REVIDERE, REVEEIR, REVIEW

The word 'review' comes from the latin word 'revidere' re - "again" + videre "to see". To review means 'to see again'. Getting the Supreme Court to do that is no easy task. Yet, two, recent Supreme Court judgments have raised 'review petition' cries. In the Vodafone judgment, 25 chartered accountants empathetic to the revenue's cause have written to the finance minister urging him to consider filing a review petition. Doubt that one will stand a chance. But last week's Supreme Court judgment in the 2G case could face more than one review petition. Word has it that from jailed telecom minister a raja to several telecom companies penalised by the order and even the government - they are all mulling review petitions. Now I don't know if any or all will file and if they do, whether the petitions have any chance at success but I hear in the face of failure some may even persist with a curative petition. That will happen when it happens. For today we thought it would be interesting to look back at the history of review petitions and when & how they work. Payaswini Upadhyay does the needful

The year was 1980 - Northern India Caterers won a sales tax case in the Supreme Court. Revenue filed a review petition and Soli Sorabjee , the then additional solicitor general even provided new legal material not argued before . But his petition for a review was dismissed by the 3 judge bench. One of them, Justice Krishna Iyer, commented that "a plea of review, unless the first judicial view is manifestly distorted, is like asking for the moon". That in a line sums up how India's apex court has viewed review petitions.

The Supreme Court draws the power to review its orders from Article 137 of the constitution. In 1966 it framed rules for review petitions saying in civil matters, an aggrieved party can file for a review on 3 grounds

-     First, in the light of new evidence that was not available when the judgment was pronounced

-     Second, if a mistake occurred on the face of the record.

-     And third, any other sufficient reason.

In a criminal matter, the only ground available is an error apparent on the face of the record.

KK Venugopal

Senior Advocate, Supreme Court

Constitutional Lawyer

"Let me give you an example of an error apparent. A recent judgment from the Allahabad HC. Now that judgment was dealing with a question as to whether a certain resolution had been placed before the Parliament. Now the judgment said that the resolution had been placed before the House of the People, it had been placed before the Rajya Sabha but it has not been placed before Parliament. Now what do you think of that because Parliament is a body that consists of both the Houses of people and the Rajya Sabha but the judges were not able to know that. What they said was that it has been placed before the House of People, placed before the Rajya Sabha but not placed before Parliament which is an obvious error because of total ignorance about the constitution of the Parliament- that's a case of an error apparent."

In 1993, in what is considered a landmark judgment, a Supreme Court bench of S R Pandian, R Sahai, B J Reddy provided further guidance on acceptable grounds for a review. 'if the court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error'.

Dushyant Dave

Senior Advocate, Supreme Court

"Supreme Court has also said, for eg, that you would not grant a review merely because some other viewpoint is being urged or for a reconsideration of matter which has already been considered by the Court earlier. So exercise of that power really depends on something which is so fundamental which calls for consideration. Now a very vital fact which was not within the knowledge of a party and which has been discovered- SC has considered review in large number of cases but only when it finds that the party was actually prevented from discovering that fact."

A review petition is, as far as practicable looked at by the same bench of judges who delivered the order in the first place. it must be filed within 30 days of the date of judgment that is sought to be reviewed. it shall be disposed of by circulation without any oral arguments but the petitioner can supplement his petition with additional written arguments. But the strict conditionalities and the Supreme Court's discouraging commentary haven't proved to be big deterrents. As of 2010, there were more than 36,500 review petitions pending before the Supreme Court.

Dushyant Dave

Senior Advocate, Supreme Court

"Unfortunately even government files for review. For eg, in the black money case, the government has filed for a review and the review Bench has differed whether they should really consider a review or not. There are large number of litigants who are dissatisfied- the number would be in hundreds in a year."

KK Venugopal

Senior Advocate, Supreme Court

Constitutional Lawyer

"I remember one of the cases where Jagannath Mishra- CM of Bihar- there is a case against malfeasance against him and a Bench of 3 judges decided that case. Two of the judges decided for him and one judge dissented. One of the 2 judges resigned immediately after he delivered the judgment and thereafter contested for a seat in the Rajya Sabha on a Congress ticket. Now a review petition was filed alleging that principle of justice was violated because Jagannath Mishra was a Congress Chief Minister. This review petition was admitted for hearing and it was posted before a Bench of 5 judges. Therefore, to that extent, the review petition succeeded. It was very sensitive and high profile case but finally the Constitution Bench refused to interfere."

If a review petition gets defeated, an aggrieved party gets one more chance of appeal by way of a curative petition but only if at the review petition level there has been ".. gross abuse of the process of the court or gross miscarriage of justice...". That was laid down by the Supreme Court in 2002 in the Rupa Ashok Hurra case. A curative petition requires certification by a senior advocate and the petition is circulated before a bench of 3 senior most judges and such serving judges who passed the order sought to be looked at.

KK Venugopal

Senior Advocate, Supreme Court

Constitutional Lawyer

"It would be open to the litigant who lost a review petition through circulation in Chambers where he was not heard to file a petition called the Curative petition on very limited grounds. The limited grounds would be violation of natural justice and secondly on the basis of the interest of the judge concerned in that particular case. For eg, suppose he had shares in a company- substantial shares- and he decided a case involving that company; his monetary interest would be affected or would be involved. Therefore, in such a case, the judgment would be set aside through a curative."

122 license cancellations- the sc order last week in the 2g case has rattled telecom companies. Even the government has asked the attorney general for his opinion on whether review petition is merited.

Dushyant Dave

Senior Advocate, Supreme Court

"Really speaking, I don't think there is any ground to review because its not a case which really falls in any of the exception under Order 47; nor it is a case where any great miscarriage of justice or substantial injustice has been caused to a party because this judgment really relates to public interest and I think, public interest has been well-sub served by the judgment. As I look at it, the chances of review are difficult. But it depends on the philosophy of the new judge who is going to hear with Justice Singhvi now."

That's just one view, several telecom companies are of the view that since they were penalized without even a hearing, their review petitions may stand a good chance. Ironically, jailed telecom minister a raja is also said to be considering filing a review on grounds that the Supreme Court order finds him guilty before the trial court proceedings reach a verdict. We will know by 3rd march if any of them are going to 'ask for the moon'.