Sabarimala Judgment
Sabarimala Judgment
Sabarimala Judgment
Digitally signed by
CHETAN KUMAR
Date: 2019.11.14 DIARY NO(S). 38764/2018 IN W.P.(C) NO.373/2006;
12:53:11 IST
Reason:
1
DIARY NO(S). 38907/2018 IN W.P.(C) NO.373/2006;
2
DIARY NO(S). 40910/2018 IN W.P.(C) NO.373/2006;
3
JUDGMENT
petitions have been filed as a fall out of the judgment under review.
part of the religion) by another section of the same religious group for
4
the other provisions of Part III of the Constitution of India, the section
religious group to which one may belong, to manage its own affairs of
place of worship is not limited to this case, but also arises in respect
bench of not less than seven judges. The decision of a larger bench
would put at rest recurring issues touching upon the rights flowing
5
adhere to judicial discipline and propriety when more than one petition
court for which all cases must proceed together. Indubitably, decision
by a larger bench will also pave way to instil public confidence and
came when the strength of the Supreme Court Judges in 1950 was
full court (unlike the US Supreme Court). In the context of the present
practise and propagate its own religion, are heard by larger bench of
the Judges converging into one opinion. That may also ensure
6
Writ Petition (Civil) No.472 of 2019); of Parsi Women married to a
larger bench cannot be ruled out. The said issues could be:
it becomes subjective.
(iv) The extent to which the court can enquire into the issue
7
(v) What is the meaning of the expression ‘sections of
1
(1954) SCR 1005
8
denomination itself and the subsequent view of a Five Judges bench
in Durgah Committee, Ajmer vs. Syed Hussain Ali & Ors.2 carving
out a role for the court in this regard to exclude what the courts
….……......................CJI.
[Ranjan Gogoi]
.…..…….......................J.
[A.M. Khanwilkar]
...……….......................J.
[Indu Malhotra]
New Delhi
November 14, 2019
2
(1962) 1 SCR 383
9
REPORTABLE
IN
VERSUS
WITH
2
DIARY NO. 40191 OF 2018 IN W. P.(C) NO. 373 OF 2006
JUDGMENT
R.F. NARIMAN, J.
regret my inability to agree with the same. The learned Chief Justice has
4
spoken of various matters which are sub judice in this Court in relation
to non-Parsis and their entry into a fire temple; and issues relating to
Mutt case 1954 SCR 1005 and the Durgah Committee case, (1962) 1
SCR 383. He then goes on to state, “the prospect of the issues arising
The larger bench may then also consider it appropriate to decide all
will require grant of a fresh opportunity to all interested parties may also
and the fresh writ petitions may remain pending until determination of
5
2. What this Court has before it is review petitions arising out of this
when considering the other issues pending before this Court is, strictly
speaking, not before this Court at all. The only thing that is before this
Court is the review petitions and the writ petitions that have now been
the other matters are heard, the bench hearing those matters may well
which arise from the said judgment for determination by a larger bench.
Consequently, if and when the issues that have been set out in the
narrow question as to whether grounds for review and grounds for filing
of the writ petitions have been made out qua the judgment in Indian
Consequently, this judgment will dispose of the said review petitions and
cases in mind.
petition that is filed under Article 137 of the Constitution of India, read
with Order XLVII of the Supreme Court Rules, 2013, has to be within
Chandra Kante and Ors. v. Sheikh Habib, (1975) 1 SCC 674, this
7
factors is the rationale behind the insistence of Counsel’s
certificate which should not be a routine affair or a habitual
step. It is neither fairness to the Court which decided nor
awareness of the precious public time lost what with a
huge backlog of dockets waiting in the queue for disposal,
for Counsel to issue easy certificates for entertainment of
review and fight over again the same battle which has
been fought and lost. The Bench and the Bar, we are sure,
are jointly concerned in the conservation of judicial time
for maximum use. We regret to say that this case is typical
of the unfortunate but frequent phenomenon of repeat
performance with the review label as passport. Nothing
which we did not hear then has been heard now, except a
couple of rulings on points earlier put forward. May be, as
Counsel now urges and then pressed, our order refusing
special leave was capable of a different course. The
present stage is not a virgin ground but review of an earlier
order which has the normal feature of finality.”
(at page 675)
follows:
9
5. It is strictly within these parameters that the arguments that have
conclusions by all the Judges who formed the five-Judge Bench which
10
(iii) The exclusionary practice being followed at the
Sabrimala temple by virtue of Rule 3(b) of the 1965 Rules
violates the right of Hindu women to freely practise their
religion and exhibit their devotion towards Lord Ayyappa.
This denial denudes them of their right to worship. The
right to practise religion under Article 25(1) is equally
available to both men and women of all age groups
professing the same religion.
(iv) The impugned Rule 3(b) of the 1965 Rules, framed
under the 1965 Act, that stipulates exclusion of entry of
women of the age group of 10 to 50 years, is a clear
violation of the right of Hindu women to practise their
religious beliefs which, in consequence, makes their
fundamental right of religion under Article 25(1) a dead
letter.
(v) The term ‘morality’ occurring in Article 25(1) of the
Constitution cannot be viewed with a narrow lens so as to
confine the sphere of definition of morality to what an
individual, a section or religious sect may perceive the
term to mean. Since the Constitution has been adopted
and given by the people of this country to themselves, the
term public morality in Article 25 has to be appositely
understood as being synonymous with constitutional
morality.
(vi) The notions of public order, morality and health cannot
be used as colourable device to restrict the freedom to
freely practise religion and discriminate against women of
the age group of 10 to 50 years by denying them their legal
right to enter and offer their prayers at the Sabarimala
temple.
(vii) The practice of exclusion of women of the age group
of 10 to 50 years being followed at the Sabarimala Temple
cannot be regarded as an essential part as claimed by the
respondent Board.
(viii) In view of the law laid down by this Court in the
second Ananda Marga case, the exclusionary practice
being followed at the Sabarimala Temple cannot be
11
designated as one, the non-observance of which will
change or alter the nature of Hindu religion. Besides, the
exclusionary practice has not been observed with
unhindered continuity as the Devaswom Board had
accepted before the High Court that female worshippers
of the age group of 10 to 50 years used to visit the temple
and conducted poojas in every month for five days for the
first rice feeding ceremony of their children.
(ix) The exclusionary practice, which has been given the
backing of a subordinate legislation in the form of Rule
3(b) of the 1965 Rules, framed by the virtue of the 1965
Act, is neither an essential nor an integral part of the
religion.
(x) A careful reading of Rule 3(b) of the 1965 Rules makes
it luculent that it is ultra vires both Section 3 as well as
Section 4 of the 1965 Act, for the simon pure reason that
Section 3 being a non-obstante provision clearly stipulates
that every place of public worship shall be open to all
classes and sections of Hindus, women being one of
them, irrespective of any custom or usage to the contrary.
(xi) Rule 3(b) is also ultra vires Section 4 of the 1965 Act
as the proviso to Section 4(1) creates an exception to the
effect that the regulations/rules made under Section 4(1)
shall not discriminate, in any manner whatsoever, against
any Hindu on the ground that he/she belongs to a
particular section or class.
12
6. Nariman, J. concurred with these views, and concluded, in
“177. The facts, as they emerge from the writ petition and
the aforesaid affidavits, are sufficient for us to dispose of
this writ petition on the points raised before us. I,
therefore, concur in the judgment of the learned Chief
Justice of India in allowing the writ petition, and declare
that the custom or usage of prohibiting women between
the ages of 10 to 50 years from entering the Sabarimala
temple is violative of Article 25(1), and violative of the
Kerala Hindu Places of Public Worship (Authorisation of
Entry) Act, 1965 made under Article 25(2)(b) of the
Constitution. Further, it is also declared that Rule 3(b) of
the Kerala Hindu Places of Public Worship (Authorisation
of Entry) Rules, 1965 is unconstitutional being violative of
Article 25(1) and Article 15(1) of the Constitution of India.”
13
7. Chandrachud, J. concluded, in paragraph 291, that Article 25 of
14
3) In any event, the practice of excluding women from the
temple at Sabarimala is not an essential religious practice.
The Court must decline to grant constitutional legitimacy
to practices which derogate from the dignity of women and
to their entitlement to an equal citizenship;
4) The social exclusion of women, based on menstrual
status, is a form of untouchability which is an anathema to
constitutional values. Notions of “purity and pollution”,
which stigmatize individuals, have no place in a
constitutional order;
5) The notifications dated 21 October 1955 and 27
November 1956 issued by the Devaswom Board,
prohibiting the entry of women between the ages of ten
and fifty, are ultra vires Section 3 of the Kerala Hindu
Places of Public Worship (Authorisation of Entry) Act,
1965 and are even otherwise unconstitutional; and
6) Hindu women constitute a ‘section or class’ of Hindus
under clauses (b) and (c) of Section 2 of the 1965 Act.
Rule 3(b) of the 1965 Rules enforces a custom contrary to
Section 3 of the 1965 Act. This directly offends the right of
temple entry established by Section 3. Rule 3(b) is ultra
vires the 1965 Act.”
15
propagate their faith, in accordance with the tenets of their
religion.
(iii) Constitutional Morality in a secular polity would imply
the harmonisation of the Fundamental Rights, which
include the right of every individual, religious
denomination, or sect, to practise their faith and belief in
accordance with the tenets of their religion, irrespective of
whether the practise is rational or logical.
(iv) The Respondents and the Intervenors have made out
a plausible case that the Ayyappans or worshippers of the
Sabarimala Temple satisfy the requirements of being a
religious denomination, or sect thereof, which is entitled to
the protection provided by Article 26. This is a mixed
question of fact and law which ought to be decided before
a competent court of civil jurisdiction.
(v) The limited restriction on the entry of women during the
notified age-group does not fall within the purview of
Article 17 of the Constitution.
(vi) Rule 3(b) of the 1965 Rules is not ultra vires Section
3 of the 1965 Act, since the proviso carves out an
exception in the case of public worship in a temple for the
benefit of any religious denomination or sect thereof, to
manage their affairs in matters of religion.”
in paragraph 312(iv).
available to both men and women of all ages professing the same
and (iii) of the judgment of the learned C.J.; from paragraph 174
312(ii).
9.3. Section 3 of the 1965 Act traces its origin to Article 25(2)(b)
17
in all public temples open to Hindus, so that they may exercise
the Constitution of India and ultra vires Section 3 of the 1965 Act.
This proposition flows from paragraph 144(iii), (iv), (x), and (xii)
1
In the judgment of the learned Chief Justice, whether the 1965 Rules govern the temple
in question at all is raised, which the larger bench, if constituted, may consider it
appropriate to decide. This is will result in a piecemeal adjudication as a fresh opportunity
to interested parties may then have to be given in the pending review petitions. The
necessity for going into this question in the review petitions filed is itself questionable. On
the assumption that the aforesaid Rule does not apply, the striking down of an
inapplicable rule does not in any manner detract from the ratio of the majority judgment.
The ratio of the majority judgment, insofar as this aspect of the case is concerned, is that
Section 3 of the 1965 Act will apply by reason of the non-obstante clause contained
therein, as a result of which every place of public worship which is open to Hindus or any
section or class thereof is open to all Hindus to worship therein in the like manner and to
the like extent as any other Hindu; and no Hindu of whatsoever section or class shall in
any manner be prevented, obstructed or discouraged from entering any such place of
public worship or from worshipping or offering prayers thereat or performing religious
service therein.
18
10. In Rajnarain Singh v. The Chairman, Patna Administration
Committee, Patna and Ors., (1955) 1 SCR 290, this Court had to
consider the judgment in Re Delhi Laws Act, [1951] SCR 747, in which
test as follows:
three propositions outlined above, to which all the four majority Judges
essential part of the Hindu religion, three Judges clearly held that it is
essential part of the Hindu religion. It is with these prefatory remarks that
petitioners.
12. Shri K. Parasaran, who led the attack on behalf of the review
passage:
13. Based on this judgment, Shri Parasan argued that two learned
Judges, viz., Dipak Misra, C.J., and Khanwilkar, J., did not at all opine
goes for Nariman, J., when it comes to Article 17. Chandrachud, J. alone
therefore, not embrace members of the female sex alone who are
21
record. Shri Parasaran argued that “untouchability” is nomen juris and
Ltd., 1959 SCR 379, which held that the expression “sale of goods”,
being nomen juris, would not include works contracts. He further argued
contract.
14. The majority judgments of Dipak Misra, C.J., Khanwilkar, J., and
Nariman, J. did not find it necessary to opine on Article 15(2) and Article
came to striking down Rule 3(b) of the 1965 Rules. The observations of
material error manifest on the face of the record which undermines the
22
case by at least three learned Judges, namely, Dipak Misra, C.J.,
15. Other learned counsel have essentially reargued the case on all
referred to and relied upon the judgment of one of us, Nariman, J.,
23
contrary, the conclusion of Malhotra, J., based on the observations
into this controversy, we may only reiterate that the majority Judges
concluded as follows:
This point also has to be rejected as there is no error, let alone material
– see paragraphs 122 and 123 of the judgment of the learned C.J., and
not the practice of one particular temple. Nothing has been shown to us,
as was correctly pointed out by the learned Chief Justice, from any
25
10 to 50 from Hindu temples is an essential part of the Hindu religion.
error apparent, and because the same ground that was argued in
in review.
19. It was then stated that the judgments of Dipak Misra, C.J. and
which cannot be utilised to undermine belief and faith. Here again, apart
from the fact that “constitutional morality” has now reached the level of
evolving keeping in view, among other things, the felt necessities of the
particular, Parts III and IV thereof. This again is a mere rehash of what
26
was argued earlier, and can by no means be said to be an error apparent
that belief and faith are not judicially reviewable by courts, and that this
constitute “errors apparent”, but are arguments that fly in the face of
Article 25. Article 25, as has been held by the majority judgments, is not
this case is only that the exclusionary practice of keeping women from
27
Hindu temple falls foul of Article 25 of the Constitution of India inasmuch
as (i) all persons are equally entitled, when they belong to the same
and (ii) that this is a case covered by Article 25(2)(b), which deals with
classes and sections of Hindus. The majority judgments have held that
Article 25(2)(b), which expressly comes in the way of any custom which
25(1) also contains two other exceptions, namely, that this right is (a)
subject to public order, morality, and health; and (b) is also subject to
the other provisions of Part III, as has been explained in the majority
21. References were made to the Hindi text of Article 26, and
argument, made for the first time in review. This argument cannot be
28
Constitution Bench decisions on what constitutes a religious
celibacy. These are all arguments that have been made at the initial
stage, and are fully dealt with by all the judgments. Re-arguing this
aspect of the matter obviously does not fall within the parameters of a
review petition.
23. One more extreme argument that was made is that since
24. An argument was made that there are gender restrictions in other
rejected on the ground of vagueness, apart from the fact that this is not
25. Another plea of some of the review petitioners is that the Division
parties were joined and heard, and the same issues that were raised
India & Ors., (2001) 10 SCC 305, set out the law as stated in Rural
“We may not be taken to have said that for public interest
litigations, procedural laws do not apply. At the same time
it has to be remembered that every technicality in the
procedural law is not available as a defence when a
matter of grave public importance is for consideration
before the Court. Even if it is said that there was a final
order, in a dispute of this type it would be difficult to
entertain the plea of res judicata.
This Court, in Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B.
& Anr., AIR 2018 SC 3395, this Court after referring to Mathura Prasad
(supra), held:
Court (which affects the general public much more than an erroneous
interpreted Article 25(1) to mean that all persons are equally entitled to
practice the Hindu religion, which would include women between the
Supreme Court declaring the law of the land on this aspect. This
objection also does not disclose any error apparent on the face of the
record.
have pointed out in this judgment that the majority judgment cannot be
persons with vested interests will be turned down by the Court at the
Uttaranchal v. Balwant Singh Chaufal and Ors. (2010) 3 SCC 402 (at
34
majority judgment (at paragraph 175), the present case raises grave
the four majority judgments, we find that no ground for review of the
majority judgments has been made out. The review petitions are hence
given the fact that there have been mass protests against
35
implementation of this judgment, we ought to have a re-look at the entire
problem. On the other hand, Ms. Indira Jaising, learned Senior Advocate
having entered the temple, have been subjected to physical and other
abuses, has made a fervent plea before us to ensure that our judgment
Article 129, the Supreme Court shall be a court of record and shall have
all the powers of such a Court, including the power to punish for
contempt of itself. Under Article 136, the Supreme Court has been
36
Article 141 of the Constitution, the law declared by the Supreme Court
territory of India, which ensures that the Supreme Court, being the final
arbiter of disputes, will lay down law which will then be followed as a
precedent by all courts and tribunals within the territory of India. Article
142 of the Constitution confers upon the Supreme Court the power to
number of five Judges are the last word on the interpretation of the
number of Judges.
judicial authorities alone that are to act in aid of the Supreme Court – it
37
is all authorities i.e. authorities that are judicial as well as authorities that
wide import, and deals with anything that affects the rights of a citizen.
the citizens in the territory of India are mandated to act in aid of the
Supreme Court.
38
As can be seen from this Article, here, an authority is only of a State,
Article 258(2) refers to authorities of the State when contrasted with the
and intercourse within the territory of India, and consequently, deal with
39
contradistinguished with authorities of the State. Article 356(1)(a)
Constitution.
Lal, (1967) 3 SCR 377, the expression “other authorities” was held not
used; and in Article 226 of the Constitution of India, when the High Court
authority.
40
36. A conspectus of the aforesaid Articles of the Constitution of India
37. In Supreme Court Bar Assn. v. Union of India, 1998 (4) SCC
409, this Court held that the Bar Council of India or the Bar Council of a
paragraph 79].
41
as also of the consequence of deliberately flouting the
orders of this Court and non-compliance with the above
constitutional provision…”
interprets the Constitution and lays down the law, the said interpretation
is binding not only as a precedent on all courts and tribunals, but also
the said decree must be obeyed by all persons bound by it. In addition,
Article 144 of the Constitution mandates that all persons who exercise
powers over the citizenry of India are obliged to aid in enforcing orders
scheme by which we are governed – the rule of law, as laid down by the
Indian Constitution.
well as every State Minister, including the Chief Ministers in the various
States are bound vide Article 75(4) and Article 164(3), read with the
43
Third Schedule, to uphold and defend the Constitution. Thus, insofar as
“THIRD SCHEDULE
Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219
FORMS OF OATHS OR AFFIRMATIONS
I
Form of oath of office for a Minister for the Union:—
44
42. Insofar as their oath to uphold and defend the Constitution of
with Ministers of their cabinets, are bound by Article 164(3), read with
following terms:
“THIRD SCHEDULE
xxx xxx xxx
V
Form of oath of office for a Minister for a State:—
45
43. Insofar as the Members of Parliament are concerned, i.e., the
Members of both the Lok Sabha and the Rajya Sabha, Article 99, read
“THIRD SCHEDULE
xxx xxx xxx
III
B
Form of oath or affirmation to be made by a member of
Parliament:—
‘I, A.B., having been elected (or nominated) a member of
the Council of States (or the House of the People)
swear in the name of God
do --------------------------------------------- that I will bear true
solemnly affirm
46
44. Insofar as the Members of State Legislative Assemblies and
Councils are concerned, Article 188, read with the Third Schedule, is as
follows:
“THIRD SCHEDULE
xxx xxx xxx
VII
B
Form of oath or affirmation to be made by a member of
the Legislature of a State:—
“I, A.B., having been elected (or nominated) a member
of the Legislative Assembly (or Legislative
swear in the name of God
Council), do -------------------------------------------- that I will
solemnly affirm
bear true faith and allegiance to the Constitution of India
as by law established, that I will uphold the sovereignty
and integrity of India and that I will faithfully discharge the
duty upon which I am about to enter.”
Minister and members of his Cabinet are concerned, not only does the
47
form of oath contained in the Third Schedule require that all such
persons will bear true faith and allegiance to the Constitution of India as
by law established, but also that they will do right to all manner of people,
in accordance with the Constitution and the law, without fear or favour,
affection or ill will. The same goes for the oath taken by the Chief
Ministers and Ministers within the States. Read with Article 144, this
and the law, which means in accordance with the interpretation of the
Constitution declared by the law laid down by the Supreme Court. It is,
MPs and MLAs to faithfully aid in carrying out decrees and orders
passed by the Supreme Court of India when such decrees and orders
parties to the litigation before the Supreme Court. Any deviation from
every Minister and Legislator during his term of office. Once this is
clearly understood and followed, the rule of law is established, and the
46. The history of democratic nations shows that what our founding
America. The bloody revolutions that took place in France and Russia
Peter the Great of Russia, could order, by decree, that no adult male
shall, in the future, have a beard. This was done as part of a move to
bring Russia out of the middle ages and in line with other advanced
feeling when he declared, “to shave the beard is a sin that the blood of
all the martyrs cannot cleanse. It is to deface the image of man created
by God.” This decree was carried out overnight, with Russian officialdom
49
being armed with razors with which they were to shave, on the spot,
those unfortunate wretches who had not obeyed the decree. Eventually
medallion with a picture of a beard on it and the words “TAX PAID”, which
was worn on a chain around the neck to prove to any challengers that
his beard was legal. The tax was graduated; peasants paid only two
47. The expression “rule of law” can be traced back to the great
Greek philosopher Aristotle, who lived 2,400 years ago. In his book on
said:
“It is better for the law to rule than one of the citizens…so
that even the guardians of the law are obeying the laws.”
2ROBERT K. MASSIE, PETER THE GREAT: HIS LIFE AND WORLD, 234-235 (Ballantine Books
1980).
50
48. John Locke had stated, in 1690, in his Second Treatise of
Government, Chapter XVII, page 400, that, “wherever law ends, tyranny
begins”.
1776, Thomas Paine, in his book, “Common Sense”, at page 34, stated:
50. Prof. A.V. Dicey, the Vinerian Professor of English Law at the
rule of law. We are directly concerned with the second meaning that was
51
51. The rule of law was first established against absolutist monarchs.
Thus, in the Magna Carta, which was signed by King John of England
52. Despite the fact that Pope Innocent III, by a papal bull, in August
of that year, annulled the Magna Carta, the Magna Carta was repeatedly
both in the time of Henry III, i.e., the son of King John, and Edward I,
53. The next important landmark in English Law, so far as the rule of
3 This Petition of Right was signed by King Charles I, who was one of the Stuart Kings of
England, who believed that he governed the realm by divine right. His father, King James
I’s Chief Justice, Lord Edward Coke, stated a fundamental of the British Constitution when
he said to his King that, “Bracton saith, quod Rex non debet esse sub-homine set sub
Deo et lege”, i.e., the King ought not to be under any man, but under God and the law.
52
“They do therefore humbly pray your most excellent
majesty that no man hereafter be compelled to make or
yield any gift, loan, benevolence, tax or such like charge
without common consent by act of parliament, and that
none be called to make answer or take such oath or to
give attendance or be confined or otherwise molested or
disquieted concerning the same or for refusal thereof. And
that no freeman in any such manner as is before
mentioned be imprisoned or detained. And that your
Majesty would be pleased to remove the said soldiers and
mariners, and that your people may not be so burdened in
time to come. And that the aforesaid commissions for
proceeding by martial law may be revoked and annulled.
And that hereafter no commissions of like nature may
issue forth to any person or persons whatsoever to be
executed as aforesaid, lest by colour of them any of your
Majesty’s subjects be destroyed or put to death contrary
to the laws and franchises of the land.”
54. The next great landmark establishing the rule of law in England
was the Bill of Rights, 1689, under which no monarch could rely on
Parliament was proclaimed, and the power to suspend laws without the
fines, the imposition of excessive bail, and the infliction of cruel and
unusual punishments.
53
55. In the United States, the rule of law was established by the
54
57. Given the fact that the U.S. Constitution did not contain any
stated that the Supreme Court had no original jurisdiction to try the case
first case was decided, the Georgia legislature passed a law requiring
all white persons living within the Cherokee territory of the State of
55
Worcester v. State of Georgia, 31 U.S. 515 (1832)]. The writ that was
said, “Well, John Marshall has made his decision; now let him enforce
it.” President Jackson was of the opposite view to that of the Court,
stating that the state legislatures had powers to extend their laws over
all persons living within their boundaries. So, a judgment of the highest
court of the land was blatantly disobeyed by the State of Georgia, with
58. One hundred and twenty years later, the U.S. Supreme Court, in
Ferguson, 163 U.S. 537 (1896), to now declare that there shall be
black children from entering the high school at Little Rock, Arkansas. An
56
uneasy tension prevailed as the students were prevented entry.
school was thereby effected. In 1958, the School Board and the
District Court granted the relief requested by the Board. The Court of
60
61. The aftermath of this decision was the enactment of the Civil
Rights Act by the U.S. Congress in 1964. It was thanks to the decision
as follows:
“In 1828, a few days after the death of West, the two
remaining judges of the Supreme Court issued a writ of
Habeas Corpus to the Poona court, for the production
before them of one Moro, a boy of 14, who was in the
guardianship of his uncle Pandurang, at the instance of
the boy’s father-in-law, who complained of the evil
influences of the uncle on the minor. It seems that the
jurisdiction of the Supreme Court was vaguely defined in
its Charter; and Malcolm thought that the judges in issuing
the writ had exceeded their powers. He regarded the
occasion as a most favourable opportunity for striking a
blow at the Supreme Court. “The opportunity of striking a
blow at these courts,” he wrote, “was given me, and to the
utmost of my strength, I will inflict it.” He issued orders
61
instructing the Poona court to ignore the writ, with the
result that the writ remained unserved. This was a direct
and calculated challenge to the authority of the Supreme
Court. The Governor added insult to injury by addressing
a letter to the judges, informing them that he had given
orders to the Company’s servants to take no notice of any
writs issued by the Supreme Court to the mofussil courts,
or to native subjects resident outside the limits of the town
and island of Bombay. When the Clerk of the Court read
out this communication in open court at its next sitting, the
judges strongly and rightly resented the discourteous and
dictatorial tone of the communication; and they nobly and
valiantly declared that “the court would not allow any
individual, be his rank ever so distinguished, or his powers
ever so predominant, to address it in any other way
respecting its judicial and public functions, than as the
humblest suitor, who applies for its protection”; adding,
“within these walls, we know no equal and no superior but
God and the King”. They warned the government against
instigating any persons to disobey the writs of the King
issued by his judges.
Chambers died within a fortnight. At the next sitting
of the court, Grant, sitting alone, said that the government
had killed his brother judge, “but they shall not kill me”;
and that he was prepared to fight singlehanded for the
rights and privileges of his officer. Finding that no return
to the writ of Habeas Corpus was forthcoming, owing to
the obstruction of the government, Grant issued a fresh
writ returnable immediately, with a penalty of Rs.10,000 in
case of disobedience. A special constable was sent to
Poona with authority to seek military aid, if the civil
authorities obstructed him in the discharge of his duty. The
Commander of the Bombay forces, Sir Thomas Bradford,
who was at first disposed to support the government, now
veered round to the side of the judiciary, declaring that to
oppose the writ was to oppose the King, and he would call
out the military to enforce His Majesty’s writ.
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Malcolm retorted by declaring that, if the
Commander interfered, he would “deport him bag and
baggage” out of India, regardless of all consequences.
Grant then took the extreme measure of going on strike
with his entire staff, and locked up the High Court,
suspending its functions for a period of about five months.
Malcolm, of course, was banking upon the support of the
home authorities. His friend, the Duke of Wellington, being
now Prime Minister, Malcolm hastened to forward to
London his own version of the case. Grant also had sent
his protest to the Board of Control. After some interval, the
long awaited despatch of the Board arrived. The Board
condemned the attitude of the Supreme Court, fortified it
seems by the Privy Council’s ruling, that the writ was
improperly issued by the Supreme Court over a person
outside their jurisdiction. As stated before, the territorial
limits of the jurisdiction of the Supreme Court had been ill-
defined in its Charter; and it is also possible that, since
only the King’s Court had power to issue a writ of Habeas
Corpus, the judges might have thought that, in the matter
of this writ at least, their jurisdiction extended beyond the
town and island of Bombay.
The despatch of the India Board further contained
orders appointing Dewar, who was then Advocate-
General, as Chief Justice, and William Seymour, a
barrister, as puisne judge, Chambers being dead. Lord
Ellenborough, President of the Board of Control,
expressed the hope that “these appointments will prevent
all mischief in future; as Grant will now be like a wild
elephant between two tame elephants.” But Grant was
“wild elephant” with a very tough hide, and made of
sterner stuff for twenty years’ and closed his stormy and
valiant judicial career in 1848, as judge of the Supreme
Court of Calcutta. Grant forfeited the favour of the
authorities, but gained immensely in popularity with the
Bombay public. It is said that on his departure from
Bombay, “the natives drew his carriage”. Grant died at sea
63
on his voyage home, after his retirement from the Calcutta
High Court.”
(emphasis supplied)
(at pp. 196-198)
superior courts in the 19th century, the 20th century has witnessed a
the Sabarimala temple.4 Let it be said that whoever does not act in aid
and State, and MPs and MLAs are concerned, they would violate their
4 The Travancore Devaswom Board, in the initial round of hearing, opposed the public
interest writ petitions that were filed in this Court. However, after the judgment dated
28.09.2018 was delivered by the Constitution Bench, Shri Rakesh Dwivedi, learned
Senior Advocate appearing on behalf of the Board, appeared before us and opposed the
review petitions that were filed in this Court, stating that the Board has decided to accept
this Court’s judgment.
64
India. So far as the citizens of India are concerned, we would do well to
51A of the Constitution, in particular, clauses (a), (e), and (h) thereof,
which state:
We may, at this juncture, make it clear that the freedom to criticise the
judgments of this Court is not being interfered with. Lord Atkin’s famous
laid down by the Constitution of India. Let every person remember that
the “holy book” is the Constitution of India, and it is with this book in
hand that the citizens of India march together as a nation, so that they
great goals set out by this “Magna Carta” or Great Charter of India.
by a decision of the court, the rule of law would be set at naught. Judicial
the present case have been initiated. Hence arguments have been
who may be and are affected by the course of a judicial decision. When
the option of those who are bound to comply with its verdicts.
67
for implementing the judgment of the Court meet the genuine concerns
the duties inhering in it, we expect the State government to ensure that
……………………………..J.
(R.F. Nariman)
……………………………..J.
(D.Y. Chandrachud)
New Delhi;
November 14, 2019.
68