CURATIVE PETITIONS: AN EXPLAINER

BHAKTI PAREKH

Introduction

A curative petition is considered to be the ultimate resort and remedy available to an aggrieved person for redressal of grievances before the Supreme Court. A curative petition is a relatively new legal concept which was introduced and developed by the Supreme Court in the landmark case of Rupa Ashok Hurra v. Ashok Hurra & Anr[1] in 2002.

The Concept of Curative Petition

“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.”[2], a concept needed to be developed which would help fight the grave miscarriage of justice or violation of the principles of natural justice that might take place. The Curative petition thus evolved from the idea put forth in the Latin maxim “actus curiae neminem gravabit” which means that an act of the court shall prejudice no one. The petition is considered to fall under the ambit of the Supreme Court’s inherent and plenary jurisdiction. This petition can be filed only after the final order or judgement of the Supreme Court has been pronounced and a review petition against such final order or judgement has also been dismissed. It is a discretionary power which can be exercised only in rare cases. Curative petitions deal with and are limited to the question of law alone and are not to deal with question of facts. There is a procedure to be followed to file such a petition and such a petition is entertained in extremely rare cases.

Difference between Review Petition and Curative Petition:

A curative petition is vastly different from a review petition. A review is basically the judicial re-examination of a particular case and the Constitution of India by Article 137 empowers the Apex Court to review any judgement or order pronounced by it. A review petition plays an important role in cases where no appeal lies. The Court has discretionary power over the reviewing of a case and grounds for a review are limited. Meanwhile, a curative petition may be considered only in cases where the review petition has been dismissed by the Court and in order to stop the abuse of the process. It also needs to be noted that Article 137 exclusively talks about the review powers of the Supreme Court and is silent when it comes to the curative petition. The curative power flows through Article 142 which expects the court to do justice without prejudice. The powers are curative and inherent in nature and are not to be abused. The Curative power is to be used sparingly and only in cases as specified in the case of Rupa Ashok Hurra v. Ashok Hurra and Anr.

Words of the Honourable Supreme Court:

While answering the question of whether an aggrieved 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, which was raised in the above mentioned case, the Supreme 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 judgement 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 prevail over the policy of certainty of judgement as though it is essentially in public interest that a final judgement 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 judgement would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.”[3]

The Supreme Court, after setting down the jurisdiction of the curative petition in the landmark case went on to set down the procedure, parameters and exceptional circumstances in which such a petition may be entertained. The Apex Court stated, “this Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgements in exercise of its inherent power. The next step is to specify the requirements to entertain such a curative petition under the inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exist, the Court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party tot the lis but the judgement adversely affected his interests 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 and (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 judgement adversely affects the petitioner… we are of the view that since the matter relates to re-examination of a final judgement 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 judgement 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.”[4]

Examples of Curative Petitions

Curative petition has been in the news recently as the Nirbhaya case convicts filed a curative petition after their mercy and review petitions were dismissed. In this case, the Supreme Court went on to dismiss the curative petition as well.

An example where the curative petition was allowed by the Court is that of the National Commission for Women by restoring the Special Leave Petition where the Supreme Court set aside its own judgement which held that the conduct of a woman simply kicking her daughter-in-law or threatening her with divorce would not fall within the scope of cruelty under section 498A of the Indian Penal code.

It also needs to be kept in mind that, “The rarity of the curative remedy is reflected by the fact that in the fifteen years since Hurra, only four curative petitions have been allowed.”[5] Further, the curative petition which has to be certified by a Senior Advocate, may be rejected at any stage, if the Bench finds that the petition is without merit and can also impose a penalty on the petitioner.

To conclude, the curative petition as a remedy evolved due to exceptional circumstances that were presented before the Court in the case of Rupa Ashok Hurra and the court after emphasising upon the importance of the principle of finality of the judgement pronounced by the final court gave higher importance to the principle that the Court shall prejudice no one. A curative petition is to be a rarity and its objective is to cure the grave miscarriage of justice that might have been done and further to prevent the abuse of the legal process.

REFERENCES

  • Gautam Bhatia, Section 377 Referred to a Constitution Bench: Some Issues, Indian Constitutional Law and Philosophy Blog
  • Mahima Wahi, Curative Petition – Inherent Jurisdiction of the Supreme Court, Ipleaders Blog
  • Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388

[1] Rupa Ashok Hurra v. Ashok Hurra & Anr., (2002) 4 SCC 388

[2] Mahima Wahi, Curative Petition – Inherent Jurisdiction of the Supreme Court, Ipleaders Blog, last accessed on May 25, 2020 at 11:00 on https://blog.ipleaders.in/curative-petition-supreme-court/

[3] Supra note 1.

[4] Ibid.

[5] Gautam Bhatia, Section 377 Referred to a Constitution Bench: Some Issues, Indian Constitutional Law and Philosophy Blog, last accessed on May 25, 2020 at 11:15 on https://indconlawphil.wordpress.com/tag/curative-petitions/

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