Final until it’s not: The Supreme Court’s beating retreat

Last Friday, a three-judge Bench of the Supreme Court modified a dramatic blanket Order in a suo moto case on Delhi’s stray dogs. Just the previous week, on 11 August, a two-judge Bench had directed the immediate removal of thousands of dogs from the streets of the capital, provoking widespread outrage from citizens and animal rights groups. 

Amid the backlash, without staying the earlier directive, the Chief Justice of India constituted a new Bench of three judges to hear the matter. This new Bench shifted course, instructing authorities to release dogs after sterilisation, deworming and vaccination, as is mandated in the Animal Birth Control Rules, 2023.

This modification is only the latest example of the Supreme Court stepping back from its own word. In recent months, the Court has recalled judgements, deleted contentious passages and reassigned matters to new benches in the face of public criticism or backlash. The pattern raises a few urgent questions: is this the mark of a responsive Court, sensitive to public reaction and willing to self-correct, or of a reactive institution improvising under pressure, bending procedure and risking its own credibility? 

Behind these shifts lies a more fundamental puzzle: what does it mean, in practice, for a Supreme Court order to be “final”? How far do the Court’s own rules permit such reversals and what safeguards exist against selective responsiveness? Implicated here are not just the outcomes of individual cases, but bigger questions of institutional legitimacy, judicial accountability and the credibility of the Court as the country’s final arbiter. 

We look at three recent cases to illustrate how the Supreme Court has gone about revising its orders and ask if and how such reversals have departed from precedent or procedure. 

The Bhushan Steel insolvency

In May this year, in one of the most closely watched cases under the Insolvency and Bankruptcy Code, the Supreme Court ordered the liquidation of Bhushan Power and Steel. The Court rejected the resolution plan approved by the Committee of Creditors, holding that the Resolution Professional did not adhere to procedural requirements. The Judgment caused immediate alarm, spooking investors who saw a ₹20,000 crore plan unravel overnight and shaking international confidence in India’s recently revised insolvency framework. 

Two weeks after the Judgement was delivered on 2 May, the authoring judge retired. Around the same time, a fresh Special Leave Petition (SLP) was filed against an NCLT order of 13 May enforcing the 2 May Supreme Court Order. On 26 May, the Supreme Court Bench with a new judge replacing the retired authoring judge promptly passed an Order in this SLP directing status quo on the liquidation, on the submission by JSW Steel—the company which had acquired Bhushan Steel—that a review petition is being filed. This effectively stayed the Court’s final Judgement. But according to the Supreme Court Rules, 2013, the only valid remedy after a final order is a review petition. Specifically, Order XLVII Rules 1 to 5 provide the procedure for filing a review, which palpably don’t speak of a fresh hearing. 

When the review petition was finally filed, it came up before a Bench with a third permutation, this time the Chief Justice of India sitting with one of the members of the original Bench. This review was accompanied by an application for an open court hearing, a standard procedure, as reviews are typically disposed of in chambers, and the threshold to hear a challenge against a final order is very high. 

Then, something unusual happened. Notice was issued and an open court hearing was allowed. After this, on 31 July, the Judgement was recalled and the review petition was allowed, with a direction that the matter be heard afresh. 

Why is this unusual? The general wisdom in appellate procedure is that as cases move up the ladder of appeal, the scope for reconsideration narrows, in the interest of achieving finality of an order. It is in this context that the remedy available after review is filing a curative petition, where the scope narrows further and procedural requirements become more onerous (requiring a certification by a Senior Advocate, for example). Instead, what the Court did by recalling the Judgement and directing a fresh hearing was to effectively give the petitioners another shot at a review petition when ordinarily the only step after a review is filing a far more arduous curative petition. 

This makes Bhushan Steel an outlier. Given the high threshold for hearing reviews, there are only a handful of cases for us to look at and assess the general approach taken by the Court. A very recent example illustrates this: On 5 August this year, the Supreme Court rejected a review filed by West Bengal in the Teachers Recruitment case, noting that the review was, in effect, seeking a rehearing of the case on merits. 

In the Teachers Recruitment case, the Court appears to have abided by the general stance on the narrow scope of review petitions to point out an ‘error apparent on the face of the record.’ In Bhushan, even if the petitioners showed errors apparent on the face of the record (and, indeed, the Order records a list of authorities that the 2 May Judgement failed to consider), it remains unexplained why a fresh hearing had been called for and the matter not decided in the review hearing itself. The procedural leap remains an exception both in the general practice of the Supreme Court as well as its Rules. 

Order against an Allahabad HC judge 

Not very long after Bhushan Steel came another order, entirely different in scope and subject matter but similar in the strong reactions it induced. On 4 August, the Supreme Court passed a scathing Order directed squarely at an Allahabad High Court judge whose order it set aside. The censure from the Supreme Court came in the face of the High Court judge countenancing the practice of giving a criminal colour to civil proceedings. The Court directed the Chief Justice of Allahabad High Court to reassign that matter to a different Bench and have the concerned judge sit on a Division Bench with a “seasoned” judge. The Order also directed that the judge be dropped from the criminal roster until he demits office. This raised many eyebrows, not least among the judges of the Allahabad High Court, who made a representation to their Chief Justice not to implement the Order. 

What happened next in the Supreme Court? Ordinarily, given that the 4 August Order was a final one, standard post-judgement remedies should have applied. However, the matter was relisted three days later and an 8 August Order attributed the relisting to an “undated letter” by the Chief Justice of India requesting the Supreme Court Bench to reconsider two of its directions—the directions requiring the judge to sit with a seasoned colleague and those stripping him of the criminal roster. The Court withdrew these two directions, noting that it was modifying its earlier order “in deference to the written request of the Chief Justice of India.” 

Typically, after a final Order is passed in a case, a modification is possible only by filing a miscellaneous application. Such applications may be filed by parties to the case or by third parties who can establish their locus. Other times, when judges feel an error has crept into the judgement, they issue a corrigendum rectifying such an error. These changes are not substantive in nature or based on the merits of the case. 

In the Allahabad case, however, it is hard to overlook the fact that a communication to which the public has no access was expressly cited as the reason for the modification of the Order. This was also noted by former Supreme Court Justice Abhay S Oka, who remarked that it is “obvious” that a Chief Justice cannot write to a Bench asking them to modify an Order. 

The Delhi stray dogs matter

Finally, most fresh in public memory is the Order directing the removal of all stray dogs from the streets of Delhi and nearby areas. The case was taken up suo moto by a two-judge Bench following a media report of fatal attacks by stray dogs. 

Although an amicus was appointed, animal rights groups were reportedly not permitted to intervene. What resulted was the sweeping Order of 11 August, which prompted mobilisation unprecedented in recent times, and criticism from civil society, animal rights groups and public figures, who contended that the Court had passed an inhumane and impossible-to-implement Order without regard to existing legislation. 

The very next day, an oral mention was made before the Chief Justice of India seeking urgent listing of a pending 2024 matter challenging a Delhi High Court Order on sterilisation and vaccination of community dogs in Delhi. It was pointed out that an earlier Order had made it clear that any action by municipal authorities would have to align with the Animal Birth Control Rules, 2023. The CJI assured the mentioning party that he would ‘look into it.’ 

The next day, a three-judge Bench was constituted, and the matter was relisted on 13 August. The case was heard and a verdict was reserved, without any stay. On 22 August, the three-judge Bench delivered its Judgement modifying the directions on blanket removal of dogs. The Judgement brought widespread relief and shifted the onus on the authorities to address the issue holistically. 

But, for those familiar with Supreme Court procedure, the air remains thick with confusion about the procedure adopted for it all. A reference is made to a larger bench under Order VI of the Supreme Court Rules, 2013. Typically, this is done when the original Bench hearing the case believes it should be heard by a larger Bench, or when a party makes such a request. The matter is referred to the Chief Justice to then constitute and refer it to a larger bench. In its Order, the larger Bench then dwells on the factum of the reference itself and engages with why a reference to a larger Bench is warranted. 

The 22 August Order, however, remains completely silent on why the matter was referred to a three-judge Bench aside from the fact that the Chief Justice directed it. It then goes on to review each of the directions given by the two-judge Bench. In the absence of any explicit rationale for the reference, it is hard not to look at this as one Bench sitting in appeal over another. 

Finally, it would be remiss not to take note of the fact that this reportable Order is likely only the second ever in the history of the Supreme Court to not attribute authorship to a Judge. It was released as an order “by the Court.” 

Tracing patterns

Placed side by side, the three cases start to trace a pattern. Each began with a sweeping order with big implications: the liquidation of a company after years of insolvency proceedings, a High Court judge stripped of an entire roster until he demits office, and a far-reaching directive to round up thousands of stray dogs virtually overnight. The Court’s initial approach in each of these cases was one of strong assertion, expressed in stark language and carrying high stakes: disciplinary, populist, and rigidly procedural.

Each of these Orders, however, encountered immediate resistance: corporate stakeholders showed concern at the insolvency ruling; institutional pushback came from fellow judges in the Allahabad case; the stray dog directions were met with outrage from civil society. 

Notably, the challenges came not from another “pillar of democracy”, such as the executive or the legislature, but from the market, from within the judiciary and from the public, constituencies to which the Court appears to be acutely sensitive.

Faced with these pressures, the Court retreated not through open admission of error but through questionable procedural manoeuvres. A recall was ordered once the authoring judge had retired in one case, contentious paragraphs were promptly deleted with several clarifications on original intention in another, and a new bench was abruptly constituted without a stay in the third instance. 

In each, the CJI acted as the safety valve, using his power as master of the roster to preserve institutional reputation while reversing substance, even at the risk of skirting the Supreme Court Rules. 

The theatre of responsiveness

The three cases do not form an anomalous group. August this year alone has seen other instances where the Court has stepped back from its own directions. In one instance, it paused the enforcement of its 2018 ban on overage petrol and diesel vehicles in Delhi and agreed to reexamine its own ruling amid public concerns over implementation, impact on livelihood and lack of scientific basis. 

In another instance, the Court modified its interim order in the Telangana MLC row, deleting the sentence that recorded a stay of the High Court judgement that had previously cancelled the nominations of Professor Kodandaram and Amer Ali Khan, seen to be correcting its own overreach. These instances aren’t outliers; they add to a growing record of the Court seeming to claim responsiveness. 

These episodes suggest a Court that is, at one level, responsive: sensitive to criticism, open to correction and willing to adapt. And responsiveness is an important component of the architecture of institutions, especially if the institution happens to be the highest court of the land. The Supreme Court’s capacity for responsiveness has often produced desirable outcomes, from suo moto interventions to much-needed regulatory frameworks in the absence of legislation to urgent midnight hearings. 

However, in these recent reversals, responsiveness looks less like principled openness and more like legitimacy-saving under reputational pressure. The CJI appears to play a central role in this theatre of responsiveness, which risks making it appear selective. After all, should one then expect the same responsiveness when the Court struck down marriage equality for sexual and gender minorities or upheld the abrogation of Article 370? Both cases carried significant public consequences and provoked widespread outcry, if those were important yardsticks for the Court. But there was no instinctive or procedural revisiting of these verdicts. 

“The litigants who come to the Court expect the justice delivery system to function in accordance with law and not to obtain absurd or irrational orders,” Justice J.B. Pardiwala interestingly writes in his order on the Allahabad High Court judge. At best, the authors of this piece cannot see why these cases were treated as unique or sui generis; at worst, this is the Supreme Court confirming Justice Pardiwala’s gravest apprehensions.

For responsiveness to carry credibility, it needs a method, a verifiable deference to established procedure. Responsiveness is valuable, but it must be applied equally across cases and anchored in transparent rules rather than ad hoc improvisations. 

Otherwise, the Court risks looking not responsive but reactive, inconsistent in what it chooses to hear and procedurally irregular in what it chooses to reverse. A truly responsive Supreme Court of India would not only hear the public but also hold itself to the same standards of consistency and legality that it demands of everyone else.

Aparna Mehrotra is a lawyer practising in the Supreme Court. Rishiraj Bhagawati is a former journalist and public health researcher based in Bengaluru.