[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 Ashwin Vardarajan.]
A nine-judge bench (“9JB”) of the Supreme Court of India (“SC” or “Court”), on 11th May, 2020, passed an order (for convenience, referred to as “the Order”) releasing the reasons why it is competent to decide on the questions referred to it vide the Sabarimala review judgment, a controversy concerning the entry of women into a temple located in Kerala. The review judgment (referred to as “Kantaru”) was passed on 14th November, 2019 in pursuance of the decision of the SC in Indian Young Lawyers Assn. v. State of Kerala, which struck down the law prohibiting women to enter into the temple.
The majority in Kantaru, quite interestingly, did not decide upon the review petitions on their merits and kept them pending. Rather they formulated certain questions in relation to the interpretation of Articles 25 and 26 of the Constitution of India (“Constitution”) after discussing two things: firstly, the similarity of the Sabarimala issues with those concerning muslim women, Parsi women, and the practice of female genital mutilation in the Dawoodi Bohra community; and secondly, it noted that there “seem[ed] to be an apparent conflict” between the decisions of the SC in Durgah Committee and Shirur Mutt. Owing to this, the bench referred these questions, inter alia, pertaining to the interpretation of Articles 25 and 26 of the Constitution and the permissible extent of judicial intervention in religious matters.
The Preliminary Question before Nine-Judge Bench
When a 9JB was constituted to decide upon the questions framed and referred to by majority in Kantaru, it was contended that the reference was not maintainable. One of the contentions asserted by those objecting to the reference was that the reviews were not maintainable under Order XLVII of the Supreme Court Rules, 2013 (“SC Rules”). The 9JB rejected this argument and held that Order XLVII of the SC Rules do not limit the power of the court to review its own judgments and orders. In order to arrive at this conclusion, they relied upon an odd interpretation of Order XLVII, Rule 1 of the SC Rules. This article aims to critique this interpretation.
The Court’s Reasoning
Article 137 of the Constitution confers on the SC the power to review its own judgments, and the manner in which the SC exercises its review jurisdiction has been provided under Order XLVII of the SC Rules. Order XLVII Rule 1 reads as follows:
The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.
The SC noted that the language employed by Order XLVII Rule 1 of the SC Rules was wide enough to not restrict the power of the Court to review its judgments. In order to derive this conclusion, it looked at the disjunctiveness in the rule’s language and held that the phrase “the court may review its judgment or order” and the portion after the ‘comma’, which appears after the said phrase, separates the limitations which the Court is subject to for exercising its review jurisdiction. This essentially meant the phrase “The Court may review its judgment or order” is the rule, and “but no application for review…the face of the record”, in Rule 1, is the exception; and this exception only pertains to civil and criminal proceedings before the SC.
Further, to buttress this stance, the Court observed that writs under Article 32 of the Constitution do not amount to civil or criminal proceedings. The only source of distinction it noted, when distinguishing between writ, civil and criminal proceedings, was that they are governed under different parts within the SC Rules. It observed that:
13. Part II of the Supreme Court Rules deals with Civil Appeals, Criminal Appeals and Special Leave Petitions under Article 136 of the Constitution. Order XXI refers to Special Leave Petitions (Civil) and Order XXII covers Special Leave Petitions (Criminal) proceedings. Petitions filed under Article 32 of the Constitution are dealt with under Order XXXII in Part III of the Supreme Court Rules. Sub-Rule 12 of Order XXXVIII refers to Public Interest Litigation. Admittedly, Writ Petition (Civil) No. 373 of 2006 was filed in public interest. The review petitions arise out of the judgment in the said Writ Petition.
14. Civil proceedings and criminal proceedings dealt with in Part II of the Rules are different from Writ Petitions covered by Part III of the Supreme Court Rules. The exceptions carved out in Order XLVII, Rule 1 of the Supreme Court Rules pertain only to civil and criminal proceedings. Writ Petitions filed under Article 32 of the Constitution of India do not fall within the purview of civil and criminal proceedings…” (emphasis supplied)
Accordingly, the SC, by merely tracing its authority to review its judgments, held that the review is maintainable.
First and foremost, for the SC, the only source of distinction between civil, criminal and writ proceedings seems to be the location of the proceedings within the SC Rules. Let us say, in a hypothetical situation, that civil and writ proceedings were dealt with in the same part of the SC Rules. In that situation, would writ proceedings be the same as civil ones? Upon a closer look of the Order, it seems like the SC distinguished between the three proceedings solely on the basis of positioning of the proceedings within the SC Rules without addressing substantive distinctions.
Further, the SC sidestepped its own decision in Kamlesh Verma v. Mayawati (“Kamlesh”) wherein the Court laid down the summary of principles it is required to follow when entertaining a review petition before it. Thus, if one was to contend for the review jurisdiction to be exercised, the Court ought to see whether such an argument falls within the one of the principles enumerated in Kamlesh.
The principles enumerated in Kamlesh and the interpretation of the Order cannot co-exist, as the latter completely does away with the former and makes it look like a dead letter on a parchment. Simply reasoning that the only limitation before the Court, bizarrely identified by it in the in the rule’s grammar, is in cases of criminal or civil proceedings, bypasses Constitutional and legal principles. Quite woefully, the 9JB observed that “there is no fetter in the exercise of the jurisdiction of this Court in review petitions of judgments or orders arising out of proceedings other than civil and criminal proceedings.” (paragraph 12 of the Order; emphasis supplied).
It is unclear why the SC did not acknowledge, or even pay heed to the principles developed by its past precedents on the exercise of review jurisdiction. The decision of the SC in Kamlesh was directly relevant, as it delved into several of the Court’s past decisions and derived the principles surrounding its powers to exercise review jurisdiction (see paragraphs 12-19 in Kamlesh) In fact, the minority in Kantaru strictly conformed to the principles enumerated in Kamlesh when dismissing the review petitions before it. Thus, the Order has not only created conceptual friction in relation to established principles of the Court’s exercise of review jurisdiction, but also is an example of how the institution fails to conform to, or even acknowledge, its own decisions.
Additionally, the SC initially held that it has no fetter on the powers to review its own decisions in relation to any proceedings except those relating to civil or criminal, and then distinguished only between writ, civil and criminal proceedings. What about, for instance, Presidential references under Article 143? Are they amenable to the unfetteringly exercisable review jurisdiction too, or are they civil proceedings? In the future, if a different set of judges feel differently about a certain decision, for personal or political reasons, and admit the matter for review, if and when contended before them in relation to such a Presidential reference then the judges need not even provide adequate reasons when exercising review jurisdiction in any proceedings other than civil or criminal ones. Such a lose interpretation even casts doubt on whether the SC actually aimed to provide adequate reasons in the present Order, or merely engage in a formality.
The SC, further, conferred on itself unlimited powers review any of its decisions – other and those relating to civil and criminal proceedings – without laying down adequate determining principles of exercising it whilst side-lining pre-established determining principles on exercising review jurisdiction. The Order seems to have opened the pandora’s box for the SC to exercise review jurisdiction on its whims and fancies without auditing accountability to any legal principles. This is very troubling, since the SC has, historically, disdained entertaining review petitions, often referring to them as a “serious step and [a] reluctant resort”.
At the end of the day, a judicial institution reviewing its own decision somewhere demeans their credibility of its own judges’ wisdom. Procedurally relaxing the power to do so begs the question as to whether the SC sees this issue the same way.
- The author expresses his gratitude to Rupam Jha for her inputs on this essay.