Opinion SC’s Aravalli judgment is welcome. But it also speaks to a larger concerning pattern in the courts
The problem is reconsideration. It is the speed, manner, and route through which it is increasingly undertaken. This trend poses serious challenges to foundational principles that guide adjudication — consistency, predictability, and finality
he Supreme Court directed the appointment of DGPs for two years to prevent political interference in the functioning of state police chiefs (File Photo) On Monday, a Bench constituted by the Chief Justice of India stayed a judgment delivered last month concerning the Aravalli range. While the substantive outcome may be welcome, the manner in which it was achieved merits closer scrutiny. At first glance, this may appear to be yet another instance of the Supreme Court revisiting its own orders, a phenomenon that has become increasingly frequent in recent months and warrants serious reflection. More troubling, however, is what this episode reveals: A growing pattern of procedural departure and opacity in the Court’s functioning.
A common justification offered for such recall or modification of judgments is historical precedent. It is often argued that courts have always identified errors and course-corrected, allowing laws to evolve. In a recent interview, a retired Supreme Court judge invoked A K Gopalan v State of Madras, being reconsidered in Maneka Gandhi v Union of India, and I C Golaknath v State of Punjab in Kesavananda Bharati, to defend contemporary reconsideration. These comparisons, however, are imperfect. They overlook a critical distinction: Those reversals occurred after long intervals, through sustained doctrinal engagement and carefully reasoned judgments. They reflected constitutional evolution, not immediate improvisation. What distinguishes recent developments is therefore not the fact of reconsideration, but the speed, manner, and route through which it is increasingly undertaken.
This trend poses serious challenges to foundational principles that guide adjudication — consistency, predictability, and finality. These are not abstract ideals. They enable litigants to plan their conduct, guide lower courts in applying the law, and ensure that executive compliance with judicial decisions is not selective. When final judgments are easily unsettled, the legal system itself risks becoming unstable.
To be clear, courts must retain the power to correct errors. Article 137 of the Constitution recognises the Supreme Court’s review jurisdiction precisely for this purpose. However, that power is deliberately constrained. As the Court has repeatedly held, a judgment is final, and departure from that principle is justified only in circumstances of a “substantial and compelling character” or to correct “error apparent on the face of the record”. The grounds are narrow: Repetition of overruled arguments is impermissible; mere disagreement with the outcome is insufficient; the possibility of two views does not justify review; and an error must be patent, not one that requires elaborate reasoning to uncover.
The Court has, in the past, worked within this framework. The decision to entertain review petitions in the Sabarimala case, and to refer certain questions to a larger Bench, at least followed the formal discipline of review jurisdiction. Similarly, uncomfortable judicial outcomes have sometimes been addressed through legislative intervention. Parliament’s response to the judgment in S K Mahajan, which laid down guidelines regarding the misuse of the SC/ST (Prevention of Atrocities) Act, 1989, by amending the Act, is one such example. One may debate the merits of these responses, but they operated within the constitutional framework.
What is increasingly concerning is the emergence of alternative procedural routes that achieve the effect of a review while effectively circumventing the limited grounds available under it. Two recent examples illustrate this shift.
First, the Presidential Reference on the powers of the President and Governors in relation to assent of Bills, which functioned, in substance, as a de facto review of an earlier judgment that had imposed timelines on these powers.
While the Court was careful to assert that a reference under Article 143 cannot operate as an appeal, it nonetheless set aside substantive conclusions of the earlier decision — holding gubernatorial discretion to be non-justiciable and timelines impermissible. Second, in August, while setting aside an order of an Allahabad High Court judge, the SC issued unusually intrusive directions, including that the judge be removed from the criminal roster and required to sit only with a “seasoned” colleague. Within days, the matter was relisted, and these directions were withdrawn; however, not through a formal review petition, but “in deference” to a written request from the CJI.
Taken together, these episodes point to a troubling development: The Court’s swift course correction while bypassing the discipline of established remedial frameworks, particularly the narrow confines of review jurisdiction. This produces opacity. There is often no clear trigger for reconsideration, no articulated threshold, no consistent forum, and no uniform reasoning standard. For litigants and lower courts alike, it becomes difficult to discern when an order/judgment is truly final.
Several factors may explain this phenomenon. First, the Court is increasingly called upon to decide complex and politically salient issues that require time for careful adjudication. Such cases demand not only deliberation but also the participation of all affected stakeholders. Second, these matters are sometimes decided without hearing all interested parties, leading to unforeseen consequences and hurried course corrections. This was particularly evident in the stray dogs’ matter, where relevant organisations were denied the opportunity to intervene before the Court issued sweeping directions to relocate community dogs — an order that was subsequently withdrawn. Third, interim orders, often framed in broad and consequential terms, begin to resemble final directions despite not being the product of full deliberation. Issued as stop-gap measures, these directions nonetheless carry significant impact while remaining easier to modify or recall, especially when proceedings continue to remain pending before the Court.
None of this suggests that the Court should refrain from revisiting its decisions. There will inevitably be cases where reconsideration is necessary. However, such reconsideration must occur within the confines of the Constitution and through established procedural discipline. The Court’s enduring institutional strength lies not in deciding quickly, but in deciding well, even if that requires time, deliberation, and adherence to process.
The writer leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy. Views are personal
Share
