The majority ruling led by Chief Justice Ranjan Gogoi was silent about the violence that swept the state in the wake of the September 28, 2018, verdict. But the two dissenting judges - R F Nariman and D Y Chandrachud - were not.
The judges, though they were in a minority, delivered a stern rebuke to those who went ahead and defied the September 28 verdict. They even sounded scandalised by the very idea of a review.
“An argument was made by some of the review petitioners that, given the fact that there have been mass protests against the implementation of this judgment, we ought to have a re-look at the entire problem,” said Justice Nariman, who was also writing for Justice Chandrachud.
“On the other hand, Indira Jaising, learned Senior Advocate appearing on behalf of certain ladies, including Scheduled Caste ladies who have been obstructed from entering the Sabarimala temple, or having entered the temple, have been subjected to physical and other abuses, has made a fervent plea before us to ensure that our judgment is implemented in both letter and in spirit,” the Justice added.
The Judge then went on to give an idea of the Supreme Court's omnipotence, which he called the "constitutional scheme". Their words fell in vain because, being a minority judgement, they are rendered irrelevant.
“The position under our constitutional scheme is that the Supreme Court of India is the ultimate repository of interpretation of the Constitution. Once a Constitution Bench of five learned Judges 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 on the coordinate branches of Government, namely, the legislature and the executive. What follows from this is that once a judgment is pronounced by the Constitution Bench and a decree on facts follows, the said decree must be obeyed by all persons bound by it," he said.
And then Justice Nariman, without taking any names, explained why a Chief Minister was duty-bound to implement the Court order. “Article 144 of the Constitution mandates that all persons who exercise powers over the citizenry of India are obliged to aid in enforcing orders and decrees of the Supreme Court,” he said.
Further, Justice Nariman said that Chief Ministers, together with Ministers of their cabinets, are bound by Article 164(3), read with the Third Schedule, to uphold and defend the Constitution. Third Schedule refers to the oath of office for a Chief Minister and a minister, and it obliges them to “do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or ill-will.” This is widely seen as an endorsement of Chief Minister Pinarayi Vijayan who faced flak for his attempts to get the SC verdict implemented.
Justice Nariman used the example of former US president and statesman Dwight D Eisenhower to show how authoritative action could produce results. He describes how in 1957, the US president Eishenhower sent federal troops to a high school in Arkansas to remove local authorities who refused to let black children into the school after a historic US Supreme Court ruling that struck down racist segregation in schools.
Anything less, the Justice said was a violation of the oath. “Once this is clearly understood and followed, the rule of law is established, and the shameful spectacle of political parties running after votes, or instigating or tolerating mob violence, in defiance of decrees or orders passed by the Supreme Court of India does not reign instead,” the Justice said.
There was a ring of irony to Justice Nariman's words when he said it was no longer open to any person or authority to openly flout a Supreme Court judgment or order. Those who had revolted against the verdict have had their way, at least partially, with the Supreme Court agreeing to constitute a larger bench.
“It is necessary for us to restate these constitutional fundamentals in the light of the sad spectacle of unarmed women between the ages of 10 and 50 being thwarted in the exercise of their fundamental right of worship at the Sabarimala temple,” he said.
