Justice Robert H Jackson of the United States Supreme Court, in (1953), famously quipped,
"We are not final because we are infallible, but we are infallible only because we are final."
A slight variation of Justice Jackson's words has emerged in India; the Supreme Court is not final because it is right, it is right because it is final. I am not referring to the instances where the legislature has acted to reverse judicial pronouncements, but the exercise of review jurisdiction by the Supreme Court itself, under Article 137 of the Constitution of India, which confers it the power to review any judgment pronounced or order made by it. Order XLVII of the Supreme Court Rules, 2013 further provides that the Court may review its decision on grounds mentioned in Order XLVII Rule 1 of the Code of Civil Procedure in a civil case and, on the ground of an error apparent on the face of the record in a criminal case.
Recently, the Supreme Court by a 2:1 majority agreed to hear in open court the review petition filed by Cyrus Investments against its March 2021 judgment upholding Tata Group's decision to remove Cyrus Mistry as the Executive Chairman of Tata Sons and setting aside the National Company Law Appellate Tribunal (NCLAT) order which restored Mistry as Executive Chairman of the Tata conglomerate. Justice V Ramasubramanian, however, dissented, finding no valid ground to review the judgment and observing that the grounds raised in the review petitions do not fall within the parameters of a review.
It is rare for the Supreme Court to entertain and accept a review petition. Most review applications are disposed of (dismissed) by circulation without any hearing. For the same reasons, entertaining a review petition and listing it for an oral hearing by the Supreme Court always generates interest among the legal fraternity and the general public.
The exercise of review jurisdiction by the Supreme Court is discretionary, and grounds for review are limited. As far back as in 1940, Chief Justice Gwyer, speaking for the Federal Court in Raja Prithwi Chand Lall Choudhry etc. v. Rai Bahadur Sukhraj Rai & Ors had observed:
"This Court will not sit as a court of appeal from its own decisions, nor will it entertain applications to review on the ground only that one of the parties in the case conceives himself to be aggrieved by the decision. It would in our opinion be intolerable and most prejudicial to the public Interest if cases once decided by the Court could be re-opened and re-heard: "There is a salutary maxim which ought to be observed by all Courts of last resort -- Interest reipublicae ut sit finis litium. Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this."
The Supreme Court in Kamlesh Verma v. Mayawati summarised the principles to be followed for entertaining review petitions. As per that case, review will be maintainable when there is:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason - which has been interpreted to mean a reason sufficient on grounds at least analogous to the principles mentioned above.
It was further held in that case:
(i) A repetition of old and overruled arguments is not enough to reopen concluded adjudications;
(ii) Review is not maintainable when there are minor mistakes of inconsequential import;
(iii) Review proceedings cannot be equated with the original hearing of the case;
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.
Nonetheless, there are myriad ways in which the above principles themselves can be interpreted in favour of or for opposing a review petition.
Also, it would be naïve to overlook the role of public opinion on a decision rendered by the court and the importance thereof, which indeed appear to affect the chances of the court entertaining a review petition. A review petition against a decision arousing controversy among the public is more likely to succeed.
As per the rules, a review petition is to be considered by the same Bench unless the same judges are not available because of demitting office, etc. However, some of the reviews are filed only after the retirement of a judge(s) for obvious reasons. The Supreme Court recently, in the case of Goa Foundation, disapproved of the practice of delayed filing of review petitions after waiting for judges to retire.
However, interestingly, many judgments in cases in which the review petition turned out to be successful have not been rendered by the same Bench. The Sabarimala case is one of those cases and is still pending, waiting for the verdict of a larger bench. The review petition against the March 2018 verdict by a Bench of Justices AK Goel and UU Lalit, which had read down Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to allow accused persons under the Act to apply for anticipatory bail, was subsequently allowed by a new Bench headed by Justice Arun Mishra and which included Justices MR Shah and BR Gavai. Similarly, far-reaching and sweeping directions in the context of the Right to Information Act passed by a Bench comprising Justices AK Patnaik and Swatanter Kumar were subsequently recalled in a review petition filed by the Union of India by the Bench of Justices Patnaik and AK Sikri.
Sometimes, the Supreme Court is compelled to revisit an issue even after dismissal of review and curative petitions. One may recall the widely celebrated decision in the case of where writ petitions questioning the validity of Section 377 of the Indian Penal Code were entertained, and rightly so, because neither the rules of procedure nor technicalities of law stand in the way of justice being dispensed.
However, review jurisdiction is often sought to be misused by a party as a tool to not comply with the decision rendered or is misunderstood in believing that any subsequent decision or change in the law is a valid ground for review. The Constitution Bench decision on "lapsing of land acquisition" in the case of Indore Development Authority v. Manoharlal and Ors is being cited by governmental authorities for filing review petitions in the Supreme Court, even in those cases where the SLPs/appeals already stand dismissed before that judgment. Filing a review petition based on a subsequent decision of a superior court has been 'specifically' excluded as a ground for review. This is amply evident from the Explanation to Rule 1 of Order 47 of the Code of Civil Procedure, which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Therefore, the change in law or a subsequent judicial pronouncement does not permit the filing of a review petition.
There is a distinction between the principles of 'overruling', 'res judicata' and 'finality.' Reversal of the reasoning in another decision by a larger bench, or by a higher court, only denudes it of its precedential value, but does not take away its finality, inter partes. Undisputedly, it is open to a court of superior jurisdiction or strength before which a decision of a bench of lower strength is cited as an authority to overrule it. This overruling would not operate to upset the binding nature of the decision on the parties to an earlier lis in that lis, for whom the principle of res judicata would continue to operate.
Indeed, the Supreme Court is consistently faced with competing principles of ensuring certainty and finality of its judgments and dispensing justice. It has done wonderfully well in almost all the cases. The Court need only ensure that the process for accepting review petitions is no less fair and transparent than that used in deciding the special leave petitions and appeals in the first instance.
The Supreme Court has accepted the limitation of human fallibility, which certainly doesn't dent its stature and authority as the highest court in the land. The strength of the judgment of a court is firmly rooted in the persuasiveness of its reasoning and, no less importantly, in the fairness and openness of its decision-making process.
Ritesh Kumar is an Advocate-on-Record practising in the Supreme Court of India.