Despite being the highest court of the land, there have been instances where the Supreme Court has erred in the finding of facts and law
By Venkatasubramanian
While asking the counsel for Yusuf Mohsin Nul-walla, Harish Salve, to move a curative petition, Justice Gogoi said: “All orders of the court are not always correct or perfect. Whatever order we give, right or wrong, are final.”
These observations make one recall the title of a book, a collection of essays published in 2000, to mark the 50th anniversary of the Supreme Court: Supreme, but not infallible. The title itself 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”. (Justice Robert Jackson in Brown v. Allen in 1953). Justice BN Kirpal, wrote in his preface to this book: “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. These essays are a reminder of what the Court is and does.”
In the history of India’s Supreme Court, instances of the court admitting errors in the finding of facts and law are many. While in some cases, subsequent benches have sought to correct the erroneous decisions of previous benches, some have remained uncorrected due to the vagaries of the judicial system. Of these, erroneous decisions in sentencing convicts to death, but which went uncorrected before the convicts were hanged, were the most telling.
In October 1975, the Allahabad High Court upheld the death sentences on Jeeta Singh, Kashmira Singh and Harbans Singh. The three convicts were found guilty of murdering four members of a family and their role in the crime was similar. All were before the Supreme Court separately on appeal.
Jeeta Singh’s appeal was dismissed by a Bench of three judges (Justices YV Chandrachud, VR Krishna Iyer and NL Untwalia) and he was hanged. Another bench of two judges (Justices M Fazal Ali and PN Bhagwati) commuted Kashmira Singh’s death sentence to life imprisonment.
Yet another Supreme Court Bench dismissed Harbans Singh’s appeal and review petition. Harbans Singh had sought equal treatment with Kashmira, and he was scheduled to be hanged with Jeeta Singh. But he appealed again. This time, the court stayed his execution and recommended presidential clemency, which was granted.
In Santosh Kumar Satishbhushan Bariyar vs State of Maharashtra (2009), the Supreme Court admitted gross misapplication of the death penalty law in a host of cases on the ground that they did not follow the stipulated test mandated in Bachan Singh vs State of Punjab (1980). In Ravji vs State of Rajasthan (1995), the Supreme Court had held that it is only characteristics relating to crime, to the exclusion of the ones relating to criminal, which are relevant to sentencing in criminal trial. Ravji case was followed in at least six decisions of the Supreme Court.
In Bariyar, the court held the ruling in Ravji as per incuriam (in error). Following Ravji, two prisoners, who were wrongly sentenced to death, Ravji Rao and Surja Ram, were executed on May 4, 1996, and April 7, 1997, respectively.
In several cases, larger benches find the decisions of smaller benches error-prone and overrule them, both on findings of fact and law. In ADM Jabalpur vs Shiv Kant Shukla, decided during the Emergency, the majority judges held that fundamental rights could be suspended during the Emergency. Although this has not been specifically overruled by a subsequent judgment, the 44th Amendment passed by parliament is considered to have impliedly set this judgment aside.
But none of the subsequent benches would cite ADM Jabalpur as a valid precedent for this proposition, because it was always considered to be erroneous.
The curative petition mechanism devised by the court in 2002 is itself an acknowledgement that errors can happen and should be rectified even belatedly.