CONSTITUTION LITIGATION PROJECT

ANALYSIS OF CURATIVE PEITION

Submitted By, Submitted To

Srijita Jana SURBHISINGH

Semester – 10th Assistant Professor

Section- A

Roll no- 659

ABSTRACT

Roscoe Pound stated that flexibility is the greatest virtue of law and thus its applicability should
also be flexible rather than a rigid insistence on a strict format. Justice of the situation shall have
to be considered with a fair perception of such a concept rather than with a blinking light
attention ought to be focussed on a larger social perspective since law is meant for the society
and if flexibility is its virtue, which law enjoys, its corresponding primary duty thus would be to
change the legal horizon and perspective with the appropriate socioeconomic change. The law
must follow the society rather than abandon the society and carry on it strict track without any
deviation or without being hindered of the social changes and thus resultantly face a social
catastrophe. Curative Petition is a case of old wine in a new bottle. Curative petition perhaps
could be brought under Art 137 of Indian Constitution ie. "Review petition" .Review should not
be considered as a single review. This power of review as per Article 137 is not restricted to only
one time use in relation to a final Supreme Court decision. Amending Order 40 of the Supreme
Court Rules, 1966 could also be considered as one of the solution for it. The Birth of curative
Petition is for single reason that there should not be Miscarriage of Justice and a step to bring
judiciary under the ambit of Art 12 though not directly but indirectly so that no citizens
fundamental Rights gets violated.

INTRODUCTION

The Supreme Court of India has always contributed in innovating and developing the
constitutional jurisprudence. As a result, the order of the Supreme Court is amenable for
rectification if it results in a miscarriage of justice. 1 In lieu of this, a process has been conceived
by the apex court- termed as Curative Petition under which an aggrieved person may request the
Supreme Court to reconsider its judgement by showing gross miscarriage of justice and violation
of principles of natural justice, even after the final verdict of the Supreme Court and dismissal of
review petition. The Supreme Court of India itself evolved the concept of curative petition
through a judicial pronouncement in Rupa Hurra’s case, whereby the court reconsidered its
judgement after referred to it by a three-judge bench. 2 The Constitution of India has provided a
1
Harbans Singh v. State of Uttar Pradesh, (1982) 2 SCC 101 [hereinafter referred as ‘Harbans’ case’]
2
Rupa Ashok Hurra v. Ashok Hurra and Anr., AIR 1999 SC 2870.
proper mechanism for the cases falling under the jurisdiction of the Supreme Court. The powers
and functions of the Supreme Court are provided under the Constitution.The original, appellate
and writ jurisdiction is conferred upon the Supreme Court while the discretionary jurisdiction is
being provided in order to grant special leave petition to appeal from any judgement. In order to
fulfil the constitutional obligations, wide discretionary powers are given under its plenary
jurisdiction. Moreover, the power to review its own judgement is also given to the court so that
there will be no scope of any mistake on the part of judges as they are human beings too and can
commit mistakes. There was a time, in India, when it became the tendency of the people to
challenge the judgement of the Supreme Court via Article 32, being violation of their
fundamental rights.3.The practice became too detrimental for the apex court itself because no
forum was provided to those affected people so that they can challenge the decision even after
the dismissal of their review petition. This is the reason why most of the cases came before the
Supreme Court demanding writ of certiorari against its own verdict. The very nature and history
of that writ suggests that it was issued to bring the decisions of an inferior court, tribunal, public
authority, or any other body of persons before the High Court for review. It also follows that a
High Court cannot issue a writ to another High Court and within the bench of the same High
Court since no hierarchy is present among the different High Courts. Similar rider applies to the
Supreme Court. Though the orders of the High Courts are liable to be corrected through the
appellate jurisdiction of the Supreme Court, yet the former are not established as inferior courts
in our constitutional scheme. Another reason for rejecting the review petition under Article 32 is
that since Article 32 can be invoked only for the purpose of enforcing the fundamental rights as
guaranteed under Part III of the Indian Constitution, and if the Supreme Court allows such
petition under Article 32 then by such action it would conclude that judiciary is a ‘State’ in the
legal meaning of Article 12 of the Constitution- an issue which the Supreme Court is denying till
date.4 In Rupa Hurra’s case, a constitutional bench of five judges has unanimously held that in
order to rectify the gross miscarriage of justice in its final judgment, the court could allow the
curative petition to the victims of injustice who are entitled to a relief of ex-debito justitia to seek
a second review of the final order of the court. In this case, writ petitions were filed under
Article 32 before the three-judge bench and they were dismissed in the light of Supreme Court’s
earlier judgment wherein the final judgment of the Supreme Court was not reviewed by it
3
Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr., (1966) 3 SCR 744.
4
A.R. Antulay v. R.S. Nayak, (1988) 4 SCC 409
through a writ petition filed under Article 32 in A.R. Antulay’s case. Circumstances were
different in Rupa Hurra’s case than the precedent set by the A.R. Antulay’s case as in the former,
the petitioner was left with no other option but to file a review petition for the second time under
Article 32 but in the latter case, the constitutional bench was unanimously of the view that
though the judges of the highest court do their best to render justice to the parties still situations
may arise, in the rarest of rare cases, which would require re-consideration of a final judgment to
set aside the miscarriage of justice. It was observed that it would be the legal and moral
obligation of the highest court in the country to rectify an error in such a decision that would
remain in the cloud of uncertainty. The court’s concern for re-affirming the justice in a cause was
not less important than the ‘principle of certainty’ in its own decisions because there could be a
violation of principles of natural justice. The Supreme Court has formulated such a remedy
which can maintain a balance between the finality clause of the judgement and avoiding any
chance of miscarriage of justice

RUPA ASHOK HURRA CASE

In Rupa Ashok Hurra a writ petition under Article 32 had been filed before the three Judge
Bench and dismissed since the Court in an earlier judgment, A. R. Antulay had held that a final
Supreme Court judgment cannot be assailed via writ petitions under Article 32.8 However, more
related writ petitions were again filed before the same three judge Bench. This prompted the
three judge Bench to refer these writ petitions to a Constitutional Bench seeking its opinion as to
whether an aggrieved person is entitled to any relief against a final judgment/order of the
Supreme Court, after dismissal of a review petition, either under Article 32 of the Constitution or
otherwise.5 At this point Supreme Court accepted the petition rejecting the routes confronted of
the Constitutional Bench: to uphold the already laid down dictum that a final Supreme Court
judgment cannot be assailed via writ petition or overlook this dictum and in the interests of
justice admitted these writ petition. In India a Constitutional Bench can overrule a Division
Bench. The reason for this is that in India there is hierarchy of Courts and Benches hearing

5
Rupa Ashok Hurra v. Ashok Hurra and Anr, (2002) 4 SCC 388
matters before them. Consequently, a larger Bench can overrule a smaller Bench and hence
accepted this petition.

Unlike in A. R. Antulay, in Rupa Ashok Hurra, there was no appropriate procedure that
petitioners could have adopted to come before the Supreme Court in case the Court decided to
dismiss their writ petitions. This is what prompted the Court in Rupa Ashok Hurra to propound
the modalities of a curative petition. It is an undisputed fact that an appropriate procedure to fill
up the Constitutional lacunae that the writ petitions in Rupa Ashok Hurra had pointed out was
the need of the hour

CURATIVE PETITION AND SECOND REVIEW PETITION

The term ‘second review petition’ is a hypothetical term used purely illustratively still the huge
number of curative petitions that have been filed so far before the Supreme Court could it make
possible to say second curative petition. The litigant public seems to have taken curative
petitions to amount to the last remedy that is available to a litigant before the Court finally closes
its doors to litigation. Since April 2002 when the Supreme Court introduced the principle of
Curative petitions, six hundred and twenty four curative petitions have been filed before the
Supreme Court.This implies that the litigant public will not stop till they have exhausted all
remedies available to the Supreme Court including that of filing of curative petitions. Before
Rupa Ashok Hurra, review petitions marked the finality of a Supreme Court judgment beyond
which no further challenge of the judgment was allowed No were in Rupa Ashok Hurra is Article
137 explicitly mentioned. The Supreme Court held that under its inherent power under Article
142 of the Constitution; it can review its final order that results in a miscarriage of justice.The
power of review is granted by Article 137 to the Supreme Court to review any of its judgments.
Such power is not provided anywhere else in the Constitution. The Supreme Court has defined
review to mean re-examining or reconsidering a final decision. 6 In both curative and review
actions, the Supreme Court is only reconsidering its final judgment as such in both the
endeavours the activity is the same save for different words being adopted to describe these
activities.

6
S. Nagaraj V. State of Karnataka 1993 Supp (4) SCC 595, 619, Para 19.
In Rupa Ashok Hurra, it was necessary that the Supreme Court wore. In Rupa Ashok Hurra, it
was necessary that the Supreme Court wore the mantle of infallibility due to the fact that its
decisions are final and that no higher Court exists to correct an error by the Supreme Court. The
Supreme Court’s review and curative actions amount to an acknowledgement by it that
sometimes errors or mistakes in judgments do occur resulting in a miscarriage of justice. Such
judgments ought to be corrected through a review procedure. This line of thought might have
been an incentive for the litigant public to file unwarranted review and curative petitions in the
hope that a mistake if found in the impugned judgment. The many number of curative petitions
that have been filed and dismissed so far bears testimony to this inference. We find this despite
the Supreme Court providing a stringent procedure for filing review petitions and an even more
stringent procedure for filing curative petitions. The power of review can only be exercised once
and not twice. Such a limitation to the number of times the power of review can be exercised
marks the first distinction between a curative petition and a ‘second review petition’. Once a
review petition has been disposed off, a second review petition cannot then lie with the Supreme
Court. With such jurisprudence already in place prior to Rupa Ashok Hurra, the Supreme Court
could not give it the go by and propound modalities of a ‘second review petition’ As the name
suggests, curative petitions refer to petitions filed before the Supreme Court that seek to prevent
the abuse of the Court process and to cure a gross miscarriage of justice13 . Curative actions are
filed under Article 137, 141 and 142. They are filed after the disposal of a review petition. There
is no prescribed period for filing a curative petition.7

A curative petition can only be field under the following grounds:

1. Where there is violation of principles of Natural justice in that the aggrieved party filing a
curative petition was not a party to the lis but the judgment adversely affected his interest or if he
was a party to the lis, he was not served with notice of the proceedings and the matter proceeded
as if he had notice.

2. Where in the proceedings a learned judge failed to disclose his connection with the subject
matter or the parties, giving scope for an apprehension of bias and the judgment adversely affects
the petitioner.”

7
The Supreme Court Rules, 1966
In addition to the above grounds, the ‘curative petitioner’ must aver specifically that the grounds
mentioned in the curative petition had been taken in the review petition and that such review had
been dismissed by circulation. Circulation in this context means discussion at a judicial
conference and not in Court through oral arguments. Also, a curative petition has to include a
certificate by a Senior Advocate indicating that the same grounds in the curative petitions had
also been taken in the review petition. Further, the curative petition has to be circulated to a
bench of the three senior most judges and the judges who passed the judgment complained of, if
available. In the event of the bench holding at any stage that such curative petition is without any
merit and is vexatious, it could impose exemplary costs on the petitioner.

PROCEDURE

WHEN IS A CURATIVE PETITION AVAILABLE TO A PERSON?

a) Violation of the principles of natural justice where he was not a party to the lis but whose
rights were adversely affected by the judgment.

b)He was a party to the lis, but the notice of the proceedings was not given and the case
continued as if he has the choice.

c)Where a Learned Judge failed to disclose its connection to the subject-matter in the
proceedings.

d)The parties to suspect prejudice and the verdict adversely affect the petitioners.

The petitioner shall, in the curative petition thus filed, assert that the reasons given in the petition
for review had been taken and that it was dismissed by circulation. The curative petition should
also include a Senior Advocate certification for the fulfillment of the requirements set out above.

PROCEDURE FOR FILING A CURATIVE PETITION

 After an appeal for review against the final sentence is rejected a curative petition may be
submitted.
 It can be pursued if the petitioner claims that there was a breach of natural justice standards
and that before issuing an order he was not heard by the court.
 Curative petitions should be a rarity rather than regular.
 Curative petition must first be submitted to a Bench of the three highest judges and, if
appropriate, the judges who passed the judgment in question. It is only when a majority of
judges agree that the matter needs hearing that it should be put before the same Bench.
 The Bench will ask a senior counsel to assist it as amicus curiae (friend of the court) at any
point of consideration of the curative petition.
 Judges in the chamber usually decide on a curative petition, unless a specific request for an
open court hearing is allowed.

REASONS FOR REFUSAL:

It may impose a penalty on the petitioner in case the Bench holds at any point that the petition is
without any merit.

EX DEBITO JUSTITIAE OBLIGATION

In common law jurisprudence ex debito justitiae obligation is often called “as of right rule” and it
entitles defendants to have an irregular, default judgment set aside without considering the
merits. The ex debito justitiae obligation means no more than this: ‘in accordance with settled
practice, the court can exercise its discretion in only one way, namely, by granting the order
sought’. The rule ensures that litigants comply with the relevant procedural rules and that
defendants have notice of proceedings and is protected from the injustice that might result if a
judgment is unfairly passed against them. The similarity between the ex debito justitiae
obligation usage in England and India is that the Court has no discretion than to set aside the
impugned judgment. Therefore in conclusion it can be said ex debito justitiae is an obligation in
which the Court does not exercise its discretionary power. This is what the Supreme Court stated
in A. R. Antulay. In Rupa Ashok Hurra, the Court was clear that to be entitled to a relief ex
debito justitiae a petitioner has to fulfil the grounds laid down for filing a curative petition. This
means that a petitioner who seeks to assail a final Supreme Court judgment but is unable to make
out a case within the parameters laid down in Rupa Ashok Hurra cannot then be heard by the
Court. In other words the Court in such a case cannot be ‘obliged ex debito justitiae since the
petitioner has been unable to come before the Supreme Court. This state of affairs is what makes
Rupa Ashok Hurra dictum appear different from that of A. R. Antulay. With regard to curative
petitions, the Court can choose to admit or dismiss them depending on whether they fulfil the
parameters laid down in Rupa Ashok Hurra. In other words the Court can exercise discretionary
powers in relation to curative petitions. However when it comes to the ex debito justitiae
obligation the Court has no discretion as has been laid down in A. R. Antulay. If facts
ascertained before the Court prove that a miscarriage of justice has taken place in the impugned
judgment, the Court would have discretion than to set aside such judgment. The fact that so far
only two curative petition has been successful before the Supreme Court suggests two things.
First, that so far only two curative petition has been able to make out a case within the Rupa
Ashok Hurra parameters. Secondly, that so far as no other grounds that result in miscarriage of
justice that have been alleged in a curative petition have succeeded. The second suggestion is a
hypothetical proposition and hasn’t been proven so far however, it cannot be wished away
because the Court in Rupa Ashok Hurra had stated that it was not possible to enumerate all the
grounds on which a curative petition may be entertained .

THE ERA OF 'CURATIVE JURISPRUDENCE': SUBSEQUENT DEVELOPMENTS

In march 2013, Supreme court allowed a curative petition against its 2009 judgements which
held that if a woman kicked her Daughter-in-law or threatened her with divorce, it would not
amount to cruelty under Sec 498-A of the Indian Penal code 8. In April 2010, the court also
corrected a mistake in its verdict that had led to wrongful detention of four accused in a 21 years
old case without any hearing.9

The Supreme Court in the case of Union of India v. Azadi Bachao Andolan 10 upheld the validity
of circular issued by the Central Board of Direct Taxes regarding The Indo-Mauritius Tax
Treaty, regarding the certificate of residence issued by Mauritius regulatory authority, which
would allow them to gain important tax exemptions. A curative petition was filed on the grounds
that the decision sanctions the concept of "treaty shopping" and that it has gone against the
constitution since delegated powers of the government had been granted privilege over statutes.
A five -judge bench had been set up to consider whether it should be admitted, and was

8
Bhaskar Lal Sharma & Anr vs Monica And Ors on 18 February, 2014
9
Navneet Kaur v. State of NCT of Delhi (2004) 10 S.C.C. 1
10
(2004) 10 S.C.C. 1.
subsequently dismissed. Yakub Abdul Razak Memon Curative petition "The SC has held that
curative petitions must be rare rather than regular, and be entertained with circumspection 11."

The Supreme Court12 Thursday dismissed the curative petition of one of the four death row
convicts in the Nirbhaya gang rape and murder case saying "no case is made out".The top court
also rejected convict Akshay Kumar Singh's plea seeking stay of his execution."The application
for oral hearing is rejected. The application for stay of execution of death sentence is also
rejected," said the 5-judge bench which heard the plea in-chamber."We have gone through the
Curative Petitions and the relevant documents. In our opinion, no case is made out within the
parameters indicated in the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra &
Another, reported in 2002 (4) SCC 388. Hence, the Curative Petitions are dismissed," the bench
said.

CONCLUSION

Roscoe Pound stated that flexibility is the greatest virtue of law and thus its applicability should
also be flexible rather than a rigid insistence on a strict format. Justice of the situation shall have
to be considered with a fair perception of such a concept rather than with a blinking light
attention ought to be focussed on a larger social perspective since law is meant for the society
and if flexibility is its virtue, which law enjoys, its corresponding primary duty thus would be to
change the legal horizon and perspective with the appropriate socioeconomic change. The law
must follow the society rather than abandon the society and carry on it strict track without any
deviation or without being hindered of the social changes and thus resultantly face a social
catastrophe. Curative Petition is a case of old wine in a new bottle. Perhaps I personally feel that
it could be brought under Art 137 of Indian Constitution "Review petition" Review should not be
considered as a single review. This power of review as per Article 137 is not restricted to only
one time use in relation to a final Supreme Court decision. Amending Order 40 of the Supreme
Court Rules, 1966 could also be considered as one of the solution for it. The Birth of curative
Petition is for single reason that there should not be Miscarriage of Justice and a step to bring
11
https://www.thehindu.com/news/national/1993-mumbai-serial-blasts-case-convict-yakub-memons-curative-
petition-rejected/article7447721.ece
12
https://economictimes.indiatimes.com/news/politics-and-nation/sc-dismisses-curative-plea-of-nirbhaya-case-
convict/articleshow/73763928.cms?from=mdr
judiciary under the ambit of Art 12 though not directly but indirectly so that no citizens
fundamental Rights gets violated.