In the first quarter of this year alone, the Central government has approached the Supreme Court in at least three cases seeking recall of the top court's judgments and orders.
The remedy available against a Supreme Court judgment or order in the normal course is to file a review petition. As shown below, the power of recall is distinct from the power to review.
While considering a review petition, the Court will consider if it has failed to consider any binding precedents, if there is an apparent error in the material on record or if some grave injustice has been caused as a consequence of its decisions.
Further, as per the Supreme Court Rules, 2013, a review petition must be filed within 30 days after the original judgment or order, and must be placed before the same bench which had delivered the decision.
While considering an application to recall its own judgment or order, courts, including the Supreme Court and High Courts, are required only to look at whether the principles of natural justice have been violated, or if the court did not have the jurisdiction to consider the matter in the first place.
The Supreme Court is seized of several significant review petitions at the moment, including those seeking review of the controversial Sabarimala and PMLA judgments.
Filing such review petitions is the primary course of action for parties, including the Central and State governments, who are aggrieved by the top court's verdicts.
However, the Central government has now filed applications to recall judgments and orders and many of them are before benches different to those that passed the orders in the first place.
Any other bench deciding and recalling judgments of other benches amounts to an intra-court appeal, which is not a remedy available under the Supreme Court Rules.
Below are three instances from 2023 where the Centre has filed recall applications.
[Dr Jaya Thakur v. Union of India & Ors]
The tenure of the present Director of the Enforcement Directorate, Sanjay Kumar Mishra, who has occupied his post for over 5 years, has been the subject of several petitions before the top court.
When Mishra was appointed as ED Director in November 2018, the tenure for the post was two years. Just as Mishra's tenure was about to end, the Central government issued an office order stating that the President had modified the two-year tenure to three years.
This was challenged by NGO Common Cause before the Supreme Court.
On September 8, 2021, a Bench of Justices L Nageswara Rao and BR Gavai upheld the tenure extension but said that further extensions ought not be granted.
After this, Parliament passed a law allowing extensions for the ED Director's tenure, one year at a time, upto a maximum of five years. This was challenged before the Supreme Court by a host of petitioners, including leaders of the Congress and Trinamool Congress parties.
According to PTI, in January 2023, Solicitor General Tushar Mehta informed a bench of Justices BR Gavai and Vikram Nath that the Central government has moved an application to recall the September 2021 judgment .
While initially expressing its hesitation to consider such applications, the Bench finally agreed to hear the application along with the petitions.
After hearing the matter, a three-judge Bench of Justices BR Gavai, Vikram Nath and Sanjay Karol, on May 8, reserved its verdict on the petitions. The Bench also appeared to question the correctness of its September 2021 judgment.
Justice Gavai, who was in fact part of the two-judge Bench that passed the 2021 ruling, orally remarked,
"Prima facie I hold that it was not rightly decided. Question of extension was not there, as you are arguing. Therefore, mandamus on extensions does not arise. It is my prima facie view that reconsideration is needed, subject to my brothers agreeing. In which way we do not know."
[Director of Enforcement v. Manpreet Singh Talwar]
On May 1, the Central government moved an application before the Supreme Court seeking the recall of its April 26 verdict in Ritu Chhabaria v. Union of India in which it had ruled that an accused will be entitled to default bail if an incomplete chargesheet is filed by the investigating agency.
The Ritu Chabbaria judgment was delivered by a Bench of Justices Krishna Murari and CT Ravikumar. This Bench opined that default bail under the Criminal Procedure Code (CrPC) is an important right and cannot be scuttled by filing chargesheets before the probe is complete.
However, exactly a week after the judgment was delivered, SG Mehta made an urgent mentioning before a different Bench led by the Chief Justice of India (CJI) DY Chandrachud stating that several cases are being filed based on the Ritu Chabbaria judgment.
The Central government's application to recall Ritu Chabbaria termed the judgment as per incuriam (in ignorance of law) since it "failed to even consider the prior binding decision of a co-equal bench (another two-judge bench) in Dinesh Dalmia's case which lays down a contrary principle of law, which has held the field for the past 16 years".
In Dinesh Dalmia, the Supreme Court had held that the court which had taken cognizance of the offence may exercise its power to grant police custody during further investigation, subject to the fulfillment of the requirements and the limitation of Section 167(2) CrPC.
The Bench of CJI Chandrachud and Justice JB Pardiwala agreed to hear the plea and to list the matter before a three-judge bench.
Pertinently, it also ordered all courts to defer applications seeking default bail filed on the basis of the Ritu Chabbaria judgment, beyond May 4. The time period was subsequently extended to May 12.
It is unclear how a Division Bench of the top court could have passed an order going against another division bench.
When two benches of the same strength disagree on a point of law, the accepted course of action is for the disagreeing bench to refer the matter to the Chief Justice of India on the administrative side.
The CJI would then constitute a larger bench to resolve the conflict.
This time-tested principle seems to have been skipped in passing the order against the Ritu Chabbaria judgment.
[Chemical and Petrochemical Manufacturer Association (CPMA) & Anr v. Anr]
On April 13, 2023, a Supreme Court Bench of Justices Krishna Murari and Sanjay Karol passed an interim order directing the government to provisionally levy anti-dumping duty (ADD) on low-density polyethylene (LDPE) and restrict its alleged dumping from overseas, to protect the interests of domestic producers and prevent them from further injury purpotedly caused by cheap imports.
The Central government acted swiftly, and by April 20, it filed an application to recall this interim order.
On April 24, the matter was listed, not before the same bench that had passed the interim order as is the usual practice, but before a bench of Justices Sanjiv Khanna and MM Sundresh.
The new bench then proceeded to recall the interim order.
These instances show a marked departure from the stance the Supreme Court has taken on recall orders in decades past.
In its verdict in Delhi Administration v. Gurdip Singh Uban & Ors. delivered in the year 2000, the top court had deprecated the practice of filing miscellaneous applications seeking recalls, modifications, or clarifications, when filing a review petition would have been the appropriate course of action.
The same was cited and reiterated in several judgments delivered since then by various High Courts and the Supreme Court itself.
In its 2020 judgment in In Re: Vijay Kurle & Ors, the top court, in stark contrast to recent events, noted,
"This Court in Delhi Admn. v. Gurdip Singh Uban deprecated the practice of filing of applications for “clarification”, “modification” or “recall” of final judgments or orders. It was held in the said judgment that a party cannot be permitted to circumvent or bypass the circulation procedure provided in the provision pertaining to Review and indirectly obtain a hearing in the open Court by filing an application for modification or recall. Such an application deserves to be dismissed with costs."