Jurisdiction is the foundation of the conceptual establishment of the legal domain. Essentially, it supplies the legal system the power and authority to engage and speak for the law. So the jurisprudence behind it is crucial for the edifice of the judicial machinery. The courts derive their power to adjudge the citizens of their country through the forms of jurisdiction prescribed to them. It is a concept so deeply entrenched that our conduct develops in consonance with it. The various forms of jurisdictions are combined with the aspects of freedom and limitation. This balanced mixture sets up the modality through which courts all around the world function.
In February 2020, the Supreme Court of India came across the question put forth by many eminent lawyers concerning the review jurisdiction of the court. The court in response defined that it has a wider power in this respect than what is presumed. Through this piece, the author seeks to delve deeper into the questions of the powers of the court in this regard.
The issue arose when a five-judge bench of the Supreme Court accepted the review petitions challenging the 2018 judgement in the Sabarimala Temple case and decided to address it to a larger bench. The Court clubbed other petitions relating to the entry of Muslim women to the dargah, the practice of Female Genital Mutilation in the Dawoodi Bohra community, and the ban on Parsi women to enter Agyari. The question that surfaced was whether the Court is bestowed with the power to attach with a review of a case, certain other fundamental questions that do not form part of the case in consideration.
The power to review its judgement is predicated through Order XLVII of the Supreme Court Rules, 2013. A review petition filed under Article 137 and read with this Order has to be within a limited jurisdiction. This operation can come into play in civil matters only when the grounds mentioned in Rule 1 of Order XLVII of the Code of Civil Procedure are satisfied. So the cardinal rules of reviewing a civil case are –
- a new fact has been discovered; or
- an apparent error has surfaced in the previous judgement; or
- any other sufficient ground in consonance with the Rule.
It is pertinent to consider here the power channelling from Article 142 of the Constitution. It enables the court to make any order consistent with the interests of justice. This essentially expands the power of the court, so that the achievement of justice is not subjected to any procedural or substantial bars. But the issue remains if these provisions suffice to provide the pedestal to the court to frame new legal issues in a review case and refer it to a larger bench.
As this case is initiated through a Public Interest Litigation, it is relevant to consider that as a legal principle, res judicata applies to it. But constructive res judicata cannot be made applicable in every case, regardless of the larger interest it serves. Therefore, the power to seek review is not barred by any procedural limitation. And the question here concerns itself with the gamut of such power.
CRITIQUE OF THE MOVE
The legal position can be settled if the cases are heard individually, and considered in totality. In the pursuance of this hearing, the facts of these cases would take a backseat. There seems to be a dearth of reasons as to why there is a need to formulate new legal issues in the exercise of review jurisdiction. This can set a bad precedent in law. In addition, a review cannot be kept pending because other issues of seemingly analogous nature are pending. These are matters to be dealt with under different jurisdictions of the court. This unreasonable overlapping could be a tool misused in the future.
It was stated in the case of Ishwar Dutt v. Gyan Chand,
“The scope of the power of review as envisaged under this Order is very limited and must be strictly confined only to the errors apparent.”
In Lily Thomas v. Union of India, the scope of the power of review was summarized as,
“The review cannot be treated like an appeal in disguise. Such powers can be exercised within the limits of the statute dealing with the exercise of power.”
The principles flowing from these judgements vividly entrench the position in law that the review jurisdiction is limited in its ambit. The alignment in the case shall be with the substantial question of law involved, and not with the questions of general importance.
Deeming Fiction of Similarity
The petitions clubbed in the present case seems to be of a similar nature if looked at from the surface view. But individual deliberation showcases how they significantly vary from one another. It is a matter of deep-seated religious beliefs of the followers of different religions. Each matter is governed by different religious credence. The amalgamation of these matters can result in conflicts with the principles of justice. There is a diverse concoction of socio-legal issues, which cannot be addressed together on the skewed basis of a common denominator being the issues related to women. As Hon’ble Justice Krishna Iyer in P.N. Eswara Iyer v. The Registrar, Supreme Court of India, stated,
“Constitutional Canons cannot be contravened even by pragmatic compulsions.”
Quandary of Maintainability
The nine-judge bench has duly acknowledged the objections pertaining to the reference made in the review petition. The subject of maintainability is now among the several issues that the bench would decide upon. This is a fairly absurd arrangement of legal issues. The deciding of a case depends upon the authority and jurisdiction that is prescribed to a court. For a decision to assume an authoritative position in law and settle a fundamental question, it is pertinent that the court delivering the same has the required authority and jurisdiction. And this has to exist prior to the deciding of a case. This authority should not be given birth simultaneously with the exercise of the same.
The question of maintainability should be decided first as it is a requisite for the court to address the contentions raised in the case. And only after settling this position, the court should move ahead. If this does not happen, it would be a case of symptomatic bias being created which runs against the principles of justice and fairness. The court has to take a stricter stance while deciding the matter of maintainability. For upholding the fairness principle, it has to be done prior to addressing the other legal issues. The Court should make it a two-part hearing.
The Supreme Court of India has a wider amplitude of powers when compared with other nations. Throughout its existence, it has employed judicial activism to fill in the voids which should have been filled by the other pillars of democracy. It is only through the judicial dynamism of the court that the non-enforceable directive principles have been made inherently enforceable through Article 21 of the Constitution. And it is this same court that set up the Vishakha Guidelines in view of the protection of women at the workplace. But what is to be considered is that if by the present move the court is blurring the lines between judicial activism and judicial interference. It is essential for the court to keep into consideration the parameters of judicial intervention. As the highest court of the land, it is honoured with the responsibility to function within the boundaries of the rule of law, so the initiatives of the court should be compliant with this principle.
Mili Budhiraja is a second-year student at the Faculty of Law, University of Delhi.