The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next Article in the series on constitutional provisions in order to aid our readers in understanding them.
145. Rules of Court, etc.—(1) Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including—
(a) rules as to the persons practising before the Court;
(b) rules as to the procedure for hearing appeals and other matters pertaining to appeals including the time within which appeals to the Court are to be entered;
(c) rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III;
(cc) rules as to the proceedings in the Court under Article 139A;
(d) rules as to the entertainment of appeals under sub-clause (c) of clause (1) of Article 134;
(e) rules as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review including the time within which applications to the Court for such review are to be entered;
(f) rules as to the costs of and incidental to any proceedings in the Court and as to the fees to be charged in respect of proceedings therein;
(g) rules as to the granting of bail;
(h) rules as to stay of proceedings;
(i) rules providing for the summary determination of any appeal which appears to the Court to be frivolous or vexatious or brought for the purpose of delay;
(j) rules as to the procedure for inquiries referred to in clause (1) of Article 317.
(2) Subject to the provisions of clause (3), rules made under this Article may fix the minimum number of Judges who are to sit for any purpose, and may provide for the powers of single Judges and Division Courts.
(3) The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five:
Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.
(4) No judgment shall be delivered by the Supreme Court save-in open Court, and no report shall be made under Article 143 save-in accordance with an opinion also delivered in open Court.
(5) No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion.
Supreme Court Rules: Article 145 gives to the Supreme Court power to frame rules including rules regarding condition on which a person can practice in the Supreme Court. Such a rule would be valid and binding on all. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of Bar Councils.
For a proper working management in the Court, Rules have been framed under Article 145 of the Constitution conferring power on the Chief Justice to constitute benches for disposal of cases. Order VII Rule 1 of the Supreme Court Rules, 1966 provides that every cause, appeal or matter shall be heard by a Bench consisting of not less than two judges nominated by the Chief Justice. But this rule is subject to the requirement under Article 145(3) of the Constitution. Article 145(3) requires a minimum number of five judges for deciding any case involving substantial question of law as to interpretation of the Constitution. In any event, the Supreme Court has to sit in benches with judges distributed as the Chief Justice desires.
Apart from inherent jurisdiction, Article 145 of the Constitution has authorised the Court to make rules for regulating generally the practice and procedure of the Court. This is apart from the inherent power that the Court has to regulate its proceedings. Rule 23 which provides that an advocate shall be guilty of professional misconduct if he accepts an engagement in any legal business through a person included in the list of touts, cannot be said to be beyond the rule-making powers of the Supreme Court. So also Rule 24, which lays down the procedure for publishing lists of touts, and for holding an enquiry to determine whether or not a particular person should be included in such a list, must be equally within the purview of the rule-making power of the Supreme Court.
Review Procedure: Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Rectification of an order stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality.
A party is not entitled to seek a review of a judgement delivered by the Supreme Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgement pronounced by the 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.
Power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.
To maintain a review petition it has to be shown that there has been miscarriage of justice. Of course, the expression “miscarriage of justice” is all embracing.
Rules made under article 145 were subject to a law made by Parliament and were subordinate legislation and could not override article 161.
Doctrine of prospective overruling: Prospective overruling is a part of the principles of constitutional canon of interpretation and can be resorted to by the Supreme Court while superseding law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. Actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applies to future cases. However, there shall be no prospective overruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling.
Source: Dr Subhash C Kashyap, Constitutional Law of India