Whether the review petition is maintainable in court

1. This petitioners herein confines with General rule on locus standi states that unless an

individual has been directly injured or is aggrieved by the act he is challenging, his action

will not be upheld in court. Instead of addressing the broader public interest, the objects

of environmental law, the need for distributive justice, and participatory democracy, when

an environmentalist presents a court with an environmental issue, the court focuses on the

identification of the individual who brings the action.The following questions are posed:

Who is he? Is he affected on a personal level? Has he sufficient personal interest in the

matter in issue?

2. The petitioners humble submits that The Supreme Court of the United States has

confirmed that -In essence, the question of locus standi is whether the litigant is entitled

to have the court determine the merits of the case or specific issues.

2.1. Injury: The plaintiff must have suffered or imminently will suffer injury - an

invasion of a legally protected interest which is concrete and particularized. The

injury must be actual or imminent, distinct and palpable, not abstract. This injury

could be economic as well as non-economic.

2.2. Causation: There must be a causal connection between the injury and the conduct

complained of, so that the injury is fairly traceable to the challenged action of the

defendant and not the result of the independent action of some third party who is

not before the court.

2.3. Redress ability: It must be likely, as opposed to merely speculative, that a

favorable court decision will redress the injury.

 3. In Indian context, An individual whose constitutional or legal right is infringed may seek

relief under the Indian Constitution, according to tradition. However, the Supreme Court

has recently liberalized the Locus Standi clause. The Court now allows public-spirited

individuals to file a writ petition for the protection of every other person’s or class’s

constitutional and statutory rights, even though that person or class is unable to claim the

Court’s jurisdiction due to poverty or any other social economic impairment.

4. If socially or economically vulnerable people are unable to protect themselves, a

public-spirited individual may use this provision on their behalf. The strict rule of Locus

Standi applicable to private litigation is relaxed in public interest litigation, and a broad

rule is established by the courts in modern times. Any member of the public acting in

good faith and with sufficient interest in bringing a suit for redress of a public wrong or

injury, but who is not a mere busybody or a meddlesome interloper, may be granted the

right of Locus Standi Since the primary goal of Interest Litigation is to ensure that the

provisions of the Constitution or the law are followed to the fullest extent possible in

order to advance the cause of the community, disadvantaged groups and individuals, or

the public interest, any person, acting in good faith and with sufficient intercession, is

permitted to do so.

4.1. In Bandhu Mukti Morcha Vs Union of India1, The Court held in this case that

the Public Interest Litigation is not adversary litigation, but rather a challenge and

incentive for the government and its officers to make basic Human Rights

meaningful to the poor and vulnerable. As a result, the court is assisting them in

achieving their constitutional objectives. Article 32 of the Constitution gives the

court the authority to name a Commission to investigate human rights violations.

1
Bandhu Mukti Morcha Vs Union of India, 1984 AIR 802
 4.2. In Akhil Bhartiya Soshit Karmachari Sangh Vs. Union of India2, The Supreme

Court ruled in this case that the Akhil Bhartiya Soshit Karmachari Sangh

(Railway) could file a writ-petition under Article 226 of the Indian Constitution

through an unregistered association for the redressal of a popular grievance. The

current Constitutional jurisprudence, according to Krishna Iyer, J, is access to

justice through “class actions,” “public interest litigation,” and “representative

proceedings.”

4.3. In S.P Gupta v Union of India3, A group of lawyers filed a writ petition about the

appointment of judges under Article 226 of the Constitution. Since the lawyers

had a genuine interest in the disposition of cases and the appointment of judges,

the petition was granted. In India, this case ushered in a new age of public interest

litigation. PIL is one of the most powerful instruments for enforcing public duties

that were previously carried out unlawfully, causing injury to society.

5. There are no written rules on the recusal of judges from hearing cases listed before them

in constitutional courts. It is left to the discretion of a judge. The reasons for recusal are

not disclosed in an order of the court. Some judges orally convey to the lawyers involved

in the case their reasons for recusal, many do not. Some explain the reasons in their order.

The decision rests on the conscience of the judge. At times, parties involved raise

apprehensions about a possible conflict of interest. For example, if the case pertains to a

company in which the judge holds stakes, the apprehension would seem reasonable.

Similarly, if the judge has, in the past, appeared for one of the parties involved in a case,

2
Akhil Bhartiya Soshit Karmachari Sangh Vs. Union of India , 1981 AIR 298
3
S.P Gupta v Union of India , AIR 1982 SC 149
 the call for recusal may seem right. A recusal inevitably leads to delay. The case goes

back to the Chief Justice, who has to constitute a fresh Bench.

6. In the National Judicial Appointments Commission judgment4 in 2015, Justice (now

retired) Kurian Joseph, who was a member of the Constitution Bench, highlighted the

need for judges to give reasons for recusal as a measure to build transparency. “It is the

constitutional duty, as reflected in one’s oath, to be transparent and accountable, and

hence, a judge is required to indicate reasons for his recusal from a particular case.

7. Justice S. B. Sinha, raising his concerns about the decline of judicial ethics advocated for

an automatic recusal process in the judicial system. He was surprised when two senior

judges of the Supreme Court decided on a case that they had probed in their

administrative capacity as judges of the Punjab High Court. His reaction was:

“We also fail to see as to why two senior Judges who had headed the Committee should

have been made part of the Bench that decided the case”.

8. Justice Markandey Katju, followed the practice of automatic recusal when he withdrew

his name from the Novartis case by saying that it would not be proper for him to deal

with the appeal filed by Novartis. His withdrawal from the case was meant to preclude

fears of bias in the MNC camp on account of an article he had written five years earlier

against the liberal grant of pharma patents. Justice Vikramjit Sen and Justice A. R. Dave

decided to recuse themselves from the proceedings of a dispute between Bharti Airtel, the

Department of Telecom, and Reliance Communications relating to adding of new

customers by Airtel in circles where it had failed to get 3G spectrum licenses. These two

judges withdrew from the bench without assigning any reasons therefore.

4
Supreme Court Advocates-on-record Association & Anr. vs. Union of India ((2016) 5 SCC 1)
 9. Justice Dal Veer Bhandari’s recusal from a bench was in response to a letter from the

activists regarding his participation in at least two international conferences for judges

organized by the US-based Intellectual Property Owners Association (IPOA), whose

members include Novartis, among a host of pharmaceutical and IT giants. In their letter

to the government, the activists alleged that “several statements in the paper could be

held to conflict with the intent and letter of the Indian Patent Act”. They requested the

government to take up the matter of recusal with Justice Bhandari “to avoid any room for

questions to be raised once the judgment is given in light of the already expressed

opinions on Intellectual Property in IPOA''. Without waiting for the government to react,

Justice Bhandari withdrew from the case immediately after the letter of the activists had

been reported in the Times of India.

10. In the Central Bureau of Investigation case, Judges recused themselves from hearing

the case challenging the appointment of M. Nageswara Rao as interim director of the

Central Bureau of Investigation. Moreover, In the Ayodhya- Ramajanma-Bhoomi case,

Justice U.U. Lalit recused him from hearing the dispute over land in Ayodhya after being

pointed out that the judge had appeared for former Uttar Pradesh Chief Minister Kalyan

Singh in a related contest.

11. Furthermore, in the Bhima Koregaon case5, the recusal by several Supreme Court judges

from hearing the appeal filed by rights activist Gautam Navlakha to quash the FIR against

him. The Chief Justice of India Ranjan Gogoi had first recused himself from hearing the

case, possibly over the paucity of time. Justice Bhat recused himself when the case came

up before a bench led by Justice Arun Mishra. No reasons were cited for this. Justice

5
Romila Thapar vs Union Of India , WRIT PETITION (CRIMINAL) NO.
260 OF 2018 (Supreme Court)
 Vineet Saran was the third judge on the bench. In order of seniority, the case travelled

then to Justice NV Ramana. The entire bench headed by Justice Ramana recused itself

from hearing the case.

12. In Ranjit Thakur v. Union of India6, Justice MN Venkatachalaiah affirmatively held, that

‘the proper approach for the Judge is not to look at his mind but to look at the mind of the

party before him.’Moreover, In PK Ghosh v. JG Rajput7, the Supreme Court said that: A

basic postulate of the rule of law is that “justice should not only be done but it must also

be seen to be done. If there is a reasonable basis for a litigant to expect that his matter

should not be heard by a particular Judge and there is no absence of an alternative, it is

appropriate that the learned Judge should recuse himself so that people do not doubt the

process.

Whether the decision of the supreme court violates the freedom of religion under the

constitution or not ?

13. It is submitted that the petitioners herein conscientiously chose to follow the tenets of

their religion one of which is to consider the Adultery as a sin and punish for the same.

Not only it is a part of their essential religious practice but that denuding them an

affront to their Fundamental Rights granted under Articles 258 of the Constitution of

India. The petitioners further apprehend that if the impugned judgment is not reversed,

then the petitioners freedom of conscience and free profession, practice and propagation

6
Ranjit Thakur v. Union of India , 1987 AIR 2386
7
PK Ghosh v. JG Rajput , 1996 AIR 513
8
The Constitution of India,1950 Article 25
 of religion will be infringed, thereby causing them an irreparable injury to the religions

itself and the beliefs of Petitioner. The preamble of the Constitution of India makes a

solemn assurance of liberty of thought, expression, belief, faith and worship to the

people. It contains the ideals and aspirations which the Constitution makers intended to

be realized by its enacting provisions.

14. ‘India, that is Bharat’ (Article 1), since centuries, has been the sanctuary for several

religions, faiths & cultures that have prosperously co-existed, regardless of the ebb &

flow of political regimes.In S. R. Bommai v. Union of India 9at paragraph 25, the

Hon’ble Supreme Court of India observed:

“India can rightly be described as the world’s most heterogeneous society. It is a

country with a rich heritage. Several races have converged in this subcontinent. They

brought with them their own cultures, languages, religions and customs. These

diversities threw up their own problems but the early leadership showed wisdom and

sagacity in tackling them by preaching the philosophy of accommodation and

tolerance…”

15. Petitioners may add that the issue is not purely a legal one. It has moral and

philosophical overtones. It has more of a flavour of religious overtones. As Professor

Upendra Baxi rightly remarks that judges are, in fact, not jurisprudence. At the same

time, it is increasingly becoming important that some jurisprudential discussion ensues

while deciding those cases which have such more and philosophical overtones as well.

Such an analysis provides not only a legal basis for the conclusions arrived at but it also

provides logical commonsense justification as well. Obviously, whenever the court is

9
S.R. Bommai vs Union Of India,1994 AIR 1918(India)
 entering into a new territory and is developing a new legal norm, discussion on

normative jurisprudence assumes greater significance as the court is called upon to

decide what the legal norm should be. At the same time, this normative jurisprudence

discourse has to be preceded by analytical jurisprudence, which is necessary for the

court to underline the existing nature of law. That would facilitate knowing the legal

framework of what is the current scenario and, in turn, help in finding the correct

answers. When we discuss the philosophical aspects of the subject matter, it is the

‘value of life’ which becomes the foremost focus of discussion. The discussion which

follows hereinafter keeps in mind these parameters.

16. Article 25 of the Constitution guarantees the freedom of conscience to all persons.

Conscience is not necessarily limited to religious beliefs, but refers to the moral

compass of a person with respect to her core beliefs. Accordingly, deeply and sincerely

held beliefs derived from purely ethical sources can be termed as ‘conscience’, thereby

entitled to protection under Article 25. As evident from Article 25, conscience and

religion are related, but cannot be interchanged. It falls within the domain of ‘liberty of

thought’, as referred to in the Preamble. This Hon’ble Court in Puttaswamy (supra) has

referred to J.S. Mill’s essay ‘On Liberty’ (1959), which stated: “This, then is the

appropriate region of human liberty. It comprises, first, the inward domain of

consciousness; demanding liberty of conscience, in the most comprehensive sense;

liberty of thought and feeling; absolute freedom of opinion and sentiment on all

subjects, practical or speculative, scientific, moral or theological.

17. Marriage in India is not a civil marriage solemnised by the State but is purely religious

and cultural ceremonies backed by Vedas, holy texts like Bible and Quran. Therefore

Indian society should be governed by personal laws to have a legal ecosystem to cater to

marriage relationships.

18. In Shayara Bano v. Union of India10, (2017) 9 SCC 1, at page 53 the court held: When

issues of such nature come to the forefront, the discourse often takes the form of pitting

religion against other constitutional rights. Petitioners believe that a reconciliation

between the same is possible, but the process of harmonizing different interests, this

power has to be exercised within the constitutional parameters without curbing the

religious freedom guaranteed under the Constitution of India. The unbroken practice

during the pre-Independence period, and the post-Independence period, under the

Constitution, demonstrates a clear and unambiguous course, namely, reform in the matter

of marriage and divorce (which are integral components of “Personal Law”) was only

introduced through legislation. Therefore, in continuation of the conclusion already

recorded, namely, that it is the constitutional duty of all courts to preserve and protect

“Personal Law” as a fundamental right, any change thereof, has to be only by legislation

under Articles 25(2) and 44, read with Entry 5 of the Concurrent List contained in the

Seventh Schedule to the Constitution.

19. The nature of the provision of Section 397 IPC and its purpose is to criminalize private

conduct of consenting adults which causes no harm to anyone else. It has no other

purpose than to criminalize conduct which fails to conform with the moral or religious

10
Shayara Bano v. Union of India, (2017) 9 SCC 1
 views of a section of society. The decriminalization severely affects the rights and

interests of religious consortiums.

20. Almost all ancient religions/civilizations punished the sin of adultery. In one of the

oldest, namely, in Hammurabi‘s Code, death by drowning was prescribed for the sin of

adultery, be it either by the husband or the wife. In Roman law, it was not a crime against

the wife for a husband to have sex with a slave or an unmarried woman. The Roman lex

Iulia de adulteriis coercendis of 17 B.C., properly named after Emperor Augustus'

daughter, Julia, punished Julia for adultery with banishment. Consequently, in the case of

adulterers generally, both guilty parties were sent to be punished on different islands, and

part of their property was confiscated.

21. In Judaism, which again is an ancient religion, the Ten Commandments delivered by the

Lord to Moses on Mount Sinai contains the Seventh Commandment – Thou shalt not

commit adultery – set out in the book of Exodus in the Old Testament. Equally, since the

wages of sin is death, the book of Leviticus in the Old Testament prescribes the death

penalty for the adulterer as well as the adulteress.

22. In Christianity, we find adultery being condemned as immoral and a sin for both men and

women, as is evidenced by St. Paul‘s letter to the Corinthians. Jesus himself stated that a

man incurs sin the moment he looks at a woman with lustful intent. However, when it

came to punishing a woman for adultery, by stoning to death in accordance with the

ancient Jewish law, Jesus uttered the famous words, let him who has not sinned, cast the

first stone.

23. In Hinduism, in the Manusmriti, prescribes punishment for those who are addicted to

intercourse with wives of other men by punishments which cause terror, followed by
 banishment.11 The Dharmasutras speak with different voices. In the Apastamba

Dharmasutra, adultery is punishable as a crime, the punishment depending upon the class

or caste of the man and the woman. However, in the Gautama Dharmasutra, if a man

commits adultery, he should observe a life of chastity for two years; and if he does so

with the wife of a vedic scholar, for three years.

24. In Islam, in An-Nur, namely, read as follows: ―

The adulteress and the adulterer, flog each of them (with) a hundred stripes, and let not

pity for them detain you from obedience to Allah, if you believe in Allah and the Last Day,

and let a party of believers witness their chastisement. 12

25. And those who accuse their wives and have no witnesses except themselves, let one of

them testify four times, bearing Allah to witness, that he is of those who speak the truth.

And the fifth (time) that the curse of Allah be on him, if he is of those who lie. And it

shall avert the chastisement from her, if she testify four times, bearing Allah to witness,

that he is of those who lie. And the fifth (time) that the wrath of Allah to be on her, if he

is of those who speak the truth. What is interesting to note is that if there are no witnesses

other than the husband or the wife, and the husband testifies four times that his wife has

committed adultery, which is met by the wife testifying four times that she has not, then

earthly punishment is averted. The wrath of Allah alone will be on the head of he or she

who has given false testimony – which wrath will be felt only in life after death in the

next world. In sixth-century Anglo-Saxon England, the law created elaborate tables of

composition which the offended husband could accept in lieu of blood vengeance. These

11
Manusmriti , Chapters 4.1346 and 8.3527
12
Chapter 24 of the Qur‘an, Verses 2 and 6 to 9
 tables were schemes for payment of compensation depending upon the degree of harm

caused to the cuckolded husband.

26. However, as Christianity spread in England, adultery became morally wrong and

therefore, a sin, as well as a wrong against the husband. Post 1066, the Normans who

took over, viewed adultery not as a crime against the State, but rather as an ecclesiastical

offense dealt with by the Church. The common law of England prescribed an action in

tort for loss of consortium based on the property interest a husband had in his wife. Thus,

the action for conversation, which is compensation or damages, usually represented a first

step in obtaining divorce in medieval England. In fact, adultery was the only ground for

divorce in seventeenth-century England, which had to be granted only by Parliament.

Interestingly enough, it was only after King Charles I was beheaded in 1649, that adultery

became a capital offense in Cromwell‘s Puritanical England in the year 1650, which was

nullified as soon as King Charles II came back in what was known as the restoration of

the monarchy. It will be seen therefore, that in England, except for an eleven-year period

when England was ruled by the Puritans, adultery was never considered to be a criminal

offence. Adultery was only a tort for 8 which damages were payable to the husband,

given his proprietary interest in his wife.

27. Throughout history, adultery has been regarded as an offence; it has been treated as a

religious transgression, as a crime deserving harsh punishment.

28. Once monogamy came to be accepted as the norm in Britain between the fourth and fifth

centuries, adultery came to be recognized as a serious wrong that interfered with a

husband’s “rights” over his wife. The imposition of criminal sanctions on adultery was

also largely based on ideas and beliefs about sexual morality which acquired the force of
law in Christian Europe during the Middle Ages.The development of canon law in the

twelfth century enshrined the perception of adultery as a spiritual misdemeanor. In the

sixteenth century, following the Reformation, adultery became a crucial issue because

Protestants placed new emphasis on marriage as a linchpin of the social and moral order.

Several prominent sixteenth century reformers, including Martin Luther and John Calvin,

argued that a marriage was irreparably damaged by infidelity, and they advocated divorce

in such cases. Concerned with the “moral corruption” prevalent in England since the

Reformation, Puritans in the Massachusetts Bay Colony introduced the death penalty for

committing adultery. The strict morality of the early English colonists is reflected in the

famous 1850 novel ‘The Scarlet Letter’ by Nathaniel Hawthorne, in which an unmarried

woman who committed adultery and bore a child out of wedlock was made to wear the

letter A (for adulterer) when she went out in public; her lover was not so tagged,

suggesting that women were punished more severely than men for adultery, especially

when they had a child as evidence. In 1650, England enacted the infamous Act for

Suppressing the Detestable Sins of Incest, Adultery and Fornication, which introduced

the death penalty for sex with a married woman. The purpose of the Act was as follows:

“For the suppressing of the abominable and crying sins adultery wherewith this Land is

much defiled, and Almighty God highly displeased; be it enacted. That in case any

married woman shall be carnally known by any man (other than her husband) as well the

man as the woman shall suffer death.” The Act was a culmination of long-standing moral

concerns about sexual transgressions, sustained endeavors to regulate conjugal matters on

a secular plain, and a contemporaneous political agenda of socio-moral reform.

29. Each religion is governed by its own matrimonial law. Striking down of Section 497

would apply to a Hindu, Muslim, Christian and all other religions in India. However each

religion would be governed separately by the respective matrimonial laws.These are

different issues, One is working in the sphere of the criminal law and the SC has said that

adultery is not an offense. The other would be under the ambit of the matrimonial law,

which would work separately.

29.1. The Hindu law: Under Section 13 (1) of the Hindu Marriage Act, adultery is

described as, "Any marriage solemnized, whether before or after the

commencement of this Act, may, on a petition presented by either the husband or

the wife, be dissolved by a decree of divorce on the ground that the other party

has, after the solemnisation of the marriage, had voluntary sexual intercourse with

any person other than his or her spouse." Section 497: Revisiting adultery

judgments in India It has been said that in order to prove adultery, two elements

would be necessary- the intention to be adulterous and the opportunity to gratify

such an intention. Further the burden of proof in such cases would lie on the

petitioner and it is their duty to show the court that the respondent is guilty.

29.2. The Muslim Law: The Muslim Marriage Act does not have any specific provision

for adultery. However Section 2 (viii) of the Muslim Marriages Act says that if a

man associates himself with a woman of evil repute or leads an infamous life, it

amounts to cruelty to the wife. In the Kalim Uz Zafar case the court had held that

the term cruelty can be interpreted widely so as to include mental and physical

cruelty. Under the concept of Lian in the Islamic laws, when a man accuses a

woman of adultery, the wife can bring a claim for dissolution of marriage. The
 Allahabad High Court had said that only wives not guilty of adultery can use this

concept, and not wives who are in fact guilty. In another ruling the same HC had

said that where a man himself committed adultery and then prosecuted his wife

for the same, this was a sufficient cause to seek divorce on the grounds of cruelty.

16 things the Supreme Court said while striking down adultery as an offence

29.3. The Christian Law: Section 10(1)(i) of The Divorce Act of 1869 says, "Any

marriage solemnized, whether before or after the commencement of the Indian

Divorce (Amendment) Act, 2001, may, on a petition presented to the District

Court either by the husband or the wife, be dissolved on the ground that since the

solemnization of the marriage, the respondent has committed adultery." Earlier

only a Christian man could file for divorce on the grounds of adultery. For a

Christian woman to file for divorce on this ground, it either had to be incestuous

or coupled with other grounds like desertion or cruelty.

29.4. The Parsi law: Under Section 32 (d) of the Parsi Marriage and Divorce Act of

1936, any married person could file for divorce if the spouse has committed

adultery. Under the section there is a limitation period of two years from the point

where the petitioner comes to know about an adulterous relationship. Married

woman doesn't pledge sexual autonomy to her husband: SC The section reads, "

when a married person has sexual intercourse with either a married person or an

unmarried person, this section is attracted. Section 34(d) grants the right of a

married person to sue his/her spouse on the grounds of adultery, fornication,

bigamy, rape or any other unnatural offence.

30. Punishment for adultery is an Essential Religious Practice. The Essential Religious

Practices test (hereinafter ‘the ERP Test’) has been deliberated upon strongly in Indian

Jurisprudence through recent landmark judgments including the Karnataka Hijab Case,

the Sabrimala Temple Case, and the Triple Talaq Case. The ERP test finds its origin in a

speech given by Dr B.R Ambedkar in the Constituent Assembly regarding how Article 25

of the Constitution was to be interpreted. He acknowledged that in India, religion and its

practices regulate almost every aspect of life, however, there should be limitations on

such influence and these religious practices should be able to withstand the test of

Constitutional Morality in order to continue. However, the interpretation and usage of

this test has evolved considerably throughout the years and has brought along with it a

plethora of problems which pose a threat to Indian secularism and unity.

Whether the review petition is maintainable in court or not ?

Conditions of Review Petition :

1. A review petition is being preferred only on limited grounds, such as an error apparent on

the face of the record. Generally, review petitions are heard by the same judges who had

earlier decided the case. The judges may be called for records relating to the said matter

during re-hearing of the case for re-examination if any mistake happened in the Order so

pronounced by the court. Thus, a chance of success in a review petition is very limited.
 2. The Hon’ble Supreme Court in the case of Lily Thomas v. Union of India, (2000) 6 SCC

22413, the Supreme Court has laid down the law in the following terms:

52. The dictionary meaning of the word ‘review’ is ‘the act of looking, offer something

again with a view to correction or improvement’. It cannot be denied that the review is

the creation of a statute.

3. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, (1971) 3 SCC

84414, held that the power of review is not an inherent power. It must be conferred by law

either specifically or by necessary implication. The review is also not an appeal in

disguise. It cannot be denied that justice is a virtue which transcends all barriers and the

rules or procedures or technicalities of law cannot stand in the way of administration of

justice. Law has to bend before justice. If the Court finds that the error pointed out in the

review petition was under a mistake and the earlier judgment would not have been passed

but for erroneous assumption which in fact did not exist and its perpetration shall result in

a miscarriage of justice nothing would preclude the Court from rectifying the error.

4. The position in English Courts is also well accepted. In R v. IRC Ex parte Preston –

(1985) 4C 83515 , Lord Scarman summed up the position in English Administrative Law,

thus:

“My fourth proposition is that a remedy by way of judicial review is not to be made

available where an alternative remedy exists. This is a proposition of great importance.

Judicial review is a collateral challenge: it is not an appeal. When Parliament has

provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely

that the courts will allow the collateral process of judicial review to be used to attack an
13
Lily Thomas v. Union of India, (2000) 6 SCC 224
14
Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844
15
R v. IRC Ex parte Preston – (1985) 4C 835,
 appealable decision. In the first part of his speech my noble and learned friend, Lord

Templeman, has set out in detail the ample appeal procedures available to a taxpayer

aggrieved by a decision of the commissioners to exercise their powers and duties under

Part XVII of the Act of 1970 to counteract a tax advantage alleged to have been obtained

by him. But cases for judicial review can arise even where appeal procedures are

provided by Parliament. The present case illustrates the circumstances in which it would

be appropriate to subject a decision of the commissioners to judicial review. I accept that

the court cannot in the absence of special circumstances decide by way of judicial review

to be unfair that which the commissioners by taking action against the taxpayer have

determined to be fair.”

5. The Hon’ble High Court of Madhya Pradesh in the case of Principal Commissioner of

Customs, vs. M.S.S. Foods Processors, 2017 (7) G.S.T.L. 394 (M.P.)16, held that Review

or rehearing of case can be done only when some mistake or an error apparent on face of

record is discovered or for any other sufficient reason. Further such mistake or error

apparent must be prima facie visible without carrying out any detailed examination.

Re-appreciation of evidence and rehearing of case without error apparent on the face of

record not permissible and Challenging an order in guise of review not permissible –

Section 114 and Order 47 Rule 1 of Code of Civil Procedure, 1908 – Article 226 of

Constitution of India. This view was affirmed the Apex Court. The Hon’ble Supreme

Court in the Case of Asstt. Commissioner of Income Tax, vs. Saurashtra Kutch Stock

Exchange Ltd, reported in 2008 (230) E.L.T. 385 (S.C.)17, held that in our judgment,

16
Principal Commissioner of Customs, vs. M.S.S. Foods Processors, 2017 (7) G.S.T.L. 394
(M.P.)
17
Asstt. Commissioner of Income Tax, vs. Saurashtra Kutch Stock Exchange Ltd, reported in
2008 (230) E.L.T. 385 (S.C.)
 therefore, a patent, manifest and self-evident error which does not require elaborate

discussion of evidence or argument to establish it, can be said to be an error apparent on

the face of the record and can be corrected while exercising certiorari jurisdiction. An

error cannot be said to be apparent on the face of the record if one has to travel beyond

the record to see whether the judgment is correct or not. An error apparent on the face of

the record means an error which strikes on mere looking and does not need

long-drawn-out process of reasoning on points where there may conceivably be two

opinions. Such error should not require any extraneous matter to show its incorrectness.

To put it differently, it should be so manifest and clear that no Court would permit it to

remain on record. If the view accepted by the Court in the original judgment is one of the

possible views, the case cannot be said to be covered by an error. The Hon’ble High

Court of Delhi in the case of JSW Energy Limited v. Union of India, reported in

2019(17) G.S.T.L.198( Bom.)18, held that the principles of judicial review normally do

not concern themselves with the decision itself, but are mostly confined to the decision

making process. Such proceedings are not an appeal against the decision in question, but

a review of the manner in which such decision may have been made. In judicial review,

the Court sits in judgment over correctness of the decision making process and not on the

correctness of the decision itself. In exercise of powers of judicial review, the Court is

mainly concerned with issues like the decision making authority exceeding its

jurisdictional limits, committing errors of law, acting in breach of principles of natural

justice or otherwise arriving at a decision which is ex facie unreasonable or vitiated by

perversity.”

18
JSW Energy Limited v. Union of India, reported in 2019(17) G.S.T.L.198( Bom.)
 6. To summarize, Review means re-examination or relook of matter already decided by the

court. The party aggrieved with the decision / order pass by the court, he may file review

petition before the said court for re-examination of order. The order may be re-examining

by the judges who pass such order earlier. The review petition may be admitted or

dismiss depending upon the material of facts relating to the said case. The review petition

may be filed before the Supreme Court as well as High Court. The review petition can be

disposed of by the court by giving opportunity of hearing to the both parties. The review

petition may be dismissed by the court if there is no error apparent on the face of the

record. The success of review petition is very limited.

7. Where an issue has already been decided in a judgement and later a review petition is

filed to review such Judgement, then a person cannot treat the review petition as a second

opportunity to argue the matters which already had been adjudicated earlier. A single

judge bench comprising Hon’ble Justice Prateek Jalan, in the matter of Riddhima Singh

(Minor) through her Father Shailendra Kumar Singh Vs. Central Board of

Secondary Education and Ors. (W.P.(C) 6007/2019)19, dealt with an issue where the

petitioner is seeking review of the judgement of this court, by a review petition. In the

present case, the high court had earlier dismissed the writ petition filed by the petitioner

stating that it was not maintainable on the ground of forum non conveniens, and thereby

stated that the petitioner had the liberty to approach the appropriate court for the relief.

Mr. Singh, the father of the petitioner, himself argued both the writ petition and the

review petition. This court directed Mr. Singh to crystallise his submissions within the

parameters of the review jurisdiction of the Court.

19
Riddhima Singh (Minor) through her Father Shailendra Kumar Singh Vs. Central Board
of Secondary Education and Ors. (W.P.(C) 6007/2019)
Recusal of 2 judges from the case :

8. Supreme Court judge Justice Mohan M. Shantanagoudar recused himself from hearing a

petition filed by Sara Abdullah Pilot, sister of former Jammu and Kashmir Chief Minister

Omar Abdullah, against the government’s move to charge him under the Public Safety

Act. The case was finally heard by another bench. Recusal usually takes place when a

judge has a conflict of interest or has a prior association with the parties in the case.

9. There are no written rules on the recusal of judges from hearing cases listed before them

in constitutional courts. It is left to the discretion of a judge. The reasons for recusal are

not disclosed in an order of the court. Some judges orally convey to the lawyers involved

in the case their reasons for recusal, many do not. Some explain the reasons in their order.

The decision rests on the conscience of the judge. At times, parties involved raise

apprehensions about a possible conflict of interest. For example, if the case pertains to a

company in which the judge holds stakes, the apprehension would seem reasonable.

Similarly, if the judge has, in the past, appeared for one of the parties involved in a case,

the call for recusal may seem right. A recusal inevitably leads to delay. The case goes

back to the Chief Justice, who has to constitute a fresh Bench.

10. In his separate opinion in the National Judicial Appointments Commission20 judgment

in 2015, Justice (now retired) Kurian Joseph, who was a member of the Constitution

Bench, highlighted the need for judges to give reasons for recusal as a measure to build

transparency. “It is the constitutional duty, as reflected in one’s oath, to be transparent and

accountable, and hence, a judge is required to indicate reasons for his recusal from a

particular case,” Justice Kurian wrote. One of his companion judges on the Constitution
20
Supreme Court ... vs Union Of India WRIT PETITION (CIVIL) NO. 13 OF 2015 (Supreme Court)
 Bench, Justice (retired) Madan B. Lokur, agreed that specific rules require to be framed

on recusal.

11. The two judges were referring to senior advocate Fali Nariman’s plea to Justice J.S.

Khehar, who was then in line to be the next Chief Justice, to recuse himself. But Justice

Khehar refused to recuse himself though he admitted that Mr. Nariman’s plea left him in

an “awkward predicament”. Justice Khehar reasoned that he did not recuse himself for

fear of leaving an impression that he was “scared”.

12. In Assam detention centres case 2018, petitioners in the Judge Loya case sought the

recusal of Supreme Court judges, Justices A.M. Khanwilkar and D.Y. Chandrachud, from

the Bench as they both hailed from the Bombay High Court. The case banked on the

written statements of two judges from that High Court, both saying that Judge Loya’s

death was from natural causes. The court refused the request and called it a “wanton

attack”. Recusal, the court observed, would mean abdication of duty. Maintaining

institutional civilities are distinct from the “fiercely independent role of the judge as

adjudicator”, the court explained.

13. In May 2019, in the middle of a hearing of a PIL filed by activist Harsh Mander about the

plight of inmates in Assam’s detention centres, the then-Chief Justice Ranjan Gogoi was

asked to recuse himself. In a lengthy order, Justice Gogoi said a litigant cannot seek

recusal of the judge. “Judicial functions, sometimes, involve performance of unpleasant

and difficult tasks, which require asking questions and soliciting answers to arrive at a

just and fair decision. If the assertions of bias as stated are to be accepted, it would

become impossible for a judge to seek clarifications and answers,” the court observed.
14. Refusing to recuse himself from the Constitution Bench hearing a question of law on the

Indore Development Authority v. Manohar Lal (the issues involved in the case related to

a reading of Section 24(2) of the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013), Justice Arun Mishra said

acquiescing to the wishes of parties to recuse himself would sound the death-knell for

judicial independence. The petitioners had objected to Justice Mishra leading the

Constitution Bench which was hearing a question of law challenging his own earlier

judgment in the case. But Justice Mishra said it would be a “grave blunder” on his part to

bow out.

15. Once a request is made for recusal, the decision to recuse or not rests with the judge.

While there are some instances where judges have recused even if they do not see a

conflict but only because such apprehension was cast, there have also been several cases

where judges have refused to withdraw from a case.

16. For instance, in 2019, Justice Arun Mishra controversially refused to recuse himself from

a Constitution Bench set up to re-examine a judgment he had delivered previously,

despite several requests from the parties. Justice Mishra had reasoned that the request for

recusal was an excuse for “forum shopping” and agreeing could compromise the

independence of the judiciary.

17. During hearings in the National Judicial Appointments Commission case, there was a

plea asking Justice Jagdish Singh Khehar, to recuse from hearing the case since he was a

member of the Collegium. In a unanimous decision, SC rejected the plea. It said that a

“Judge may recuse on his own. But recusal at the asking of a litigating party, unless
 justified, must never be acceded to”. That would give the impression that the Judge has

been scared out of the case.

18. In the Assam Detention Centre Case, CJI Ranjan Gogoi also decided against recusing

from hearing a PIL highlighting the “sub-human” living conditions of detenues in

Assam’s detention centres. He told this plea had “enormous potential to damage the

institution” and that the CJI’s recusal would mean the “destruction of the institution”.

19. In another petition dealing with the Centre’s takeover of the International Centre for

Alternative Dispute Resolution (ICADR), CJI Gogoi refused to recuse when requested by

ICADR counsel to recuse from the bench since he was ex-officio chairman of the

ICADR.