OPINION | The Fallibility of the Supreme Court: Reflections on judicial decision making

The Supreme Court has, in recent months, recalled or substantially modified its own orders in several cases.

Former Chief Justice of India B. N. Kripal, in the preface to his book "Supreme But Not Infallible", articulated an observation that can serve as a benchmark for any analysis of the functioning of India’s apex court. He wrote, "The title of the volume ‘Supreme but not Infallible’—is taken from an oft-quoted self-reflection of an American judge: 'We are not final because we are infallible, we are infallible only because we are final.' We would like to believe that the Supreme Court has gone about its task less conscious of its supremacy and more warily with the intuition that the Court, though final, is fallible.”

This observation acquires renewed relevance today, as the Supreme Court has, in recent months, recalled or substantially modified its own orders in several cases. It conveys an implicit acknowledgement of the fallibility inherent in judicial decision-making and the Court’s willingness to revisit and correct its own errors.

In July 2025, the apex court set aside its previous order affirming a Kerala High Court judgment granting permanent custody of a minor child to his biological father. The review petition was allowed after a clinical psychologist's report highlighted that the child, aged 11, displayed anxiety and was at high risk for separation anxiety disorder. A month later, on August 22, the Supreme Court modified its August 11 directive on stray dog management, wherein it had ordered authorities to capture all stray dogs and place them in shelters within eight weeks. The Court observed that the "direction given in the order dated 11th August, 2025, prohibiting the release of the treated and vaccinated dogs, seems to be too harsh." And, more recently, on November 18, the Supreme Court, by a 2–1 majority, recalled its judgment in the Vanashakti case, which had barred the Union government from granting post-facto environmental clearances.

It is essential to note that Article 137 of the Constitution of India provides for the review of judgments pronounced by the Supreme Court. It states: "Subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it." In the draft Constitution, there was no provision for a 'review,' and Dr. B.R. Ambedkar called it a "great lacuna" and introduced Article 112A, which in the final draft became Article 137.

In the above-mentioned child custody case, the apex court highlighted an important fact in relation to reviewing its judgment. It held that the normal principle is that a judgment pronounced by this Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Apart from that, it was also held that it may reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. While highlighting the fact that the scope of a review is usually considered very limited, it reiterated the grounds for the maintainability of a review petition, as laid down by the Supreme Court in the case of Kamlesh Verma v. Mayawati.

The principle has also been illuminated upon in the case of State of West Bengal & Ors. v. Kamal Sengupta, wherein it has been held that before entertaining a review on the ground of discovery of new matter or evidence, the Court is required to record its satisfaction about three aspects, which can also be called the "triple test": (i) The new matter/evidence discovered is of such nature that it could change the judgment; (ii) Such new matter/evidence was not within the knowledge of the party seeking the review; (iii) The new matter/evidence could not be produced before the Court even after due diligence. When any of the conditions of the test is not fulfilled, "discovery of new matter/evidence" ipso facto would not be sufficient ground for the Court to interfere with the finality of the judgment.

The judgment further establishes that the power of review jurisdiction must be used sparingly and only in circumstances as illustrated above. Hence, we are cognizant of the heavy burden that must be fulfilled by this Court while entertaining a review petition. The Supreme Court of India is not only the final court of appeal, but it is also a court capable of self-correction. Beyond hearing appeals from lower courts and High Courts, it also reviews and revisits its own judgments. This power is exercised sparingly and through well-defined mechanisms. The mechanism includes review petitions, curative petitions filed after the dismissal of a review, and heard by the senior-most judges in cases of grave injustice, and, most significantly, through larger Benches that may overrule decisions of smaller Benches when earlier rulings are found to be legally flawed or constitutionally inconsistent.

However, in recent times, the apex court has shown a greater willingness to review and reconsider its own judgments, reflecting a more liberal approach to judicial self-correction. The Puttaswamy judgment stands as a powerful illustration of constitutional self-correction. In unequivocal terms, Justice D.Y. Chandrachud, writing for a plurality of four judges, overruled the infamous ADM Jabalpur decision. The Court acknowledged a foundational truth—that certain basic rights are inherent and recognized by the Constitution; they are not gifts conferred by the State.

To be clear, the overturning of a Supreme Court judgment is an exceptional act, undertaken with extreme caution. The Court is guided by the doctrine of stare decisis, which means to stand by things decided. It is based on the principle that stability in law demands respect for settled precedent. Yet, constitutional fidelity does not equate to constitutional stagnation. Where past decisions prove unjust, outdated, or incompatible with the Constitution’s core values, the Court has recognized its duty to course-correct. In doing so, it reaffirms that constitutional adjudication is not frozen in time, but is a living process, one that places justice, liberty, and constitutional morality above the weight of precedent.