SC to deliver verdicts on Sabarimala, Rafale today

The Supreme Court is scheduled to pronounce on Thursday its verdict on a batch of petitions seeking re-examination of its decision to allow entry of women of all age group in Kerala's Sabarimala Temple.

The SC is also scheduled to pronounce on Thursday its verdict on petitions seeking a review of its judgment giving a clean chit to the Modi government in the Rafale fighter jet deal with French firm Dassault Aviation.

Sabarimala

The apex court will deliver its judgment on as many as 65 petitions -- including 56 review petitions and four fresh writ petitions and five transfer pleas -- which were filed after its verdict sparked violent protests in Kerala.

A five-judge constitution bench headed by Chief Justice Ranjan Gogoi had reserved its decision on February 6 after hearing various parties including those seeking re-consideration of the September 28, 2018 judgement.

Other members of the bench are justices R F Nariman, A M Khanwilkar, DY Chandrachud and Indu Malhotra.

The apex court, by a majority verdict of 4:1, on September 28, 2018, had lifted the ban that prevented women and girls between the age of 10 and 50 from entering the famous Ayyappa shrine in Kerala and had held that this centuries-old Hindu religious practice was illegal and unconstitutional.

The five-judge constitution had heard the pleas in an open court and reserved its decision after hearing the parties, including Nair Service Society, Thantry of the temple, The Travancore Devaswom Board (TDB) and the state government, in favour and against the review plea.

The TDB, which runs Sabarimala temple, had made a U-turn to support the Supreme Court's order allowing women of all ages to enter the shrine.

The TDB had joined the Kerala government to oppose a batch of pleas seeking review of the historic verdict.

The Board later asserted that its latest position was not due to any political pressure.

Some right-wing activists have alleged that the Board changed its stand before the court under pressure from the state's CPI(M)-led LDF government.

The Kerala government, which had taken conflicting stands on women's entry into the hilltop shrine, supported the verdict and urged the court to trash review pleas.

Senior advocate Jaideep Gupta, appearing for the state government, had said a constitutional court should not worry about law and order problem and ‘social disturbances’.

Exclusion of women from temples is not an essential practice of Hindu religion, he had argued.

At the outset, the bench told lawyers it would hear only those who are parties to review petitions and asked them to confine arguments on grounds for reconsideration of the judgement.

Senior advocate K Parasaran, appearing for Nair Service Society, assailed the majority verdict, saying Article 15 of the Constitution throws open for public the secular institutions of the country but doesn't deal with religious institutions.

Seeking reconsideration, he said the Article 17 which deals with abolition of untouchability in society was wrongly used by the court in its judgment as exclusion of certain age groups of women was not based on caste.

Parasaran also referred to the celibate or 'Naishtika Brahmachari' character of the Sabarimala deity and said the exclusionary practise was based on nature of the deity and the apex court should have considered this aspect.

He also referred to Article 25 (fundamental right to practice religion) and said unless a religious practice is "abhorrent', a court usually does not interfere with the activities associated with religious institutions.

Senior advocate A M Singhvi, representing TDB's ex-chairperson, argued in favour of a review of the judgment. "There is no exclusion of women. There is no exclusion of men. There is no exclusion of a class of men or women based on religion and caste. There is exclusion inside a class (women). Hence Article 17 (removal of untouchability) will not apply," Singhvi had said.

Dealing with the aspect of constitutional morality, the lawyer said that in a pluralistic Hindu society this concept cannot be applied objectively by the court and it has to be subjective keeping in mind different essential religious practices.

Senior advocate V Giri, who represented the shrine thantry, said the temple allows entry of all persons inside and there is no exclusion of any class of citizen based on caste, gender and religion.

"The fundamental right to worship also includes the character of the deity and every devotee cannot question this character which also formed part of the essential religious practice there," he had said.

Senior lawyer Shekhar Naphade had said the court cannot direct a community to practice religion in a particular manner.

"This is an internal affair of a religious community which worships a particular deity in a particular manner. This has never been in dispute that this practice is being followed for centuries.

"The court cannot issue a writ of mandamus against a community to practice its religion in a particular manner," Naphade said, adding this was an essential religious practice which cannot be scrutinised.

He had that any religious practice cannot be stopped unless it constituted a criminal offence.

Rafale

On May 10, the apex court had reserved the decision on the pleas, including one filed by former Union ministers Yashwant Sinha, Arun Shourie and activist lawyer Prashant Bhushan, seeking a re-examination of its findings that there was no occasion to doubt the decision-making process in the procurement of 36 Rafale fighter jets.

A bench comprising Chief Justice Ranjan Gogoi and Justices S K Kaul and K M Joseph is likely to pronounce verdicts on three review petitions filed by the trio, lawyer Vineet Dhandha and Aam Aadmi Party lawmaker Sanjay Singh.

On December 14, 2018, the apex court dismissed the petitions seeking an investigation into alleged irregularities in the Rs 58,000 crore deal.

However, while reserving the judgement on the review petitions, the apex court had posed searching questions to the Centre on its deal with France to buy 36 Rafale fighter jets on issues like "waiver of sovereign guarantee" and the absence of technology transfer clause in the IGA pact.

The bench had referred to a judgment in the Lalita Kumari case which said that an FIR is must when information revealed commission of cognizable offence.

"The question is whether you are obliged to follow the Lalita Kumari judgment or not," the bench had asked.

Attorney General K K Venugopal had told the bench that ‘there has to be a prima facie case, otherwise they (agencies) cannot proceed. The information must disclose commission of cognizable offence’.

Justice Joseph had referred to the earlier deal and asked the Centre as to why the inter-governmental agreement (IGA) on Rafale with the French administration does not have the clause of transfer of technology.

"The court cannot decide such technical aspects," the law officer had said.

On the court's question of waiver of sovereign guarantee by France in the IGA and its replacement with a letter of comfort, Venugopal had said it was not an ‘unprecedented practice’ and referred to such agreements with Russia and the US where there was such a waiver.

"It is a question of national security. No other court in the world will examine a defence deal on these kinds of arguments", he had said.

Bhushan had submitted that the December 2018 judgment did not deal with the prayer seeking probe into the deal and decided the petition on the premise that it was seeking cancellation of IGA.

He had contended that the Centre misled the court by referring to non-existent CAG report in November, 2018 hearing when it is on record that the report came later in February this year.

Bhushan had alleged suppression of material facts from the court by the Centre and said that as many eight critical clauses of the standard defence procurement procedure were dropped in the deal in the meeting of Cabinet Committee on Security in September 2016.

One of the clauses dealt with the aspect that the government can cancel the deal if the information of any involvement of middleman comes to the light, he said.

He had referred to the news articles and said that three experts of Indian Negotiation Team (INT) had also raised the the objections to the inflated pricing of the aircraft.

Venugopal had vehemently opposed the submissions and sought dismissals of review petitions, saying basic grounds of these pleas were the same as in the main case.

The government is under obligation to put defence material under cover, he said, adding that ‘when the security of the country is involved, you do not view it as a contract to build a highway or a dam’.

Verdict on contempt plea against Rahul Gandhi for 'chowkidar chor hai' remark

The SC is also scheduled to pronounce on Thursday its verdict on the criminal contempt plea filed against Congress leader Rahul Gandhi by Bharatiya Janata Party MP Meenakshi Lekhi for wrongly attributing to the apex court his ‘chowkidar chor hai’ remark in Rafale case against Prime Minister Narendra Modi.

Gandhi had made the remarks on April 10, the day the apex court had dismissed the Centre's preliminary objections over admissibility of certain documents for supporting the review petitions against the December 14 last year verdict in the Rafale case.

A Bench comprising Chief Justice Ranjan Gogoi and Justices S K Kaul and K M Joseph had on May 10 reserved the judgment.

Gandhi, who was then the President of the Congress Party, had told the bench that he has already tendered unconditional apology for wrongly attributing the remarks relating to the prime minister to the apex court.

Senior advocate A M Singhvi, appearing for Gandhi, had told the bench, that the Congress leader expressed regret over the wrongful attribution to the apex court.

Senior advocate Mukul Rohatgi, appearing for Lekhi, had submitted that the apology tendered by Gandhi should be rejected and action must be taken against him as per the law.

Rohatgi also argued that the court should ask Gandhi to make an apology to the public for his remarks.

Gandhi had on May 8 tendered unconditional apology in the apex court for wrongfully attributing to it his ‘chowkidar chor hai’ remark in the Rafale verdict and said that he holds the top court in the ‘highest esteem and respect' and any attributions to it were 'entirely unintentional, non-wilful and inadvertent'.

The three-page affidavit was filed by the then Congress president after he had drawn flak from the apex court on April 30 over his earlier affidavit in which he had not directly admitted his mistake for incorrectly attributing the allegedly contemptuous remark to the top court.

Lekhi filed the contempt plea against Gandhi for the ‘chowkidar chor hai’ remarks against Modi, which the top court had said were incorrectly attributed to it.

The apex court on April 15 had given a categorical clarification that in its Rafale verdict there was no occasion for it to make a mention of the contemptuous observation that 'chowkidar Narendra Modi chor hain' as has been attributed to it by Gandhi.

Gandhi, in his explanation filed in the court earlier, had said that his statement was made in the ‘heat of political campaigning’ and there was not the ‘slightest intention to insinuate’ anything regarding the Supreme Court proceedings in any manner.

He had said that his April 10 statement was made in purely political context to counter the ‘misinformation campaign’ being led by senior BJP functionaries as well as the government that the apex court verdict of December 14 last year was a ‘clean chit’ to the Centre regarding all the aspects of the Rafale deal.