Review Process in the Supreme Court: An Analysis of the Marriage Equality Case

December 8, 2023

After the Supreme Court’s judgement in Supriyo v. Union Of India, those hoping for a decision enshrining LGBTQI+ couples’ right to marriage were left disappointed. It was a landmark case in India, connecting 52 petitioners to highlight the fundamental right to marriage which has been accepted in 34 countries to date. 



After the judgement was passed, several review petitions have been filed by the petitioners. This has raised questions concerning the workings of the review process, especially since the judgement of the Apex Court has been pronounced. Review petitions are a constitutionally protected power bestowed upon the Supreme Court through Article 137 which states that: 


‘Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.’ 


This power acknowledges the inherent possibility of apparent errors in judgements, providing a means for petitioners to request a review. The Supreme Court has made it clear that this review is not an appeal in disguise and is a mere re-examination of the judgement. As per the Supreme Court Rules, 2013 (XLVII.2) a review petition must be filed within 30 days of the judgement for which the petitioners are seeking a review. 


Since courts follow the principle of Stare Decisis stand by what is decided’, they generally do not unsettle a decision, making the review petition process extremely rigorous. There are 3 key considerations in a review petition, which are: 

  • The Discovery of new and important evidence 
  • Error apparent on record 
  • Other sufficient reasons 


If the Court agrees to consider the petition, it does so in a closed circulation between the justices who were party to the original hearing. However, the petitioners have called for an open hearing to review the judgement. This can be allowed at the Court’s discretion but is used very sparingly. The petitioners have requested for open court oral submissions to enable them to comprehensively advocate for the review, unlike a closed-door process which relies purely on the written petitions. 


Although there is no official data on successful reviews, according to Legal Service India, less than 0.1% of judgements are reviewed and successfully altered. While we are hoping that the review petitions are successful and the rights of LGBTQI+ couples are protected, what happens if the Court decides to reject the review petitions?  In this scenario, there is one final alternative to pursue. 


The curative petition is the final remedy available after a dismissed review petition. Unlike the review petition, which is a fixture of the Constitution, the curative petition is a fixture of precedent. The scope of a curative petition was detailed in Rupa Ashok Hurra v. Ashok Hurra & Anr (2002), wherein the question of whether an aggrieved person has the right to relief after a dismissed review petition was discussed. It was held that to cure a gross miscarriage of justice and prevent an abuse of the courts process, the court may reconsider its judgements utilising its inherent powers. 


Similar to a review petition, there are grounds for the Court to accept a curative petition. These are: 

  • That principles of natural justice were violated 
  • There are questions of bias against the presiding judge 
  • The court’s process was abused and other sufficient reasons 


If this is done, the curative petition must be circulated to a bench of the three senior-most judges, and the judges who passed the judgement if available. There is no limitation period to bring this type of petition. An open court hearing can be allowed under the same bench that passed the original judgement. If it is ascertained that the plea lacks merit, the court may impose exemplary costs to the petitioners. 


These processes are in place to ensure a fair deliverance of justice and are exercised with great caution to avoid the constant review of Supreme Court judgements. However, even in the fight to decriminalise same-sex relations, a curative petition was admitted to be heard in an open court post a dismissed review petition. 


The Supreme Court will now consider the review petitions in Supriyo, and we must wait to see whether an open hearing is accepted and for the outcome of the review. If the conditions for a curative petition cannot be met, this will be the final chance to review the judgement and for the rights of LGBTQI+ couples to be formalised legally.  


This blog is written by our intern Dhiiren Moganaraju, a 5th year LLB.BPPE student at The Australian National University, Canberra, Australia.