Curative Petition

What is a 'Curative Petition'

Curative Petitions constitute a special, extraordinary jurisdiction of the Supreme Court, carved out of its inherent powers under Art. 129 and Art. 142 of the Constitution of India. It is a final remedy offered to an aggrieved party to challenge a judgement before the Supreme Court, even after it has become final, by way of exhaustion of the remedies of appeal and review.

The ordinary sequence followed by a litigant to challenge an order or judgement before the Supreme Court is to first appeal against it, and if dissatisfied with the appellate decision, seek a review petition against the same. Thereafter, upon the fulfillment of certain conditions, a curative petition can be filed as a last resort against the decision passed in the review petition. The Supreme Court, as the highest court in India, can not only review or revise a decision passed by it in a preceding review petition, but can also change its view on a position of law and make it binding on all subordinate courts, as per Art. 142.

Differences from Review Petitions before the Supreme Court:

Before Rupa Ashok Hurra v. Ashok Hurra, review petitions under Art. 137 marked the final remedy by way of which a Supreme Court judgement could be challenged. After the case, curative petitions came to be carved out as a new remedy that could be pursued by an aggrieved party, post the disposal of a review petition.

Unlike review petitions, curative petitions find no mention in the Constitution, but are a creation of the Supreme Court. The power to review is not an inherent power of the Court, but is a creation of a statute. On the contrary, as outlined in Rupa Ashok Hurra v. Ashok Hurra, the concept of a curative petition is a product of the Court's inherent powers under Art. 129 and Art. 142, whereby it functions as a court of record and can review any final order delivered by it, if it has resulted in a miscarriage of justice.

The power to review has been defined by the Supreme Court, in the case of S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595, to mean re-examining or reconsidering a final decision. It has also been clarified by Order XL, Rule 5 of the Supreme Court Rules that the power to review can only be exercised once - once an application for review has been disposed of, no further application for review is maintainable in the same matter. The Rules also prescribe that in civil cases before the Supreme Court, a review petition lies on any of the grounds specified in Order 47, Rule 1 of the Civil Procedure Code, 1908:

• Discovery of new and important matter of evidence
• Mistake or error apparent on the face of the record (means an error which strikes one on merely looking at the record and does not require any long drawn process of reasoning on points)
• Any other sufficient reason - this has been interpreted as having an expansive scope, in the case of S. Nagaraj v. State of Karnataka, such that if a decree or order has been passed under misapprehension on the true state of circumstances, it constitutes sufficient ground to exercise the power of review

Order XL also prescribes that a review petition lies with the Supreme Court, if filed within 30 days after the pronouncement of a final judgement of the Court.

On the other hand, curative petitions are dealt with under separate provisions of the Supreme Court Rules, namely Order XLVIII. Thereunder, the grounds to file a curative petition are different from those mentioned for review petitions, based on the criteria outlined in Rupa Ashok Hurra v. Ashok Hurra. The timeline to file a petition is also different - Rule 3 prescribes that a curative petition needs to be filed within a reasonable time from the date of the judgement passed in a review petition.

Therefore, 'curative petitions' cannot be fully likened to review petitions. Additionally, it was unequivocally stated in Rupa Ashok Hurra v. Ashok Hurra that a curative petition cannot be treated as a' second review petition.'

Evolution of 'Curative Petitions'

As a concept, 'curative petitions' were coined for the first time in the case of Rupa Ashok Hurra v. Ashok Hurra. Nevertheless, long before this judgement came into existence, the Supreme Court and its predecessor, the Federal Court of India had considered the question as to whether a final judgement delivered by it could be reviewed. In Raja Prithwi Chand Lall Choudhury v. Rai Bahadur Sukhraj Rai, the Federal Court held:

"The court will not sit as a court of appeal from its own decisions, nor will it entertain applications to review on the ground only that only one of the parties in the case conceives himself to be aggrieved by the decision. It would in our opinion be intolerable and most prejudicial to the public interest if cases once decided by the court could be reopened and reheard..."

This finding was based on the maxim, interest reipublicae ut sit finis litium, i.e., it is in the interest of society as a whole that a litigation must eventually come to an end.

Post the introduction of the Constitution, in the case of A.R. Antulay v. Union of India, (1984) 3 SCR 482, the Supreme Court had steadfastly upheld the principle that a judgement delivered by it that had attained finality could not be assailed again, especially by way of a writ petition under Art. 32. The abovementioned case arose from the landmark case of A.R Antulay v. R.S. Naik (1988) 2 SCC 602, in which it was ordered that the appellant be tried a High Court judges, as opposed to a special judge, as laid down under the Criminal Law Amendment Act, 1952, which applied to the case. Thus, the order of the Supreme Court appeared to violate statutory provisions. The appellant then appeared before the High Court, questioning the constitutionality of the proceedings before the High Court itself. These objections were rejected by the High Court, as it had been granted powers by the Supreme Court through its earlier order to proceed with the trial of the appellant.

Thus, this case cemented the view that an order of the Supreme Court, upon attaining finality, could not be challenged, despite opposing statutory principles or violating principles of natural justice. In Rupa Ashok Hurra v. Ashok Hurra, the view that a Supreme Court order that has attained finality cannot be challenged via a writ petition under Art. 32 was reaffirmed, but the Court realised the need to create a new remedy to tackle with problems of injustice caused to parties due to problematic orders of the Supreme Court, notwithstanding their attainment of finality. Accordingly, in Paragraph 47 of the judgement of Rupa Ashok Hurra v. Ashok Hurra, the Supreme Court expressed the need for the carving out of its curative jurisdiction:

"The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. We are faced with 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 being in violation of the principle of natural justice or apprehension of bias due to a Judge who participated in decision making process not disclosing his links with a party to the case, or abuse of the process of the court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty…We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case, it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment..."

The legal framework relating to 'Curative Petitions'

The criteria that must be satisfied by a party in order to successfully file a curative petition was laid out in Paragraphs 51 and 52 of the judgement of Rupa Ashok Hurra v. Ashok Hurra. The requirements to be fulfilled are as follows:

- The petitioner must demonstrate that the judgement against which the curative petition has been sought suffers from a fundamental error, that led to a miscarriage of justice. This may be constituted by:

• A violation of principles of natural justice, examples of which are as follows:

- The aggrieved party filing the curative petition was not served notice of the proceedings and the matter proceeded as if he had notice

- There is apprehension of bias against the judge(s) presiding over the review petition, who while participating in the decision-making process, did not disclose their interests or links with the matter at hand.

• Existence of errors apparent on the face of the record
• Discovery of new, significant, material evidence.
• Abuse of the process of the court.

Subsequently, the procedure for filing a curative petition was crystallised in Order XLVIII of the Supreme Court Rules, 2013, incorporating the criteria laid down in the abovementioned judgement.

• As per Rule 2:

- The petitioner must specifically aver the grounds taken in the review petition and state that the review petition had been dismissed by circulation (i.e. it was dismissed by the Court without the hearing of any oral arguments).

- The curative petition must be accompanied by a certificate signed by a Senior Advocate, affirming the fulfillment of the abovementioned requirements.

- The curative petition must be accompanied by a certificate signed by an Advocate-on-Record, showing that the curative petition is the first filed in the impugned matter

All the abovementioned conditions have to be satisfied for the curative petition to be filed successfully. The non-fulfillment of even one condition vitiates the possibility of the petition being entertained by the Court.

• As per Rule 3:

- The curative petition has to be filed within a reasonable time from the date of the judgement or order passed in the review petition.

• As per Rule 4:

- The curative petition shall be first circulated to a bench of the 3 senior-most judges of the Supreme Court and the judges who passed the impugned review judgement, if they are available. It is to be noted that if any or all of the judges who presided over the review petition have superannuated or are unavailable, only the 3 senior-most judges of the Court will hear the curative petition.

- If the bench before which the petition was circulated concludes by a majority that the matter needs hearing, the matter will be listed before that particular bench.

- If the Court, at any stage, concludes that the petition is without any merit and is vexatious, it may impose exemplary costs on the petitioner.

It is to be noted that instead of a curative petition, a final judgement of the Supreme Court cannot be challenged under Art. 32 of the Constitution. A writ of certiorari can be issued by the Supreme Court to inferior Courts, tribunals, and other quasi-judicial bodies on the grounds of:

• Want or excess of jurisdiction
• Violation of procedure or disregard of principles of natural justice
• Error apparent on the face of the record

However, the Supreme Court cannot enable itself to issue a writ of certiorari against any of its lower Benches. As outlined in the case of Naresh Shridhar Mirajkar v. State of Maharashtra, Art. 32 is not enforceable against the final decision or order of the Supreme Court, due to the reason that the judiciary does not constitute "State" under Art. 12. That leaves only curative petitions as the exclusive remedy to reconsider a final judgement or order through the Supreme Court.

'Curative Petitions' as discussed in case laws:

• Navneet Kaur v. State of NCT of Delhi (2014) - A petitioner's husband convicted under the Terrorist and Disruptive Activities (Prevention) Act (TADA). A mercy petition was sought to commute his death sentence into one of life imprisonment. The petition was rejected, and a plea was sought to quash the same, on grounds of extensive delay. The plea was dismissed, following which she filed a Curative Petition against the dismissal. A 4-judge Bench commuted his sentence on two grounds - firstly, the petitioner was suffering from a mental illness as determined by the Institute of Human Behaviour and Allied Sciences, and second, based on the fact that his mercy petition was pending for nearly 8 years. The Court relied on Shatrughan Chauhan v. Union of India, wherein it was held that an unreasonable delay in disposing of a mercy petition is a strong ground for commutation of a death sentence.

It is to be noted that in this case, the Court held that deviation from an established principle of law also constitutes a ground to entertain a curative petition. This ground was not explicitly laid down in Rupa Ashok Hurra v. Ashok Hurra, but stems from enumerated principle that a gross miscarriage of justice can be remedied through a curative petition. Accordingly, the Court interpreted the deviation from an established principle of law, i.e. delay in disposing of a mercy petition is a ground for commuting death sentences, to cause a gross miscarriage of justice, in the specific circumstances of this case.

• National Commission for Women v. Bhaskar Lal Sharma (2014) - In this case, the Supreme Court allowed a curative petition against a judgement delivered by it in 2009, in which it stated that if a woman kicked her daughter-in-law or threatening her with divorce would not come under the ambit of S. 498-A of the IPC. Based on this judgement, the petitioner's original appeal before the Supreme Court had been disposed of, holding that no case under 498-A IPC was made out against her husband or her mother-in-law. A subsequent review petition was also dismissed by the Court, but a curative petition was admitted by the Court on the ground that the mother-in-law and husband's actions amounted to "cruelty" and the original appeal filed by the petitioner had been disposed of improperly, without conducting a proper trial and adducing proper evidence.

• Yakub Abdul Razak Memon v. State of Maharashtra (2015) - Terror suspect Yakub Memon had filed a curative petition against his death penalty, which was dismissed. The Supreme Court Rules, 2013 state that a curative petition has to be filed before a 3-judge Bench, comprising of the judge who delivered the judgement against which the petition has been sought. In this case, the judge who had delivered the judgement sentencing Memon to death had retired. It was held that if the judges who decided the review petition have demitted office, only the three senior-most judges of the Supreme Court (including the Chief Justice of India) would hear the curative petition, and that this would not constitute any procedural irregularity. However, the superannuated judges could not be made parties to the proceedings by judicial imperative.

• Union of India v. Union Carbide (2023) - In 2010, the Union Government filed a curative petition seeking additional compensation for the victims of the Bhopal Gas Tragedy. In 2023, a 5-judge Bench led by Justice S.K. Kaul narrowed down the scope of the Supreme Court’s curative jurisdiction and held that the previously determined amount of compensation was adequate. It held that a curative petition can be entertained under the following circumstances:

- There is a gross miscarriage of justice

- The matter evinces fraud

- There is suppression of material facts

The Union Government’s petition was not found to be based on any of these grounds and was accordingly dismissed. It was opined that accepting this petition would open a “Pandora’s Box,” and that the character of the Court’s curative jurisdiction cannot be expanded to such an extent.

• Brahmaputra Concrete Pipe Industries v. Assam SEB (2024) - In this case, the Supreme Court examined the issue as to whether the Registry of the Court has the power to dismiss a curative petition solely on the ground that no averment has been made in the curative petition that the review petition was dismissed by circulation. Justice Anirudh Bose held that the question of maintainability of a curative petition is a judicial exercise and hence, is something that is to be examined by a Bench of the Court and not the Registry of the Court. The Court further held that the grounds on which a Registrar may refuse to receive a curative petition have been enumerated in Order XV, Rule 5 of the Supreme Court Rules. Hearing of a review petition in open court was held to not come under the ambit of the expression, “discloses no reasonable cause” in Rule 5. It was additionally held that a curative petition arising from an order of dismissal of a review petition heard in open court must contain a plea seeking excuse from complying with the requirement to make the averment that the plea was dismissed by circulation. The proper course of action that would have to be taken by the Registrar on receiving such a petition with a prayer for excuse would be to obtain instructions from the judges of the Court and thereafter, communicate the same to the parties.

Databases relating to 'Curative Petitions':

The total number of civil and criminal Curative Petitions pending before the Supreme Court as of June 21, 2024, are currently recorded on the National Judicial Data Grid, the statistics for which are shown below:

Number of Curative Petitions pending in the Supreme Court:

The total number of civil cases pending in the Supreme Court as of 21st June, 2024 - (52725), including civil Curative Petitions (92).

The total number of criminal cases pending in the Supreme Court as of 21st June 2024 - (14711), including criminal Curative Petitions (17).

Rates of Institution and Disposal of Civil Curative Petitions (2018 onwards)

The green line graph shows the number of civil curative petitions instituted between 2018 and June 2024. The red line graph shows the number of civil curative petitions disposed of between 2019 and June 2024.

Rates of Institution and Disposal of Criminal Curative Petitions (2018 onwards)

The green line graph shows the number of criminal curative petitions instituted annually and the red line graph shows the number of curative petitions disposed of annually/

Research that engages with 'Curative Petitions':

• The S.377 Curative Petition: In Favour of Broader Jurisdiction for the Supreme Court: In this article, the author suggests that the grounds for admitting a curative petition as enumerated in Rupa Ashok Hurra v. Ashok Hurra are not completely exhaustive. Alongside the grounds of violation of natural justice and apprehension of bias specified in the judgement, the author emphasises on the fact that the Court also specified that it is "neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained," thus implying that the abovementioned grounds are only illustrative in nature.

Additionally, in Hurra itself, the Court extensively discussed the scope of Art. 142, from which the remedy of curative petitions has been culled out. It noted how its plenary jurisdiction may be invoked "as necessary, whenever it is just and equitable to do so...". Accordingly, the author suggests that the grounds enumerated in Hurra, particularly "gross miscarriage of justice," can be used to develop more principles and grounds for entertaining curative petitions in exceptional matters.

• The Indian Supreme Court and Curative Actions: In this paper, the author suggests that the enumeration of the grounds on which a curative petition can be entertained, in Paragraph 51 of Rupa Ashok Hurra v. Ashok Hurra, need to be read with the qualifying words mentioned in the same paragraph, "a petitioner is entitled to ex debito justitiae...", implying that if a petitioner establishes any of the grounds, there is a non-discretionary obligation on the Court to entertain the curative petition. The petitioner would then, as a matter of right, be entitled to relief from the Court.