The Supreme Court is final but not infallible
By Soli J Sorabjee | Published: 08th September 2013 07:13 AM |
To err is human. That is the reason why judgments of courts, manned by human beings who are not guaranteed the divine gift of infallibility, are subject to corrective remedies of appeal and revisions. However, when a matter is finally decided by the Supreme Court, there is no further appeal from its judgment. The principle of finality of a judgment is an important element in the administration of justice because it ensures certainty and continuity. Certainty in law would be seriously eroded if the court differs from the view pronounced by it in the judgment of which review is sought. The principle of finality is insisted upon not because the judgment of the apex court is infallible but because a final decision on merits in a lis between the parties subserves the maxim, interest reipublicae ut sit finis litium, which in simple language means that it is in the interest of the State that there should be an end to litigation. In order to remedy miscarriage of justice, however, the review is provided. It must be remembered that review is not a second or a further appeal. Power of review is exercised when there is an error apparent on the face of the record. For example, if the judgment under review has relied upon a statutory provision which was repealed and was not in existence, or the judgment under review has overlooked previous binding Supreme Court judgments on the same point. A recent judgment by a Bench of the Supreme Court comprising Justices A K Patnaik and A K Sikri in the case of Namit Sharma has held that where a reasoning in the judgment under review is at variance with the clear and simple language in a statute review, jurisdiction can be exercised.
A court is not easily persuaded that its view was erroneous and in a vast majority of cases review petitions are dismissed. However, where the judicial conscience of the Bench which pronounced the judgment under review is pricked, the court does not stand on its ego but acknowledges its error and gives the requisite relief. In Sharma’s case, the court had reached the conclusion that judicial members should be appointed in the information commissions. The Bench found this requirement to be unwarranted by the language of the statute. Therefore, it rightly and graciously acknowledged its error and exercised its review jurisdiction for which the Bench certainly deserves credit.
It is interesting that in another case, the Bench comprising Justices A K Patnaik and S J Mukhopadhaya refused to exercise its review jurisdiction in the case decided by it regarding vacation of his or her seat by a member of Parliament or state legislature immediately upon conviction because the judgment did not suffer from any patent errors of law apparent on the record. The Bench rightly observed that if another view is possible, that is no ground for review. The Bench clarified that the government was free to amend the laws to undo the judgment as the court had merely interpreted the provisions of the Representation of People Act, 1951 and the Constitution while delivering its judgment. The Bench pungently observed that there was a lacuna in the law which was the result of clumsy drafting and instead of accepting its mistake, the government was blaming the court for encroaching upon its territory. According to the Bench, its conclusions had been vindicated because the provisions of a fresh Bill prepared by the government on the subject were on the lines of its judgment. It is significant that the same Bench agreed to review its judgment debarring jailed candidates from contesting elections apparently because of the injustice it would cause to the jailed, not convicted, candidates. In the end, it is a question of whether the judgment under review shakes the judicial conscience which of course can vary from Bench to Bench.