October 10

Curative
Petition
2015
The Supreme Court of India is the apex judicial body. It is conferred with the
power to review petitions and previously decided cases. The concept of
Curative petition evolved with the case of Rupa Ashok Hurra v. Ashok Hurra.
The origin and
There are various guidelines that are attached with the same that need to be evolution
followed.
The concept of Curative petition was evolved by the Supreme Court of India in the matter of
Rupa Ashok Hurra vs. Ashok Hurra and Anr. (20021) where the question was whether an
aggrieved 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. For this purpose the Court has devised what has
been termed as a "curative" petition. In the Curative petition, the petitioner is required to aver
specifically that the grounds mentioned therein had been taken in the review petition filed earlier
and that it was dismissed by circulation. The Curative petition is then circulated to the three
senior most judges and the judges who delivered the impugned judgment, if available. No time
limit is given for filing Curative petition

Originally, the highest appeal used to lie with the Supreme Court in the form of a review petition
and no other remedy was available after the dismissal of this petition. As per Article 317 of the
Constitution of India, a binding decision of the Supreme Court/High Court can be reviewed in
Review Petition. The parties aggrieved on any order of the Supreme Court on any apparent error
can file a review petition. Taking into consideration the principle of stare decisis, courts
generally do not unsettle a decision, without a strong case. This provision regarding review is an
exemption to the legal principle of stare decisis. Article 137 of the Constitution provides that
subject to provisions of any law and rule made under Article 145 the Supreme Court of India has
the power to review any judgment pronounced (or order made) by it. Under Supreme Court
Rules, 1966 such a petition needs to be filed within 30 days from the date of judgment or order.
It is also recommended that the petition should be circulated without oral arguments to the same
bench of judges that delivered the judgment (or order) sought to be reviewed. Starting from
decisions in Bengal Immunity Co. v State of Bihar, to matters like Legal Remembrancer, State of
West Bengal v. The Corporation of Calcutta2 and Shambu Nath Sarkar v. State of West Bengal3,
the Courts have consistently acknowledged the need to sometimes revisit their own decisions,
albeit with a caveat making the remedy applicable only in select circumstances. The criteria for a
review are that the decision must have ‘a baneful effect on the general interests of the public’ or
suffer from the vice of ‘manifest error’.

Furthermore, even after dismissal of a review petition, the SC may consider a curative petition in
order to prevent abuse of its process and to cure gross miscarriage of justice. Articles 137, 129,
141 and 142 talk about the inherent powers of the Supreme Court for reconsideration. In the case
of Rupa Ashok Hurra v. Ashok Hurra, the question that had risen was whether an aggrieved

1
Writ Petition (civil) 509 of 1997
Writ Petition (civil) 108 of 1999
2
[1967] 2 S.C.R. 176
3
[1974] 1 SCR 1
person is entitled to any relief against a final judgment/order of this Court, after dismissal of
review petition, either under Article 32 of the Constitution, or otherwise. Conferment of further
jurisdiction after the review petition if left to be provided by Parliament by law (Article 138).
Article 141 states that the law declared by the Supreme Court shall be binding on all courts
within the territory of India and Article 144 directs that all authorities, civil and judicial, in the
territory of India, shall act in aid of the Supreme Court. It is a court of record and has all the
powers of such a court including power to punish for contempt of itself within Article 129.

Even after exhausting the remedy of review under Article 137 of the Constitution, an aggrieved
person might be provided with an opportunity under inherent powers of the Supreme Court to
seek relief in cases of gross abuse of the process of the court or gross miscarriage of justice
because against the order of this court the affected party could not have recourse to any other
forum. In the recent years there has been discernable shift in the approach of the final courts in
favour of rendering justice on the facts presented before them, without abrogating but bypassing
the principle of finality of the judgments. The principle of finality is insisted upon not on the
ground that a judgment by the Apex Court is impeccable but on the maxim ‘interest reipublicate
ut sit finis litium’.

There are two competing principles-ensuring certainty and finality of a judgment of the Court of
last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated
by violation of the principles of natural justice or giving scope for apprehension of bias due to a
Judge who participated in the decision-making process not disclosing his links with a party to the
case, or an account of the abuse of the process of the court. Such a judgment, far from ensuring
finality, will always remain under the cloud of uncertainty.

Yet, situations may arise in the rarest of the rare cases, which would require consideration of a
final judgment to set right miscarriage of justice complained of. In such a case it would not only
be proper but also obligatory both legally and morally to rectify the error. The duty to do justice
in the rarest of rare cases shall have to prevail over the policy of certainty of judgment. The next
step after this is to specify the requirtements to entertain such a curative petition under the
inherent powers of the Supreme 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 powers. It
is common ground that except when very strong reasons exist, the Court should not entertain an
application seeking reconsideration of an order of the Supreme 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, a petitioner is entitled to relief ‘ex debito
justitiae’ if he establishes

1) establish that there was a genuine violation of principles of natural justice and fear of the bias
of the judge and judgement that adversely affected him.
2) The petition shall state specifically that the grounds mentioned had been taken in the review
petition and that it was dismissed by circulation.

3) The curative petition must accompany certification by a senior lawyer relating to the
fulfillment of the above requirements.

4) The petition is to be sent to the three senior most judges and judges of the bench who passed
the judgement affecting the petition, if available.

The petitioner in the curative petition shall aver specifically that 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 fulfillment
of the above requirements.

The true purport of the maxim ‘ex debito justitiae’ relates to and arises from the concept of
justice: in the event there appears to be infraction of the concept , question of there being a
turnaround and thereby maintaining a total silence by the law courts would not arise. An order of
the Supreme Court cannot be ascribed as an abuse of the process of the court cannot be ascribed
as an abuse of the process of the court, but the factum of the availability of inherent power for
the ends of justice cannot in any way be decried. Therein the supremacy of law the rationale
being justice is above all. The exrercise of inherent power of the Supreme Court also stands
recognized by Order XLVII Rule 6 of the Supreme Court Rules, 1966.

There are various cases that have used the option of curative petition when they felt that their
rights were being violated. One of these cases is the curative petition on section 377. The
Supreme Court today agreed to consider the plea for an open court hearing on curative petitions
filed by gay rights activists against its verdict criminalising homosexuality.

A bench headed by Chief Justice P Sathasivam, before whom the matter was mentioned by
senior lawyers appearing for different parties, said that it will go through the documents and
consider their plea. "The judgement was reserved on March 27, 2012 but the verdict was
delivered after around 21 months and during this period lots of changes took place including
amendment in laws which were not considered by the bench which delivered the judgement,"
senior advocate Ashok Desai told the bench. The lawyers submitted that the case should have
been heard by the Constitution bench instead of two-judge bench which heard and delivered the
verdict on the controversial issue. They had submitted that criminalising gay sex amounts to
violation of fundamental rights of the LGBT community.

Another case that highlights the working of a curative petition is the Yakub Memon case. In the
case, Justice Kurian Joseph’s finding that the Supreme Court did not follow proper procedure
while deciding the curative petition of Yakub Memon, the lone death row convict in the 1993
Mumbai blasts case, has brought into focus this judicially-devised mechanism considered the last
legal recourse available to a litigant. Justice Joseph stayed the death warrant for Memon’s
execution on July 30, saying his curative petition should be decided afresh in accordance with
law. Later, a three-judge bench of the Supreme Court disagreed with Justice Kurian Joseph that
correct procedure was not followed by the three senior-most judges of the apex court in
dismissing the curative petition of Yakub Memon, the sole death row convict in the Mumbai
blasts case. Justice Kurian had differed with Justice A R Dave and dug out a point on the issue of
curative petition not raised in the petition seeking stay of the death warrant for execution of
Memon.

In 2010, after the verdict in the criminal case, a Group of Ministers was formed to consider
additional compensation to victims of the Bhopal Gas Disaster,1989. Subsequently, in December
2010, the government of India filed a Curative Petition in the Supreme Court seeking:

• To require Union Carbide Corporation (UCC) to enhance the settlement amount --

• Reimbursement of relief and rehabilitation expenses incurred by the state and central
governments; and

• A sum for remediating the plant site.

The total request: in excess of $1 billion. The Curative Petition also named The Dow Chemical
Company (TDCC) as a respondent. Subsequently, the Madhya Pradesh State Government
(MPSG) sought to intervene, as did certain interest groups who also filed an application alleging
additional purported grounds for enhancing the settlement and stating that the additional payment
should be $8.1 billion.

At present, the Constitution of India doesn’t have any provisions for availing the option of
curative petition. The Supreme Court has laid down rules and regulations for the same but devoid
of any law set in stone. Curative petitions ought to be treated as a rarity rather than regular and
the appreciatin of the Supreme Court shall have to be upon proper circumspection having regard
to the three basic features of the justice delivery system, to wit, the order being in contravention
of the doctrine of the natural justice system or without jurisdiction or in the event of there being
even a likelihood of public confidence beiong shaken by reason of the association or closeness of
a Judge with the subject matter in dispute. It is now time that procedural justice system should
give way to the conceptual justice system and efforts of the law courts ought to be so directed.
Gone are the days when implementation of the 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.