The story so far: The Supreme Court on November 23 agreed to consider a request for an open court hearing of petitions seeking a review of its judgment refusing to legalise same-sex marriage. In October, a five-judge Constitution Bench unanimously observed that there exists no fundamental right to marry and that judicial interference in this regard would impinge upon the domain of the legislature by violating the doctrine of separation of powers. However, the minority verdict of Chief Justice of India (CJI) D.Y. Chandrachud and Justice Sanjay Kishan Kaul held that constitutional authorities should carve out a regulatory framework to recognise the civil union of adults in a same-sex relationship.
The review petition faults the verdict for failing to afford any legal protection to queer couples despite acknowledging the discrimination faced by them. It also contends that the verdict suffers from ‘errors apparent on the face of the record’ and is ‘self-contradictory and manifestly unjust’.
In light of this development, The Hindu decodes the ambit of review petitions, why they are not heard in open court, and whether there exists any remedy beyond this jurisdiction.
Why is a review of the marriage equality verdict being sought?
The review petitions point out that while the verdict recognises that there is discrimination against queer people, it does not provide a means to address this discrimination. Elaborating on this, the plea filed by petitioner Udit Sood asserts — ‘To find that the Petitioners are enduring discrimination, but then turn them away with best wishes for the future, conforms neither with this Hon’ble Court’s Constitutional obligation towards queer Indians nor with the separation of powers contemplated in our Constitution.’
The petitioners further contend that the verdict is ‘self-contradictory’ in its ‘understanding of marriage’ since the majority opinion overlooks that marriage, at its core, is an enforceable social contract. Arguing that the court mischaracterised the petitioners’ case, the pleas highlight that the verdict answers a question that was never asked — whether there exists an abstract ‘right to marry?’ But fails to answer the question that was actually asked, which is whether queer couples can be excluded from a legal regime purely on the basis of their sexual orientation.
The court is also apprised that the verdict is ‘manifestly unjust’ since it refuses to recognise that the rights to equal protection, dignity, and fraternity are sufficient to justify judicial intervention even in the absence of a fundamental right to marry. ‘The fundamental flaw in the majority opinion, therefore, lies in its artificial separation of the right to marry from the right against discrimination. The actual claim before the Court, however, is of a right to marry on equal terms with the rest of society; it is a right not to be discriminated against in access to marriage; a right that is of particular importance because, as has been noted above, there is a range of other fundamental rights that are inextricably bound up with the ability to access the institution of marriage’, the plea asserts further’, the plea asserts.
What is a review petition?
Judicial pronouncements of the Supreme Court become the ‘law of the land’ as per Article 141 of the Constitution and are binding on all courts within the territory of India including the Supreme Court itself. This provides a sense of finality for deciding future cases. However, under Article 137, the Constitution itself bestows upon the Supreme Court the power to review any of its judgments or orders. This power of review is subject to both parliamentary law and rules of procedure framed by the court under Article 145 of the Constitution. These rules permit a review petition to be filed only if the impugned judgment is likely to result in a miscarriage of justice on account of any manifest error that is clear on the face of its record. Thus, the court’s capacity to review its own verdicts is confined within narrow boundaries — it can neither rehear formerly concluded arguments nor reappreciate the evidence on record.
Order XLVII, Rule 1 of the Supreme Court Rules, 2013, stipulates that applications for review will be entertained only on the basis of grounds mentioned under Order XLVII, Rule 1 of the Code of Civil Procedure (CPC), 1908 in a civil proceeding and on the ground of an ‘error on the face of the record’ in a criminal proceeding. The grounds enumerated under the CPC include — (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, OR (ii) an order made, or on account of some mistake or error apparent on the face of the record, OR (iii) for any other sufficient reason — the phrase has been interpreted by the Supreme Court to mean a reason that is analogous to the other two grounds. Further, it is not necessary that only parties to a case can seek a review, any person aggrieved by such a ruling is also empowered to file such a plea.
What is the procedure for filing such a petition?
As per the Rules of the Supreme Court, a review petition must be filed within 30 days from the date of the impugned judgment or order. While a judgment is the final decision in a case, an order is an interim ruling that is subject to its final verdict. However, in certain circumstances, the court can condone the delay in filing a review petition if the petitioner can establish cogent reasons to justify it. As far as practicable, the petition must be presented before the same bench that delivered the original decision. In case a judge has retired or is unavailable, a replacement is made by the Chief Justice in the exercise of his administrative powers keeping in mind the seniority of the judges in the top court.
It is rare for the apex court to admit reviews as it is a jurisdiction that is exercised with great circumspection. For instance, in December last year, the court rejected a plea by Bilkis Bano, to review its May 2022 verdict which allowed the Gujarat government to consider and release prematurely 11 convicts serving life sentences for gangraping her during the 2002 riots. Similarly, in November 2019, the court dismissed pleas seeking a review of its December 14, 2018, judgment upholding the government’s purchase of Rafale fighter jets on the ground that there was no need for a ‘roving inquiry’ into the case.
Are review petitions heard in open court?
As per the Supreme Court Rules, review petitions are not entertained in open court through oral arguments by lawyers. Instead, they are heard ‘through circulation’ by the judges in their chambers. In exceptional cases, however, an order can be passed to hear the review plea in open court. In 2014, a five-judge Constitution Bench of the Supreme Court ruled that review petitions of all death penalty cases will be heard in open court by a bench of three judges.
The constitutionality of this Rule was challenged and repelled by the top court in P.N. Eswara Iyer & Others v. Registrar, Supreme Court of India (1980). It was noted that the Rules do not totally eliminate the possibility of an oral hearing and that such relief is discretionary in appropriate cases. Opining that a review is preceded by an ‘antecedent judicial hearing’ and therefore, the court reasoned that such a second consideration need not be ‘plenary’. ‘The pressure of the caseload on the Judges’ limited time, the serious responsibility to bestow the best thought on the great issues of the country projected on the court’s agenda, the deep study and large research which must lend wisdom to the pronouncements of the Supreme Court which enjoy awesome finality and the unconscionable backlog of chronic litigation’ demand such court management strategies, the bench underscored.
In the recent past, the Supreme Court has heard in open court a review of its July 2022 judgment in Vijay Madanlal Choudhary v. Union of India upholding key provisions of the Prevention of Money Laundering Act (PMLA), 2002, and the Enforcement Directorate’s extensive powers of arrest and seizure in money laundering cases. In 2018, a five-judge bench headed by former CJI S.A. Bobde agreed to hear in open court a reveiw of its verdict in the Sabarimala case.
What are the grounds for seeking a review of a Supreme Court verdict?
The grounds for seeking a review of a Supreme Court verdict have been laid down by the court itself in a catena of decisions. As far back as 1940, Chief Justice Gwyer, speaking for the Federal Court in Raja Prithwi Chand Lall Choudhry v. Rai Bahadur Sukhraj Rai & Ors underscored — ‘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.’
In the 1975 ruling of Sow Chandra Kanta And Another v. Sheik Habib, Justice Krishna Iyer observed that a review can be permitted ‘only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility’. While laying down nine grounds for upholding a review, the court in Union of India v. Sandur Manganese & Iron Ores Ltd. (2013) clarified that a ‘review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error’. It added that the mere possibility of two views on the subject cannot be a ground for review.
More recently, in October, a division bench of the Supreme Court in Sanjay Agarwal v. State Tax Officer cautioned that observations made by a coordinate bench about a judgment cannot be a ground to review it.
Is there a remedy if a review petition fails?
Since the Supreme Court is the ‘court of last resort’, its judgments cannot result in a miscarriage of justice. Accordingly, in Roopa Hurra v. Ashok Hurra (2002), the court itself evolved the concept of a curative petition — which can be heard after a review is dismissed to prevent abuse of its process. Like a review petition, a curative petition is also entertained on very narrow grounds and is generally not allowed an open court hearing.
Such petitions are heard by the five senior-most judges of the Supreme Court only on the grounds of violation of principles of natural justice, question of bias against the presiding judge, and abuse of the court process. This jurisdiction is exercised sparingly only in the rarest of circumstances. Some notable interventions in this regard include — National Commission for Women v. Bhaskar Lal Sharma (2013), Navneet Kaur v. NCT Delhi (2014), Yakub Menon v. State of Maharashtra (2015), and Union Carbide v. Union of India (2023).
Concerns raised
As per the existing rules, a review petition is to be considered by the same Bench unless the same judges are not available. Taking advantage of this loophole, some reviews are intentionally filed after the retirement of a judge(s) in a bid to achieve a favorable outcome. Castigating such a practise, the Supreme Court in Vedanta v. Goa Foundation (2021) came down heavily on the State of Goa and mining giant Vedanta for filing delayed review petitions after the judges who decided the mining lease case and delivered the judgment in the same back in 2018, retired from office. A bench led by Justice DY Chandrachud warned — ‘Such practise must be firmly disapproved to preserve the institutional sanctity of the decision making of this Court.’
Another contentious issue is the purported creation of a new jurisdiction — an intra-court appeal. It is a trite law that the Supreme Court does not sit in appeal over itself. However, in recent times, attempts have been made to avail this new relief by misusing the Chief Justice’s administrative powers, in specific his ‘master of the roster’ powers. This is carried out by first filing a recall application and mentioning it before the Chief Justice’s Bench following which a stay order is granted by the Chief Justice against the impugned order. This has happened recently in the case of Ritu Chhabaria v. Union of India and Others (2023) on default bail and in an abortion case.
Deprecating such a practice, a Supreme Court bench comprising Justices Hima Kohli and B.V. Nagarathna rebuked the Union government for orally mentioning before CJI D.Y. Chandrachud that an order passed by the bench allowing the termination of a pregnancy that had crossed over 24 weeks should be recalled. Without mincing any words, Justice Nagarathna remarked — ‘We do not appreciate this. If the Union of India starts doing this, private parties will also start doing this. We are an integral court. Every Bench of the Supreme Court is the Supreme Court’.
