The unprecedented stream of review applications filed last week by the government, corporations and gadflies might pose a dilemma for the Supreme Court. The court is supposed to pronounce the last word in disputes, because there must be some finality to the adjudication process. “We are not final because we are infallible, but we are infallible only because we are final,” said US Supreme Court judge Robert Jackson.
But the Supreme Court here allows several avenues to reopen decided issues. Some of them are given dignified titles, like application for “clarification” or “modification”. The real intent is to re-argue lost cases.
Apart from these stratagems devised by canny lawyers, the Supreme Court itself has sanctified two methods to resurrect cases already disposed of. Article 137 of the Constitution confers power on it to review its own judgments. The court has made elaborate rules of procedure under Supreme Court Rules 1966. Under Order XL of the Supreme Court Rules, the court may review its judgment or order on the ground of an “error apparent on the face of the record”.
The Civil Procedure Code lays down the conditions under which a review application can be filed. Order XLVII prescribes two tough conditions. First, there must be the “discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the petitioner’s knowledge or could not be produced at the time when the order was passed”. Second, there should have been “some mistake or error apparent on the face of record”. The court is also given discretion to entertain a review application “on other sufficient reason”. Thus, a review is justifiable only if there are some blatant errors like wrong data or legal premises on which the decision turned.
According to the Supreme Court Rules, an application for review shall normally be disposed of “by circulation”, without any oral arguments, by the same judges who delivered the judgment. In more than 90 per cent of cases, they open the applications during the lunch recess and shut it with a terse dismissal order. In rare cases, if the judges feel that they have committed a gross error, the matter is set for hearing in open court.
The rules say once an application for review has been disposed of, no further application for review shall be entertained in the same matter. However, a review application is not the end of the matter.
In 2002, the Supreme Court opened an avenue for a second review, even after the first has been rejected. It was done through a judgment, Rupa Ashok Hurrah vs Ashok Hurrah, and not by amending the court rules. This new device is called a “curative petition”. It can be filed if a “senior” advocate (easy to find, but costly to be persuaded) certifies that the judgment needs re-examination. Then it is examined first by three senior-most judges and if they find substance, by the judges who originally passed the judgment. Again, the rate of dismissal is so high that only the rich and desperate would even try it.
Three years later, the court found that even this second review provision was being abused (Sumer vs State of UP). The judgment said: “The apprehension of the bench (which delivered the Hurra judgment) that the remedy provided may not open the flood gates for filing a second review petition has come true as is evident from the filing of large numbers of petitions. It was expected that the curative petitions will be filed in exceptional and in the rarest of rare cases, but in practice, it has just been opposite.”
The present situation is such that everyday a dozen review petitions or curative petitions are taken up by judges in chambers and routinely dismissed.
How many times can a case be reopened, that too at the apex level? If the review process goes on endlessly, “litigation would have no end, except when legal ingenuity is exhausted,” as an English judge said. This is especially so in our judicial system that is creaking at all joints.
Recently, the government filed a slew of review petitions, like in the judgments on ill-gotten money in Swiss accounts, the 2G spectrum scam, sanction to prosecute ministers and Salwa Judum. All these cases have been heard for months before the judgments were delivered. An ordinary person might wonder whether the judges are capable of committing blatant errors, “apparent on the face of the record”. It is another question whether the court can devote a few years more on such sensitive economic and human rights issues, keeping common litigants at the gate for years.
The court stated in the Hurra judgment that “the Almighty alone is the dispenser of absolute justice”. Judges can err. Even so, the search for perfect justice must at some stage yield to constitutional pragmatism. Judiciary must not open more revolving doors.
