Supreme Court Reviewing Its Own Judgments

To perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience.

-M.S. Ahlawat v. State of Haryana [1] 

The powers of the Supreme Court to review its own judgements are elaborated in the article 137 of the Constitution of India. This of course has to be read with the provisions of any law made by Parliament or any rule made under article 145 of the constitution [2] . In the first section of this project, the researcher shall discuss how a ‘review’ differs from an ‘appeal’. Why the Supreme Court does have such a power? What is the court’s jurisdiction to review a judgment? The researcher’s endeavour has been to cover all these in the subsequent sections. In furtherance to all this, the researcher shall include the discussions on procedures for a review and thus finishing the report with a conclusion in the end.

An expression “appeal" may be defined as “the judicial examination of the decision by a higher court of the decision of an inferior court" [3] . It is the aggrieved party’s complaint to the higher court when they are dissatisfied with the lower court’s decision. It could be said that the appeal is some kind of remedy provided by the law so that the decree from the lower court could be set aside. In other words, it is the complaint made to the higher court that the decree passed by the lower court is unsound and wrong [4] . On the other hand, it should be noted that power to review is an exclusive power given only to the Supreme Court. The dictionary meaning of the word ‘review’ is ‘the act of looking, offer something again with a view to correction or improvement [5] .Review is not rehearing of the appeal all over again. Reviewing of a judgment is done by the Supreme Court only when some serious injustice could be seen in the judgment after it has been passed. The power of review can be exercised for correction of a mistake and not to substitute a view [6] . But the injustice should be really apparent and shouldn’t have contradictory opinions. The reason is in itself that if there could be two viewpoints in a case, the mistake is not that glaring or serious. Such a situation is not absolute or really obvious. So there wouldn’t naturally be a ground for “review".

The normal rule is that the judgment by the Supreme Court is final. A departure from the principle can be justified only when circumstances of a substantial and compelling character makes it necessary to do so [7] . Supreme Court being the highest forum and the apex court, it has to be really careful about the final judgement and make sure that there is no miscarriage of justice in a particular case. Justice is above all. The court should provide justice to the extent it’s within the human procedure of the administration of justice; the wrong must be checked and corrected. It should also be noted that review is not on any day an appeal in disguise [8] . It can’t be put in the same par as the original hearings of the case. Appeal is to a higher court from a lower court, as discussed earlier when a party is affected by the judgment.

The Supreme Court in M/s. Northern Indian Caterers (India) Ltd. V. Lt. Governor of Delhi [9] , said that, “ it is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearsing and a fresh decision of the case". When the Supreme Court reviews a judgment it does not mean that the Supreme Court is asking itself to run through the proceedings again and decide for a fresh judgment. It is just some kind of reconsideration to a case when the Supreme Court believes that there has been some mistake or miscarriage of justice. It is just an acceptance to the reality of apparent human philosophy which is inherent to fallibility [10] . Justice is the highest priority and thus review could only be done for the sake of justice. Until and unless there is something really obvious thing which has been missing or omitted in the judgement there could be no review as according to the normal rule, the decision of the Supreme Court is final.

Chapter 1

In civil cases, Order XL of the Supreme Court Rules, 1966 expressly provides that the Supreme Court would be governed by the provisions of Order 47, Rule 1 of the Code of Civil Procedure [11] . Under following grounds [12] an application for review petition could be filed against a judgment or an order-

Discovery of new evidences which wasn’t within the applicant’s knowledge and under normal circumstances couldn’t have been known the trial. These evidences are supposed to be so important such as it could have turned the judgment the other way.

Mistake or error apparent on the face of the record. It could be an error of fact or an error of law. For example, In Hindustan sugar Mills v. State of Rajasthan [13] , when the court found a very important missing fact after the judgment was declared, the Court upheld the review petition by the appellant and brought changes in the judgment.

Any other sufficient reason.

The power to review is not a routine process of the Supreme Court and until and unless court is not satisfied that the material error is a manifestation of wrong in a judgment, the Court wouldn’t go for review of a judgment.

Power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication [14] . If the error pointed out in the review petition was under a mistake and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error [15] . Review of a judgment is a serious matter. The power to review is used in rarest of rare cases. Review is impermissible without a glaring omission, evident mistake or similar ominous error. For instance the Supreme Court accepted the review petition in Hindustan sugar Mills v. State of Rajasthan [16] , because the assumption on which it had made certain observations in the earlier decision was shown to be unfounded. These, observations during the review were deleted from the judgment. The appellant had done a lot of cement transactions with the Government and during the trial it was held that the Government is not required to pay freight which is a part of the “sales price" and which is supposed to be included in the turnover for the purpose of taxability under both the Central [17] and the State [18] acts. But during the review petition, it was found out that the amount of ‘sales tax’ legally leviable from the appellant has to be reimbursed by the central Government to the appellant because of the discovery of a clause in a relevant act which worked in the appellant favor and turned the judgment. Here we could see that something that grave came up after the judgment was out and the Court had enough reasons to review its own judgment.

In another case, Kerela State Electricity Board V. Hitech Electronics & Hydrogen Ltd [19] ., the Supreme Court said that, ‘the appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that is an error apparent on the face of the record or for some reason akin thereto. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise".

So, it could be seen that the Supreme Court is really careful on when to use this exclusive power to review. It is not permissible for an erroneous decision to be ‘reheard and corrected’ [20] . There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter can only be corrected by exercise of the review jurisdiction [21] . A review petition has limited purpose.

In criminal cases, under Order XL, Rule 1 of the Supreme Court Rules, 1966, no review lies except on ground of error apparent on the face of the record [22] . Since, criminal cases are more important in a way because an accused is convicted for punishment or death sentence. Here Court deals with human lives so indeed they have to be more careful while declaring a judgment. Thus, the Supreme Court has to be even more careful when it comes to reviewing of a case. The mistake actually has to be apparent on the face of the record.

MISTAKE APPARENT ON THE FACE OF THE RECORD

It has to be self-evident and an obvious error. It should be confined within the four corners of the statutes. It could be pointed out without long arguments. An error on the face of the record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions.

The Supreme Court in G.L. Gupta v. D. H. Mehta [23] , the Supreme Court reviewed its judgment in a criminal appeal involving the violation of the Foreign Exchange Regulation Act, 1947 wherein it was brought to its attention that Section 23-C (2) of the Act was not brought to the notice of the Court, and modified the sentence of imprisonment to fine [24] .

A review may also be allowed if out of 3 judges 2 award death sentence and the third one awards life imprisonment [25] .

Chapter 2 PROCEDURAL

Article 137 empowers the Supreme Court to power to review its own judgments subject to the provisions of any law made by parliament or any rules made under Article 145 of the constitution.

In Civil Cases

The Supreme Court Rules made in exercise of the powers under article 145 of the Constitution prescribe in civil cases, review lies on any of the ground specified in Order 47, Rule 1 of the Code of Civil Procedure which provides [26] .

“Application for review of judgment-

Any person considering himself aggrieved-

By a order or decree from which an appeal is allowed, but from which, no appeal has been preferred

By a decree or order from which no appeal is allowed, or

By a decision on a reference from a Court of Small Causes.

According to the Court Rules, review petition is filed within 30 days from the date of the judgment or order sought to be reviewed under Order XL, Rule 2.

In criminal cases

An application for review shall be by a petition, and shall be filed within thirty days from the date of the judgment or order sought

CURATIVE PETITIONS

Even after the review petition filed under Article 137 is rejected by the court, there could be still one last option left. The court may still review the case under its inherent power but on very restricted ground [27] .

Such a curative petition can be filed under the Court’s inherent power that is to prevent abuse of justice on very strong grounds [28] . This could be to seek review of a decision which has become final after dismissal of a review petition under Article 137.

Variation of natural justice- the right to be heard, for example when the Court forgot to send a notice to the aggrieved person or not heard during a proceeding

A judge who participated in the decision- during the proceedings if the judge did not disclose his links to the part did not disclose. In such a situation the question of bias appears

Abuse of the process of court

There are certain proceedings imposed by the Supreme Court in furtherance to the abovementioned conditions [29] . The researcher has discussed them in brief due to constrain of word limit.

The ground discussed in the curative petition shall also be in the review petition

A senior advocate should certify all the provisions required to file a curative petition in the Supreme Court

If the court finds out at any stage that the petition is false or not of any merit, the petitioner may be imposed some exemplary costs.

ANALYSIS

There is a saying, Justice cannot just be seen, it must be felt, in the hearts of the people and in the soul of the country. Justice is above all indeed. Our judiciaries are not mechanized robots and computers when you know for sure that nothing could go wrong in the process. Judges are humans and humans are bound to make mistakes. Mistake once done has to be given a chance for fixing as well. This is the normal human psyche. So why not the decisions, when the justice is on stake? Like, in day to day life people make mistakes and amend mistakes, things change. Thus our Supreme Court, which is the paramount of justice, has also been given a special power. This power is exclusive. The constitution framers should be applauded for such a provision. On 6th June, 1949 this new Article came as an amendment and was moved by Dr. Ambedkar [30] . Dr. B. R. Ambedkar with others predicted beforehand for such a thing could happen anytime in future. Well, it’s true. Such situations have occurred in front of the Supreme Court when it had to review its own decisions. It is just accepting to the wide known fact that humans are not infallible. But the researcher does not mean that the judgment’s given out by the Court and the judges are anything less than perfect. Sometimes, you may overlook some grave evidence or some mistake that couldn’t have possibly been foreseen then. And thus, the Constitution of India grants the Supreme Court an exclusive right to review its own judgments in the rarest of rare cases under Article 137. This Article has to be obviously being read with the Article 145 subjected to the provisions of any law under the Parliament.

In our country, there are hierarchies of benches, where superior court overrules the orders and decisions of the inferior court. When a lower bench gives out a judgment then the aggrieved party files an appeal to the superior court. Like this a case gets transferred from a trial court to the High Court and then to the Supreme Court. In this process, the superior courts get ample amount of chances to go through the evidences and incase a lower court has missed out on any evidence or a point of law, the superior court will make sure it gets rectified. But after the case reaches the Supreme Court there is nothing else which is superior to the Supreme Court. So what happens after that? Thus, we can see that it would have been really unnecessary if all the courts were given the power to review. And why is only Supreme Court given such a power? That is because of the same reasons. There is no other body where the case could be appealed after the Supreme Court, so it is for the best that only the Supreme Court has been given such a power. But it has to be noted that review is not substituting a judgment. A judgment cannot be unsettled when declared. This is a fundamental principal. It is only reconsidering when the Supreme Court feels that something of grave nature has gone wrong in the judgment. Judgments cannot be taken lightly when they are declared. It has to be understood that power to review is only exercised in rarest of rare cases. We cannot take our judiciary casually. It is true that humans can make mistakes but we are not supposed to have only that in our minds. We have to believe that they are always right. In fact, we have to know that they are always right. So therefore if incase anything ever goes wrong it could obviously only be something of a really patent wrong. And in case there is such a grave wrong we know that we have a provision in our Constitution which has to be referred.