[This is a guest post by Kunsh Jain.]
Article 137 allows the Supreme Court (‘SC’) to review its own judgements. This review power is subject to, in the absence of parliamentary legislation, Order XLVII of the SC Rules, 2013 (‘Rules’). The SC has highlighted a worrying trend of overruling rulings since several orders have been recalled or modified by review petitions. This post attempts to uncover the contours of invoking these review powers. This is done firstly, by critiquing how post the Kantaru review petition the review jurisprudence trend shifted from restrictive to expansive, and secondly, analysing 4 grounds, namely: the ‘eroding plausible-impossible distinction’, ‘bench shopping’, ‘commercial implact;, and ‘not following judgements’ as questionable expansion of review grounds.
A review is sought to exercise corrective powers post a final order by the SC. It does not amount to re-hearing a case but is to be used sparingly to not let it become an intra-appellate mechanism. Its function is to rectify a patent error in a final judgment, not to revisit matters conclusively decided. The dilution of this distinction erodes Article 141’s promise of finality. This finality is central to the rule of law and as a case travels up the vertical hierarchy of courts, the jurisdiction of the court gets narrower. Thus, “a review cannot be allowed to be an appeal in disguise”.
The SC had restricted review jurisdiction starting from Northern India Caterers (1979) to Kamlesh Verma v. Mayawati (2013) (‘Mayawati’) justified only when there exist substantial and compelling reasons to do so. However, these reason and their precise standards are unclear in recent jurisprudence. Review petitioners usually try to ‘force-fit’ reasons into the limited grounds considered for review. Rule 1 Order XLVII of the SC Rules, 2013 was supposed to restrict this otherwise unfettered power to admit review, but post the Kantaru Review in 2020, a pandora’s box of challenging final judgements via review petitions opened.
Jurisprudence expanding Jurisdiction
In Kantaru Rajeevaru v. Indian Young Lawyers’ Association (‘Kantaru’), there were several review petitions after the SC permitted women of menstruating age into the Sabarimala temple. By a narrow 3-2 split, these reviews were maintained and referred the review to a larger bench. The dissent rightly attempted to restrict the review jurisdiction arguing that the grounds under Rule 1 Order XLVII of the rules were not met.
However, the 9 Judge Bench (‘9JB’) admitted the Sabarimala review petition with a flawed reasoning. It escaped the set standards with a disjunctive interpretation, implying an unfettered power to review as the general rule, and Rule I applied only to civil and criminal cases. Hence writs were made reviewable without having to meet an ‘error apparent’ standard. This author critiquing this had – accurately, as it turned out – predicted that in future, judges would not provide adequate reasoning for exercising review jurisdiction in any proceedings other than civil or criminal ones and this would turn a “reluctant resort” into “whims and fancies”.
This artificial distinction of writs from civil and criminal proceedings largely set the trend for the unfettered review petitions as we see them today. It was a recognised rule that a review standard followed the CPC’s limited grounds of i) discovery of new evidence, ii) error apparent on the face of record and iii) any such reason which of an analogous nature, and in a criminal proceeding, only upon an error apparent. By distinguishing writs, these standards no longer bind the Court, leading to multiple unsubstantiated review petitions after every lost SC case.
Judgements do not even always follow the Kantaru idea of a writ versus a civil-criminal proceeding binary. For example, the recent review in CREDAI v. Vanashakti (‘Vanashakti’) had a civil appeal clubbed with writ petitions, or in Mayawati where civil irregularities led to a criminal inquiry against which a writ was filed. The governing rules of review for such ‘mixed’ proceedings are lost. Even beyond the expansive powers for writs, the rationale for exercising review powers in civil and criminal proceedings is uncertain. The scope of an ‘error apparent on the face of record’ or ‘any other reason’ being analogous being noscitur a sociis to the first two conditions was sought to be clarified in Mayawati. However recent deviation makes the scope of Rule 1 unclear.
A two-judge bench in Shikhar Chemicals Versus State of UP recently recalled its order directing stripping the criminal roster of an Allahabad HC judge. Despite it being a criminal SLP, it was reviewed by an “undated letter by the CJI”. On procedure, per Govt of NCT Delhi v. Rathi Steels, the person applying for review (CJI herein) must demonstrate that he is a person aggrieved (unclear how so). On substance, the only ground for reviewing criminal proceedings is of an error apparent. What constituted such an error in the now-deleted Paras 25 and 26 that issued roster directions to the Allahabad HC, is something only the CJI’s letter can answer.
Making Impossible the Plausible
First, review cannot be sought where the court has taken a view, however erroneous, if that view is one of two possible views and there lies no patent error. In the case of Kalyani Transco v. Bhushan Power (‘Bhushan’), the order-in-review undermined commercial confidence by unravelling a resolution plan already invested in. This was due to lack of adherence to procedural requirements and not meeting the timelines that were held critical to the IBC framework. However the extraordinary procedure for seeking review is critiqued here.
Oddly, using a new SLP against an enforcement order rather than a review, the order was stayed. The CJI’s order is titled ‘civil appellate jurisdiction’ and not the inherent/review jurisdiction. Secondly, the order was recalled and reversed, because i) judgements were not correctly followed ii) it was based on incorrect factual aspects and arguments not advanced were considered. These grounds may be used in appeal, however a narrower review standard isn’t sufficiently met by alleging per incuriam. The earlier interpretation of IBC’s procedural requirements was a plausible view, however erroneous that may be, and not an impossible view and hence, no ground for review.
This plausible-impossible distinction was blurred even in Vanashakti where the judgement in review was about the validity of post-facto environmental clearances. The earlier order sought to end this practice of ‘backdoor’ regularisation, but the review bench held by 2-1 majority that this was reviewable, and further reversible due to contravening earlier judgements. However, Justice Bhuyan’s dissent brings to light the problems that review jurisdiction faces currently.
The existence of a well-reasoned view, seeking to bring India in line with environmental jurisprudence and global standards, is overturned for ‘not following judgements’. These earlier judgements had used their exceptional Art. 142 powers to regularise and this ‘relief’ must not bind the court as ‘ratio’. Further, a concern repeated with both Justice Oka in Vanashakti and Justice Trivedi in Bhushan is that once the authoring judge retires, a review is sought and a re-attempt at a favourable decision is made. This furthers the courts polyvocality, distinguishing a recently retired judge from others of the same court. This concern was also raised by Justice Nagarathna warning that judgements were anchored in ink, not sand and cannot be tossed out merely because faces have changed.
Who Decides Who is to Decide
Rule 3, Order XLVII of the Rules states that “An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed”. Changing the composition of benches by admitting review post-retirement, or diluting the original bench strength by adding additional judges goes against the intent of the rules where if the error was so apparent, the same judges could re-look and correct their error. This makes review, a ground for bench-hunting to obtain a favourable decision. Often in reviews with changed bench composition, the judge from the earlier bench maintains the original view taken, however the newer judge(s) give a different view.
In Vanashakti, the 2JB’s order by Oka and Bhuyan, JJ was reviewed post Justice Oka’s retirement by a 3JB composed of CJI Gavai, Chandran and Bhuyan, JJ. This article highlights the reversal via a miscellaneous petition being before a 3JB being a problematic substitute to review. This 3JB gave a split verdict of 2-1, with Justice Bhuyan maintaining the original view and calling the review a step in retrogression.
Elsewhere, in a property dispute between ISCKON Bangalore and ISCKON Mumbai, Oka and Masih, JJ had ruled in favour of the Bangalore chapter. Upon a review petition, Justice Maheshwari replaced retd. Justice Oka’s and admitted the review condoning the delay, but Justice Masih held that there existed no error apparent and hence grounds for review were not met. This split decision led to another completely new three judge bench issuing notice and leaving the question on review jurisdiction for open for the past three months remarking “What Lord Krishna might be thinking of all this”.
This also confers a special power in the hands of the CJI as the ‘master of the roster’. If there exists a split-decision, as seen in the ISCKON dispute and even in the Akola riots case, the review is referred to the CJI for further directions. With the power of constituting benches, there exists a re-view of the original order that can be created with a change in the bench. Even in civil review, Rule 5 Order XLVII of the CPC precludes other judges from hearing review highlighting the intent of self-correction by the original judge(s). It creates an exception for retiring/transferring judges, however, even in rare cases reviewed by the same bench, the grounds for Review are not followed.
Rule 2 mandates filing review petitions within 30 days of a judgement/order placing primary intent of swift finality after long appeals, granting condonation of delays in filing review petitions is common practice. In NHAI v. Tarsem Singh, the same bench admitted a review petition 9 months later, on the grounds highlighted that had far-reaching implications of Rs. 32,000 crores, and not Rs. 100 crores as mentioned in the earlier judgement. While this could be fit under the ground of “new material/evidence” it raises another important question: Can commercial impact be a ground for review under Rule 1, Order XLVII of The Rules?
A Reason not Reasonable enough
Every judgement will have certain commercial and political implications to the disadvantage of key stakeholders. The presumption is that the judges are cognizant of the same while delivering the judgement. Bringing these up in a review petition relies on post-judgement public sentiment and politico-economic considerations to reverse the effect of an final judgement, thereby undermining the judicial process followed by it. With no set standard of seeking review by the impact created, there exists confusing jurisprudence on whether this can be fit into the ‘any other reason” ground of seeking review.
In Vanashakti, the arguments accepted in favour of review were of public constructions already finished and their demolishing resulting in a loss of public money. Examples of an AIIMS hospital and Greenfield airport built on taxpayers money being demolished as an the effect of the 2JB judgement constituted a ground for review. However, the implications also extended to a larger number of private players and projects subsequently benefitting from the revised judgement. Even in Bhushan, the judgement in review was criticised for undermining commercial certainty and investor confidence and its economic impact certainly played some role in admitting that petition.
But the long-term consequences that these judgements seek to protect are equally crucial too. In Vanashakti, the 2JB had sought to alleviate the pollution issue by tuning India’s environmental jurisprudence to global standards. They had relied on impact assessment studies considering public stakeholders in the environmental discourse and concluded noting the Delhi smog as a visible impact. This acknowledged impact should not be then backtracked upon using a review petition filed by “builders and developers who had shown scant regard for the law”. What then, is the distinction between impacts that make a case for review and impacts that don’t?
In State of West Bengal v. Baishakhi Bhattacharya (‘WB teachers’), the court rejected a review petition to its judgement invalidating 24,000 appointments by the WB School Service Commission from 9 years back calling it a “re-hearing on merits” and hence not permissible. It “was fully conscious of the heartburn and anguish caused by the invalidation of the untainted appointments” but the matter did not deserve a review petition as all aspects were considered.
Hence, the result is a skewed jurisprudence in which commercial stakes routinely justify review, but the far-reaching effects on ordinary citizens do not. This reveals how “impact” has become an incoherent and inconsistently applied ground under the “any other reason” of Rule 1, Order XLVII.
Error Apparent or Apparent Expansion
Another equally popular ground of seeking and admitting review is by “error apparent” of not following the law as laid down in previous judgements. To answer whether ‘not following earlier judgements’ constitutes error apparent, the review jurisprudence pre-Kantaru must be looked at. In Mayawati, the SC clearly lists when a review will not be maintainable. It held that older arguments cannot come up in a review petition as to re-hear a case, and an error that needs to be fished out and searched is not an error apparent. Thus, if a judgement was engaged with and/or distinguished from, then per Mayawati a review petition must not exercise appellate-like powers to reverse a final judgement.
However, the review judgement in Vanashakti had an interesting section on judicial discipline and propriety. Citing a plethora of judgements on how stare decisis is integral and following precedent is key to judicial discipline, the 2JB’s judgement was overturned as it had not followed certain paragraphs of judgements “that could have persuaded it to take a different view”. The effect of Vanashakti is that if a precedent was followed largely but differed in an interpretation of certain paragraphs, the judgement is per incuriam and hence, constitutes a sufficient ground for review. The reason cited is that “predictability and certainty is important…. And discipline is a sine-quo-non for effective functioning of the judicial system”.
It is the SC’s liberty to apply the general rules to specific facts of each particular case to obtain a just outcome for the parties and set precedent for the country. The order-in-review in Vanashakti had engaged with said judgements and held that it couldn’t be bound by the special Art. 142 relief granted and focused on the legal principle that post-facto ECs were alien to environmental jurisprudence. This is not judicial indiscipline or distinguishing by “minor difference in facts”, but following the SC’s prerogative of setting progressive law. By refusing to rely on environmentally regressive reliefs granted in earlier judgements, it had sought to not shy away from a principle’s application, as this post argues it previously has.
Allowing “not following judgements” to constitute a review ground takes away from transformative judicial interpretation. Rupa Ashok Hurra v. Ashok Hurra, which engaged with these questions of discipline and certainty sufficiently, had highlighted the narrow ladder moving from appeals-review-curative jurisdiction. Mayawati had laid the ground for when a review is not maintainable. However, review petitons and admissions post Kantaru have negated this restrictive sense of review powers and made it into what Krishna Iyer, J had warned be, a shot at the moon.
Conclusion: Restricting Review Powers
Review powers of the SC remain in an unchartered territory because of its unfettered power subject only to the parliament or the rules made by the SC itself. The parliament will not interfere with judicial procedure for fear of being struck down as infringing on the separation of powers even if constitutionally empowered under article 137. Further, why would the UOI who themselves get another chance at “appealing” an unfavourable order, and recently have through another gateway using a presidential reference, choose to limit themselves? Political ramifications and public sentiment are now a ground for review as seen in In re: Stray Dogs and In re: Assent to Bills and the largest litigant does not want to limit the same.
The Rules after Kantaru’s distinction are also interpreted differently to decide a review on its current impact basis rather than a limited set standard. Firstly, the courts can always resort to their inherent powers and Rule 6, Order LV and hold that the Rules do not apply while considering review petitions. Notwithstanding discretionary powers for justice, there must be a clear standard for review and it must be guided by a restrictive reading of Order XLVII of the Rules. This is critical to maintaining the limited jurisdiction as a case travels up the hierarchy and the finality it offers.
Secondly, admissions like the 9JB in Kantaru and the 2-1 majority in Vanashakti dangerously expand the scope of review. These benches themselves set the scope of powers they can exercise and guide future smaller benches. In these scenarios, the dissents, by Justice Nariman in admitting the review petition prior to the 9JB reference, and by Justice Bhuyan in Vanashakti, guide rightly towards a restrictive review jurisdiction amidst increasing pendency, uncertainty and a litigant hoping for finality.
Review powers then, are an intricate balancing act and the power of preventing them from becoming an intra-appellate stage rests with either the parliamentary law or the SC rules. In the absence of a conclusive set standard, it is the judiciary’s prerogative, split into benches but speaking as one, to shape jurisprudence in a way that views review as a careful and controlled power exercised only upon a serious miscarriage of justice.
