CONTENTS

INTRODUCTION

ORIGIN OF CURATIVE PETITION.

ANALYSIS.

WHETHER CURATIVE PETITION IS SECOND REVIEW

PETITION OR NOT?

CRITICAL EVALUATION

CASE-LAWS

CONCLUSION

BIBLIOGRAPHY

INTRODUCTION:

The Constitution of India assures to provide justice to every soul. It has been mentioned that

it is the Hon’ble Apex Court who assures justice. It will show that up to what extent the

Hon’ble Apex Court or Indian Judicial System has been able to provide justice with the help

of its inherent/plenary power. Review petitions have been provided for in the Constitution

unlike curative petitions which are a result of a Supreme Court pronouncement. This project

seeks to present the concept of Curative Petition.

Curative petition is the inherent power of the Supreme Court seeking review of its own

judgement. Curative petition is a branch of law which is still, to spread its roots in the Indian

judiciary. The Supreme Court of the country and its learned judges propounded what came to

be known as curative petition in the recent past, i.e. in the year 2002 through a case Rupa

Ashok Hurra v. Ashok Hurra .Even after review petition filed under Art. 137 is rejected by

the Court, that may not be the end of the road. The Court may still review the case under

inherent power but on very restricted grounds. The petitioner, in the curative petition, shall

ever specifically that the grounds mentioned therein had been taken in the review petition and

that it was dismissed by circulation. The curative petition shall contain a certification by a

Senior Advocate with regard to the fulfilment of the above requirements.

ORIGIN OF CURATIVE PETITION

The concept of Curative petition was evolved by the Hon'ble Supreme court in the matter of

Rupa Ashok Hurra v. Ashok Hurra1. where the question was whether an aggreived person is

entitled to any relief against the final judgment/order of the Supreme Court, after dismissal of

a review petition. The Supreme Court in the said case held that in order to prevent abuse of

its process and to cure gross miscarriage of justice, it may reconsider its judgments in

exercise of its inherent powers. It was also ruled that, while certainty of law is important in

India, it cannot be at the cost of justice For this purpose the Court has devised what has been

termed as a "curative" petition.

CASE: Rupa Ashok Hurra vs Ashok Hurra & Anr on 10 April, 2002

BENCH: S Bharucha, S Quadri, U C Banerjee, S Variava, S V Patil

Delivered by

1 JT 2002(3) SC 609 : (2002) 4 SCC 388.

Syed Shah Mohammed Quadri,J U.C. Banerjee, J

FACTS OF THE CASE:

The plaintiff and the defendant filed for divorce by mutual consent after a few troubled years

of marriage. However, the wife withdrew her consent before divorce was granted. Keeping

this in mind, the lower court did not grant divorce to the husband.

However, taking into consideration the fact that consent had been withdrawn after the 18

month period prescribed under the Hindu Marriage Act, the High Court granted divorce.

The wife appealed to the Supreme Court. In the meantime, the husband got married

elsewhere and had a son.

The Supreme Court held that although the husband ought not to have married before the

disposition of the appeal, irretrievable breakdown of marriage had taken place. The parties

had been suffering for 12 years and hence it would not be right to prolong their agony.

Although the court made serious remarks about the behaviour of the husband, it was held that

divorce had been granted and that the second marriage was valid.

Thereupon a review petition was filed subsequently to review the judgment

delivered by the Supreme Court in the civil appeal. This

review pe t i t i on  was  d i s mi s sed .  

The  pe t i t i one r   t he n   f i l ed   a  wr i t   pe t i t i on  und e r  Ar t i c l e   32 questioning the

validity of the judgment delivered in the civil appeal. The three judge Bench of

the Supreme Court referred the said writ petition to a Constitution Bench of five judges.

ISSUE OF THE CASE :

‘Whether an aggrieved person is entitled to any relief against a final

judgment/order of the Supreme Court, after dismissal of review  petition, either

under Article 32 of the Constitution or otherwise?’

ARGUMENTS:

The following was submitted before the Supreme Court;

That the principle of finality or certainty of judgments of the Supreme Court has its

own importance but it was now required to be circumvented and the case should be

re-examined where the orders were passed without jurisdiction or in violation of

principles of natural justice, violation of any fundamental rights or where there has

been a gross injustice,

That the Supreme court had the inherent jurisdiction under the Supreme

CourtRules, 1966, (precisely Order 47 Rule 6) therefore the cases falling in the

aforementioned categories should be examined under the inherent jurisdiction of this

court,

That the provisions of Order 47 Rule 6 the Supreme Court Rules, 1966 was a mere

restatement of the provisions of Article 137 of the

constitutioninherent jurisdiction of the court could be exercised to remedy the injustic

e suffered by a person.

That Article 129 of the Constitution declared the Supreme Court to be a Court

of Record so that it would have inherent powers to pass appropriate orders to undo

injustice to any party resulting from judgment of this court.

That since the Supreme Court was the creature of the Constitution, such that the

corrective power was to be derived from the provisions conferring jurisdiction on the

Supreme Court like Articles 32 and 129-140, such a power did not arise from

an abstract inherent jurisdiction. It was also contended that the corrective power was a

species of the review power and Articles 129, 137, Order 40 Rule 5 and Order 47

Rule 1 and 6 indicated that this court had inherent power to set right its own

judgment.

JUDGEMENT:

The Constitutional Bench held that a final judgment/order passed by

theSupreme Court could not be assailed in an application under Article 32 of the Constitution

of India by an aggrieved person whether he was a party to the case or not. The jurisdiction of

the Supreme Court under Article 32 of the could not be invoked to challenge the validity of a

final judgment/order passed by the court after exhausting theremedy of review under Article

137 read with Order 41 Rule 1 of the Supreme CourtRules, 1966.

The writ of certiorari under Article 32 of the Constitution could not be issued to correct an

earlier order of this Court.

However the Supreme Court, to prevent abuse of its process and to cure a grossmiscarriage of

justice, could reconsider its judgments in exercise of its inherent power butonly in the rarest

cases where such injustice was manifest or where the orders had been passed without

jurisdiction. It was also ruled that, while certainty of law is important in India, it cannot be at

the cost of justice For this purpose the Court has devised what has been termed as a

"curative" petition.

The curative petition was to contain a certification by a Senior Advocate with regard to the

fulfillment of the above requirements.

ANALYSIS OF THE TOPIC:

Under article 137 the Supreme Court has expressly been given the power to review its own

judgements. This is subject to any law passed by the parliament. This power can be exercised

under the rules made by the court under the Article 145, on grounds mentioned in the order

57, Rule 1 of C.P.C.A review will lie in the supreme court on:-

 

(1)   Discovery of new important matters of evidence;

 (2)   Mistake or error on the face of the record;

 (3)   Any other sufficient reason.

 

A judgement of the Supreme Court or the final court has been held final.a review on such a

judgement is an exceptional phenomenon, it would be permitted only where a grave and

glaring error or other well established ground is  made out. In a review petition, an error of

substantial nature only can be reviewed. When a plea of self defence is taken and if the court

is satisfied that it is probable and there is basis for the same and if the benefit is to be given to

the accused then the legality of the conviction itself is involved. If the court is satisfied about

probability and basis of such plea such a question can be examined.

FINAL ORDERS CAN BE REVIEWED: CURATIVE PETITIONS

In a judgement of far reaching consequences in Rupa Ashok Hurra v. Ashok Hurra,a five

judge constitution bench of the Supreme court has unanimously held that in order to rectify

gross miscarriage of justice in its final judgement which cannot be challenged the court will

allow curative petition by the victim of miscarriage of justice to seek a second review of the

final order of the court. It was of the view “that though the judges of the highest court do their

best subject to the limitation of human fallibility yet situations may arise, in the rarest of rare

cases, which would require reconsideration of a final judgement to set right miscarriage of

justice.” The court observed that it would be the legal and moral obligation of the apex court

to rectify error in such a decision that otherwise would remain in the cloud of uncertainty.

This judgement was given in a bunch of petitions on the question whether a petitioner could

question a final judgement even after the dismissal of the review petition.

The courts concern for reordering justice in a cause was not less important than the principle

of certainty in its judgements because there could be grounds that such a decision was in

violation of natural justice and that there was an abuse of the court’s judicial process. In the

decision of the Rupa Ashok Hurra v. Ashok Hurra, justice quadric observed that “we are

persuaded to hold that the duty to do justice in these rarest of rarest cases shall have to prevail

over the policy of certainty of judgements as though it is essential in public interest that a

final judgement of the final court in the country should not be challenged.

 Such a Curative petition under the Court’s inherent power can be filed, seeking review of a

decision which has become final after dismissal of a review petition under Art.137, on very

strong grounds, such as,

1. Variation of the principle of natural justice – the right to be heard, as for example,

when the affected person was not served notice or not heard during the proceedings;

2. A Judge who participated in the decision- making process did not disclose his links

with a party to the case , i.e question of bias;

3. Abuse of the process of the court.

The above list of grounds to move a curative petition is not exhaustive. The court has

observed in the case of Rupa Ashok Hurra v. Ashok Hurra in this connection:

“It is neither advisable nor possible to enumerated all the grounds on which such a petition

may be entertained.”Nevertheless, the petitioner is entitled to relief ex debito justitiae if he

establishes the following above mentioned grounds.

The court has also imposed certain severe restrictions by this channel of review by way of

curative petition for example.

The ground stated in the curative petition must have been taken earlier in the review

petition;

A senior advocate must certify that the above requirements have been fulfilled;

If at the stage of consideration of the curative petition, the bech holds that petition is

without any merit and is vexatious, exemplary cost may be imposed on the petitioner;

The petition has first to be circulated to a bench of three senior most judges and the

judges who passed the judgement complained of. If the majority of these judges

conclude that the matter needs to be heard, it should be listed before the same bench

as far as possible;

This procedural precaution is necessary because “the matter relates to re-examination of the

final decision of this court.

The decision of the Supreme Court in Rupa Ashok Hurra v. Ashok Hurra & Another’s.

[10]was a path breaking decision. For one, it got rid of the practise of litigants assailing the

Supreme Court’s final decisions via Article 32. In the same vein, however, it added new

dimensions to its exercise of inherent power. This aspect is brought out by modalities of

curative petition that Rupa ashok hurra so propounded. Propounding of modalities of curative

petitions went beyond the modest exercise of inherent powers of the court of admitting

meritorious petitions under any appropriate procedure but created a new procedure by which

such petitions can come before Supreme Court. The rupa Ashok Hurra was an endeavour by

the Supreme Court to bring order to a constitutional issue that could as well have become a

hotch potch of a highly individualised judicial pronouncements. This could have been so but

equally significant is the controversy that the Rupa Ashok Hurra decision has bestirred

among the litigant public. This article endeavours to bring forth the controversies generated

by the Rupa Ashok Hurra’s decision and the impact of this decision on constitutionalism.

WHETHER CURATIVE PETITION IS SECOND REVIEW PETITION

OR NOT?

The term ‘second review petition’ is totally a hypothetical term used purely illustratively.

Since April 2002 when the Supreme Court propounded the modalities of Curative petitions,

five hundred and sixty eight curative petitions have been filed before the Supreme

Court2.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.

2 The Source of this information is the empirical data collected from the Supreme Court

At the outset, the modalities of curative petitions in Rupa Ashok Hurra involved the

invocation of Article 137 of the Constitution by implication. Nowhere 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 decision3.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 impunged judgment.

However, the power of review can only be exercised once and not twice4 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. Perhaps this mantra was

oblivious to the Court in Rupa Ashok Hurra when it coined the term curative action while in

essence the term only amounts to a ‘second review action’. To put it in simple words as long

as the Court is re-considering its earlier final judgment it amounts to review, there are no two

ways to the issue.

Now I would like to present the other part that it is different from ‘Second Curative Petition’.

I will analysis to the grounds and Constitutional provisions involved in filing both the

petitions. At this point it ought to be noted that Article 137 is the only Constitutional

provision that is common in both curative petitions and review petitions.

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 justice.

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

3 Rupa Ashok Hurra Vs. Ashok Hurra and Anr, (2002) 4 SCC 388 at P. 416, Para 494 The Supreme Court under Article 145 of the Constitution can from time to time make rules for regulating its practice and procedure. Under this power, the Supreme Court propounded, The Supreme Court Rules, 1966; O-XL Order XL, Rule 5 of the Supreme Court Rules, 1966 provides that where an application for review of any judgment and order has been made and disposed of, no further application for review is maintainable in the

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.”

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. 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.

Now I would like to elaborate the ‘Review Petition’. As I have already mentioned, a review

petition is filed under Article 137 of the Constitution. And the Apex court held that the power

to review is not an inherent5 .The power to review must be conferred by law either

specifically or by implication. The Supreme Court Rules, 1966 made in exercise of the

powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any

of the grounds specified in Order 47 Rule 1 of the Code of Civil Procedure, which provides:

(i) Discovery of new and important matter of evidence.

(ii) Mistake or error apparent on the face of the record6.

(iii) Any other sufficient reason.

In the case of criminal proceedings a review lies on the ground of an ‘error apparent on the

face of the record’. The Supreme Court has later held that the above restrictive view on

criminal review could not have been intended and that it ought to be assumed that the

5 The Supreme Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji AIR 1970 SC 1273, para 4 has held that it is well settled that the power to review is not an inherent power. See also Lily Thomas v. Union of India 2000 (6) SCC 224, Para 52 where the Supreme Court has retaliated that review is the creation of a statute6 Order XL, Rule 1 of Civil Procedure Code lays down grounds for a review petition but the Supreme Court under its powers in Article 145 has made a distinction between grounds for filing a civil review petition and those for filing a criminal curative petition. See Supreme Court Rules,

contrary is the case since criminal review matters are more traumatic and touch on issues of

life and liberty unlike civil reviews.A review petition lies with the Court if filed within thirty

days after the pronouncement of a final Supreme Court judgment. The purpose of review is to

ensure that justice is not defeated and that errors leading to miscarriage of justice are

remedied.

I now proceed to draw an analysis between curative petitions and review petitions. Firstly, in

both the cases the petitioner are circulated to the Supreme Court: for review petitions,

circulation is to the judges who passed the impugned judgment whereas in the case of

curative petitions, circulation is the three senior most judges in the Supreme Court and the

judges who had passed the impugned judgment if available.

Secondly in both the reviews a certificate of a senior counsel is essential and in the case of

curative petition the Court can impose exemplary costs for those petitions that are;

unwarranted this not being so in the case of review petitions. Lastly the grounds for filing a

curative petition seem to be based on natural justice principles unlike those of filing review

petitions that seem broader and not necessarily restricted to natural justice. I would like to say

that there is very thin line between ‘Curative Petition’ and a ‘second review petition’.

The Supreme Court has, however sought to lay down different grounds for filing review

petitions and curative petitions. The terms and conditions of to file a curative petition proves

that in totality it is different from second review petition. And one more has been raised that

what is reason to justify the curative under Article 32 i.e. to provide constitutional remedies

and even after allowing curative petition only one curative petition has been decided

successfully and rest have no result.

CRITICAL EVALUATION

Since April 2002 when the Supreme Court propounded the modalities of Curative petitions,

five hundred and sixty eight curative petitions have been filed before the Supreme Court, all

the 440 curative petitions filed up to December, 2005, were summarily rejected on the

specious ground that no case was made out within prescribed parameters. By it can be

understood the number of accepted number of curative petition. Although it is an effort of

the Supreme Court to provide justice and to remove injustice from society but there is a

question before us. Whether the Supreme Court is successful to provide justice by its new

concept “curative petition” or not? The data that has been mentioned shows that the judiciary

has been failed to provide justice. By this decision only the numbers of petitions have been

increased and the number of pending cases has also been increased. It has created an

unnecessary burden on the judges. But the Hon’ble Apex Court has provided another chance

to the people to get justice. The SC has said that you can file a curative petition after the

rejection of review petition. Before this judgement, review petition was the last weapon to

get justice. It was the last petition under which aggrieved party can appeal to the Supreme

Court and if it was rejected, then there was no way of appeal. But after this judgement, an

aggrieved party can go the Supreme Court under Article 32 of Indian Constitution. The

number of petitions has also been increased that is mentioned. So up to some extent SC is

successful to provide justice to the aggrieved party.

CASE LAWS:

CASE: Sumer vs State Of U.P on 29 August, 2005

Bench: Y.K. Sabharwal, R Pal, A Kumar

FACTS OF THE CASE:

The accused were convicted for the offences charged and sentence of rigorous imprisonment

for life for offence under Section 302/149 IPC was imposed by Court of Sessions. The appeal

of the accused was, however, allowed by the High Court and the judgment and order of Court

of Sessions was set aside. This Court, by judgment dated 10th December, 2002, allowed the

appeal of the State, reversed the judgment of the High Court and restored that of the Sessions

Court.

The review petitions filed by six accused including the petitioner were dismissed by order

dated October 16, 2003

This curative petition has been filed by one out of the six accused and the main thrust of the

petitioner is that the evidence and the factors taken into account by the High Court for

disbelieving the testimony of the eye-witnesses have not been properly appreciated by this

Court while allowing the appeal of the State against judgment of acquittal.

JUDGEMENT:

The grounds urged in the curative petition show as if another regular appeal has been

filed to challenge the judgment. Such a petition is an abuse of remedy provided

in Rupa Ashok Hurra v. Ashok Hurra & Anr. [(2002) 4 SCC 388].The certificate

itself shows that the object is to seek fresh examination of facts after the decision of

the appeal and dismissal of the review petition. The certificate does not fulfill the

requirements of Rupa Ashok Hurra. The Bench held that unfortunately the High Court

remained on the periphery and never attempted to grapple with the substance of the

evidence on record.

A perusal of the grounds taken in the curative petition makes it clear that the attempt

is to have another opportunity for re appreciation of evidence. Such a course is

impermissible.

Ordinarily, a curative petition of this nature deserves dismissal by imposing

exemplary cost on the petitioner but, in the present case, we refrain from imposing

cost considering that the petition arises out of a criminal appeal.

CASE: Zakarius Lakra And Ors. vs Union Of India (Uoi) And Anr. on 16

February, 2005(2005 CriLJ 1716, 117 (2005) DLT 675 SC)

Bench: P V Reddi, A Mathur

FACTS OF THE CASE :

By this Writ Petition under Article 32 of the Constitution, the petitioners, who are the

parents of the appellant in Criminal Appeal No. 824 of 2002, question the legality of

the death sentence imposed on the appellant by the Additional Sessions Judge,

Dehradun which was confirmed by the High Court on reference made to it and further

confirmed by this Court on the appeal filed by the appellant. The petitioners prayed

for quashing the death sentence on the ground that the appellant was a juvenile on the

date of the commission of the offence i.e. 15.11.1994.

A review petition was filed by the convicted appellant. In the review petition, the

grounds raised were in regard to the age of the accused-appellant. In one of the

grounds, it was pointed out that the school certificate filed by the petitioner along with

the appeal was not taken into consideration. The review petition was dismissed.

The court permitted the petitioners to convert the present petition into curative

petition by making necessary amendments and following due procedure as in Hurra

case.

JUDGEMENT:

The court allowed this review petition and alter the sentence of death to imprisonment for life

as the petitioner having been a juvenile on the relevant date.

CASE: C.B.I vs Keshub Mahindra on 11 May, 2011

FACTS:

The Supreme Court, on May 11, dismissed the curative petition filed by the Central Bureau

of Investigation (CBI) to enhance the punishment of the accused in the Bhopal Gas Tragedy

case. The petition was filed in August 2010 against an order of the apex court that diluted the

charges against the accused in 1996.

JUDGEMENT:

The court dismissed the curative petition on the ground that;

no ground falling within the parameters of Rupa Ashok Hurra vs. Ashok Hurra 2002

(4) SCC 388 is made out in thecurative petitions.

no satisfactory explanation is given to file such curative petitions after about 14 years

from 1996 judgment of the Supreme Court

CONCLUSION:

The project has sought to made to explain the concept of curative petition and up to what

extent the SC has got success to provide justice along with the justification of Curative

Petition. Curative Petition is a procedural device in India’s legal system designed for use in

rare and narrowly defined situations to correct judgments entered as a result of procedural

judicial error.

The curative petition is an attempt to render justice that is the one of the most commitment

made by the constitution. It has attempted to provide a fair trial7, and up to some degree it

has tried to give relief to the aggrieved party. In this the features of curative petition is also

showed. Feature of our justice delivery system, as is prevalent in the country, is adherence to

proper and effective administration of justice in stricto. In the event there is any affection of

such an administration of justice either by way of infraction of natural justice or an order

being passed wholly without jurisdiction or affection of public confidence as regards the

doctrine of integrity in the justice delivery system, true effect of the outweigh the course of

justice- the same being the true effect of doctrine of „ex debito justitiae‟.

As an independent judiciary, under the scheme of the Constitution, the Court has played its

role effectively in acting as a watchdog through judicial review over the acts of the legislature

and the executive. The Supreme Court’s pronouncement in this case is another attempt to

fill the legislative gap.

BIBLIOGRAPHY:

7 Article 21 of constitution of India.

BOOKS REFERRED:

Jain M.P., Indian Constitutional Law, Lexis nexis, 5th edition 2005.

Bakshi P.M., The Constitution Of India, Universal Law Publishing Co.9 th edition

2009.

WEBSITES REFERRED:

www.indiankanoon.com

www.vakilno1.com

http://supremecourtofindia.nic.in/