Stays and recalls dilute judicial finality

The SC’s recent rulings revising its earlier positions have applied inconsistent standards, risking jurisprudential confusion.

Courts are not infallible, as they have themselves acknowledged. Article 137 of the Constitution confers power upon the Supreme Court of India to review its judgments. Under the SC Rules, the threshold for exercising review power is high, as a decision’s finality is the default and review is the only mechanism for course-correction.

In the last few months, however, a trend appears to be emerging whereby the SC ‘corrects’ its decisions through recalling and keeping them in abeyance until fresh orders are passed, and staying the application of rules and regulations.

Last month, the SC ‘kept in abeyance’ the 2026 University Grants Commission (Promotion of Equity in Higher Education Institutions) Regulations, which were developed following SC directions in an earlier Public Interest Litigation (PIL) case. In December 2025, it stayed an order which adopted a much-criticised definition of the Aravalli Hills. In November, a 3-judge bench recalled an earlier 2-judge bench order striking down retrospective environmental clearances for projects. In August, the earlier directions of a 2-judge bench on the blanket removal of stray dogs in Delhi were transferred suo motu to a 3-judge bench, which subsequently modified the order. In July 2025, the SC recalled its earlier judgment liquidating Bhushan Power and Steel Ltd, ordering a fresh hearing on merits.

It is noteworthy that all of these decisions came in the wake of a wave of negative sentiment and backlash against the SC. The Centre’s definition of the Aravalli Hills sparked widespread protests across affected states, highlighting the possibility of increased illegal mining eroding the natural ecosystem. Similarly, the SC’s initial orders taking a sweeping stance against stray dogs were vastly contested. The recall orders, passed shortly thereafter, were visible attempts to calm the waters.

In addition to public sentiment, the SC also appears to be convinced by arguments seeking continuity in the status quo from the perspective of the markets and industry. In Vanashakti, the then-Chief Justice of India B R Gavai noted that rejecting retrospective environmental clearances would have a chilling effect on government projects; the uncertainty expressed in the country’s insolvency framework following the initial Bhushan Steel decision was also a factor in its eventual recall.

These cases point to a troubling pattern, where questions of law and jurisprudence take a backseat to more practical considerations. In such stay or recall orders, the judicial reasoning for why these cases meet the high threshold for review or course-correction is often minimal.

No explicit reasons were recorded for the suo motu transfer of the stray dogs case to a 3-judge bench. An oral mention before the CJI was sufficient for the case to be transferred to a different forum. While the SC called the 2026 UGC Regulations ‘prone to misuse’, it did not clarify if a prima facie case for their unconstitutionality was made out for keeping them in abeyance in its order, to meet review thresholds. The Vanashakti recall order was passed by a 3-judge bench, with only Justice Bhuyan (the sole dissenter) having been part of the earlier 2-judge bench, although review petitions are required to be heard by the same judges (Justice Oka had since retired) or bench strength as the earlier judgment.

By procedure, it appears that these cases are examples of ‘bench hunting’, where persons who are aggrieved by a specific order raise the same matter before a different bench in the hopes of a different outcome. This may not necessarily be maliciously contrived on the part of the petitioner; retirement and roster shuffling often result in frequent changes in bench composition. In Bhushan Steel, for example, the review petitions filed by the aggrieved company were heard by different benches until the plea for review was granted.

Some SC judges have themselves noted that bench hunting must be curbed to uphold institutional integrity. Justice Nagarathna noted that public confidence in the finality and justiciability of SC decisions is eroded when orders change because “faces have changed”, and not because of “objections raised... according to law”. Justices Dipankar Datta and Augustine Masih remarked in court that the “recent trend of verdicts being overturned by successive benches... at the behest of some party aggrieved by them” was troubling.

Need for clarity and consistency

However, the SC’s recent approach towards tackling this phenomenon has been baffling, leading to jurisprudential confusion. Another example is the Presidential Reference filed under Article 143 in response to the 2-judge bench’s April 2025 verdict on the Governor’s powers, rather than a review petition, which would have been the ordinary course of affairs.

Another concern with the SC’s recent trend in preferring stay and recall orders is its inconsistency in applying them. Review petitions seeking a re-examination of the judgment refusing to uphold the constitutionality of same-sex marriage, and orders invalidating the recruitment of multiple teachers in West Bengal owing to ‘irregularities’, were dismissed. In the West Bengal case, the petitioners argued that invalidating recruitment after many years would result in people losing their livelihoods, and the status quo must not be disturbed. However, in Vanashakti, the court applied this same logic to reach the opposite conclusion, calling for protecting the livelihoods of workers undertaking existing infrastructural projects while walking back environmental protections.

Of course, the merits of these decisions cannot be compared. The trouble lies in recall orders that are passed inconsistently and incoherently. Procedural clarity and consistency are crucial for upholding the SC’s hard-won reputation as the ultimate arbiter of justice. It is hoped that well-reasoned and balanced decisions are delivered in the first instance, with their finality being challenged only where grave and apparent injustices must be corrected.

(The writer is a senior resident fellow, Justice Access and Lowering Delays in India [JALDI] Initiative, at Vidhi Centre for Legal Policy)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.