Curative Petition – Inherent Jurisdiction of the Supreme Court

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In this article, Mahima Wahi discusses how to file a Curative Petition.

Curative Petitions are such petitions that have seen a comparatively newer introduction in the field of law in our country. Such petitions serve as the final and last option for the parties to get justice as promised and guaranteed to each one of us through The Constitution of India. However, this concept is relatively new and faced a lot of criticism by the Bench as being a concept that could shake the trust of the public that the public at large bestows on them. The parameters within which a curative petition may be allowed are narrow and therefore, such petitions when allowed are treated to be rare.

Understanding the concept of Curative Petition

The concept was evolved by the Supreme Court of India in the matter of Rupa Ashok Hurra Vs. Ashok Hurra and Anr., where the issue raised pertained to “whether an aggrieved person is entitled to any relief against the final judgment/order of the Supreme Court, after the dismissal of a review petition?”[1].

The conflict arose between the parties on account of matrimonial discord, it was here that the question regarding the validity of a decree of divorce reached the SC after the woman withdrew the consent she had given to divorce by mutual consent.[2]

Jurisprudence behind Curative Petition

The objective behind allowing such a petition is only to minimize any abuse of the processes of law and to cure gross miscarriage and lapses in the system of justice.
It is considered as the last and final option available for redressal of grievances.
It is generally not allowed to happen in an open court and is heard in the chamber of the judge.
It is a rare phenomenon that the same may be heard in an open court.
The aggrieved parties have the statutory right to appeals or civil reviews or revisions depending on the nature of dispute and issues which escalate vertically to appellate/ revisional/ reviewing forums.[3]
The General jurisprudence of Appeals allows parties to use their chance in the highest court of the country i.e., The Supreme Court of India by way of Writs, SLP’s or statutory appeals.
Once a decision is given by the Supreme Court of India the same may be considered final and binding. The reasoning behind the same lies in the Latin maxim “interest Reipublicae Ut sit finis litium” which means in the interest of society and public as a whole, any litigation must come to an end considering the time taken for each litigation to reach a final outcome.

However, in the interest of justice, the founding fathers and mothers inserted Article 137 of the Constitution, which allows a review of orders passed by the Supreme Court.[4]

The question which came to the light was regarding any situation where the parties feel that even after the revision petition, the justice has not been served. The question seemed logical and practical as the main aim of the judiciary is to give proper meaning to the provisions of law and any miscarriage of justice shall be harmful for the society at large.

Actus Curiae Neminem Gravabit

Keeping in mind that in the Apex Court, there lies no appeal against an order of its own which means that there is no intra court appeal in the Supreme Court. It is also a well-settled principle that an act of the court shall prejudice no one; the same is based on the Latin Maxim “actus curiae neminem gravabit”. Considering that it would be an extremely strong discretionary power which could only be exercised in rare cases.

Therefore, finding an answer to the above-stated question doesn’t only seem as a necessity but also as an imperative step to prevent any lapses in the prevalent system of law. The question was decided by introducing this interesting and new concept of “Curative Petitions”. It may be noted that while introducing such a concept, it was mentioned that the basis of such petitions can only be limited to the question of law and law only, no question of facts and numbers would be entertained under such a petition.

Procedure for filing a Curative Petition

Before we jump onto the analysis of the landmark judgment given in Rupa Ashok Hurra Vs. Ashok Hurra, it is important to note the procedural aspects laid down in the Handbook on Practice and Procedure and Office Procedure of The Supreme Court of India.[5] The following points under the handbook, explain in detail the procedure and requisites that shall be fulfilled for filing a curative petition:

The Supreme Court shall have Inherent and Plenary Jurisdiction to hear such petitions. It is made clear under Chapter 2 of the Handbook.
Order XLVIII of the Supreme Court Rules states when can a Curative Petition be filed which is after the dismissal of a case in exercise of review jurisdiction under Article 137 of the Constitution, by way of circulation, a curative petition can be filed under the inherent jurisdiction of the Court to prevent abuse of its process and cure gross miscarriage of justice, as per the law laid down in the case of Rupa Ashok Hurra vs. Ashok Hurra and Anr.[6] It can be either a civil petition or a criminal petition.
The handbook further adds on Page 36 that such a petition which is filed under Order XLVIII of the rules shall be circulated to and heard by a bench of three senior most judges as well as the judges who passed the judgment in question. Unless otherwise ordered by the court, such a petition shall be disposed of by circulation without any oral arguments. But in case the Bench before which such a curative petition is circulated deems just and proper, it may list the same for hearing before the same Bench, as far as possible.
The affidavit which may accompany the curative petition shall clearly mention that the petition is governed by the judgment of the Court as given in the case of Rupa Ashok Hurra Vs. Ashok Hurra.[7]
Chapter X of the Handbook enlists how various petitions that are to be submitted before the Apex Court are to be prepared. It shall be made following the below-listed grounds:It shall be governed by the laws laid down under landmark judgment given in the matter of Rupa Ashok Hurra Vs. Ashok Hurra.
It shall contain specifically that no new grounds have been taken and the grounds mentioned in the petition had been taken in the application for review, which was dismissed by circulation.[8]
It shall always be accompanied with the following:A certificate of the senior advocate that the petition meets the requirements delineated in the case mentioned;
A certified or authenticated copy of the judgment or order complained of; and
A certificate of the advocate-on-record to the effect that it is the first curative petition in the impugned matter.
The handbook also states clearly that there is no limit within which a curative petition must be filed; it also specifically mentions that it shall not be governed by the provisions of The Limitations Act, 1963. However, it does mention that the same must be filed within a reasonable time from the date of the impugned judgment.
In the third schedule of the handbook, the fee for such petitions finds mention. It states that the same fee as was paid in the original proceedings shall be levied.
Analysis of the Judgment

Rupa Ashok Hurra v. Ashok Hurra (2002)4 SCC 388; AIR 2002 SC 1771

In the judgment given by Hon’ble Justice Syed Shah Mohd. Quadri (for C.J., himself, Variava and Patil, JJ.) a bare reading of Article 32 of the Constitution of India led to the understanding that:

The Right to move the Supreme Court by appropriate proceedings for the enforcement of the rights of Fundamental Rights is guaranteed;
The Supreme Court is vested with the power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate for the enforcement of any of the rights conferred by Part III. Without prejudice to the powers of the Supreme Court;
To empower by law any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2) of Article 32;
The constitutional mandate embodied in clause (4) of the Article 32 shall not be suspended except as otherwise provided for by the Constitution of India.
High Court cannot issue Writs to other High Court

The bench having critically and crucially examined the nature and historical background of writs in India as well as under the English Laws, it was noted that a “High Court cannot issue a writ to another High Court, nor can one Bench of a High Court issue a writ to a different bench of the same High Court”

Naresh Shridhar Mirajkar Vs. State of Maharashtra

Basing the view on a writ filed in the Supreme Court of India challenged an oral order of the High Court of Bombay. It was held in this case that:

It was suggested that the High Courts might issue writs to this Court and to other High Courts and one Judge or Bench in the High Court and the Supreme Court might issue a writ to another Judge or Bench in the same Court. This is an erroneous assumption.
To begin with the High Court’s cannot issue a writ to the Supreme Court because the writ goes down and not up.
Similarly, a High Court cannot issue a writ to another High Court. The writ does not go to a court placed on an equal footing in the matter of jurisdiction.
Where the county court exercised the powers of the High Court, the writ was held to be wrongly issued to it.[9]
After hearing both the parties in all fairness, the bench recorded that the jurisdiction of this court under Article 32 cannot be invoked and challenge a final judgment/order passed by this court after exhausting the last resort provided under Article 137 read with Order XL Rule 1 of the Supreme Court Rules, 1996.

Amicus Curiae

However, the Amicus Curiae suggested an adoption of an unusual unanimous approach to apply to a situation where even after exhaustion of Article 137 of the Constitution of India an aggrieved party might be provided with an opportunity under inherent powers of this Court to seek relief to avoid and prevent the miscarriage of justice because then it would render the party helpless leaving no recourse to any other forum.

Facts presented by Mr. Shanti Bhushan, Petitioner’s Counsel

Mr. Shanti Bhushan, Petitioner’s Counsel, brought to the attention of the bench that the principle of finality of the order of this Court had to be given a go-by and the case re-examined where the orders were passed without jurisdiction or in violation of the principles of natural justice, violation of any fundamental rights or where there has been gross injustice.[10]
He further brought to the attention of the court that under Order XLVII, Rule 6 of the Supreme Court Rules, the Hon’ble Supreme Court of India had inherent jurisdiction and any cases falling under the above-mentioned clauses came under their jurisdiction.
Reference was made by Mr. Shanti Bhushan to Supreme Court Bar Association Vs. Union of India[11]
He relied on the judgment to show that such a power was exercised by this Court and pleaded to fashion appropriate procedure for entertaining application to reconsider earlier judgment of this Court at the instance of an aggrieved person to do justice to the parties.[12]
Various arguments by eminent lawyers like Mr. K.K Venugopal, Mr. Shanti Bhushan, Mr. Anil B. Divan, Dr. Rajeev Dhawan, Mr.Ranjit Kumar etc were put forward basing their submissions on many landmark cases from Indian courts as well as from foreign courts including the ones mentioned above.

It was further noted that a petitioner is entitled to relief ex debito justitiae if he establishes:

A violation of natural justice or where there has been an apprehension of biasness which adversely affects the party or parties, the grounds mentioned in the petition should have been taken in the Review Petition and it should have been dismissed by circulation. It shall also contain a certification by a Senior Advocate confirming that the above-listed -requirements have been fulfilled.
The bench was of the view that because the matter related to the re-examination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available.
It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders.[13]
However, if by the end of the case, it is found that the case was filed without any merits and was deemed vexatious then, the court may also impose exemplary and heavy costs on any such party or parties.
Curative Petitions ought to be treated as a rarity

Hon’ble Justice Banerjee went on to add his own submissions to the case stating that “curative petitions ought to be treated as a rarity rather than regular and the appreciation of the Court shall have to be upon proper circumspection having regard to the three basic features of our justice delivery system to wit, the order being in contravention of the doctrine of natural justice or without jurisdiction or in the event of there is even a likelihood of public confidence being shaken by reason of the association or closeness of a judge with the subject matter in dispute”[14].

Held

In totality, a benevolent view was taken by the bench to ensure that there is no miscarriage of justice. In view of the same, the judgment held that technical difficulties and apprehensions over the reopening of cases had to give way to a final forum for removing errors in a judgment where administration of justice may be affected.[15] However, the same may be subjected to the fulfillment of requirements mentioned herein above. Such petitions may be treated as rarest of the rare to maintain the trust and credibility, people of the country look up to from the Apex court of the country.

With this case, the concept of Curative Petition was brought to light

The judgment enlisted various requirements that would be needed to file such a petition, on the same side of the coin Justice Banerjee, emphasized on treating these petitions under the umbrella of rarest of the rare.
They stuck to the view that such matters shall not shake the interest and trust of the public at large and shall act as a tool to prevent gross miscarriage of justice.
A good system of justice carries the burden of natural justice on its shoulders in a way that it benefits the people of the country the most. It ensures that no injustice shall be caused to any person and that decisions should never be subjected to prejudice of any sort.
As quoted by Victor Cousin “The universal and absolute law is that natural justice which cannot be written down, but which appeals to the hearts of all”, the Hon’ble Supreme Court gave similar connotation and introduced this concept which gave a new insight to the whole system of justice.
It is to be believed that a system which bases reliance both on the principles of law, as well as natural justice, is a system for the good and benefit of the people.
Recent Judgments of Curative Petition

Naz Foundation Trust Vs. Suresh Kumar Koushal And Ors.[16]

The judgment was given by Hon’ble Justice(s) S. A Bobde and Ashok Bhushan clarified the position that it may not be necessary to delve into the merits of the case presented by the bar at all times. All that was noted was that since the issues were of considerable importance and public interest, the curative petition was placed before the Chief Justice of India, to list before the suitable bench.

Yakub Abdul Razak Memon vs State of Maharashtra[17]

Justice Kurian of the Supreme Court of India did not agree with the view taken by Justice Anil Dave, he emphasized that Curative Petitions must be heard in accordance with the guidelines mentioned in Rupa Ashok Hurra Vs. Ashok Hurra.

Central Bureau of Investigation and Ors. Vs. Keshub Mahindra and Ors.[18]

Even though the handbook makes it clear that Curative Petitions may not be governed by the provisions of The Limitations Act, it does state that such a petition must be filed within a reasonable time period. In the above-stated matter, the curative petition was dismissed stating that no satisfactory reason was stated in the petition as to why it took 14 years for the petitioners to file such a petition.

CONCLUSION

As much as we may want to believe, Judges whether of the Supreme Court, High Courts or district courts, they aren’t gods. They are humans and humans are bound to make errors at some level or the other. While the decisions of the lower courts can be reviewed, appealed against or revised under various Articles of the Constitution, the apex court could not go against its own order to make changes. However keeping in view that error is natural and may be committed by any human, it was imperative to introduce a concept that would allow The Supreme Court of India to review an order passed by them.

References

[1] Utkarsh Anand, Explained- 1993 Mumbai serial blast: What is curative petition?, The Indian Express, July 29, 2015

[2] Supra 1

[3] Namit Saxena, The last chance after Last Chance-Curative Jurisprudence, http://www.livelaw.in/last-chance-last-chance-curative-jurisprudence/

[4] Supra 3

[5] Supreme court of India handbook on practice and procedure and office procedure, 2017

[6] Rupa Ashok Hurra Vs. Ashok Hurra, (2002)4SCC388

[7] Supra 6

[8] SUPREME COURT OF INDIA HANDBOOK ON PRACTICE AND PROCEDURE AND OFFICE PROCEDURE, 2017, Pg. 75

[9] Naresh Shridhar Mirajkar Vs. State of Maharashtra; 1898 (1) Q.B. 669 (India)

[10] Supra 6

[11] Supreme Court Bar Association Vs. Union of India;(1998)4SCC409 (India)

[12] Supra 6

[13] Supra 6

[14] Supra 6

[15] Supra 1

[16] Naz Foundation Trust Vs. Suresh Kumar Koushal And Others, (2016)7SCC485

[17] Yakub Abdul Razak Memon vs State of Maharashtra (2015) 9 SCC 552

[18] Central Bureau of Investigation and Ors Vs. Keshub Mahindra And Ors., (2011)6SCC216



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