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In India, the
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Recall petition vs review petition
In India, the Right to Recall (RTR) is a law that exists in some states, empowering citizens to remove or replace government officials such as Sarpanch, Mukhiya, Corporator, and Mayor. The first recall law emerged in 1947 as a no-confidence motion against Sarpanch by Gram Sabha members in Uttar Pradesh. While the Election Commission of India has opposed this right, it continues to be a topic of debate in Indian politics.
Now, let's compare the recall petition with the review petition:
Recall Petition:
A recall petition is a legal process where a court recalls or cancels a previously issued order without delving into its merits. It is used when an affected party did not have the opportunity to be heard before the initial order was passed. The court's role in a recall petition is not to re-examine the case's substance but to address procedural issues, such as ensuring all parties were heard.
Review Petition:
A review petition, on the other hand, involves the court considering the merits of a case and evaluating whether there was an error in the original judgment or order. This process allows for a re-examination of the case's facts and arguments to determine if any mistakes were made that warrant a change in the decision.
Key Differences:
- Nature of Action: A recall petition simply recalls an order, while a review petition involves a reconsideration of the case's merits.
- Court's Role: In a recall petition, the court does not assess the merits of the case but focuses on procedural aspects. In contrast, during a review petition, the court actively re-examines the case's substance.
- Grounds for Action: A recall petition is typically triggered by procedural concerns, such as an affected party not being heard. A review petition, however, is based on potential errors or mistakes in the original judgment.
- Purpose: The primary purpose of a recall petition is to ensure procedural fairness by providing an opportunity for all parties to be heard. A review petition, on the other hand, seeks to correct potential errors in the original decision-making process.
In summary, while both recall and review petitions relate to re-examining court decisions, they differ in their scope, nature, and purpose. Recall petitions focus on procedural fairness, while review petitions involve a substantive re-evaluation of the case.
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History of recall laws in India
The concept of the "Right to Recall (RTR)" in India has a long history. In modern India, Sachindra Nath Sanyal was the first to demand the right to replace public servants in the manifesto of the Hindustan Republican Association, written in December 1924. In the manifesto, Sanyal stated that:
> In this Republic the electors shall have the right to recall their representatives, if so desired, otherwise, the democracy shall become a mockery.
The debate over the recall of elected representatives has been a long-standing issue in Indian democracy, even being discussed in the Constituent Assembly. The debate centred on the belief that the Right to Recall must accompany the Right to Elect, and that voters must be provided with a remedy "if things go wrong". M.N. Roy proposed a shift to a decentralised and devolved form of governance in 1944, which would have allowed for the election and recall of representatives.
The first recall law came into force in 1947 as a provision of a no-confidence motion over Sarpanch by Gram Sabha members in Uttar Pradesh. Recall laws have since been implemented at the Panchayat level in several states, including Uttar Pradesh, Uttarakhand, Bihar, Jharkhand, Madhya Pradesh, Chhattisgarh, Maharashtra, Himachal Pradesh, and Punjab. Madhya Pradesh, Chhattisgarh, Bihar, and Jharkhand have also implemented recall laws at the municipal level.
Despite the existence of recall laws in some states, the Right to Recall has not been adopted by the state and central legislature. The Election Commission of India has opposed the Right to Recall, and it has been debated and highlighted in Indian politics. In 1999, Rahul Chimanbhai Mehta started the first draft-based campaign for the right to recall laws on Prime Minister and Chief Minister posts in India. In 2016, a private member bill, The Representation of the People (Amendment) Bill, was introduced by Varun Gandhi in Lok Sabha.
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Right to Recall (RTR) laws
In India, the "Right to Recall (RTR)" laws allow citizens in certain states to remove or replace government officials holding positions such as Sarpanch, Mukhiya, Corporator, and Mayor. The debate over the recall of elected representatives has a long history in Indian democracy, with the first demand for the right to replace public servants made by Sachindra Nath Sanyal in 1924. The Hindustan Republican Association's manifesto, authored by Sanyal, stated that "In this Republic, the electors shall have the right to recall their representatives, if so desired, otherwise, the democracy shall become a mockery."
The right to recall representatives has been a topic of discussion in the Constituent Assembly, with the belief that the right to recall must accompany the right to elect and that voters should be provided with a remedy if things go wrong. Despite the support for RTR laws, the Election Commission of India has opposed them.
The first recall law was enacted in 1947 as a no-confidence motion over Sarpanch by Gram Sabha members in Uttar Pradesh. Recall has since been implemented at the Panchayat level in several states, including Uttar Pradesh, Uttarakhand, Bihar, Jharkhand, Madhya Pradesh, Chhattisgarh, Maharashtra, and Himachal Pradesh. Punjab has also implemented recall at the Panchayat level since 1994. The procedure for recalling a Sarpanch typically involves a two-step process that can be initiated directly by citizens. After a lock-in period that varies by state, a certain number of voters from the Gram Sabha must submit signatures or thumbprints and petition the Collector office. Once the signatures are verified, a meeting of all Gram Sabha members is organized, and if the majority votes against the sitting Sarpanch, they are removed.
In recent years, there have been efforts to introduce RTR laws for the Prime Minister and Chief Minister posts. Rahul Chimanbhai Mehta, an IIT Delhi graduate, activist, and politician, began a campaign for RTR laws on these positions in 1999 after returning from the United States. He proposed written drafts for the recall of the PM and CM in his book "Vote Vapasi Dhan Vapasi." Mehta formed the Right to Recall group in 2006 and later founded the Right to Recall Party in 2019, becoming its national president.
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Recall petition procedure
In India, the Right to Recall (RTR) laws allow citizens to remove or replace public servants in certain government posts, such as Sarpanch, Mukhiya, Corporator, and Mayor. The procedure for recalling a public servant typically involves the following steps:
First, after a lock-in period of 1-2 years (varying by state), a certain number of voters must initiate the process by submitting their signatures or thumbprints to petition the Collector office. This is the first step of a 2-step procedure that can be directly initiated by citizens.
Once the signatures are verified, a meeting of all the Gram Sabha members is organized. If a majority of the Gram Sabha votes against the sitting Sarpanch, the Sarpanch is then removed. This process has been implemented at the Panchayat level in several Indian states, including Uttar Pradesh, Uttarakhand, Bihar, Jharkhand, Madhya Pradesh, Chhattisgarh, Maharashtra, Himachal Pradesh, and Punjab.
In terms of legal cases, a recall petition is distinct from a review petition. In a review petition, the Court considers the merits and errors apparent on the face of the record. However, in a recall petition, the Court does not delve into the merits but instead recalls an order passed without providing an opportunity for a hearing to an affected party.
For example, in the case of Daya Engg. Works (Sleeper) Ltd. v. Union of India, the Delhi High Court dismissed an application for recalling an earlier order under Section 151 of the Civil Procedure Code. The Court held that the scope of Section 151 was limited, and the inherent powers could only be exercised when no other legal remedy was available.
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Recall petition case studies
In Indian law, a recall petition is a request for a court to revoke an order without considering the merits of the case. Here are some case studies that involve recall petitions:
Asit Kumar Kar v. State Of West Bengal And Others
In this case, the court treated a petition under Article 32 as a recall petition. The court clarified the distinction between a review petition and a recall petition. In a review petition, the court considers the merits of the case and looks for any errors in the record. However, in a recall petition, the court simply recalls an order that was passed without giving the affected party a chance to be heard.
Vishnu Agarwal v. State Of Uttar Pradesh And Another
Similar to the previous case, the court here also outlined the distinction between a review petition and a recall petition.
Boopathy Raja v. The Inspector of Police
In this case, the OPs (respondents) filed a recall petition to set aside an ex parte order. The OPs had disconnected the complainant's electric line due to the use of extra power. The recall petition was filed to recall the interim orders dated 2.6.2022 and 9.6.2022.
Saravanan v. State
This case involved a warrant recall petition, where the petitioner requested the court to consider their petition on the same day as their surrender.
Josepin Meri @ Josephin v. The Inspector of Police
In this case, the petitioner filed a warrant recall petition under Section 70(2) of Cr.P.C. without insisting on their appearance.
Jalaluddin v. Distt. Magistrate Shamli And 3 Others
Here, a recall application was filed by the heirs of a deceased bank employee, Vijay Shankar, stating that one of the respondents was never Vijay Shankar's wife.
Manoj Kumar Singh Vs. Durga Prasad and others
This case involved a recall application that had been pending since 2018. The court was directed to decide on the recall application without further delay.
Rampher And Another v. State Of U.P. And 6 Others
In this case, a recall application was mentioned, which was filed by one of the respondents.
Smt. Bindu Devi And Anr. v. Dy. Director Of Consolidation, Basti And 6 Ors.
The respondents in this case filed a recall application, which was decided after hearing both parties.
Daya Engg. Works (Sleeper) Ltd. v. Union of India
The Delhi High Court dismissed an application for recalling an earlier order under Section 151 of the Civil Procedure Code. The court held that settled things could not be unsettled at the behest of someone who was not careful enough with their rights and claims.
Vijay Madanlal Choudhary v. Union of India
While a review was sought in this case, it is mentioned that recall, if any, is an extraordinary procedure and should be treated as a review petition.
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Frequently asked questions
A recall petition is a formal request for the removal of a public servant from their post. This can be initiated by citizens or voters, and the process varies depending on the level of government and the state.
In a review petition, the court considers the merits of a case and any errors in the record. In contrast, a recall petition does not consider the merits but simply recalls an order, often one that was passed without giving an affected party the opportunity to be heard.
Recall applications against Supreme Court judgments are generally not maintainable and are considered an abuse of the legal process. The Supreme Court of India has stated that recall is an extraordinary procedure and should be exercised sparingly in exceptional circumstances.
