The public debate surrounding the Sabarimala Verdict continues to remain in focus in the weeks following Retired Chief Justice Dipak Misra's departure from the Supreme Court. Several review petitions have been filed against the majority verdict of 28th September, 2018 and the refusal by now CJI Justice Ranjan Gogoi to hear the matter on an urgent basis has sparked further discontent.
In this post, we discuss what a review is, the powers of the Supreme Court to review its own decisions and some of the important outcomes of the exercise of this power in the recent past.
Article 137 of the Constitution of India grants the Supreme Court the power to review any of its judgments or orders. This power is however subject to to the Rules made by the Supreme Court under Article 145, as well as the provisions of any law enacted by parliament. Further, as per the Supreme Court Rules, 2013 (XLVII.2) a review Petition must be filed within 30 days from the judgment or order of which review is sought and must be placed before the same Bench which had delivered the decision.
Review vs Appeal: Scope of the Power
The power of review is distinct from the Court's power to hear appeals, i.e. the appellate jurisdiction. When hearing a review petition filed against its own order or judgment, the Court does not rehear the case at hand, as it would in an appeal. The purpose of a review petition is limited to remedying an apparent error or the resultant grave injustice that has been the consequence of a decision of the Supreme Court. The Court is thus restricted in the exercise of the power of review to cases where there is an error apparent on the face of the record (criminal cases) or in accordance with the provisions of Order XLVII of the Code of Civil Procedure, 1908.
The scope of the power of review was explained by the Court in Northern India Caterers (India) vs Lt. Governor Of Delhi (1979) wherein the Court held that "a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision in the case. Normally the principle is that a judgment pronounced by the Court is final and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. If the attention of the Court is not drawn to a material statutory provision during the original hearing the Court will review its judgment. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice."
The power to review its own decisions is not an inherent power of the Supreme Court, but a protective measure against the fallibility of the apex institution of the judiciary so as to ensure the delivery of justice. It must therefore be exercised in a limited manner.
The Supreme Court on 20th March, 2018 delivered a decision that resulted in widespread dismay among members of the SC/ST community. In Subhash Kashinath Mahajan vs The State of Maharashtra, a 2 Judge Bench comprising Justices AK Goel and UU Lalit decided to do away with the bar on grant of anticipatory bails in cases of atrocities under the SC/ST Prevention of Atrocities Act, 1989 and further laid down guidelines for the purpose of making arrests under the Act. In view of the resultant public outcry, the Centre approached the Supreme Court seeking review of its decision in Subhash Kashinath Mahajan. The review petition was heard and admitted by the Court and is currently pending, though the interim plea for stay on the guidelines issued in Subhash Kashinath Mahajan has been rejected.
On 28.07.2017, a 2 Judge Bench of the Supreme Court delivered its decision framing new guidelines to prevent the misuse of Section 498A of the Indian Penal Code. Section 498A criminalizes dowry harassment. The Court held that no arrests of the husband or his family members could be made in cases of complaints of dowry harassment under the penal provision without prior verification of the charges against them. The decision was widely criticised and debated in civil society groups and womens rights organisations. In October 2017, a 3 Judge Bench of the Supreme Court decided to revisit the decision in Rajesh Sharma vs Union of India. On 14.09.2018, a bench of then CJI Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud modified the earlier guidelines observing that it was not for the Court to fill in legislative gaps to prevent misuse of the law. Such power was to be exercised by the Legislature.