Has not Article 137 of the constitution providing for review become otiose, so too, the curative jurisprudence created through judicial legislation, unknown to jurisprudence elsewhere in the world

20.8.2021

Has not Article 137 of the constitution providing for review become otiose, so too, the curative jurisprudence created through judicial legislation, unknown to jurisprudence elsewhere in the world.

One of the senior most members of the NLC, out of anguish that SLPs, review petitions and curative petitions are dismissed in one-line/stereotypical orders, preferred an application under the RTI Act seeking the data concerning the total number of petitions filed under each category, the average time taken for hearing and final disposal and the percentage of such petitions being allowed or dismissed. The Registry of the Supreme Court replied to him saying that the Court does not maintain any data concerning the same, even as to the number of matters dismissed or allowed. However, he did not give up. He sought the help of member of Parliament. And the said MP raised a question in the Parliament. The then Hon’ble Minister for Law and Justice answered the said query on the floor of the House on 3.2.2021 thus:

In the 10yr period between 2011 to 2020

a)Review petitions (civil) dismissed- 19710
Allowed- 92

b) Review Petitions (Crl)
Dismissed- 6087
Allowed- 48

c) Curative petitions (civil)
Dismissed- 2155
Allowed- 0

d) Curative petitions (Crl)
Dismissed- 620
Allowed- 3

So far as curative petitions go, I am not concerned.

The curative jurisprudence itself is against the constitution, a judicial legislation, which no court has the power to do. I consider this mechanism to be in ignorance of the elementary jurisprudence. The court failed to comprehend the distinction between res judicata and stare decisis and mistook one for the other, which would be evident anyone who reads Hurra v. Hurra, by which judgment this mechanism of reopening a case even after review has been dismissed came to be invented.

I, in all humility and with least doubt, assert that Review petitions are all mechanically dismissed, passing cyclostyle orders. In the NJAC case, for filing a review, photocopies of the judgement running into 1046 pages costing more Rs.20,000 had to taken on the Registry’s insistence despite the judgment being reported, only to be told that it has been dismissed in chambers, without any hearing. Even our review of the Judges-2 case by which the Collegium was created, was dismissed in chambers, without any hearing.

It is an irony that it is Justice Krishna Iyer, the legend who fought for the right to be heard and open court hearing, who by authoring the judgement in P.N Eswara Iyer’s case, 1980 AIR 808, held that the judges can “hear” cases in chambers by circulation. Hearing whom, when neither parties to the lis are allowed to enter the chambers? It is a greater irony that Justice Krishna Iyer buried the concept of open court hearing after extolling the virtue of open court hearing in his inimitable flowery language.

Article 137 is dead. We are writing an obituary thereof, as is evident from the minister’s reply.

What we are facing is of an even greater danger namely the burial of Article 136, the right to leave to appeal, which has become the exclusive privilege of the coterie of lawyers who have mastered the art of sycophancy. Others face the risk of their cases being dismissed in a hearing which lasts for one or two minutes, with one-line orders stating that the SLP is dismissed.

What is the solution, could the judges be entirely blamed? To be fair, no. The powerful in Delhi, to promote their vested interests, took away the exclusive jurisdiction which the Civil Court enjoyed as a constitutional court of plenary jurisdiction, empowered, competent and duty bound to adjudicate upon even the constitutionality of statutes. Prior to the amendment of the Constitution in the year 1963, the High Courts of Bombay, Calcutta or Madras could not even have issued a writ to the union government situated in Delhi because it was beyond their territorial limits. In contrast, the City Civil Court in Bombay or a Munsiff in Cochin, could have entertained a plea challenging the constitutionality of an Act of Parliament, which it was duty bound, under the proviso to Section 113 of the CPC, to refer to the High Court, which obligation was not prevalent when the constitution came into force and came later by virtue of an amendment.