[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]
[This is a Guest Post by Shivendra Singh.]
An unexpected turn of events has led to the formulation of a preliminary question of law before the nine-judge Bench in Court No.1 of the Supreme Court of India. The issue formulated by the Hon’ble Court for adjudication is: “Whether this Court can refer questions of law to a larger Bench in a Review Petition”? Mr. Fali Nariman, Senior Advocate has essentially doubted the competence of a Bench hearing a Review Petition to refer questions of law to a larger Bench.
Scope of the Post
At the outset, I must clarify that this short article is being written as a response to Gautam’s post and I wish to express no opinion on the merits of the matter. This article is restricted only to the preliminary question before the Court on 6.2.2020 – which has now been answered in the affirmative.
Source of Review Jurisdiction of the Supreme Court
One of the issues that has arisen is the applicability of Order VI, Rule 2 of the Supreme Court Rules, 2013 (the “Supreme Court Rules”) to review petitions. The substantive source of the creation of the review jurisdiction of the Supreme Court is not to be traced to the Supreme Court Rules but Article 137 of the Constitution of India which reads as under:
“137. Review of judgments or orders by the Supreme Court- Subject to the provisions of any law made by Parliament, or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it”.
In fact, Article 145(1)(e) of the Constitution specifically provides as under:
“145. Rules of Court, etc.- 145. (1) Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including—
(e) rules as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review including the time within which applications to the Court for such review are to be entered.”
Interpretation of Order VI, Rule 2 of the Supreme Court Rules
One must look at Order XLVII of the Supreme Court Rules against the substantive backdrop of Article 137 read with Article 145(1)(e) of the Constitution. Order XLVII of the Supreme Court Rules is neatly divided into five sub-rules. Now the question is whether Order VI of the Supreme Court Rules which is titled ‘Constitution of Division Courts and Powers of a Single Judge’ would be applicable to Order XLVII of the Supreme Court Rules. Order VI, Rule 2 of the Supreme Court Rules reads as under:
“Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing for it”.
The amplitude of the words ‘any cause’, ‘appeal’ or ‘other proceeding’ in Order VI, Rule 2 of the Supreme Court Rules is certainly wide enough to include review petitions under Order XLVII. Any other interpretation will not only be against the settled cannon of statutory interpretation that the rules in a subordinate legislation should be read holistically, but will also amount to imposing an artificial restriction on the untrammelled jurisdiction of the Supreme Court to refer matters of substantial public importance to a larger bench while considering review petitions under Order XLVII.
Prior Instance of Reference to a Larger Bench in Review Jurisdiction
Even otherwise, there has been at least one instance of the Supreme Court actually referring a question of law to a larger Bench/Constitution Bench in exercise of its review jurisdiction. I urge the readers to go through the judgment in Behram Khurshed Pesikaka v. The State of Bombay reported in  1 SCR 613 which was an appeal by special leave from a judgment of the Bombay High Court reversing the order of acquittal passed in favour of the appellant Behram Khurshed Pesikaka by the Trial Court, and, convicting him of an offence under section 66(b) of the Bombay Prohibition Act, 1949, and sentencing him to one month’s rigorous imprisonment and a fine of Rs. 500. A Bench of three learned judges heard the Special Leave Petition and dismissed it on 19.2.1954 by a majority of 2:1 (separate majority opinions of Justices Jagannadhadas and Venkatarama Ayyar). Justice Bhagwati, who dissented, allowed the appeal and acquitted the appellant Pesikaka. The majority judges, while maintaining the conviction, were pleased to reduce the sentence imposed upon Pesikaka to that already undergone by him. Being aggrieved, Pesikaka filed an application for review under Article 137 of the Constitution and Justice Bhagwati passed the following order on 28.4.1954 for the same Bench:
“58. We grant the review and reopen the case to enable us to obtain the opinion of a larger Bench on the constitutional question raised in the judgments previously delivered by us. Under proviso to article 145 of the Constitution, we refer the following question for the opinion of the Constitution Bench of the Court.
“What is the effect of the declaration in The State of Bombay and Another v. F. N. Balsara ( S.C.R. 682) that clause (b) of section 13 of the Bombay Prohibition Act, 1949, is void, under article 13(1) of the Constitution, in so far as it affects the consumption or use of liquid medicinal or toilet preparation containing alcohol, on the ground that it infringes article 19(1)(f) of the Constitution?”
59. On receipt of the opinion the case will be taken up for further consideration.”
On 23.9.1954, the Constitution Bench gave its opinion on the referred question and on the very next day, the original Bench quashed the conviction of the appellant Pesikaka. It is also important to point out that the original Bench did not identify any error apparent on the face of the record or any other patent error to review its final order 19.2.1954. The tables were turned in favour of Pesikaka only because of the reference to the Constitution Bench, and the favourable opinion rendered by it on the question.
To conclude, there is no reason to hold that the Supreme Court cannot refer questions of law to a larger Bench in a review petition.