench would have a bearing on pending writ petitions
relating to entry of Muslim women in durgahs/mosques, the
entry of Parsi women married to non-Parsis into the holy fire
place of Agyari and the challenge to the practice of female
genital mutilation in Dawoodi Bohra Community. In such
view, certain questions of law were referred to a larger
bench. According to the reference, the conflict of opinion
between the judgments in Commissioner Hindu
Religious Endowments, Madras vs. Shri Lakshmindra
Thritha Swaminar of Sri Shirur Mutt
1
, and Durgah
Committee, Ajmer vs. Syed Hussain Ali & Ors.
2
pertaining to the role of the Court in matters which are
essential religious practices had to be resolved.
3. The following issues were framed for consideration to
be decided by a larger bench:
(i) Regarding the interplay between the freedom
of religion under Articles 25 and 26 of the
1 [1954] SCR 1005
2 [1962] 1 SCR 383
[4]
Constitution and other provisions in Part III,
particularly Article 14.
(ii) What is the sweep of expression ‘public
order, morality and health’ occurring in Article
25(1) of the Constitution.
(iii) The expression ‘morality’ or ‘constitutional
morality’ has not been defined in the Constitution.
Is it over arching morality in reference to preamble
or limited to religious beliefs or faith. There is
need to delineate the contours of that expression,
lest it becomes subjective.
(iv) The extent to which the Court can enquire
into the issue of a particular practice is an integral
part of the religion or religious practice of a
particular religious denomination or should that be
left exclusively to be determined by the head of
the section of the religious group.
(v) What is the meaning of the expression
‘sections of Hindus’ appearing in Article 25(2)(b)
of the Constitution.
(vi) Whether the “essential religious practices” of
a religious denomination, or even a section thereof
are afforded constitutional protection under Article
26.
(vii) What would be the permissible extent of
judicial recognition to PILs in matters calling into
question religious practices of a denomination or a
section thereof at the instance of persons who do
not belong to such religious denomination?
[5]
The review petitions were adjourned till the
determination of the questions by a larger bench.
4. R.F. Nariman and D.Y. Chandrachud JJ did not agree
with the majority opinion, and rendered their separate
dissenting opinion. The Review Petitions were dismissed by
them as no ground for review was made out. The fresh Writ
Petitions filed under Article 32 of the Constitution were also
dismissed as not maintainable.
5. This bench of nine Judges was constituted by the Chief
Justice of India to answer the reference. At the threshold,
upon the objection raised by the parties taking exception to
the reference, an issue as to whether this Court can refer
questions of law to a larger bench in a review petition was
framed. Their request to hear the issue regarding the
maintainability of the reference as a preliminary question
was acceded to. We have heard the learned counsel for
both sides on the maintainability of the reference.
6. By an order dated 10.02.2020, we answered the
preliminary point by holding that questions of law can be
referred to a larger bench in a review petition. Reasons
[6]
were to follow later. On the same day we had also reframed the issues referred to this Bench as follows :
1. What is the scope and ambit of right to freedom of
religion under Article 25 of the Constitution of
India?
2. What is the inter-play between the rights of
persons under Article 25 of the Constitution of
India and rights of religious denomination under
Article 26 of the Constitution of India?
3.Whether the rights of a religious denomination
under Article 26 of the Constitution of India are
subject to other provisions of Part III of the
Constitution of India apart from public order,
morality and health?
4.What is the scope and extent of the word
‘morality’ under Articles 25 and 26 of the
Constitution of India and whether it is meant to
include Constitutional morality?
5. What is the scope and extent of judicial review
with regard to a religious practice as referred to in
Article 25 of the Constitution of India?
6.What is the meaning of expression “Sections of
Hindus” occurring in Article 25 (2) (b) of the
Constitution of India?
7.Whether a person not belonging to a religious
denomination or religious group can question a
practice of that religious denomination or religious
group by filing a PIL?
[7]
7. By this order, we are giving reasons to support the
order dated 10.02.2020 by which we held that this Court
can refer questions of law to a larger bench in a review
petition.
8. It was argued on behalf of those objecting to the
reference that the review petitions are not maintainable in
view of the limitations in Order XLVII of the Supreme Court
Rules, 2013. As the review petitions are liable to be
dismissed, the reference is bad. Assuming that reference to
a larger bench can be made in a review petition, it is
permissible only after the review is granted and not during
the pendency of a review petition. It was contended that
hypothetical questions should not be answered by this
Court. Another submission was to the effect that abstract
questions of law without facts cannot be the subject matter
of reference. The reference is vitiated as no reasons were
recorded justifying the prima facie view that there is a
conflict of opinion in the judgments in Shirur Mutt case
(supra) and the Durgah Committee case (supra).
Another submission was made that only appeals can be
[8]
referred to a larger bench in accordance with the proviso to
Article 145 (3) of the Constitution of India.
9. On the other hand, learned counsel supporting the
reference submitted that there are no limits to the
jurisdiction of this Court which is a superior Court of record.
This Court can determine its own jurisdiction for exercise of
its inherent powers. This Court can make any order which is
necessary to do complete justice under Article 142 of the
Constitution of India. The power of this Court cannot be
fettered by Order XLVII of the Supreme Court Rules. In any
event, according to the learned counsel, there is no bar in
the Supreme Court Rules preventing this Court from making
a reference in a review petition. It was submitted that the
review petitions emanate from a judgment in a Writ Petition,
filed in the form of a Public Interest Litigation, to which the
rules of procedure do not strictly apply. It was urged that
seminal questions of utmost importance arise for
consideration which require authoritative pronouncement of
a larger bench. Therefore, the reference has to be
answered to meet the ends of justice.
10. Though the preliminary point for adjudication is the
reference of questions of law to a larger bench in a review
[9]
petition, submissions were made by both sides regarding
the maintainability of the review petitions. Presumably, this
was done because no reference can be made in review
petitions which were not maintainable. Admittedly, the
review petitions are kept pending awaiting the
pronouncement on the questions of law which were referred
to this Bench. Therefore, we refrain from expressing any
view on the merits of the review petitions. However, it is
necessary for us to decide the maintainability of the review
petitions in view of the submissions made by the parties.
11. Article 137 of the Constitution of India empowers the
Supreme Court to review any judgment pronounced or order
made by it subject to the provisions of any law made by the
Parliament or any rules made under Article 145. No law has
been made by the Parliament as contemplated in Article
137. Article 145 of the Constitution of India gives power to
the Supreme Court to make rules for regulating the practice
and procedures in the Court. Article 145 (1) (e) pertains to
the rules relating to the conditions subject to which any
judgment or order pronounced by the Court may be
reviewed and the procedure for such review including the
time within which applications to the Court for such review
[10]
are to be entertained. The Supreme Court Rules which were
made in 1966 were repealed by the Supreme Court Rules
2013, which are in force. Order XLVII Rule 1 of the Supreme
Court Rules, 2013 reads as follows:
“The Court may review its judgment or order, but
no application for review will be entertained in a
civil proceeding except on the ground mentioned
in Order XLVII, rule 1 of the Code, and in a criminal
proceeding except on the ground of an error
apparent on the face of the record.
The application for review shall be accompanied
by a certificate of the Advocate on Record
certifying that it is the first application for review
and is based on the grounds admissible under the
Rules.”
12. It is clear from a plain reading of Order XLVII, Rule 1
that there are no restrictions on the power of this Court to
review its judgment or order. The exceptions to the general
power of review relate to review of civil proceedings which
can be entertained only on grounds mentioned in Order
XLVII, Rule 1 of the Code of Civil Procedure, 1908 and to
review of criminal proceedings which can be entertained
only on the ground of an error apparent on the face of
record. It is clear that there is no fetter in the exercise of
the jurisdiction of this Court in review petitions of judgments
[11]
or orders arising out of proceedings other than civil and
criminal proceedings.
13. Part II of the Supreme Court Rules deals with Civil
Appeals, Criminal Appeals and Special Leave Petitions under
Article 136 of the Constitution. Order XXI refers to Special
Leave Petitions (Civil) and Order XXII covers Special Leave
Petitions (Criminal) proceedings. Petitions filed under Article
32 of the Constitution are dealt with under Order XXXII in
Part III of the Supreme Court Rules. Sub-Rule 12 of Order
XXXVIII refers to Public Interest Litigation. Admittedly, Writ
Petition (Civil) No. 373 of 2006 was filed in public interest.
The review petitions arise out of the judgment in the said
Writ Petition.
14. Civil proceedings and criminal proceedings dealt with
in Part II of the Rules are different from Writ Petitions
covered by Part III of the Supreme Court Rules. The
exceptions carved out in Order XLVII, Rule 1 of the Supreme
Court Rules pertain only to civil and criminal proceedings.
Writ Petitions filed under Article 32 of the Constitution of
India do not fall within the purview of civil and criminal
proceedings. Therefore, the limitations in Order XLVII, Rule
1 do not apply to review petitions filed against judgments or
[12]
orders passed in Writ Petitions filed under Article 32 of the
Constitution of India.
15. When a statute is carefully punctuated and there is
doubt about its meaning, weight should undoubtedly be
given to the punctuation. (See:- Crawford: Interpretation
of Law (Statutory Construction)). However,
punctuation may have its uses in some cases, but it cannot
certainly be regarded as a controlling element and cannot
be allowed to control the plain meaning3
. Clause 13(3)(v) of
the C.P. and Berar Letting of Premises and Rent Control
Order, 1949 fell for interpretation of this Court in Dr. M.K.
Salpekar v. Sunil Kumar Shamsunder Chaudhari &
Ors4
. Clause 13 (3) (v) reads:
“that the tenant has secured alternative
accommodation, or has left the area for a
continuous period of four months and does not
reasonably need the house.”
This Court was of the opinion that the punctuation
mark ‘comma’ which appears in the sub-clause after
“alternate accommodation” and before the rest of the
sentence indicates that the last part of the sub-clause
3 Aswini Kumar Ghose and another vs. Arabinda Bose and another. 1953 (4) SCR 1
4 (1988) 4 SCC 21
[13]
namely ‘and does not reasonably need the house’ governs
only the second part of the sub-clause. Yet another case
where punctuation was relied upon for construing a
statutory provision is Mohd. Shabir v. State of
Maharashtra5
. Section 27 of the Drugs and Cosmetics Act,
1940 reads as under:
"Whoever himself or by any other person on his behalf
manufactures for sale, sells, stocks or exhibits for sale or
distributes-
(a) any drug-
(i) deemed to be misbranded under clause (a), clause
(b), clause (e), clause (d), clause (f) or clause (g) of
section 17 or adulterated under section 17B; or
(ii) without a valid licence as required under clause (c)
of section 18."
shall be punishable with imprisonment for a term which
shall not be less than one year but which may extend to
ten years and shall also be liable to fine;
Provided that the Court may, for any special reasons to be
recorded in writing, impose a sentence of imprisonment of
less than one year".
16. It was held that the words used in Section 27 namely,
“manufacture for sale”, “sells” have a comma after each
clause but there is no comma after the clause “stocks or
exhibits for sale”. The absence of any comma after the
5 (1979) 1 SCC 568
[14]
words ‘stocks’ clearly indicates that the clause “stocks or
exhibits for sale” is an indivisible whole.
17. Construction of Order XLVII, Rule 1 of the Supreme
Court Rules should be made by giving due weight to the
punctuation mark ‘comma’ after the words “the Court may
review its judgment or order”. The intention of the rule
making authority is clear that the above mentioned part is
disjunctive from the rest of the rule. Moreover, the words
“but no application for review will be entertained in a civil
proceeding except on ground mentioned in Order XLVII, Rule
1 of the Code and in a criminal proceeding except on the
ground of an error apparent on the face of record” are
exceptions to the opening words of Order XLVII Rule 1,
namely, “the Court may review its judgment or order”.
Therefore, there is no limitation for the exercise of power by
this Court in review petitions filed against judgments and
orders in proceedings other than civil proceeding or criminal
proceedings.
18. Submissions were made regarding the maintainability
of the review petitions for not satisfying the requirement of
Order XLVII Rule 1 CPC. This argument is on the basis that
the review petitions were filed against a judgment in a civil
[15]
proceeding. Several judgments were cited in support of this
contention. As we have held that the review petitions have
arisen from a judgment in a Writ Petition filed under Article
32 of the Constitution of India to which the provisions of
Order XLVII, Rule 1 of CPC are not applicable, it is not
necessary to refer to those judgments.
19. The alternate submission was that a reference can be
made only after the grant of review and not in a pending
review petition. Support for the proposition was sought
from a judgment of this Court in Behram Pesikaka v.
State of Bombay6
. It is true that reference in the said
case was made after grant of review. But that does not
mean that reference cannot be made in a pending review
petition.
20. The provision in the Supreme Court Rules, 2013
pertaining to reference to a larger bench is Order VI rule 2
which reads as:-
“Where in the course of the hearing of any case,
appeal or other proceedings the bench considers
that the matter should be dealt with by a Larger
Bench, it shall refer the matter to the Chief Justice,
6 (1955) 1 SCR 613
[16]
who shall thereupon constitute such a bench for
the hearing of it.”
21. Reference to a larger bench can be made in any cause
or appeal as well as in any ‘other proceeding’. The term
‘proceeding’ is a very comprehensive term and generally
speaking, means a prescribed course of action for enforcing
a legal right. It is a term giving the widest freedom to a
Court of law so that it may do justice to the parties in the
case7
. There cannot be any doubt that the pending review
petition falls within the purview of the expression “other
proceeding”. The reference has been made in the course of
pending review petitions.
22. In addition, there is no fetter on the exercise of
discretion of this Court in referring questions of law to a
larger bench in review petitions. Being a superior Court of
record, it is for this Court to consider whether any matter
falls within its jurisdiction or not. Unlike a Court of limited
jurisdiction, the superior Court of record is entitled to
determine for itself questions about its own jurisdiction8
.
7 Babu Lal vs. Hazari Lal Kishori Lal [1982] 1 SCC 525
8 Powers, Privileges and Immunities of State Legislatures,
In re (Keshav Singh case), (1965) 1 SCR 413.
See also Naresh Mirajkar v. State of Maharashtra, (1966) 3 SCR 744
[17]
23. No matter is beyond the jurisdiction of a superior Court
of record unless it is expressly shown to be so, under the
provisions of the Constitution. In the absence of any
express provision in the Constitution, this Court being a
superior Court of record has jurisdiction in every matter and
if there is any doubt, the Court has power to determine its
jurisdiction9
. It is useful to reproduce from Halsbury’s Laws
of England, 4th Edition Vol. 10, para 713, relied upon in the
aforementioned judgments, which states as follows:-
“Prima facie, no matter is deemed to be beyond
the jurisdiction of a superior Court unless it is
expressly shown to be so, while nothing is within
the jurisdiction of an inferior Court unless it is
expressly shown on the face of the proceedings
that the particular matter is within the cognizance
of the particular Court.”
Undoubtedly there is no bar on the exercise of
jurisdiction for referring questions of law in a pending review
petition. Therefore, the reference cannot be said to be
vitiated for lack of jurisdiction. This Court has acted well
within its power in making the reference.
9 Delhi Judicial Service Association v. State of Gujarat (1991) 4 SCC 406
[18]
24. Furthermore, the reference can be supported by
adverting to Article 142 of the Constitution of India which
enables this Court to make any order as is necessary for
doing complete justice in any cause or matter pending
before it. The expression ‘cause’ or ‘matter’ would include
any proceeding pending in Court and it would cover almost
every kind of proceeding pending in this Court including civil
or criminal proceedings10
. As such, the expression ‘cause or
matter’ surely covers review petitions without any doubt.
Therefore, it is well within the province of this Court to refer
questions of law in pending review petitions.
25. Order LV Rule 6 makes it crystal clear that the inherent
power of this Court to make such orders as may be
necessary for the ends of justice shall not be limited by the
Rules. In S. Nagaraj v. State of Karnataka11
, it was
observed that even when there was no statutory provision
and no rules were framed by the highest Court indicating
the circumstances in which it could rectify its orders, the
Courts culled out such power to avoid abuse of process or
miscarriage of justice. It was further held that this Court is
not precluded from recalling or reviewing its own order if it
10 Monica Kumar (Dr.) v. State of U.P. [2008] 8 SCC 781
11 1993 Supp. (4) SCC 595
[19]
is satisfied that it is necessary to do so for the sake of
justice. The logical extension to the above is that reference
of questions of law can be made in any pending proceeding
before this Court, including the instant review proceedings,
to meet the ends of justice.
26. By placing reliance on a judgment of this Court in
Central Bank of India v. Workmen12
, it was submitted
that this Court should not give speculative opinions or
answer hypothetical questions. The reference of questions
of law pertaining to the scope of Articles 25 and 26 of the
Constitution of India are of utmost importance requiring an
authoritative pronouncement by a larger bench, especially
in light of the view of the reference Bench that there is a
conflict between the Court’s judgments in Shirur Mutt
(supra) and Durgah Committee (supra). An objection
similar to the one in this case was taken in Indra Sawhney
vs. Union of India
13
, which was rejected on the ground
that the reference in that case was made to finally settle the
legal position relating to reservations. Therefore, the
reference in this case cannot be said to be suffering from
any jurisdictional error.
12 (1960) 1 SCR 200
13 [1992] Supp (3) SCC 217
[20]
27. Regarding the contention that pure questions of law
cannot be referred to a larger bench, it was argued that it is
not possible for the Court to decide the reference without
any facts of a particular case before it. We do not agree. It
is not necessary to refer to facts to decide pure questions of
law, especially those pertaining to the interpretation of the
provisions of the Constitution. In fact, reference of pure
questions of law have been answered by this Court earlier.
One such instance was when this Court was convinced that
a larger bench has to discern the true scope and
interpretation of Article 30 (1) of the Constitution of India.
An eleven Judge Bench was constituted for the purpose and
eleven questions of law were framed and answered in
T.M.A. Pai Foundation v. State of Karnataka14
. Yet
another case where there was a reference of pure questions
of law for the larger bench needs mention. Finding a
conflict between the judgments of this Court in M. P.
Sharma and Others v. Satish Chandra15 and Kharak
Singh v. State of Uttar Pradesh,
16 a three Judge Bench
of this Court referred the matter to a larger bench of five
14 (2002) 8 SCC 481
15 1954 SCR 1077
16 1964 SCR (1) 332
[21]
Judge Constitution Bench, which referred the issue relating
to the existence of the fundamental right to privacy in
Article 21 of the Constitution of India to a nine Judge Bench.
The question whether there is a constitutionally protected
right to privacy was decided by a nine Judge Bench of this
Court in Justice K.S. Puttaswamy (Retd.) and Anr. v.
Union of India and Ors.17 without reference to any facts.
As stated above, determination of the scope of Articles 25
and 26 is of paramount importance. To adjudicate the
reference, there is no requirement to refer to any disputed
facts by this Court.
28. The point that remains to be considered is the
submission pertaining to the proviso to Article 145 (3).
Article 145 of the Constitution of India empowers this Court
to make Rules for regulating the practice and procedure of
the Court. Article 145 (3) provides that the minimum
number of Judges to decide any case involving substantial
questions of law as to the interpretation of the Constitution
or for the purpose of hearing a reference under Article 143
shall be five. The proviso to Article 145 (3) is as follows:
“Provided that, where the Court hearing an appeal under
any of the provisions of this Chapter other than article 132
17 (2017) 10 SCC 1
[22]
consists of less than five Judges and in the course of the
hearing of the appeal the Court is satisfied that the appeal
involves a substantial question of law as to the
interpretation of this Constitution the determination of
which is necessary for the disposal of the appeal, such
Court shall refer the question for opinion to a Court
constituted as required by this clause for the purpose of
deciding any case involving such a question and shall on
receipt of the opinion dispose of the appeal in conformity
with such opinion.”
29. The contention is that reference to a larger bench in
accordance with the proviso to Article 145(3) can be made
only in Appeals and not in any other proceedings. However,
the proviso deals with a situation when reference has to be
made by a bench of less than five Judges. The present
reference is made by a bench of five Judges and, therefore,
the proviso to Article 145 (3) is not applicable.
[23]
30. For the aforementioned reasons, the instant review
petitions and the reference arising from the review petitions
are maintainable.
……..……………………….. CJI.
(S. A. BOBDE)
…………………………………..J.
(R. BANUMATHI)
…………………………………..J.
(ASHOK BHUSHAN)
…………………………………..J.
(L. NAGESWARA RAO)
…………………………………..J.
(MOHAN M. SHANTANAGOUDAR)
………..………………………...J.
(S. ABDUL NAZEER)
…………………………………..J.
(R. SUBHASH REDDY)
…………………………………..J.
(B.R. GAVAI)
New Delhi, ……………………..J.
May 11, 2020. (SURYA KANT)
[24]
IN THE SUPREME COURT OF INDIA
CIVIL INHERENT/ORIGINAL JURISDICTION
REVIEW PETITION (CIVIL) No. 3358 OF 2018
IN
WRIT PETITION (CIVIL) No. 373 OF 2006
KANTARU RAJEEVARU ….. Petitioner
Versus
INDIAN YOUNG LAWYERS ASSOCIATION THR.
ITS GENERAL SECRETARY MS. BHAKTI PASRIJA
AND ORS. … Respondents
WITH
SLP(C) No. 18889/2012, W.P.(C) No. 286/2017, R.P.(C) No. 3359/2018 in
W.P.(C) No. 373/2006, Diary No. 37946-2018, R.P.(C) No. 3469/2018 in
W.P.(C) No. 373/2006, Diary No. 38135-2018, Diary No. 38136-2018, R.P.
(C) No. 3449/2018 in W.P.(C) No. 373/2006, W.P.(C) No. 1285/2018, R.P.
(C) No. 3470/2018 in W.P.(C) No. 373/2006, R.P.(C) No. 3380/2018 in
W.P.(C) No. 373/2006, R.P.(C) No. 3379/2018 in W.P.(C) No. 373/2006,
R.P.(C) No. 3444/2018 in W.P.(C) No. 373/2006, R.P.(C) No. 3462/2018 in
W.P.(C) No. 373/2006, Diary No. 38764-2018, Diary No. 38769-2018,
Diary No. 38907-2018, R.P.(C) No. 3377/2018 in W.P.(C) No. 373/2006,
Diary No. 39023-2018,Diary No. 39135-2018,Diary No. 39248-2018,
Diary No. 39258-2018, Diary No. 39317-2018, W.P.(C) No. 1323/2018,
W.P.(C) No. 1305/2018, Diary No. 39642-2018, R.P.(C) No. 3381/2018 in
W.P.(C) No. 373/2006, Diary No. 40056-2018, Diary No. 40191-2018,
Diary No. 40405-2018, Diary No. 40570-2018, Diary No. 40681-2018,
Diary No. 40713-2018, Diary No. 40840-2018, Diary No. 40885-2018,
Diary No. 40887-2018, Diary No. 40888-2018,Diary No. 40898-2018, R.P.
(C) No. 3457/2018 in W.P.(C) No. 373/2006, Diary No. 40910-2018, Diary
No. 40924-2018, Diary No. 40929-2018,Diary No. 41005-2018, Diary No.
41091-2018, W.P.(C) No. 1339/2018, Diary No. 41264-2018, R.P.(C) No.
3473/2018 in W.P.(C) No. 373/2006, Diary No. 41395-2018, Diary No.
41586-2018, R.P.(C) No. 3480/2018 in W.P.(C) No. 373/2006, Diary No.
41896-2018, Diary No. 42085-2018,Diary No. 42264-2018, Diary No.
42337-2018, MA 3113/2018 in W.P.(C) No. 373/2006, Diary No. 44021-
2018, Diary No. 44991-2018,
Diary No. 46720-2018, Diary No. 47720-2018, Diary No. 2252-2019,
R.P.(C) No. 345/2019 in W.P.(C) No. 373/2006, Diary No. 2998-2019, W.P.
(C) No. 472/2019
[25]
O R D E R
We have heard the parties at length. For reasons to
follow, we hold that this Court can refer questions of law to a
larger bench in a Review Petition.
….………………………………..CJI.
[S.A. BOBDE]
….………………………………..J.
[R. BANUMATHI]
….………………………………..J.
[ASHOK BHUSHAN]
….………………………………..J.
[L. NAGESWARA RAO]
….………………………………..J.
[MOHAN M. SHANTANAGOUDAR]
….………………………………..J.
[S. ABDUL NAZEER]
….………………………………..J.
[R. SUBHASH REDDY]
….………………………………..J.
[B.R. GAVAI]
….………………………………..J.
[SURYA KANT]
NEW DELHI
FEBRUARY 10, 2020
[26]
IN THE SUPREME COURT OF INDIA
CIVIL INHERENT/ORIGINAL JURISDICTION
REVIEW PETITION (CIVIL) No. 3358 OF 2018
IN
WRIT PETITION (CIVIL) No. 373 OF 2006
KANTARU RAJEEVARU ….. Petitioner
Versus
INDIAN YOUNG LAWYERS ASSOCIATION THR.
ITS GENERAL SECRETARY MS. BHAKTI PASRIJA
AND ORS. … Respondents
WITH
SLP(C) No. 18889/2012, W.P.(C) No. 286/2017, R.P.(C) No. 3359/2018 in
W.P.(C) No. 373/2006, Diary No. 37946-2018, R.P.(C) No. 3469/2018 in
W.P.(C) No. 373/2006, Diary No. 38135-2018, Diary No. 38136-2018, R.P.
(C) No. 3449/2018 in W.P.(C) No. 373/2006, W.P.(C) No. 1285/2018, R.P.
(C) No. 3470/2018 in W.P.(C) No. 373/2006, R.P.(C) No. 3380/2018 in
W.P.(C) No. 373/2006, R.P.(C) No. 3379/2018 in W.P.(C) No. 373/2006, R.P.
(C) No. 3444/2018 in W.P.(C) No. 373/2006, R.P.(C) No. 3462/2018 in W.P.
(C) No. 373/2006, Diary No. 38764-2018, Diary No. 38769-2018, Diary
No. 38907-2018, R.P.(C) No. 3377/2018 in W.P.(C) No. 373/2006, Diary
No. 39023-2018,Diary No. 39135-2018,Diary No. 39248-2018, Diary No.
39258-2018, Diary No. 39317-2018, W.P.(C) No. 1323/2018, W.P.(C) No.
1305/2018, Diary No. 39642-2018, R.P.(C) No. 3381/2018 in W.P.(C)
No. 373/2006, Diary No. 40056-2018, Diary No. 40191-2018, Diary No.
40405-2018, Diary No. 40570-2018, Diary No. 40681-2018, Diary No.
40713-2018, Diary No. 40840-2018, Diary No. 40885-2018, Diary No.
40887-2018, Diary No. 40888-2018, Diary No. 40898-2018, R.P.(C) No.
3457/2018 in W.P.(C) No. 373/2006, Diary No. 40910-2018, Diary No.
40924-2018, Diary No. 40929-2018, Diary No. 41005-2018, Diary No.
41091-2018, W.P.(C) No. 1339/2018, Diary No. 41264-2018, R.P.(C)
No. 3473/2018 in W.P.(C) No. 373/2006, Diary No. 41395-2018, Diary
No. 41586-2018, R.P.(C) No. 3480/2018 in W.P.(C) No. 373/2006, Diary
No. 41896-2018, Diary No.42085-2018, Diary No. 42264-2018, Diary No.
42337-2018, MA 3113/2018 in W.P.(C) No. 373/2006, Diary No. 44021-
2018, Diary No. 44991-2018, Diary No. 46720-2018, Diary No. 47720-
[27]
2018, Diary No. 2252-2019, R.P.(C) No. 345/2019 in W.P.(C) No.
373/2006, Diary No. 2998-2019, W.P.(C) No. 472/2019
O R D E R
The following issues are framed for consideration by this Court: -
1. What is the scope and ambit of right to freedom of religion under
Article 25 of the Constitution of India?
2. What is the inter-play between the rights of persons under Article
25 of the Constitution of India and rights of religious
denomination under Article 26 of the Constitution of India?
3. Whether the rights of a religious denomination under Article 26
of the Constitution of India are subject to other provisions of Part
III of the Constitution of India apart from public order, morality
and health?
4. What is the scope and extent of the word ‘morality’ under
Articles 25 and 26 of the Constitution of India and whether it is
meant to include Constitutional morality?
5. What is the scope and extent of judicial review with regard to a
religious practice as referred to in Article 25 of the Constitution of
India?
6. What is the meaning of expression “Sections of Hindus”
occurring in Article 25 (2) (b) of the Constitution of India?
7. Whether a person not belonging to a religious denomination or
religious group can question a practice of that religious
denomination or religious group by filing a PIL?
….………………………………..CJI
[S.A. BOBDE]
[28]
….………………………………..J.
[R. BANUMATHI]
….………………………………..J.
[ASHOK BHUSHAN]
….………………………………..J.
[L. NAGESWARA RAO]
….………………………………..J.
[MOHAN M. SHANTANAGOUDAR]
….………………………………..J.
[S. ABDUL NAZEER]
….………………………………..J.
[R. SUBHASH REDDY]
….………………………………..J.
[B.R. GAVAI]
….………………………………..J.
[SURYA KANT]
NEW DELHI
FEBRUARY 10, 2020
[29]
Tuesday, May 19, 2020
Section 65 and 66 of the Indian Evidence Act by the appellants herein seeking permission to prove the copy of the Will dated 24.01.1989 executed by one Babu Singh in their favour by way of secondary evidence, as the original Will which was handed over to the village patwari for mutation could not be retrieved. APEX COURT HELD THAT Needless to observe that merely the admission in evidence and making exhibit of a document does not prove it automatically unless the same has been proved in accordance with the law. 18. In view of the aforesaid legal and factual position, we are of the considered opinion that the impugned judgment of the High Court suffers from material irregularity and patent errors of law and not liable to be sustained and is thus, hereby set aside. The appeal accordingly stands allowed. The appellants would be entitled to lead secondary evidence in respect of the Will in question. It is, however, clarified that such admission of secondary evidence automatically does not attest to its authenticity, truthfulness or genuineness which will have to be established during the course of trial in accordance with law.
Section 65 and 66 of the Indian Evidence Act by the appellants
herein seeking permission to prove the copy of the Will dated
24.01.1989 executed by one Babu Singh in their favour by way of
secondary evidence, as the original Will which was handed over to the
village patwari for mutation could not be retrieved.
APEX COURT HELD THAT
Needless to observe that merely the admission in evidence and making exhibit of a document does not prove it automatically unless the same has been proved in accordance with the law. 18. In view of the aforesaid legal and factual position, we are of the considered opinion that the impugned judgment of the High Court suffers from material irregularity and patent errors of law and not liable to be sustained and is thus, hereby set aside. The appeal accordingly stands allowed. The appellants would be entitled to lead secondary evidence in respect of the Will in question. It is, however, clarified that such admission of secondary evidence automatically does not attest to its authenticity, truthfulness or genuineness which will have to be established during the course of trial in accordance with law
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1889 OF 2020
(ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 17437 OF 2017)
JAGMAIL SINGH & ANR. ….. APPELLANT(S)
VERSUS
KARAMJIT SINGH & ORS. ….. RESPONDENT(S)
J U D G M E N T
KRISHNA MURARI, J.
This appeal is directed against the judgment dated 09.01.2017
passed by the High Court of Punjab and Haryana at Chandigarh in Civil
Revision No. 7271 of 2015 whereby the High Court confirmed the order
passed by the Civil Judge (Junior Division) Moga in application filed
under Section 65 and 66 of the Indian Evidence Act by the appellants
herein seeking permission to prove the copy of the Will dated
24.01.1989 executed by one Babu Singh in their favour by way of
secondary evidence, as the original Will which was handed over to the
village patwari for mutation could not be retrieved. The High Court while
dismissing the application observed that as the pre-requisite condition of
Page 1 of 11
existence of Will is not proved, the Will cannot be permitted to be
approved by allowing the secondary evidence.
2. Briefly stated the facts of the case are that the appellants
preferred a suit for declaration to the effect that they are owners to the
extent of ½ share each of the land owned by Babu Singh son of
Phuman Singh, situated in village Kokri Kalan, Tehsil & District Moga
and Mutation No. 9971 dated 28.02.1991 and Mutation No. 9359 dated
25.02.1991 sanctioned by the Assistant Collector Second Grade, Moga
in favour of Baldev Singh (predecessors-in-interest of respondent nos.1
and 2) and Shamsher Singh (respondent No.3) are illegal, null and void,
as the said two mutations have been sanctioned on the basis of a
forged Will dated 20.03.1988. A further prayer for consequential relief of
permanent injunction to restrain the respondents from alienating,
transferring or mortgaging the suit property was also sought for.
3. During pendency of the aforesaid suit, an application under
Section 65/66 of the Evidence Act was moved by the appellants seeking
permission to prove copy of Will dated 24.01.1989 by way of secondary
evidence. The said application was allowed by the Trial Court vide order
dated 04.07.2014.
Page 2 of 11
4. Feeling aggrieved by the said order, respondents preferred Civil
Revision No.4645 of 2014 which was allowed by the High Court by
observing as under:-
“Once the appellants have alleged that the original Will is
in possession of the revenue official, they should have
served a notice upon him under Section 66 of the Act for its
production and in case, it is alleged that the said Will has
been lost, then the application could have been filed for
leading secondary evidence but in the absence of the
compliance of the aforesaid procedure, the application per
se filed under Section 65 of the Act is not maintainable. In
view of the aforesaid apparent error on the part of the
Court below, the present revision petition is hereby allowed
and the impugned order is set aside. However, the
respondents are still at liberty to move an application under
Section 66 of the Act to the revenue official to whom the
alleged Will was given for the purpose of sanctioning of
mutation and in case of denial on his part that the Will has
been lost, they can maintain the application for secondary
evidence”.
5. Subsequent thereto, appellants preferred another application
under Section 65/66 of the Act, before the Trial Court for issuance of
notice under Section 66 of the Act to the revenue officials for production
of original Will dated 24.01.1989. The application was made on the
ground that the said original Will was handed over by the appellants to
revenue officials for sanctioning the mutation in their favour. Both the
revenue officials were issued notice for production of the original Will
dated 24.01.1989 but they failed to produce the said Will. It was only
thereafter, application was dismissed vide order dated 30.09.2015.
Page 3 of 11
6. Aggrieved by the above order, the appellants approached the
High Court by way of a Revision Petition under Article 227 of the
Constitution of India.
7. Learned counsel for the appellants contended that the impugned
order is not sustainable in the eyes of law as it suffers from patent
errors of law and is against the letter & spirit of Sections 65 & 66 of the
Evidence Act. It is further pointed out that Section 65(a) of the Act
allows the production of secondary evidence when the original is shown
and appears to be in possession or power of one against whom the
document is sought to be proved, or any person out of reach of, or not
subject to, the process of the Court, or of any person legally bound to
produce it, and when, after the notice mentioned in Section 66, such
person does not produce it. In such contingency, party concerned is
entitled to prove the same by way of secondary evidence. It is
submitted that the appellants had already served notice under Section
66 of the Evidence Act to the revenue officials through the Court but the
Will which was sought to be produced by way of secondary evidence,
was not produced by either of the revenue officials.
8. Learned counsel for the appellants further contended that
existence of the original Will can only be proved during the course of
arguments and it is not the requirement of law that it should be proved
Page 4 of 11
at the first instance and only thereafter secondary evidence can be
allowed.
9. The High Court vide impugned order dated 09.01.2017 observed
that - “As per facts & circumstances of the instant case, original Will
dated 24.01.1989 was given to the revenue official(s) for incorporating
and sanctioning of mutation on the basis thereof, but to the utter
surprise, though, both the revenue officials, namely, Pyare Lal and
Rakesh Kumar, Patwaries, were served under Section 66 of the Act to
produce original Will dated 24.01.1989 but they failed to produce it.
Moreover, they had nowhere stated about the existence of the original
Will. So, the pre-requisite condition i.e. existence of the Will, remained
un-established on record. Thus, while observing that the learned Trial
Court had declined the permission to prove Will dated 24.01.1989 by
way of secondary evidence, the order dated 30.09.2015 suffers from no
infirmity or illegality, rather the same is absolutely in accordance with
the evidence available on file as well as settled proposition of law.” The
High Court did not find any merit in the Revision Petition and dismissed
the same while upholding the decision of the lower Court on the ground
that the pre-requisite condition for admission of secondary evidence,
i.e. existence of Will remained unestablished.
Page 5 of 11
10. For proper appraisal of the matter in controversy, it would be
appropriate to reproduce Sections 65 and 66 of the Act which read as
under :-
“ 65. Cases in which secondary evidence relating to
documents may be given.— Secondary evidence may be
given of the existence, condition, or contents of a
document in the following cases:-
(a) When the original is shown or appears to be in the
possession or power— of the person against whom the
document is sought to be proved, or of any person out of
reach of, or not subject to, the process of the Court, or of
any person legally bound to produce it, and when, after the
notice mentioned in section 66, such person does not
produce it;
(b) when the existence, condition or contents of the original
have been proved to be admitted in writing by the person
against whom it is proved or by his representative in
interest;
(c) when the original has been destroyed or lost, or when
the party offering evidence of its contents cannot, for any
other reason not arising from his own default or neglect,
produce it in reasonable time;
(d) when the original is of such a nature as not to be easily
movable;
(e) when the original is a public document within the
meaning of section 74;
(f) when the original is a document of which a certified
copy is permitted by this Act, or by any other law in force in
India to be given in evidence;
(g) when the originals consists of numerous accounts or
other documents which cannot conveniently be examined
in Court, and the fact to be proved is the general result of
the whole collection.
- In cases (a), (c) and (d), any secondary evidence of the
contents of the document is admissible.
- In case (b), the written admission is admissible.
- In case (e) or (f), a certified copy of the document, but no
other kind of secondary evidence, is admissible.
-In case (g), evidence may be given as to the general
result of the documents by any person who has examined
Page 6 of 11
them, and who is skilled in the examination of such
documents.
66. Rules as to notice to produce - Secondary evidence
of the contents of the documents referred to in section 65,
clause (a), shall not be given unless the party proposing to
give such secondary evidence has previously given to the
party in whose possession or power the document is, [or to
his attorney or pleader] such notice to produce it as is
prescribed by law; and if no notice is prescribed by law,
then such notice as the Court considers reasonable under
the circumstances of the case:
Provided that such notice shall not be required in order to
render secondary evidence admissible in any of the
following cases, or in any other case in which the Court
thinks fit to dispense with it:—
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party
must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has
obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in
Court;
(5) when the adverse party or his agent has admitted the
loss of the document;
(6) when the person in possession of the document is out
of reach of, or not subject to, the process of the Court.”
11. A perusal of Section 65 makes it clear that secondary evidence
may be given with regard to existence, condition or the contents of a
document when the original is shown or appears to be in possession or
power against whom the document is sought to be produced, or of any
person out of reach of, or not subject to, the process of the Court, or of
any person legally bound to produce it, and when, after notice
mentioned in Section 66 such person does not produce it. It is a settled
position of law that for secondary evidence to be admitted foundational
Page 7 of 11
evidence has to be given being the reasons as to why the original
Evidence has not been furnished.
12. The issue arising out of somewhat similar facts and circumstances
has been considered by this Court in Ashok Dulichand Vs.
Madahavlal Dube and Anr.1
, and it was held as under :-
“According to Clause (a) of Section 65 of Indian Evidence
Act, Secondary evidence may be given of the existence,
condition or contents of a document when the original is
shown or appears to be in possession or power of the
person against whom the document is sought to be proved
or of any person out of reach of, or not subject to, the
process of the Court of any person legally bound to
produce it, and when, after the notice mentioned in Section
66 such person does not produce it. Clauses (b) to (g) of
Section 65 specify some other contingencies wherein
secondary evidence relating to a document may be given.”
13. In the matter of Rakesh Mohindra vs. Anita Beri and Ors.2
this
Court has observed as under:-
“15. The preconditions for leading secondary evidence are
that such original documents could not be produced by the
party relying upon such documents in
spite of best efforts, unable to produce the same which is
beyond their control. The party sought to produce
secondary evidence must establish for the non-production
of primary evidence. Unless, it is established that the
original documents is lost or destroyed or is being
deliberately withheld by the party in respect of that
document sought to be used, secondary evidence in
respect of that document cannot accepted.”
1
[1976] 1 SCR 246
2
(2016) 16 SCC 483
Page 8 of 11
14. It is trite that under the Evidence Act, 1872 facts have to be
established by primary evidence and secondary evidence is only an
exception to the rule for which foundational facts have to be established
to account for the existence of the primary evidence. In the case of H.
Siddiqui (dead) by LRs Vs. A. Ramalingam3
, this Court reiterated that
where original documents are not produced without a plausible reason
and factual foundation for laying secondary evidence not established it
is not permissible for the court to allow a party to adduce secondary
evidence.
15. In the case at hand, it is imperative to appreciate the evidence of
the witnesses as it is only after scrutinizing the same opinion can be
found as to the existence, loss or destruction of the original Will. While
both the revenue officials failed to produces the original Will, upon
perusal of the cross-examination it is clear that neither of the officials
has unequivocally denied the existence of the Will. PW- 3 Rakesh
Kumar stated during his cross-examination that there was another
patwari in that area and he was unaware if such Will was presented
before the other patwari. He went on to state that this matter was 25
years old and he was no longer posted in that area and, therefore,
could not trace the Will. Moreover, PW- 4 went on to admit that, “there
was registered Will which was entered. There was a Katchi
(unregistered) Will of Babu Singh was handed over to Rakesh Kumar
3
[2011 (4) SCC 240]
Page 9 of 11
Patwari for entering the mutation...”. Furthermore, the prima facie
evidence of existence of the Will is established from the examination of
PW-1, Darshan Singh, who is the scribe of the Will in question and
deposed as under :-
“I have seen the Will dated 24.01.1989 which bears my
signature as scribe and as well as witness.”
16. In view of the aforesaid factual situation prevailing in the case at
hand, it is clear that the factual foundation to establish the right to give
secondary evidence was laid down by the appellants and thus the High
Court ought to have given them an opportunity to lead secondary
evidence. The High Court committed grave error of law without properly
evaluating the evidence and holding that the pre-requisite condition i.e.,
existence of Will remained unestablished on record and thereby denied
an opportunity to the appellants to produce secondary evidence.
17. Needless to observe that merely the admission in evidence and
making exhibit of a document does not prove it automatically unless
the same has been proved in accordance with the law.
18. In view of the aforesaid legal and factual position, we are of the
considered opinion that the impugned judgment of the High Court
suffers from material irregularity and patent errors of law and not liable
Page 10 of 11
to be sustained and is thus, hereby set aside. The appeal accordingly
stands allowed.
19. The appellants would be entitled to lead secondary evidence in
respect of the Will in question. It is, however, clarified that such
admission of secondary evidence automatically does not attest to its
authenticity, truthfulness or genuineness which will have to be
established during the course of trial in accordance with law.
20. In the facts and circumstances, we do not make any order as to
costs.
.................................J.
(NAVIN SINHA)
...............................J.
(KRISHNA MURARI)
NEW DELHI;
MAY 13, 2020
Page 11 of 11
APEX COURT HELD THAT
Needless to observe that merely the admission in evidence and making exhibit of a document does not prove it automatically unless the same has been proved in accordance with the law. 18. In view of the aforesaid legal and factual position, we are of the considered opinion that the impugned judgment of the High Court suffers from material irregularity and patent errors of law and not liable to be sustained and is thus, hereby set aside. The appeal accordingly stands allowed. The appellants would be entitled to lead secondary evidence in respect of the Will in question. It is, however, clarified that such admission of secondary evidence automatically does not attest to its authenticity, truthfulness or genuineness which will have to be established during the course of trial in accordance with law
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1889 OF 2020
(ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 17437 OF 2017)
JAGMAIL SINGH & ANR. ….. APPELLANT(S)
VERSUS
KARAMJIT SINGH & ORS. ….. RESPONDENT(S)
J U D G M E N T
KRISHNA MURARI, J.
This appeal is directed against the judgment dated 09.01.2017
passed by the High Court of Punjab and Haryana at Chandigarh in Civil
Revision No. 7271 of 2015 whereby the High Court confirmed the order
passed by the Civil Judge (Junior Division) Moga in application filed
under Section 65 and 66 of the Indian Evidence Act by the appellants
herein seeking permission to prove the copy of the Will dated
24.01.1989 executed by one Babu Singh in their favour by way of
secondary evidence, as the original Will which was handed over to the
village patwari for mutation could not be retrieved. The High Court while
dismissing the application observed that as the pre-requisite condition of
Page 1 of 11
existence of Will is not proved, the Will cannot be permitted to be
approved by allowing the secondary evidence.
2. Briefly stated the facts of the case are that the appellants
preferred a suit for declaration to the effect that they are owners to the
extent of ½ share each of the land owned by Babu Singh son of
Phuman Singh, situated in village Kokri Kalan, Tehsil & District Moga
and Mutation No. 9971 dated 28.02.1991 and Mutation No. 9359 dated
25.02.1991 sanctioned by the Assistant Collector Second Grade, Moga
in favour of Baldev Singh (predecessors-in-interest of respondent nos.1
and 2) and Shamsher Singh (respondent No.3) are illegal, null and void,
as the said two mutations have been sanctioned on the basis of a
forged Will dated 20.03.1988. A further prayer for consequential relief of
permanent injunction to restrain the respondents from alienating,
transferring or mortgaging the suit property was also sought for.
3. During pendency of the aforesaid suit, an application under
Section 65/66 of the Evidence Act was moved by the appellants seeking
permission to prove copy of Will dated 24.01.1989 by way of secondary
evidence. The said application was allowed by the Trial Court vide order
dated 04.07.2014.
Page 2 of 11
4. Feeling aggrieved by the said order, respondents preferred Civil
Revision No.4645 of 2014 which was allowed by the High Court by
observing as under:-
“Once the appellants have alleged that the original Will is
in possession of the revenue official, they should have
served a notice upon him under Section 66 of the Act for its
production and in case, it is alleged that the said Will has
been lost, then the application could have been filed for
leading secondary evidence but in the absence of the
compliance of the aforesaid procedure, the application per
se filed under Section 65 of the Act is not maintainable. In
view of the aforesaid apparent error on the part of the
Court below, the present revision petition is hereby allowed
and the impugned order is set aside. However, the
respondents are still at liberty to move an application under
Section 66 of the Act to the revenue official to whom the
alleged Will was given for the purpose of sanctioning of
mutation and in case of denial on his part that the Will has
been lost, they can maintain the application for secondary
evidence”.
5. Subsequent thereto, appellants preferred another application
under Section 65/66 of the Act, before the Trial Court for issuance of
notice under Section 66 of the Act to the revenue officials for production
of original Will dated 24.01.1989. The application was made on the
ground that the said original Will was handed over by the appellants to
revenue officials for sanctioning the mutation in their favour. Both the
revenue officials were issued notice for production of the original Will
dated 24.01.1989 but they failed to produce the said Will. It was only
thereafter, application was dismissed vide order dated 30.09.2015.
Page 3 of 11
6. Aggrieved by the above order, the appellants approached the
High Court by way of a Revision Petition under Article 227 of the
Constitution of India.
7. Learned counsel for the appellants contended that the impugned
order is not sustainable in the eyes of law as it suffers from patent
errors of law and is against the letter & spirit of Sections 65 & 66 of the
Evidence Act. It is further pointed out that Section 65(a) of the Act
allows the production of secondary evidence when the original is shown
and appears to be in possession or power of one against whom the
document is sought to be proved, or any person out of reach of, or not
subject to, the process of the Court, or of any person legally bound to
produce it, and when, after the notice mentioned in Section 66, such
person does not produce it. In such contingency, party concerned is
entitled to prove the same by way of secondary evidence. It is
submitted that the appellants had already served notice under Section
66 of the Evidence Act to the revenue officials through the Court but the
Will which was sought to be produced by way of secondary evidence,
was not produced by either of the revenue officials.
8. Learned counsel for the appellants further contended that
existence of the original Will can only be proved during the course of
arguments and it is not the requirement of law that it should be proved
Page 4 of 11
at the first instance and only thereafter secondary evidence can be
allowed.
9. The High Court vide impugned order dated 09.01.2017 observed
that - “As per facts & circumstances of the instant case, original Will
dated 24.01.1989 was given to the revenue official(s) for incorporating
and sanctioning of mutation on the basis thereof, but to the utter
surprise, though, both the revenue officials, namely, Pyare Lal and
Rakesh Kumar, Patwaries, were served under Section 66 of the Act to
produce original Will dated 24.01.1989 but they failed to produce it.
Moreover, they had nowhere stated about the existence of the original
Will. So, the pre-requisite condition i.e. existence of the Will, remained
un-established on record. Thus, while observing that the learned Trial
Court had declined the permission to prove Will dated 24.01.1989 by
way of secondary evidence, the order dated 30.09.2015 suffers from no
infirmity or illegality, rather the same is absolutely in accordance with
the evidence available on file as well as settled proposition of law.” The
High Court did not find any merit in the Revision Petition and dismissed
the same while upholding the decision of the lower Court on the ground
that the pre-requisite condition for admission of secondary evidence,
i.e. existence of Will remained unestablished.
Page 5 of 11
10. For proper appraisal of the matter in controversy, it would be
appropriate to reproduce Sections 65 and 66 of the Act which read as
under :-
“ 65. Cases in which secondary evidence relating to
documents may be given.— Secondary evidence may be
given of the existence, condition, or contents of a
document in the following cases:-
(a) When the original is shown or appears to be in the
possession or power— of the person against whom the
document is sought to be proved, or of any person out of
reach of, or not subject to, the process of the Court, or of
any person legally bound to produce it, and when, after the
notice mentioned in section 66, such person does not
produce it;
(b) when the existence, condition or contents of the original
have been proved to be admitted in writing by the person
against whom it is proved or by his representative in
interest;
(c) when the original has been destroyed or lost, or when
the party offering evidence of its contents cannot, for any
other reason not arising from his own default or neglect,
produce it in reasonable time;
(d) when the original is of such a nature as not to be easily
movable;
(e) when the original is a public document within the
meaning of section 74;
(f) when the original is a document of which a certified
copy is permitted by this Act, or by any other law in force in
India to be given in evidence;
(g) when the originals consists of numerous accounts or
other documents which cannot conveniently be examined
in Court, and the fact to be proved is the general result of
the whole collection.
- In cases (a), (c) and (d), any secondary evidence of the
contents of the document is admissible.
- In case (b), the written admission is admissible.
- In case (e) or (f), a certified copy of the document, but no
other kind of secondary evidence, is admissible.
-In case (g), evidence may be given as to the general
result of the documents by any person who has examined
Page 6 of 11
them, and who is skilled in the examination of such
documents.
66. Rules as to notice to produce - Secondary evidence
of the contents of the documents referred to in section 65,
clause (a), shall not be given unless the party proposing to
give such secondary evidence has previously given to the
party in whose possession or power the document is, [or to
his attorney or pleader] such notice to produce it as is
prescribed by law; and if no notice is prescribed by law,
then such notice as the Court considers reasonable under
the circumstances of the case:
Provided that such notice shall not be required in order to
render secondary evidence admissible in any of the
following cases, or in any other case in which the Court
thinks fit to dispense with it:—
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party
must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has
obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in
Court;
(5) when the adverse party or his agent has admitted the
loss of the document;
(6) when the person in possession of the document is out
of reach of, or not subject to, the process of the Court.”
11. A perusal of Section 65 makes it clear that secondary evidence
may be given with regard to existence, condition or the contents of a
document when the original is shown or appears to be in possession or
power against whom the document is sought to be produced, or of any
person out of reach of, or not subject to, the process of the Court, or of
any person legally bound to produce it, and when, after notice
mentioned in Section 66 such person does not produce it. It is a settled
position of law that for secondary evidence to be admitted foundational
Page 7 of 11
evidence has to be given being the reasons as to why the original
Evidence has not been furnished.
12. The issue arising out of somewhat similar facts and circumstances
has been considered by this Court in Ashok Dulichand Vs.
Madahavlal Dube and Anr.1
, and it was held as under :-
“According to Clause (a) of Section 65 of Indian Evidence
Act, Secondary evidence may be given of the existence,
condition or contents of a document when the original is
shown or appears to be in possession or power of the
person against whom the document is sought to be proved
or of any person out of reach of, or not subject to, the
process of the Court of any person legally bound to
produce it, and when, after the notice mentioned in Section
66 such person does not produce it. Clauses (b) to (g) of
Section 65 specify some other contingencies wherein
secondary evidence relating to a document may be given.”
13. In the matter of Rakesh Mohindra vs. Anita Beri and Ors.2
this
Court has observed as under:-
“15. The preconditions for leading secondary evidence are
that such original documents could not be produced by the
party relying upon such documents in
spite of best efforts, unable to produce the same which is
beyond their control. The party sought to produce
secondary evidence must establish for the non-production
of primary evidence. Unless, it is established that the
original documents is lost or destroyed or is being
deliberately withheld by the party in respect of that
document sought to be used, secondary evidence in
respect of that document cannot accepted.”
1
[1976] 1 SCR 246
2
(2016) 16 SCC 483
Page 8 of 11
14. It is trite that under the Evidence Act, 1872 facts have to be
established by primary evidence and secondary evidence is only an
exception to the rule for which foundational facts have to be established
to account for the existence of the primary evidence. In the case of H.
Siddiqui (dead) by LRs Vs. A. Ramalingam3
, this Court reiterated that
where original documents are not produced without a plausible reason
and factual foundation for laying secondary evidence not established it
is not permissible for the court to allow a party to adduce secondary
evidence.
15. In the case at hand, it is imperative to appreciate the evidence of
the witnesses as it is only after scrutinizing the same opinion can be
found as to the existence, loss or destruction of the original Will. While
both the revenue officials failed to produces the original Will, upon
perusal of the cross-examination it is clear that neither of the officials
has unequivocally denied the existence of the Will. PW- 3 Rakesh
Kumar stated during his cross-examination that there was another
patwari in that area and he was unaware if such Will was presented
before the other patwari. He went on to state that this matter was 25
years old and he was no longer posted in that area and, therefore,
could not trace the Will. Moreover, PW- 4 went on to admit that, “there
was registered Will which was entered. There was a Katchi
(unregistered) Will of Babu Singh was handed over to Rakesh Kumar
3
[2011 (4) SCC 240]
Page 9 of 11
Patwari for entering the mutation...”. Furthermore, the prima facie
evidence of existence of the Will is established from the examination of
PW-1, Darshan Singh, who is the scribe of the Will in question and
deposed as under :-
“I have seen the Will dated 24.01.1989 which bears my
signature as scribe and as well as witness.”
16. In view of the aforesaid factual situation prevailing in the case at
hand, it is clear that the factual foundation to establish the right to give
secondary evidence was laid down by the appellants and thus the High
Court ought to have given them an opportunity to lead secondary
evidence. The High Court committed grave error of law without properly
evaluating the evidence and holding that the pre-requisite condition i.e.,
existence of Will remained unestablished on record and thereby denied
an opportunity to the appellants to produce secondary evidence.
17. Needless to observe that merely the admission in evidence and
making exhibit of a document does not prove it automatically unless
the same has been proved in accordance with the law.
18. In view of the aforesaid legal and factual position, we are of the
considered opinion that the impugned judgment of the High Court
suffers from material irregularity and patent errors of law and not liable
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to be sustained and is thus, hereby set aside. The appeal accordingly
stands allowed.
19. The appellants would be entitled to lead secondary evidence in
respect of the Will in question. It is, however, clarified that such
admission of secondary evidence automatically does not attest to its
authenticity, truthfulness or genuineness which will have to be
established during the course of trial in accordance with law.
20. In the facts and circumstances, we do not make any order as to
costs.
.................................J.
(NAVIN SINHA)
...............................J.
(KRISHNA MURARI)
NEW DELHI;
MAY 13, 2020
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