Constitution of India

Article 137 – Review of judgments or orders by the Supreme Court.

The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next Article in the series on constitutional provisions in order to aid our readers in understanding them.

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.

Article 137 enables the Supreme Court to review its own judgments, subject to the provisions of any law made by Parliament. This power is exercisable under rules made by the court under article 145. Review will lie in the Supreme Court on the following grounds:

  1. discovery of new important matters of evidence;
  2. mistake or error on the face of the record; and
  3. any other sufficient reason.

The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing. The Court may also re-open its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. Power to review its judgments has been conferred on the Supreme Court by article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules under article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of the record (Order XL, Rule 1 of the Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be re-considered except ‘where a glaring omission or patent mistake or grave error has crept in earlier by judicial fallibility.

A judgment of the final court of the land is final. A review of such a judgment is an exceptional phenomenon, permitted only where a grave and glaring error or other well-established ground is made out. The finality of the order of the highest court of the land should not be lightly unsettled.

The Supreme Court has inherent jurisdiction to reconsider and revise its earlier decisions. In exercising this inherent power, however, it would naturally like to impose certain reasonable limitations and would be reluctant to entertain pleas for the re-consideration and revision of its earlier decisions, unless it is satisfied that there are compelling and substantial reasons to do so. It is general judicial experience that in matters of law involving questions of construing statutory or constitutional provisions, two views are often reasonably possible and when judicial approach has to make a choice between the two reasonably possible views, the process of decision-making is often very difficult and delicate. When the Supreme Court hears appeals against decisions of the High Courts and is required to consider the propriety or correctness of the view taken by the High Courts in any point of law, it would be open to the Supreme Court to hold that though the view taken by the High Court is reasonably possible, the alternative view which is also reasonably possible is better and should be preferred. In such a case, the choice is between the view taken by the High Court whose judgment is under appeal, and the alternative view which appears to the Supreme Court to be more reasonable; and in accepting its own view in preference to that of the High Court, this Court would be discharging its duty as a Court of Appeal. But different considerations must inevitably arise where a previous decision of the Supreme Court has taken a particular view as to the construction of a statutory provision. When it is urged that the view already taken by the Supreme Court should be reviewed and revised, it may not necessarily be an adequate reason for such review and revision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed on the subsequent occasion is more reasonable. In reviewing and revising its earlier decision, the Court should ask itself whether in the interest of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When the Court decides questions of law, its decisions are, under “article 141, binding on all courts within the territory of India”, and so, it must be the constant endeavour and concern of the Supreme Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by the Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error, but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations.

A third party has no locus standi to challenge the conviction and sentence awarded to certain convicts.

In a review petition, an error of substantial nature only can be reviewed. When a plea of self-defence is taken and if the court is satisfied that it is probable and there is basis for the same and if the benefit is to be given to the accused then the legality of the conviction itself is involved. The question of self-defence is one of both law and fact, if the court is satisfied about probability and basis of such plea such a question can be examined.

The pronouncements of every Division Bench of the Court are pronouncements of the Court itself. A larger bench, merely on the strength of its numbers, cannot undo the finality of the decisions of other division benches. If the decision suffers from an error the only way to correct it, is to go in Review under article 137 read with Order 40, rule 1 framed under article 145 before “as far as is practicable” the same judges. This is not a matter merely of some dispensable procedural ‘form’ but the requirement of substance. The reported decisions on the review power under the Civil Procedure Code when it had a similar provision for the same judges hearing the matter demonstrate the high purpose sought to be served thereby.

No error could be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one judge as self evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.

Article 137 of the Constitution is a special power with the Supreme Court to review any judgment pronounced or order made by it. An order passed in a criminal case can be reviewed and set aside only if there are errors apparent on the record.

The normal procedure is that applications for review are not, unless the Court directs, listed for open hearing in Court, at the initial stage at least, before ordering notice to the other side and could be summarily rejected, if found to be of no prima facie merit. By describing an application one for “clarification” or “modification” though it is really one of review a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open court. What cannot be done directly cannot be permitted to be done indirectly. The Court should not permit hearing of such an application for “clarification”, “modification” or “recall” if the application is in substance a clever move for review.

Source: Dr Subhash C Kashyap, Constitutional Law of India

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