“In my view, it is now time that procedural justice system should give way to the conceptual justice system and efforts of the law Court ought to be so directed. Gone are the days where implementation of draconian system of law or interpretation thereof were insisted upon – Flexibility of the law Courts presently are its greatest virtue and as such justice oriented approach is the need of the day to strive and forge ahead in the 21st century.”
Justice U.C. Banerjee
The Article 137 of the Constitution relating to the review power of the Supreme Court was broadly interpreted by the Court in Rupa Ashok Hurra v. Ashok Hurra & Anr.[1] in order to provide with another Constitutional remedy to a person whose review petition has been dismissed by the Supreme Court i.e. Curative Power.
The dictionary meaning of the word ‘Curative’ means ‘able to cure disease’, where the Supreme Court stated that the curative power was given shape and form to prevent abuse of its process and to cure a gross miscarriage of justice. As in the words of the 5-Judge Bench, “The Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may reconsider its judgement in exercise of its inherent power”, and such inherent powers are vested under Articles 142 and 137 of the Constitution.
While answering the question ‘Whether an aggrieve person is entitled to any relief against a final judgement/order of the apex court after dismissal of the review petition, either under Article 32 of the Constitution or otherwise?’ the Court stated that, “Almighty alone is the dispenser of absolute justice – a concept which is not disputed but by a few. We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final court in the country should not be open to challenge yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.”
The Court also laid down the basics requirements to file a curative petition in the Rupa Ashok Hurra Case,
- The Court shall not entertain an application seeking reconsideration of an order of the apex court, after on dismissal of a review petition, except when very strong reason exists.
- Where the order or judgement has adversely affected the interest of the person who is not a party to the case, which is a violation of principles of natural justice.
- When the notice of the case proceedings and matter of the case was not served properly to the party, which is a violation of Right to fair trial.
- Where the Learned Judge failed to bring about and establish the connection between the proceedings and subject-matter.
- Where there is an apprehension of bias in the judgement.
Whereby, the petitioner has to mention the detailed reasons for the curative petition and also mention the grounds the court has failed to consider while dismissing the review petition. The curative petition must be attached with a certification by a Senior Advocate with regard to the enforcement of the above-mentioned requirements in the petition.
The curative petition must be circulated to a Bench of the 3 senior-most Judges and the Judges who passed the judgement complained of (if available). And it is only when a majority of this bench decides to hear the case, the case gets listed before the bench. The court also added that, the court at time during the pendency of the lis may ask the senior counsel to assist the case as amicus curie. The court has the power to impose exemplary cost on the petitioner if it finds the petition to be displeasing and waste of court’s time.
It is significant that normally the curative petition is heard in the chamber of the Judge, unless a special request to bring it to hearing in an open court, and it is also significant that, since the court stated that petition must be filed within a reasonable time, there is no limitation for the curative petition.
A major emphasis must be supplied to the para of the judgement of the SC which states as follows: “Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression ‘for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.”
Justice Banerjee also added that, “Curative Petitions ought to be treated as a rarity rather than regular.”
The SC in a recent case on 14 Jan, 2020 rejected the Curative Petition in the Case of Vinay Sharma & Mukesh v. The State of NCT of Delhi[2], on the prima facie since no case was made out within the parameters indicated by the Rupa Ashok Hurra Case. Which arose form the case of the Delhi gang Rape-Muder case in 2012 i.e. Mukesh & ors. v. The State of NCT of Delhi[3].
Even though there is a narrow line that differentiate between a curative petition and review petition, the apex court has laid down distinct grounds for filing both these petitions and this makes it evident that both the petitions are different in totality.
Thus, it can be said that the idea of the curative petition is a Constitutional remedy which is a last resort that was originated to rectify the decision of the Supreme Court by themselves as a legal and moral obligation in deciding rarest of rare cases.
Edited by Pushpamrita Roy
Approved & Published – Sakshi Raje
Reference
[1] 2002 (4) SCC 388
[2] Curative Petition (Clr.) Nos. 6, 7, 8 of 2020 in Review Petition (Crl.) Nos. 672 – 673 of 2017 in Crl. A. Nos. 609 – 610 of 2017.
[3] Crl. A. Nos. 609 – 610 of 2017
