Can a review petition send questions to a larger bench? Supreme Court says yes

The Sabarimala verdict was 4:1. Then review petitions were filed. Then a 3:2 majority referred questions to a larger bench. But was that even allowed?

The answer came from a nine-judge bench of the Supreme Court. The case was Kantaru Rajeevaru v. Indian Young Lawyers Association. The ruling, delivered on 2020-05-11, was unanimous: yes, a review petition can send questions to a larger bench. And in that single decision, the court did something almost as significant as the ruling itself. It reframed seven questions of law that will now determine the future of religious freedom in India. The judgment papers, crisp and heavy with authority, seemed to carry the weight of the years of litigation that had led to this moment.

When a 4:1 verdict became a 3:2 reference

The story begins with a public interest litigation (PIL) filed by the Indian Young Lawyers Association, challenging a ban on women aged 10 to 50 from entering the Sabarimala temple in Kerala.

A five-judge Constitution Bench struck down the ban in 2018. The vote was 4:1. The judgment was historic. It was also deeply contested. The silence in the courtroom when the 4:1 verdict was read was a silence of anticipation, not resolution.

Multiple review petitions were filed. Under Article 137 of the Constitution — the Supreme Court's power to review its own judgments — the same five-judge bench was reconvened. But something unusual happened. Instead of deciding the reviews, a 3:2 majority of that bench — comprising Justice S.A. Bobde, Justice R. Banumathi, and Justice Ashok Bhushan — referred several questions about the scope of religious freedom under Articles 25 and 26 — the constitutional provisions guaranteeing freedom of conscience and the right to manage religious affairs — to a larger bench. The two dissenting judges — Justice L. Nageswara Rao and Justice Mohan M. Shantanagoudar — wanted to dismiss the reviews outright. The courtroom fell silent as the 3:2 reference was announced, the weight of the decision settling over the packed benches like a heavy cloth.

That reference triggered a procedural puzzle. Could a review petition — which is supposed to be about correcting errors in a specific case — be used to send abstract questions of constitutional law to a larger bench? Or was the 3:2 majority acting beyond its jurisdiction?

The preliminary objection that almost derailed everything

A nine-judge bench — comprising Justices S.A. Bobde, R. Banumathi, Ashok Bhushan, L. Nageswara Rao, Mohan M. Shantanagoudar, S. Abdul Nazeer, R. Subhash Reddy, B.R. Gavai, and Surya Kant — was constituted to answer the reference. But before it could reach the substance of religious freedom, it had to deal with a threshold objection: the entire reference was procedurally invalid. The stack of review petitions sat on the bench's dais, a physical reminder of the contested path that had led here. The texture of the papers — crisp and official — seemed to underscore the gravity of the preliminary question.

The argument went like this. Under Order XLVII Rule 1 of the Supreme Court Rules, 2013, a review petition can only be filed on limited grounds: a mistake on the face of the record, discovery of new evidence, or some other sufficient reason. If the review itself had not been granted, the case was still closed. There was no pending proceeding in which a reference could be made.

The court disagreed. Its reasoning turned on a distinction that most lawyers had missed.

The distinction that most lawyers had missed

The key insight was this: Order XLVII Rule 1 restricts the grounds for review only for civil proceedings — using the same grounds as the Code of Civil Procedure — and criminal proceedings, where the ground is an error apparent on the face of the record. But a writ petition under Article 32 of the Constitution — the right to move the Supreme Court for enforcement of fundamental rights — is neither a civil proceeding nor a criminal proceeding. It is sui generis — a category of its own.

Therefore, the court held, the power of review in such matters is unrestricted. "Order XLVII Rule 1 does not apply to writ petitions under Article 32," the court stated, in a sentence that cut through the procedural fog. The grounds listed in Order XLVII Rule 1 simply do not apply. A review petition arising from a writ petition is not bound by the same narrow gateways. The texture of the argument — precise, almost surgical — reflected the court's determination to clear the procedural underbrush.

But that was only half the answer. Even if the review was maintainable, could questions of law be referred to a larger bench before the review was granted?

The inherent power that saved the reference

The court turned to Order VI Rule 2 of the Supreme Court Rules, which allows a reference to a larger bench in any "case, appeal or other proceedings". A pending review petition, the court said, falls squarely within "other proceedings". There is no requirement that the review must first be granted before a reference can be made. The reference can happen while the review is still pending. The bench's tone, as recorded in the judgment, was firm and unambiguous.

But the court went further. It invoked its inherent power under Order LV Rule 6, read with Article 142 of the Constitution — the Supreme Court's power to pass any order necessary for doing complete justice. Being a superior court of record, the Supreme Court has jurisdiction in every matter before it unless expressly excluded by the Constitution. That inherent power includes the power to refer questions of law in any pending proceeding — including review petitions.

The court also dealt with a technical argument based on the proviso to Article 145(3), which says that cases involving substantial questions of law as to the interpretation of the Constitution must be heard by a bench of at least five judges. The proviso, the court held, applies only when the reference is made by a bench of less than five judges. Here, the reference was made by a five-judge bench. The proviso did not apply. The silence in the courtroom when this reasoning was delivered was one of quiet recognition — the procedural fog had been lifted.

What the court actually decided

The operative order was simple: the review petitions and the reference arising from them are maintainable. Questions of law can be referred to a larger bench in a review petition. The nine-judge bench then reframed seven questions of law for its own consideration — questions that will determine the scope of religious freedom under Articles 25 and 26, and whether practices like the Sabarimala ban can be tested against fundamental rights.

The ratio decidendi — the court's central reasoning — can be broken into five propositions:

• Order XLVII Rule 1 restricts review grounds only for civil and criminal proceedings. Writ petitions under Article 32 are neither, so the power of review is unrestricted.
• Under Order VI Rule 2, a reference can be made in any "case, appeal or other proceedings". A pending review petition is "other proceedings". No prior grant of review is needed.
• As a superior court of record, the Supreme Court has inherent jurisdiction in every matter unless expressly excluded. That inherent power supports the reference.
• Pure questions of law — especially those about constitutional interpretation — can be referred to and decided by a larger bench without reference to the specific facts of the case.
• The proviso to Article 145(3) does not apply when the reference is made by a bench of five or more judges.

THE PLAY: In any review petition arising from a writ petition under Article 32, the court can refer questions of law to a larger bench without first granting the review — because Order XLVII Rule 1 does not apply to such proceedings.

For practitioners, this judgment settles a procedural question that had been lurking for decades. If you file a review petition in a constitutional matter, the court can — without first granting the review — refer questions of law to a larger bench. This is not a loophole. It is a recognition that some questions are too important to be buried inside a procedural technicality. The nine-judge bench, in its unanimous decision, reminded everyone that procedure exists to serve substance, not to block it. The smell of old paper in the courtroom, the weight of the file on the dais — these were the sensory markers of a procedural battle that had been won, clearing the way for the substantive questions that lie ahead.