“CURATIVE PETITION”

SUBMITTED BY:

ANKIT NATH JHA B.A L.L. B (HONS) (2112)

SUBMITTED TO:
DR. PRATYUSH KAUSHIK

FACULTY OF LEGAL LANGUAGE AND

COMMUNICATION SKILL

This final draft is submitted in the partial fulfilment in

FACULTY OF LEGAL LANGUAGE AND COMMUNICATION
SKILL
for the completion of BA L.L.B course.

Chanakya National Law University, Patna

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 TABLE OF CONTENTS

DECLARATION BY THE CANDIDATE 3

ACKNOWLEDGEMENT 4
I. ABSTRACT 5
1. OBJECTIVES 6
2. HYPOTHESIS 6
3. RESEARCH METHODOLOGY 6
4. SURVEY OF LITERATURE 7
5. MODE OF CITATION 7
6. SOURCES OF DATA COLLECTION 7
7. LIMITATIONS 7
II. CURATIVE PETITION: AN INTRODUCTORY STUDY 8
III OPINION OF JUDGES 12
IV CASES PERTAINING TO CURATIVE PETITION 22
V BHOPAL CURATIVE PETITION 27
VI CONCLUSION 33
BIBLIOGRAPHY 36

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 DECLARATION BY THE CANDIDATE

I, Ankit Nath Jha, hereby declare that the work reported in the B.A L.L.B (Hons)
Project titled “Curative Petition” submitted at Chanakya National Law University
is an authentic record of my work carried out under the supervision of Dr.Pratyush
Kaushik. I have not submitted this work elsewhere for any other degree or diploma.
I am fully responsible for the contents of my project.

(Signature of the Candidate)

Ankit Nath Jha (2112)

B.A L.L. B, 1st Year

Semester: 1st
CNLU, Patna

Dated:

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 ACKNOWLEDGEMENT

I have my deepest gratitude towards my faculty of Faculty of Legal Language And

Communication Skill, who gave me the golden opportunity to make the research work on the
topic of Informed Consent.
I would thank the librarians of CNLU, who helped me to find the books and other materials
required to complete the project, without whose help it would have been difficult to complete
the project.

I would also like to thank my friends and all those unseen hands who helped me at every stage
of completing this project.

Ankit Nath Jha (2112)

B.A L.L. B, 1st Year
Semester: 1st
CNLU, Patna

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 ABSTRACT

The curative petition is fairly new concept in the Indian legal system.It is the last judicial resort
available for redressal or grievances in court which is normally decided by judges in-chamber.
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 being fairly new faced a lot of criticism by the bench ,since it is a
concept that can basically shake the trust of the public at large,which the public has bestowed
to them.

Since,the parameters of Curative petition is narrow, It is used only in rare of rarest cases that
such cases are entertained and are given an open-court hearing.The concept of Curative Petition
was first evolved by Supreme Court of India in the matter of the case of Rupa Ashok Hurra vs
Ashok Hurra and Anr. 2002, where the question was whether an aggrieved person is entitled
to any relief against the final judgement/order of the supreme court, after the dismissal of a
review petition.However,Curative petition cannot be allowed just for the reappreciation of
evidence.1

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 judgements in exercise of its inherent
powers.For this purpose the Court has devised what has been termed as “curative” petition.

The aggrieved party may file a “curative petition”, if certain conditions are met:

a) Violation of Principles of Natural justice, i.e, the right to be heard was denied.Such
cases may occur when the affected person was not served with notice or not heard
during the proceedings.
b) The Judge who participated in the decision-making process did not disclose his links
with a party to the case- on the principle of bias.
c) Abuse of process of court, and
d) Miscarriage of justice to the aggrieved person2

1
Sumer v. State of UP,(2005) SCC 220.
2
Rupa Ashok Hurra v Ashok Hurra, AIR 2002 SC 1771: (2002) 4 SCC 388; Zakirius Lakhra vs Union of India,
AIR 2005 SC 1560: (2005) 3 SCC 161.

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Also court imposed certain conditions to entertain the curative petition:

a) The grounds stated in the curative petition must have been taken earlier in the review
petition
b) A Senior Advocate must certify that the requirements as decided by Supreme Court
have been fulfilled.
c) If at any stage of consideration of the curative petition, the court holds that the petition
is without merits and is vexatious, exemplary costs may be imposed on the petition
d) The Petition has first to be circulated to a Bench of three or more senior most judges,
and the judges who passed the judgement complained of.If a majority of these Judges
concludes 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 the re-examination of a final decision of the Supreme Court.

Recently the Supreme Court referred eight curative petitions against the Section 377 of the
Indian Penal Code,1862 to a five judge Constitution Bench, as the issue involved a question of
far-reaching constitutional importance.

I. OBJECTIVES
a. The Researcher wants to know about the inception of Curative Petition.
b. The Researcher wants to find about the pros and cons of the Curative Petition.

II. HYPOTHESIS
The procedure of Curative Petition is unnecessary since it is the state’s task to
put an end to the lawsuits.

III. RESEARCH METHODOLOGY

a. The researcher will do doctrinal type of research in which he will go through
the primary as well secondary sources. The researcher through this
methodology will be able to get bird’s eye view of the problem in question. The
doctrinal method helps in doing a comparative study of the topic. This
methodology helps in going through not only the work of one eminent person
but also of other legal titans too.
For smooth research work,the researcher would comb through the various case
laws to understand the nitty-gritty nuances of the topic

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IV. SURVEY OF LITERATURE
The researcher read some literary works on Curative Petition to broaden the horizon
and understand more about the topic. Some of the books that were referred by the
Researcher were “Commentary on the Indian Constitution of India” by Durga Das
Basu, “India’s Constitution: Origins and Evolution” by Samaraditya Pal, “Indian
Constitutional Law” by Durga Das and “Constitution of India” by V.N Shukla

V. MODE OF CITATION
a. The Researcher used the Bluebook 19th Edition to cite the references in the
research work.

VI. SOURCES OF DATA COLLECTION

a. The researcher will collect the data from both the primary as well as secondary
sources.
i. Primary Sources
1. Constitution of India
ii. Secondary Sources
1. Books
2. Journals
VII. LIMITATIONS
a. Since the researcher is student of law, he has very less time to analyse something
of this vast stature. The topic being very specific has made it difficult to study
the nuances and subtleties of the topic. However, the Researcher has tried his
best to analyse and study the topic.

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 CURATIVE PETITION: AN INTRODUCTORY STUDY

Although the Article 137 of the Constitution of India states that: “Review of judgments
or orders by the Supreme Court Subject to the provisions of any law made by
Parliament or any rules made under Article 145, the Supreme Court shall have power
to review any judgment pronounced or order made by it”. Which means that the
judgements or the orders of the Supreme Court or any provision made by Parliament
are subject to the review. But what if the aggrieved party’s review is dismissed, is
there any other option left to the aggrieved party to opt for? This question was
answered by the Supreme Court as it held that though the judgement of the Supreme
Court can’t be challenged in a petition under Article 32 of the Constitution of India,
but after the review petition of the aggrieved party is dismissed, they can very well
file a “curative petition” if and only if certain conditions were met3 which are listed
below:

a. Violation of principles of natural justice, i.e. the right to be heard was denied.
Such cases may occur when the affected person was not served with notice or
not heard during the proceedings.
b. The Judge who participated in the decision-making process did not disclose his
links with a party to the case –– on the principles of bias.
c. Abuse of process of court, and
d. Miscarriage of justice to the aggrieved person.4

To entertain a curative petition, the court has also imposed certain conditions:

a. The grounds that were taken in the curative petition have to be same as that of
the review petition taken earlier.
b. A senior advocate must certify that all the prerequisites of the curative petition
that had been set by the Supreme Court of India, had been fulfilled.
c. If at any stage of the consideration of the curative petition was found out that
the petition lacked merit, the Court can impose exemplary costs on the
petitioner.

3
Basu, Durga Das, Commentary on the Constitution of India, 8 th Edition, 2009, pg-5940
4
Rupa Ashok Hurra v Ashok Hurra, AIR 2002 SC 1771 : (2002) 4 SCC 388

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 d. The petition must be circulated to the bench of the three senior most judges,
and the judges who passed the judgement complained of. Also, if the majority
of these judges concluded that the matter needed to be heard, then it should be
listed to the same bench of the judges.
This procedural precaution was necessary because the matter related to the re-
examination of a final decision of the Supreme Court.

The Supreme Court has inherent powers to correct the mistakes in the judgement and
the Supreme Court can also pass an order ex debito justitiae( latin for “as of right”) by
correcting the mistakes. This inherent power can exercised only when there does not
exist any other provision in that behalf. Correction of mistakes pertaining to clerical
mistakes or arithmetical mistakes or the mistakes arising out of the accidental
omission or slip that would vary the judgement is also admissible. But the provision
of Curative Petition cannot be invoked to modify, alter or add to the terms of the
original decree so as to in effect pass an effective judicial order after the judgement in
the case. In the guise of correction of mistakes arising out of typographical errors or
accidental slips, the judgement can’t be altered or modified. The Court can rehear the
matter if a proper review petition is filed after following the procedure laid down in
Order XL Rule 3 and 5 of the Supreme Court Rules under the Article 1375.

It was also made clear that the petitioner could not bypass the procedure to obtain a
hearing in open court by describing an application as one for “clarification” or the
“modification” though it was for review. The court would not permit hearing of such
an application for clarification, modification or recall if the application was just a
clever move for review.

It was observed by the learned Judges in the case of State of W.B vs Kesoram
Industries Ltd.6 that, “In cases of doubtful expressions occurring in the judgement,
apparently by mistake to be read by assuming the that the court had intended to say
only that which is correct according to settled position of law and the apparent error
should be ignored from making capital out of it, giving way to the correct expression
which ought to be implied or necessarily read in the context, also having regard said

5
Basu, Durga Das, Commentary on the Constitution of India, 8 th Edition, 2009, pg-5941
6
State of W.B vs Kesoram Industries Ltd. (2004) 10 SCC 201

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 little after. No learned judge would consciously author a judgement which is self-
inconsistent or incorporates passages repugnant to each other. A statement caused by
an apparent typographical or inadvertent error in a judgement of the court should not
be misunderstood on declaration of such law by the court. In such cases, it is the
constitutional, legal and moral duty of the supreme court to correct such error pointed
out.”

It was observed in the case of State of Maharashtra vs Asha Arun Gawli7 “An
application for clarification would not be entertained if the record of proceedings
showed otherwise. Where the High Court judgement stated that the quashing of
detention order was not ‘seriously pressed’ but clarification sought as ‘seriously
pressed’ will not be allowed”.

What is an error apparent on the face of record?

It was observed in the case of N.I Caterers v Lt. Governor that, “An ‘error apparent
on the face of record’ is said to exist if, of two or more views canvassed on the point,
it is possible to hold that the controversy can be said to admit of only one of them. If
the view adopted by the court in the original judgement is a possible view, having
regard to what the record states, it is difficult to hold that there is an apparent error
on the face of the record.

If the attention of the court was not drawn to material statutory provision during the
original hearing, it was an instance of the judgement being vitiated by ‘an error on
the face of record’; but not so merely because some alternative situations were not
presented before the court when the case had been decided on a factual foundation.

It was observed in the case of the case of the CST v Pinc Chemicals Ltd.8 That, “An
interpretation of statute law at variance with the clear and simple language thereof is
an error apparent on the face of the record. It was held therein that where the
interpretation of law adopted by a Bench is inconsistent with earlier decisions
delivered by a co-ordinate Bench and a larger Bench, it is an error apparent on the
face of record.”

7
State of Maharashtra vs Asha Arun Gawli (2005) 10 SCC 167 (paras 8-9)
8
CST vs Pinc Chemicals Ltd. (1995) 1 SCC 58

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 While in the case of Green View Tea and Industries v Collector, Golaghat9, it was
observed, “Where an order is passed based on a rule which has no statutory force, the
same amounts to an error apparent on the face of record. Where material evidence
on record is not considered while disposing of the case, the same will be reviewed on
the above ground.” And in the case of Deo Narani Singh v Daddan Singh10,the learned
judges stated, “Where the provision of relevant statute was not considered by mistake
while disposing of the appeal and a wrong provision of law or statute was applied, it
is an error on the face of record.”

9
Green View Tea and Industries v Collector, Golaghat (2004) 4 SCC 122
10
Deo Narani Singh vs Daddan Singh (1986) (Supp) SCC 530

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 OPINION OF JUDGES

It is a well-known fact that the Supreme Court is the court of last resort, the final court
on both the questions of fact or the law including the constitutional law. The law
declared by this court is the Law of the land. The rulings and judgements of this court
act as the precedents of both this court as well as all the courts of the nations. It is a
well-known fact that in a judgement there will be declaration of law and its application
to the facts of the case to render the decision on the dispute between the parties to the
suit. It is therefore necessary to bear in mind that principles in regard to the apex court
departing from it binding precedent are different from the grounds on which a final
judgement between the parties, can be reconsidered. However, when reconsideration
of the judgement of this court is sought the finality attached both to the law declared
as well as to the decision made in the case, is normally challenged. The value of the
precedent was thus observed in the case of London Street Tramways Co. Ltd. vs
London County Council11 the decision upon a question of law was conclusive and
would bind the House of Lords in subsequent cases and that an erroneous decision
could be set right only by an Act of Parliament.

In the case of Hampstead and Ors. v Commissioner of Taxation12 , Lord Shaw

observed, “Parties are not permitted to begin with fresh litigation because of new
views they may entertain of the law of the case, or new versions which they present as
to what should be a proper apprehension by the Court of the Legal result … If this
were to permitted litigation would have no end, except when legal ingenuity is
exhausted”

Almost to the same extent the view was expressed in the case Raja Prithvi Chand Lal
Chowdhary’s Case13 by placing the relevance on the dicta of the case of Venkata
Narasimha Appa Row v Court of Wards14. Learned Gwyer, C.J on the behalf of the
Federal Court observed, “This court will not sit as Court of appeal from its own
decisions, nor will it entertain applications to review on the ground only that one of
the parties in the case conceives himself to aggrieved by the decision. It would in our

11
London Street Tramways Co. Ltd. vs London County Council (1898) AC 375
12
Hampstead and Ors. v Commissioner of Taxation (1926) AC 155 at p.165
13
Raja Prithvi Chand Lal Chowdhary vs Sukhraj Rai (1940) FCR 78
14
Venkata Narasimha Appa Row v Court of Wards (1886) 2 AC 660 at p.664

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 opinion be intolerable and most prejudicial to the public interest if cases once decided
by the court could be reopened and reheard: ‘There is a salutary maxim which ought
to be observed by all the courts of last resort –– Interest reipublicae ut sit finis litum15.
Its strict observance may occasionally entail hardship upon individual litigants, but
the mischief arising from the source must be small in comparison with the great
mischief which would necessarily result from doubt being thrown upon the finality of
the decisions of such a tribunal as this.’”

In the case of S. Nagaraj16, an application was filed by the state for the clarification of
the order passed earlier. It was urged by the petitioner that any modification or
recalling of the order passed by this Court would result in destroying the principle of
finality enshrined in Article 141 of the Constitution. Sahai, J. speaking for himself and
for Pandian, J. observed:

“Justice is a virtue which transcends all barriers. Neither the rules of procedure nor
technicalities of the law can stand in its way. The order of the court should not be
prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as
inflexible in administrative law as in public law. Even the law bends before justice.”

Lord Gardiner, L.C observed in the case of the Lloyds Bank Ltd v Dawson and Ors.17,
“They propose therefore to modify their present practice and, while treating former
decisions of this House as normally binding, to depart from a previous decision when
it appears to so.”

The principle in regard to departing from an earlier view by the House, after the said
practice statement, is reflected in the speech of Lord Reid in Jones v Secretary of State
for Social Services and Hudson v Secy. Of State for Social Services18. “The Old view
was that any departure from rigid adherence to precedent would weaken that
certainty. I did not and do not accept that view. It is notorious that where an existing
decision is disapproved but cannot be overruled Courts tend to distinguish it on
inadequate grounds. I do not think that they act wrongly in so doing; they are adopting
the less bad of the only alternatives open to them. But this is bound to lead to
uncertainty for no one can say in advance whether in a particular case the Court will

15
It concerns the state that there be an end of lawsuits
16
S. Nagaraj vs State of Karnataka, 1993 Supp(2) SCR 1: 1993 Supp (4) SCC 595
17
Lloyds Bank Ltd v Dawson and Ors (1966) 3 AII ER 77
18
Hudson v Secy. Of State for Social Services (1972) 1 AII ER 145

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 or will not feel bound to follow the old unsatisfactory decision. On balance it seems
to me that overruling such a decision will promote and not impair the certainty of the
law.

But that certainty will be impaired unless this practice is used sparingly. I would not
seek to categorise cases in which it should or cases in which it should not be used. As
time passes experience will supply some guide. But I would venture the opinion that
the typical case for reconsidering an old decision is where some broad issue is
involved, and that it should only be in rare cases that we should reconsider questions
of construction of statutes or other documents.”

In case of Fitzleet Estates Ltd. v Cherry (Inspector of Taxes)19, Lord Wilberforce had
observed, “My Lords, in my firm opinion, the 1966 Practice Statement was never
intended to allow and should not be considered to allow such a course. Nothing could
be more undesirable, in fact, than to permit litigants, after a decision has been given
by this House with all appearance of finality, to return to this House in the hope that
a differently constituted committee might be persuaded to take the view which its
predecessors rejected. True that earlier decision was by which it was supported. That
there were two eminently possible views is shown by the support for each by at any
rate two members of the House. But doubtful issues have to be resolved and the law
and knows no better way of resolving them than by the considered majority opinion
of the ultimate Tribunal. It requires much more than doubts as to the correctness of
such opinion to justify departing from it.”

While Lord Edmund-Davies observed that, “My lords, I respectfully share your views
that the Chancery Lane Decision20 was correct. But even had I come to the opposite
conclusion; the circumstances adverted to are such that I should not have thought it
‘right’ to depart from it now. To do so would have been to open the floodgates to
similar appeals and thereby to impair that reasonable certainty in the law which the
Practice Statement itself declared to be ‘an indispensable foundation upon which to
decide what is the law and its application to individual cases.’

19
Fitzleet Estates Ltd. v Cherry (Inspector of Taxes) (1977) 3 AII ER 996
20
Chancery Lane Safe Deposit and Office Co. v I.R.C, (1996) 1 A11ER : (1966) 2 WLR 251

14
 To what extent the stare decisis binds the court was explained in the case of Keshav
Mills Co Ltd.21The question before the bench of 7 learned judges was that : to what
extent the principle of stare decisis could be pressed into service where the power of
this court to overrule its earlier decisions was invoked. The court observed, “When
this court decides questions of law, its decisions are under Article 141, binding on all
courts within the territory of India, and so, it must be the constant endeavour and
concern of this court to introduce and maintain an element of certainty and continuity
in the interpretation of law in the country. Frequent exercise by this Court of its power
to review its earlier decisions on the ground that the view pressed before it later
appears to the Court to be more reasonable, may be incidentally tend to make the law
uncertain and introduce confusion which must be consistently avoided. That is not to
say that if on a subsequent occasion, the court is satisfied that its earlier decision was
clearly erroneous, it should hesitate to correct the error; but before a previous
decision is pronounced to be plainly erroneous, the court must be satisfied with a fair
amount of unanimity amongst the members that a revision of the said view is fully
justified. It is not possible or desirable, and in any case it would be inexpedient to lay
down any principles which should govern the approach in dealing with the question
of reviewing and revising its earlier decisions.”

In the case of Maghanlal Chhaganlal22 a bench of seven learned judges of the Court
considered, among other things, the question, whether a judgement of the Supreme
Court in Northern India Caterer’s case23, was required to be overruled. Khanna, J.
observed:

“At the same time, it has to be borne in mind that certainty and continuity are essential
ingredients of the rule of law. Certainty in law would be considerably eroded and
suffer a serious setback if the highest Court of the land readily overrules the law
expressed by it in earlier case, even though that view not taken by the court in the
earlier case was a better view of the matter would not justify the overruling of the
view. The law laid down by this Court is binding upon all courts in the country under
Article 141 of the Constitution, and numerous cases all over the country are decided

21
Keshav Mills Co Ltd. vs Commissioner Income-tax, Bombay, AIR 1965 SC 1636 : 1065 2 SCR 908
22
Maganlal Chhaganlal (P) Ltd. vs Municipal Corporation of Greater Bombay, AIR 1974 SC 2009: (1974) 2
SCC 402
23
Northern India Caterer (P) Ltd. vs Commissioner of Income tax, West Bengal, AIR 1972 SC 1880: (1972) 2 SCC
150

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 in accordance with the view taken by this court. It would create uncertainty, instability
and confusion if the law propounded by this court on the basis of which numerous
cases have been decided and many transactions have taken place is held to be not the
correct law.”

In the case of Ex parte Pinochet Ugarte (No.2)24 on Number 25th 1998, the House of
Lords by majority of 3:2 restored warrant of arrest of Senator Pinochet who was the
Head of the State of Chile and was to stand trial in Spain for some alleged offences.
It came to be known later that one of the Law Lords (Lord Hoffman), who heard the
case. This was not disclosed by him at the time of the hearing of the case by the House.
Pinochet Ugarte, on coming to know of that fact, sought reconsideration of the said
judgment of the House of Lords on the ground of an appearance of bias not actual
bias. On the principle of disqualification, a judge to hear a matter on the ground of
appearance of bias not actual bias. On the principle of disqualification of a Judge to
hear a matter on the ground of appearance of bias it was out:

“The principle that a judge was automatically disqualified from hearing a matter in
his own cause was not restricted to cases in which he had a pecuniary interest in the
outcome, but also applied to cases concerning charities in whose work they were
involved, and judges would normally be concerned to rescue themselves or disclose
the position to the parties only where they had an active role as trustee or director of
a charity which was exceptional in that AI was a party to the appeal, it has been joined
in order to argue for a particular result of the Law Lord was a director of a charity
closely allied to the AI and sharing its objects. Accordingly, he was automatically
disqualified from hearing the appeal. The petition would therefore be granted and the
matter referred to another committee of the House for rehearing.”

On the point of jurisdiction of the House to correct any injustice in an earlier order, it
was observed:

“In principle it must be that Your Lordships, as the Ultimate court of appeal, have
power to correct any injustice caused by an earlier order of the House. There is no
relevant statutory limitation on the jurisdiction of the House in this regard and
therefore its inherent jurisdiction remains unfettered. In Cassel & Co. Ltd. v Broome

24
Ex Parte Pinochet Ugarte (No.2), 1999 1 A11 ER 577

16
 (No.2)25 your lordships varied an order for costs already made by the House in
circumstances where the parties had not had a fair opportunity to address argument
on the point.”

And it was held that, “An appeal to the House of Lords will only be reopened where
a party through no fault of its own, has been subjected to an unfair procedure. A
decision of the House of Lords will not be varied or rescinded merely because it is
subsequently thought to be wrong.”

At one time adherence to the principle of stare decisis was so rigidly followed in the
courts governed by the English Jurisprudence that departing from an earlier precedent
was considered heresy. With the declaration of the practice statement by the House of
Lords, the highest court in England was enabled to depart from a previous decision
when it appeared right to do so. The next step forward by the highest court to do justice
was to review its judgement inter parties to correct injustice. So far as this court is
concerned, we have already pointed out above that it has been conferred this power to
review its own decisions under Article 137 of the Indian Constitution. The role of the
Judiciary to merely interpret and declare the law was the concept of a bygone age. It
is no more open to debate as it is fairly settled that the Court can so mould and lay
down the law formulating principles and guidelines as to adapt and adjust to the
changing conditions of the society, the ultimate objective being to dispense justice. In
the recent years there is a discernible 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 judgement. In Union of India and Anr. Vs
Raghubir Singh (dead) by LR etc, Pathak, C.J. speaking on the behalf of the
Constitution Bench observed, “But like all principles evolved by man for regulation
of the social order, the doctrine of binding precedent is circumcised in its governance
by perceptible limitations, limitations arising by reference to the need for re-
adjustment in a changing society, a readjustment of legal norms demanded by a
changed social context. This need for adapting the law to new urges in the society
brings home the truth of the Holmesian aphorism that ‘the life of the law has not been
logic it has been experience’ and again when he declared in another study that ‘the
law is forever adopting new principles from life at one end’, and ‘sloughing off’ old

25
Cassel & Co. Ltd. v Broome (No.2) (1972) 2 A11 ER 849: 1972 AC 1136

17
ones at the other. Explaining the conceptual import of what Holmes had said,
Julius Stone elaborated it is the introduction of new extra-legal propositions emerging
from the experience to serve as premises, or by experience guided choice between
competing legal propositions, rather than by the operation of logic upon existing legal
propositions, that the growth of law tends to be determined.”

The concern of this court for rendering justice is the cause is not less important than
the principle finality of its judgement. We are faced with the competing principles –
ensuring certainity and finality of a judgement on the ground that it is vitiated being
in 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 the party to the case, or on account of abuse of the process of the Court. Such a
judgement, far from the dispenser of absolute justice, a concept which is not to be
disputed but by a few. We are of the view that though Judges of the Apex Court do
their best, subject of the course to the limitation of human falliability, yet situations
may arise, in the rarest of the rare cases which would require reconsideration of a final
judgment to set right the 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 the 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 would cause perpetuation of
irremediable injustice.

In the case of the Supreme Court of the United States in Ohio Power Company, Court
of Claims entered judgment for refund of tax, alleged to have been overpaid, in favor
of the tax payer. On the application of the Government a writ of Certiorari against the
judgment was declined by the Supreme Court of the United States in October, 1955.
The Government sought rehearing of the case by filing another application which was
dismissed in December, 1955. A second petition for hearing was also rejected in May,
1956. However, in June 1956 the order passed in December 1955 was set aside of its
motion and the case was ordered to be heard along with two other pending cases in
which the same question was presented. In those two cases the Supreme Court held

18
 against the tax payer and, on the authority of that judgment, reversed the judgment of
the Court of Claims. Four learned members of the court, in per curium opinion, rested
the decision “on the ground that interest in finality of the decision must yield where
the interest of justice so required.” Three learned members, dissented and held that
denial of certiorari had become final and ought not to be disturbed. Two learned judges
however, did not participate.

The Court in Harbans Singh’s case26 on an application under Article 32 of the

Constitution filed after the dismissal of the Special Leave Petition and the review,
reconsidered its judgement. In that case, among others, the petitioner and another
person were convicted under Section 302 Indian Penal Code and sentenced to death.
In that case of one of the remaining two convicts, the Supreme Court commuted the
death sentence to life imprisonment. While staying the death sentence of the
petitioner, A.N Sen, J. in his concurring opinion, noticed the dismissal of the
petitioner’s special leave, review petitions and the petition for clemency by the
President and observed:

“Very wide powers have been conferred on this Court for due and proper
administration of justice. Apart from the jurisdiction and powers conferred on this
court under Article 32 and 136 of the Constitution, I am therefore of the opinion that
this court retains and must retain, an inherent power and jurisdiction for dealing with
any extraordinary situation in the larger interests of administration of justice and for
preventing manifest injustice being done. This power must necessarily be sparingly
used only by in exceptional circumstances for furthering the ends of justice.”

In Antulay’s case27 the majority in the seven judge Bench of this court set aside an
earlier judgment of the Constitution Bench in a collateral proceeding on the view that
the order was contrary to the provisions of the Act of 1952; in the background of the
act without precedent and in violation of the principle of the natural justice, which
needed to be corrected ex debito justitiae.

26
Harbans Singh vs State of UP, AIR 1982 SC 849 : (1982) 2 SCC 101
27
A.R Antulay vs R.S Nayak& Anr., 1988 SUPP(1) SCR 1988: (1988) 2 SCC 602

19
 In Supreme Court Bar Association’s Case28 on application filed under Article 32 of
the Indian Constitution, the petitioner sought declaration that the Disciplinary
Committees of the Bar Councils set up under the Advocates Act, 1961, alone had
exclusive jurisdiction to inquire into and suspend or debar an advocate from practicing
law for professional or other misconduct and that the Supreme Court of India or any
High Court in exercise of its inherent jurisdiction had no such jurisdiction, power or
authority in that regard. A constitution bench of this court considered the correctness
of the judgment of this court In Re Vinay Mishra29. The question which fell for
consideration of this court was, whether the punishment of debarring an advocate from
practice and suspending his license for a period could be passed in exercise of power
of this Court under Article 129 read with Article 142 of the Constitution of India.
There an errant advocate was found guilty of criminal contempt and was awarded the
punishment of simple imprisonment for a period of six weeks and was also suspended
from practice as an advocate for a period of three years from the date of the judgment
of this court for contempt of the High Court of Allahabad. As a result of that
punishment all elective and nominated offices/posts then held by him in his capacity
as an advocate had to be vacated by him. Explaining the scope of curative nature of
the power conferred on Supreme Court under Article 32, it was observed:

“The plenary powers of the Supreme Court under Article 142 of the Constitution are
inherent in the Court and are complementary to those powers which are specifically
conferred on this court by various statutes though are not limited by those statutes.
These powers also exist independent of the statutes with a view to do complete justice
between the parties. These powers are of very wide amplitude and are in the nature
of the supplementary powers. This power exists as a separate and independent basis
of jurisdiction apart from the statutes. It stands upon the foundation and the basis for
its exercise may be put on a different and perhaps even wider footing, to prevent
injustice in the process of litigation and to do complete justice between the parties.
This plenary jurisdiction is thus the residual source of the power which the Supreme
Court may draw upon as necessary whenever it is just and equitable and to so and in
particular to ensure the observance of the due process of the law, to do complete

28
Supreme Court Bar Association v Union of India vs Union of India and Anr. AIR 1998 SC 1895: (1998) 4 SCC
409
29
In Re Vinay Mishra Chandra Mishra AIR 1995 SC 2348 : (1995) 2 SCC 584

20
justice between the parties, while administering justice according to law, it is an
indispensable adjunct to all other powers and is free from restraint of jurisdiction and
operates as a valuable weapon in the hands of the Supreme Court to prevent ‘clogging
or obstruction of the stream of justice’”

21
 CASES PERTAINING TO CURATIVE PETITION

Rupa Ashok Hurra v. Ashok Hurra 30

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 in 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 Maharashtra3132

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:

30
Rupa Ashok Hurra v. Ashok Hurra (2002)4 SCC 388; AIR 2002 SC 1771
31
Naresh Shridhar Mirajkar Vs. State of Maharashtra, (1967) AIR, 1 1966 SCR (3) 744

22
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.
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. 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.

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.

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. 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. 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. 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.

23
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. 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”

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. 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

24
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.

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.

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.

25
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.

26
 BHOPAL CURATIVE PETITION

The decision of Supreme Court of India dismissing the curative petition filed by the
Central Bureau of Investigation was what came to be known as the Bhopal Criminal
Curative, which was different than the Civil Curative petition that seeks enhancement
of compensation paid out to the victims of the Bhopal Gas Tragedy, had come in for
heated criticism by the activists and legal activists. Though the decision had been
labeled as ‘black day for justice’, ‘deeply flawed’, and unworthy of ‘precedential
value’, but much of this decision was misconceived.

Indeed, the Supreme Court, first in 1996 and then again in 2001, had sought, while
remaining faithful to the fundamental precepts of the law, to salvage what may be
called as a botched prosecution by the CBI. It was essential to stress that a defense of
this decision was by no means a ratification of the state of affairs that prevailed.
However, the CBI and victim’s groups were perhaps misguided in approaching the
curative petition route as a sort of universal elixir to what was seen as an insufficient
judicial response to a tragedy of unimaginable proportions.

To place any analysis of this decision in perspective, it was necessary to understand

the scope of a curative petition to determine in what circumstances this remedy was
available, and crucially, what would had been the outcome, had the petition was
allowed. The remedy of the curative petition exists on no statute book or in the
Constitution of India but it was made judicially by the Supreme Court in the Case of
Rupa Ashok Hurra. Following extensive analysis of foreign precedent on the power
of courts to rectify their own mistakes (which legally is called actus curiae
jurisdiction), the Court identified the primary instance on which a curative petition
would lie as being where the decision was vitiated by a failure to adhere to what is
known as the principles of the natural justice.

The court specifically identified two such instances as being when a party to the
decision was not fully or properly heard before the decision was made, or where the
decision-maker was biased. While this was not intended to be a comprehensive
enumeration of the circumstances in which a curative petition would lie, it was evident
that the genus of the case to which this remedy would apply was those in which it was

27
 necessary to use the curial power of the court to remedy a defect in the process by
which the decision was arrived at.

Explaining the remedy in this manner appears appropriate, given the emphasis on the
Hurra Judgment on balancing the desire to do justice with the need to provide certainty
to the final judgements of the apex court. To impose further checks and balances on
this remedy, it was further mandated that all curative petitions be supported by a
certificate designated senior advocate. Quite a few petitions have been declined when
they didn’t suffice the requirement stated before.33 The only curative petitions that
have been successful are where clear breach of natural justice was demonstrable; for
example, when the Supreme Court, had upheld a conviction despite the fact that a
witness for the defence was not examined.34 The opposite to this principle is that,
contrary to the review petition in which the petitioner can seek to have a judgement
set aside by pointing out an error apparent on the face of record, i.e. that the court had
misdirected itself on the fact or in law, it is not open to a curative petitioner to question
the substantive correctness of a decision.

The only issue that came before the Supreme Court against the decision of the high
court declining to disturb the charges framed in the chargesheet, was therefore the
question of whether the facts as stated therein “taken at their face value disclosed the
existence of all the ingredients of Section 304-11 and, with a view to making this
threshold determination, making this threshold determination, make a prima facie
appraisal of the allegations in the complaint. The relevant burden of proof in
adjudicating petitions for quashing as well as the standard of judicial review
applicable in this regard is well settled by innumerable decisions of the Supreme
Court.

Although a number of decisions on the point were brought to the notice of the court
by the CBI while arguing the curative petition, the petitioners did not go so far as to
argue that it relied upon in approaching the chargesheet and the evidence.
Consequently, even if one were to assume that a curative petitioner may urge
reconsideration of a final decision on the ground that the Court had misdirected itself
on the substantive law applicable to the dispute, this was certainly not the peg on

33
Sidram S Patil vs Gurunath Shivappa Patil (2005) 2 SCC 358
34
State of Madhya Pradesh vs Sughar Singh and Ors (2010) 2 SCC 719

28
which the Court had misdirected itself on the substantive law applicable to the dispute,
this was certainly not the peg on which the curative petition was hung. Rather, the
argument sought to be made was that the Court had erred in applying the law to the
facts to the case.

Even if one were to assume that a good case would be made out for why Section 304
could have been sustained on the chargesheet as it then stood, this effectively
amounted to asking the court to treat a highly specialised and circumscribed judicial
remedy as the same as any ordinary ‘first appeal’ where the Court could revisit the
findings of both fact and law arrived at by the lower court. Needless to say, adopting
this course would have meant writing Hurra itself, not to mention the numerous
decisions that had taken in the past decade.

Contrary to the public perception, a curative petition does not mean going back to the
Supreme Court and telling that its decision is wrong, rather, it involves pointing out
to the court that a fundamental miscarriage of justice had been brought about as a
result of a flawed judicial decision-making process. The CBI failed address itself to
this question, possibly for the simple reason that such a flaw simply could not be
identified. The result, however, was that curative petition simply could not be
entertained.

Let us, however, assume that the court could set aside the Hurra decision and a chart
a new course that allowed it to effectively “re-decide” the original Keshub Mahindra
petition. What relief could it have then provided to the petitioners? It bears meaning
that following the framing of a charge sheet in accordance with the directions of the
Supreme Court in the 1996 judgement, the trial of the accused before the magistrate’s
court was recently concluded (in June 2010), resulting in the conviction of the accused
under Section 304-A and imposition of the maximum sentence of 2 years. Allowing
the curative petition would have meant allowing the CBI to reframe charges under
304 and imposition of the maximum sentence of 2 years. Allowing the curative
petition would have meant at the outset wiping out the conviction already obtained.

The reason this becomes necessary is that 304-II and 304-A are mutually exclusive
offences, the former addressing “culpable homicide not amounting to murder” (act
done with knowledge that it is likely to cause death), while the latter deals with
“negligent act(s) not amounting to murder” (act done without knowledge but in a rash

29
or negligent manner). A person cannot therefore be convicted under both provisions;
indeed, the ordinary practice is to frame these charges in the alternative. A more
deleterious consequence would be that the trial would therefore have to be
commenced afresh. Unlike a civil case, where the court records including recording
of evidence, can simply be transferred from one court to another, criminal cases when
remanded must necessarily afford the accused a fresh trial. This is a fundamental
precept of fair process – the defence had presumably presented evidence and cross-
examined witness towards addressing the requirements of Section 304-A, but
retrospective shifting of goalposts by inducting an offence with different substantive
components would result in unfair prejudice to the accused.

Allowed the curative petition would thus have meant remanding the case to a higher
court – the sessions stage – for recommencement of the trial afresh. The chances of
securing a conviction in a prosecution commencing in 2011 are, to put it mildly, dim.
Crucial prosecution witness, whose testimony secured the conviction under Section
304-A, have passed away. Of the surviving witness, it is a tough task for people who
are now, on an average in their 70s, to recollect, in minute detail, events that occurred
around 26 years ago. To replace a conviction – albeit one that carries with it what is
seen as inadequate punishment – with an outright acquittal hardly seems to further the
cause of justice. Seen in the light, the curative petition was misconceived and, if
allowed, would have been a case of the petitioners shooting themselves in the foot.

This is not to suggest that such an unfavourable outcome has been permanently
forestalled. A criminal revision petition was pending before the sessions court praying
enhancement of the sentence and reinstatement of charges under the Section 304-11.
Indeed, the pendency of this petition weighed heavily with the court in dismissing the
curative petition. As the court needed noted, the contention of the petitioner that new
evidence in the course of trial of the Mahindra and others supported framing of the
higher charge was more appropriately urged before the sessions court in the revision
petition.

The only issue in the controversy was whether this would be an exercise in futility,
given that the sessions court would be bound by the 1996 decision of the Apex Court.
Noting that this concern stemmed from a complete misapprehension in regard to the
binding nature of the 1996 Judgement”, the court concluded that the 1996 decision

30
could not be read to nullify the provisions of the Code of Criminal Procedure,
especially since the judgement clearly mentioned that all its findings were based on
the material before the Court at the time of the decision (‘At this stage’ is a kind of a
constant refrain in the judgement”). These observations of the Court have come in for
the most acute criticism, with commentators mistakenly concluding that the Supreme
Court had sanctioned disregard of its judgement by the sessions court while
considering the merits of the pending revision petition.

Such criticism is entirely misguided and stems from reading the decision of the Court
entirely out of context, aided to some extent by the somewhat cryptic language of the
decision. Section 216 of the Criminal Procedure Court provides that a court may, at
any time, alter or add a charge. Nothing in the code prevents reinstatement of a charge
that has previously been quashed, provided the prosecution can show that sufficient
evidence has been obtained post quashing to support reframing of the charge. The
pending revision petition filed by the CBI after the sessions court correctly identifies
the above as an accurate statement of the law as it stands and correctly argues that the
magistrate committed an error in finding that he was bound by the 1996 decision of
the Supreme Court, which took care to restrict its finding of the evidence then on
record. Interestingly, these submissions by the CBI before the Sessions Judge came
three weeks after it filed a Curative Petition before the Supreme Court, urging
precisely the opposite position – in what was probably belated realisation of the
correct legal position.

If the contention of the CBI is to be taken at face value, new evidence has come on
record during the trial that speaks directly to the knowledge of Mahindra and others
and supports framing of the charge under the Section 304-11. The session court is
seized of the issue and must direct itself to the question of whether the evidence on
record today, read as a whole, supports reframing the charge. Needless to say, the
decision of the Supreme Court imposes no shackles on the proceeding underway, a
point has been clarified.

As stated above, the cause of justice would probably be best served if the pending
revision for alteration of charges is revoked and instead emphasis is given to the appeal
by the CBI seeking enhancement of the punishment of two years per wrongful death
caused, with sentences running consequently. If this contention is accepted, the

31
accused could be facing sentences, of up to 10,000 years. For those who have fought
tirelessly for justice for the victims of the world’s greatest industrial disaster, this
would be a far greater reward than the symbolic reinstatement of the higher charge
only to find that a conviction on the same cannot be secured.

32
 CONCLUSION

After going through the various sources to know and learn about the topic of Curative
Petition, the Researcher found out the hypothesis i.e. “The procedure of Curative
Petition is unnecessary since it is the state’s task to put an end to the lawsuits.” to be
false.

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.

A curative petition may be filed after a review plea against the final conviction is
dismissed. It is meant to ensure there is no miscarriage of justice, and to prevent abuse
of process. A curative petition is usually decided by judges in chamber, unless a
specific request for an open-court hearing is allowed.

Every curative petition is decided on the basis of principles laid down by the Supreme
Court in Rupa Ashok Hurra Vs Ashok Hurra & another, 2002. This was a case of a
matrimonial discord where the question of validity of a decree of divorce reached the
SC after the woman withdrew the consent she had given to divorce by mutual consent.
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.

The court ruled that a curative petition can be entertained if the petitioner establishes
there was a violation of the principles of natural justice, and that he was not heard by

33
the court before passing an order. It will also be admitted where a judge failed to
disclose facts that raise the apprehension of bias.

The SC has held that curative petitions must be rare rather than regular, and be
entertained with circumspection. A curative petition must be accompanied by
certification by a senior advocate, pointing out substantial grounds for entertaining it.
It must be first circulated to a bench of the three senior most judges, and the judges
who passed the concerned judgment, if available. Only when a majority of the judges
conclude that the matter needs hearing should it be listed — as far as possible, before
the same Bench.

“It shall be open to the Bench at any stage of consideration of the curative petition to
ask a senior counsel to assist it as amicus curiae. In the event of the Bench holding at
any stage that the petition is without any merit and vexatious, it may impose
exemplary costs on the petitioner,” the court had held.

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
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.

34
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.
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.

35
BIBLIOGRAPHY

Books

1. Basu, Durga Das, Commentary on the Indian Constitution of India

2. Pal, Samaraditya, India’s Constitution: Origins and Evolution
3. Basu, Durga Das, Indian Constitutional Law
4. Shukla, V.N, Constitution of India

Websites

1. Supreme Court got it right in Bhopal Curative Petition. <available at>

https://www.jstor.org/stable/23017868?read-now=1&seq=3#page_scan_tab_contents
(accessed on) 08-09-2019 15:44

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