A recent case of Review in Supreme Court that I worked upon opened my mind up to certain intriguing questions that I never thought before. As a law student, I have studied the review jurisdiction of Supreme Court in a superficial manner, under the constitutional law. However, the real world experience of drafting and filing a review petition was a world apart. Though theoretically I was sound I experienced a lot of difficulties in putting it to the best use possible. It was like an undelectable mix of dessert topped with salt for icing. Maybe I am one of those victims of the curse that most suffers here, the practice-academia disconnect. I was merely taught about what was review jurisdiction of Supreme Court of India, that too in a dilettantish way.
Coming to the topic of this post,
Though Article 137 of Constitution of India provides the power of review to the Supreme Court of India, its implementation is carried out through the rules that are framed by the Supreme Court, vide the powers vested in it by Article 145 of the Constitution. The Supreme Court Rules, coming into force for the first time in 15th January 1966, governs the procedures that are to be followed in the proceedings before the apex court of the country. This was subsequently repealed, considering the changing circumstances the change in circumstances with time and the necessity to keep pace with it, with The Supreme Court Rules, 2013, coming into force on 19th August, 2014.
In this particular brief that I worked upon, which has a history of long and protracted litigation, a Special Leave Petition was filed against the order judgement which the petitioner lost. Now he wanted to try his luck in a review of the judgement. It was only after filing of the review petition that I observed something peculiar in the Supreme Court Rules that governs the review petition. Under Part IV, Order XLVII; Rule 3 dictates that an application for review shall be disposed of by circulation, without any oral arguments. The provision itself is extracted below:
"Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed."
This was the first instance, which I encountered, where a person’s right to be heard publicly is curtailed expressly. This gives rise to a situation where a person's case is decided upon secretly, in the chambers of the judges, through the process of circulation, without giving an opportunity to present oral arguments. The hearing becomes 'deaf' without it. The purpose of this provision, ostensibly, is to prevent wastage of court's precious time, however, it in effect refuses a person a right as basic as to make oral presentation of his case in public. Moreover, this denial of this right, it can be argued, leads to violation of a person’s fundamental right equality enshrined under Article 14 and the procedural fairness under Article 21. Numerous case laws have expounded these two rights and it will be trite to mention them here emphasizing their importance as a fundamental right. The irony is that it is very same Supreme Court, which created this unconstitutional rule, in numerous cases acted as the paragon of justice, upholding these rights.
The previous version of this rule, introduced under Order 40, Rules 2 (1) & 3 of the Supreme Court Rules, 1966 as an amendment, was challenged in the case of P.N. Eshwara Iyer Vs. The Registrar, Supreme Court of India.[1] The rampant filing of review petitions, without much basis legally, made the court to think of a way to curb it, leading to the amendment that gave away the oral arguments for disposal through circulation. Two important arguments that were taken by the petitioner to invalidate the rule are (i) Scuttling of oral hearing is subversive of a basic creed that public justice shall be rendered from the public seat. (ii) A Review is a judicial process and its proceedings must not run away from the processual jurisprudence. However, the court rejected the arguments and upheld the constitutional validity of the rule. Justice. V.R. Krishna Iyer, writing on behalf of his brother judges Murtaza Fazal Ali and D.A.Desai J.J. reasoning can be condensed thusly
1. Laxity in certification (to be given by the lawyer that there exists reasonably good grounds for a review) and ‘promiscuity’ in filing review applications has crowded the court with ‘unwanted review babies’.
2. In order to curb the reckless filing of reviews, a process of preliminary screening is a need, which is established through this rule as the disposing of through circulation.
3. Oral hearing has been substituted by written submissions and it adequately provides an opportunity to the petitioner a hearing. Moreover, the right to be heard is of essence but hearing does not mean more than a fair opportunity to present one’s point on a dispute, followed by a fair consideration thereof by fair-minded judges.
4. ‘Circulation’, in the judicial context, merely means, not in court through oral arguments, but by discussion at a judicial conference. Judges, even under the amended rule, must meet, collectively cerebrate and reach conclusions.
5. A Review is not an original hearing and a second hearing of an order that is already passed after a full hearing is inept. The distinction between an original application vis-à-vis an application for review for the enforcement of fundamental right was observed as made in the case of Lala Ram’s Case.[2] There it was observed that an application for review is not to enforce a fundamental right but to reopen an order vitiated by an error on the face of the record. The enforcement of the fundamental right therefore is therefore a mere consequence of the review.
In the same case Pathak J. with A.D. Koushal J. also came to the same conclusion in a differently worded judgment. With this the matter was put to rest.
The question again came up for consideration in a batch of cases (It is interesting to note here that Yakub Memon’s petition was also one amongst them), in the context of a review in matters involving death sentences.[3] This time however the rule that was challenged was under the latest The Supreme Court Rules, 2013, albeit with the same wordings of the previous one in this regard. The question that came up for consideration before the court was, whether the rule holds good in the cases where a review is sought against an order confirming death penalty. Again the questions over right to life, irreversibility of a death sentence, importance of oral submissions, procedure for review of death sentence cases were considered. The majority opinion after considering and clarifying the P.N. Eshwara Iyer case ruled that Order 40, Rule 3 sufficiently meets the requirement of the principle of audi alteram partem. However, it clarified, in the cases death sentence the question is something that is over the life or death of a person. Therefore, even a remote chance of deviating from a decision which is sought to be reviewed would justify an oral hearing. It is too precious to be parted with. If it is found that such a sentence is not warranted, after the sentence is executed, it would serve no purpose. Thus the court found that a limited oral hearing, even at the stage of review, is mandated under Article 21 of Constitution in all the death cases. To support its cause the court relied upon the fact that Court’s overcrowded docket would be able to manage a limited oral hearing of 30 minutes in death sentence cases, which are numerically filed at the rate of 60 per annum. The court ruled it to have a prospective effect.
Jasti Chelameshwar J. dissenting from the majority held that an obligation to guarantee for such rights are a given under the constitution; however, it does not extend so far as to compulsorily giving an oral hearing in every case where a review is sought by a condemned convict. The reasoning, sound in its own right, as provided is as follows.
1. Barring the contingency contemplated under Article 134, the makers of the Constitution did not even think it fit to provide an appeal to the Supreme Court even in cases of death penalty.
2. In cases other than that are bought as matter of right under Article 134, the Court’s jurisdiction is discretionary. Therefore, Article 137 of Constitution does not confer any right to any person to seek a review, rather it recognises the authority of Supreme Court to review its own judgements.
3. The rule of audi alteram partem do not take within its sweep the right to make oral submissions in every case. It all depends upon the demands of justice in a given case.
It is interesting in the way in which the Supreme Court has opened up the avenue to a limited extent for the death penalty cases while at the same time it tries in every possible way not to open the gates of oral hearing in any manner for other cases. How much ever generous it may sound to be, for providing a leeway for death penalty cases, one fact has been firmly established in both the cases even in the dissent that was written in them no one has entertained the possibility of giving the opportunity for an oral presentation of the case. Some feel that it not fair for a person to be deprived of the advantage a party will get because of the oratorical skills of an advocate and also mere practical consideration, that most of review that were filed are futile, cannot outweigh the rights of a person. Rightfully said. The fundamental rights are never intended to be protected in degrees like in this case where death penalty is given preference over others. It is weird that it is the same court that talked about procedural fairness all through its judgment ending it with a conclusion that such a right cannot be vested in all cases in a review. If at all there is a problem, it is merely systemic that must be rectified through other means, rather than curtailing the rights of a person. Imposition of exemplary costs, though it fails to deter most of the parties or rather the advocates, limiting the time granted for oral arguments and so on. Looking back at the history of Supreme Court and its exemplary activism, this is in fact surprising. Maybe with changing needs of the time the perception of freedom has changed too.
