Hail to the Chief: Of procedural legerdemain

That the Supreme Court cannot sit in appeal over itself has been settled law for almost a century, but two recent incidents signal a perverse diversion from this established principle of rule of law, writes Rohin Bhatt.

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THE Supreme Court is creating a new jurisdiction for itself of an intra-court appeal. It has always been trite law that the Supreme Court (or its predecessor, the Federal Court) does not sit in appeal over itself. This law was settled as far back as 1940.

In Raja Prithwi Chand Lall Choudhry etc. versus Rai Bahadur Sukhraj Rai & Ors, the Federal Court observed, "This court will not sit as a court of appeal from its own decisions, nor will it entertain applications to review on the ground only that one of the parties in the case conceives himself to be aggrieved by the decision.

"It would, in our opinion, be intolerable and most prejudicial to the public interest if cases once decided by the court could be re-opened and re-heard. There is a salutary maxim which ought to be observed by all courts of last resort— Interest reipublicae ut sit finis litium (it is in the interest of the State that there should be an end to litigation).

"Its strict observance may occasionally entail hardship upon individual litigants. However, the mischief arising from that source must be small compared to the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this."

Also read: Bhopal gas tragedy: Union government's curative petition dismissed – The Leaflet

Under the usual procedure of the Supreme Court, any parties aggrieved by an Order are required to file a review petition under Article 137 of the Constitution of India.

The Supreme Court and the framers of the Constitution realised that the court is not infallible. Hence, it evolved a process of review, whereby the case which is sought to be re-opened is heard by the same Bench.

A review petition is tested on narrow grounds such as the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him or a mistake or error apparent on the face of the record only.

It is a jurisdiction which is exercised by the court with great circumspection. Usually, review petitions are decided in chambers, unless an Order is made to hear the petition in the open court.

Also read: Centre moves Supreme Court to seek stipulated time for death convicts to file a curative petition – The Leaflet

If the parties are still dissatisfied with the review petition, they may file a curative petition. This jurisdiction is exercised with even more circumspection. Curative petitions are heard by the five senior-most judges of the Supreme Court.

In 2002, in Rupa Ashok Hurra versus Ashok Hurra and Anr, the Supreme Court evolved a new jurisdiction as a final remedy. A five-judge Constitution Bench recognised 'curative petitions' to hear review petitions that were dismissed.

A curative petition is heard only on the grounds of violation of principles of natural justice, question of bias against the presiding judge, and abuse of the court process.

This remedy is exercised so sparingly that to date, only four such review petitions have been heard by the court, namely in: National Commission for Women versus Bhaskar Lal Sharma, Navneet Kaur versus NCT Delhi, Yakub Menon versus State of Maharashtra, and Union Carbide versus Union of India.

There is much foresight in the limits imposed by the Constitution and the Supreme Court. Litigation has to end at some point and achieve finality. The words of Justice Jackson in Brown versus Allen are pretty apposite, "We are not final because we are infallible, but we are infallible only because we are final."

Yet, in recent times, there has been a shocking irregular and illegal procedure. The modus operandi for those who want to avail of this new intra-court appeal is simple: File a recall application and mention it before the Chief Justice's Bench. The Chief Justice will stay the Order that you filed a recall application against. It has happened twice now: first, in Ritu Chhabaria versus Union of India and Others on default bail, and second, in the recent case on abortion.

In both cases, the Union of India mentioned it, and the wholly illegal remedy was immediately granted. I use my words with circumspection here.

Let us examine what happened in each case and how the Union of India got its way in both these cases.

The Ritu Chhabaria case

First, in Ritu Chhabaria, the Supreme Court, in an Article 32 petition, held that filing incomplete chargesheets would not extinguish the right to default bail guaranteed under Section 167(2) of the Code of Criminal Procedure (CrPC). Such a right can only be invalidated if the investigation is completed within a 60 or 90 day period, as the case may be.

Thus, a right to default bail was grounded in Article 21 of the Constitution of India. What happened next was quite interesting. On May 1, 2023, the Solicitor General of India Tushar Mehta mentioned recall of the judgment before a Bench comprising the Chief Justice of India (CJI) Dr D.Y. Chandrachud. 

The Chief Justice ordered the matter to be listed before a three-judge Bench for a hearing on May 4, 2023. It also ordered that all default bail applications that any court filed based on the Ritu Chhabaria judgment would be deferred till beyond May 4, 2023.

Also read: CBI to file review petition in default bail matter in which a CJI-led Bench had acted as appellate court over another Bench of SC – The Leaflet

Subsequently, on May 12, 2023 the Supreme Court clarified that lower courts could still grant default bail, but such decisions had to be independent of, and could not rely on, the Ritu Chhabaria judgment. The first case where the Union of India realised it could get its way by a strange recall application.

The abortion case

Secondly, in the recent case of abortion, Additional Solicitor General Aishwarya Bhati made an oral mentioning upon receiving an email from an All India Institute of Medical Science (AIIMS), New Delhi doctor. In an ex parte oral mentioning, the CJI directed the AIIMS doctors to defer termination of the pregnancy.

The matter was subsequently taken up by the original Bench of Justice Nagaratna and Hima Kohli, who differed on allowing the abortion. But Justice Nagaratna rightly came down heavily on the Additional Solicitor General.

"We do not appreciate this. If the Union of India starts doing this, private parties will also start doing this. We are an integral court. Every Bench of the Supreme Court is the Supreme Court," she thundered.

She further said, "When one Bench of this court decides a matter, without any pleadings whatsoever, how can you move an intra-court appeal before a three-judge Bench of this court as an interference with the Order of this court?"

Conclusion

There are a few things we need to understand at this juncture. First, that the Union has created a new procedure where any judgment that it is displeased with is sought to be recalled. In allowing it, the CJI has, and as Gautam Bhatia noted, "Effectively puts the precedent of the court entirely at the mercy of the predilections of a particular Chief Justice."

Secondly, this new recall jurisdiction is illegal and without legal backing in either precedent, Constitution or even the Rules framed by the Supreme Court. The Chief Justice is merely 'master of the roster' and the first among equals.

To that end, he may assign matters to various Benches. He cannot, however, sit in appeal over the Orders of those Benches, unless he is in a larger Bench where the propriety of the previous decision is doubted, in review or curative jurisdictions.

The power to assign cases is exercised on the administrative side, not the judicial one. Allowing a court of the Chief Justice to become an appellate court is dangerous. It is also illegal and ignores the fact that we are a polyvocal court. If the Union does not like the outcome of a case, they must suck it up, like every other litigant does.

Thirdly, in both these cases, the issue was liberty and life. The rights were surprisingly suspended on oral mentioning, but without an Order. This is unconscionable in any country governed by the rule of law. This procedural legerdemain and absurdity by the Union of India needs to be nipped in the bud.

Also read:Why is the Supreme Court's recent judgment on abortion hailed as progressive? – The Leaflet

The court seems to have played along. Ex parte oral mentioning without pleadings would not be allowed for any private litigant. Why is it being allowed for the Union of India?

One hopes that good sense prevails and any further verdict that the Union does not like is not stayed through an oral Order.