CONTENTS

INTRODUCTION ORIGIN OF CURATIVE PETITION. ANALYSIS. WHETHER CURATIVE PETITION IS SECOND REVIEW PETITION OR NOT? CRITICAL EVALUATION CASE-LAWS CONCLUSION BIBLIOGRAPHY

INTRODUCTION:
The Constitution of India assures to provide justice to every soul. It has been mentioned that it is the Honble Apex Court who assures justice. It will show that up to what extent the Honble Apex Court or Indian Judicial System has been able to provide justice with the help of its inherent/plenary power. Review petitions have been provided for in the Constitution unlike curative petitions which are a result of a Supreme Court pronouncement. This project seeks to present the concept of Curative Petition. Curative petition is the inherent power of the Supreme Court seeking review of its own judgement. Curative petition is a branch of law which is still, to spread its roots in the Indian judiciary. The Supreme Court of the country and its learned judges propounded what came to be known as curative petition in the recent past, i.e. in the year 2002 through a case Rupa Ashok Hurra v. Ashok Hurra .Even after review petition filed under Art. 137 is rejected by the Court, that may not be the end of the road. The Court may still review the case under inherent power but on very restricted grounds. The petitioner, in the curative petition, shall ever specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. The curative petition shall contain a certification by a Senior Advocate with regard to the fulfilment of the above requirements.

ORIGIN OF CURATIVE PETITION

The concept of Curative petition was evolved by the Hon'ble Supreme court in the matter of Rupa Ashok Hurra v. Ashok Hurra1. where the question was whether an aggreived person is entitled to any relief against the final judgment/order of the Supreme Court, after dismissal of a review petition. The Supreme Court in the said case held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgments in exercise of its inherent powers. It was also ruled that, while certainty of law is important in India, it cannot be at the cost of justice For this purpose the Court has devised what has been termed as a "curative" petition.

CASE: Rupa Ashok Hurra vs Ashok Hurra & Anr on 10 April, 2002
BENCH: S Bharucha, S Quadri, U C Banerjee, S Variava, S V Patil

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

Delivered by

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

FACTS OF THE CASE: The plaintiff and the defendant filed for divorce by mutual consent after a few troubled years of marriage. However, the wife withdrew her consent before divorce was granted. Keeping this in mind, the lower court did not grant divorce to the husband. However, taking into consideration the fact that consent had been withdrawn after the 18 month period prescribed under the Hindu Marriage Act, the High Court granted divorce. The wife appealed to the Supreme Court. In the meantime, the husband got married elsewhere and had a son. The Supreme Court held that although the husband ought not to have married before the disposition of the appeal, irretrievable breakdown of marriage had taken place. The parties had been suffering for 12 years and hence it would not be right to prolong their agony. Although the court made serious remarks about the behaviour of the husband, it was held that divorce had been granted and that the second marriage was valid. Thereupon a review petition was filed subsequently to review the judgment delivered by the Supreme Court in the civil appeal. This

review p e t i t i o n w a s d i s m i s s e d . T h e p e t i t i o n e r t h e n f i l e d a w r i t p e t i t i o n u n d e r A r t i c l e 3 2 questioning the validity of the judgment delivered in the civil appeal. The three judge Bench of the Supreme Court referred the said writ petition to a Constitution Bench of five judges. ISSUE OF THE CASE: Whether an aggrieved person is entitled to any relief against a final judgment/order of the Supreme Court, after dismissal of review petition, either under Article 32 of the Constitution or otherwise? ARGUMENTS: The following was submitted before the Supreme Court;

That the principle of finality or certainty of judgments of the Supreme Court has its own importance but it was now required to be circumvented and the case should be re-examined where the orders were passed without jurisdiction or in violation of principles of natural justice, violation of any fundamental rights or where there has been a gross injustice,

That the Supreme court had the inherent jurisdiction under the Supreme CourtRules, 1966, (precisely Order 47 Rule 6) therefore the cases falling in the aforementioned categories should be examined under the inherent jurisdiction of this court,

That the provisions of Order 47 Rule 6 the Supreme Court Rules, 1966 was a mere restatement of the provisions of Article 137 of the

constitutioninherent jurisdiction of the court could be exercised to remedy the injustic e suffered by a person. That Article 129 of the Constitution declared the Supreme Court to be a Court of Record so that it would have inherent powers to pass appropriate orders to undo injustice to any party resulting from judgment of this court. That since the Supreme Court was the creature of the Constitution, such that the corrective power was to be derived from the provisions conferring jurisdiction on the Supreme Court like Articles 32 and 129-140, such a power did not arise from an abstract inherent jurisdiction. It was also contended that the corrective power was a species of the review power and Articles 129, 137, Order 40 Rule 5 and Order 47 Rule 1 and 6 indicated that this court had inherent power to set right its own judgment. JUDGEMENT: The Constitutional Bench held that a final judgment/order passed by

theSupreme Court could not be assailed in an application under Article 32 of the Constitution of India by an aggrieved person whether he was a party to the case or not. The jurisdiction of the Supreme Court under Article 32 of the could not be invoked to challenge the validity of a final judgment/order passed by the court after exhausting theremedy of review under Article 137 read with Order 41 Rule 1 of the Supreme CourtRules, 1966. The writ of certiorari under Article 32 of the Constitution could not be issued to correct an earlier order of this Court.

However the Supreme Court, to prevent abuse of its process and to cure a grossmiscarriage of justice, could reconsider its judgments in exercise of its inherent power butonly in the rarest cases where such injustice was manifest or where the orders had been passed without jurisdiction. It was also ruled that, while certainty of law is important in India, it cannot be at the cost of justice For this purpose the Court has devised what has been termed as a "curative" petition. The curative petition was to contain a certification by a Senior Advocate with regard to the fulfillment of the above requirements.

ANALYSIS OF THE TOPIC:

Under article 137 the Supreme Court has expressly been given the power to review its own judgements. This is subject to any law passed by the parliament. This power can be exercised under the rules made by the court under the Article 145, on grounds mentioned in the order 57, Rule 1 of C.P.C.A review will lie in the supreme court on:-

(1) (2) (3)

Discovery Mistake or Any

of

new error on other

important the

matters face of

of the

evidence; record; reason.

sufficient

A judgement of the Supreme Court or the final court has been held final.a review on such a judgement is an exceptional phenomenon, it would be permitted only where a grave and glaring error or other well established ground is made out. In a review petition, an error of substantial nature only can be reviewed. When a plea of self defence is taken and if the court is satisfied that it is probable and there is basis for the same and if the benefit is to be given to the accused then the legality of the conviction itself is involved. If the court is satisfied about probability and basis of such plea such a question can be examined. FINAL ORDERS CAN BE REVIEWED: CURATIVE PETITIONS In a judgement of far reaching consequences in Rupa Ashok Hurra v. Ashok Hurra,a five judge constitution bench of the Supreme court has unanimously held that in order to rectify gross miscarriage of justice in its final judgement which cannot be challenged the court will allow curative petition by the victim of miscarriage of justice to seek a second review of the final order of the court. It was of the view that though the judges of the highest court do their

best subject to the limitation of human fallibility yet situations may arise, in the rarest of rare cases, which would require reconsideration of a final judgement to set right miscarriage of justice. The court observed that it would be the legal and moral obligation of the apex court to rectify error in such a decision that otherwise would remain in the cloud of uncertainty. This judgement was given in a bunch of petitions on the question whether a petitioner could question a final judgement even after the dismissal of the review petition. The courts concern for reordering justice in a cause was not less important than the principle of certainty in its judgements because there could be grounds that such a decision was in violation of natural justice and that there was an abuse of the courts judicial process. In the decision of the Rupa Ashok Hurra v. Ashok Hurra, justice quadric observed that we are persuaded to hold that the duty to do justice in these rarest of rarest cases shall have to prevail over the policy of certainty of judgements as though it is essential in public interest that a final judgement of the final court in the country should not be challenged. Such a Curative petition under the Courts inherent power can be filed, seeking review of a decision which has become final after dismissal of a review petition under Art.137, on very strong grounds, such as, 1. Variation of the principle of natural justice the right to be heard, as for example, when the affected person was not served notice or not heard during the proceedings; 2. A Judge who participated in the decision- making process did not disclose his links with a party to the case , i.e question of bias; 3. Abuse of the process of the court. The above list of grounds to move a curative petition is not exhaustive. The court has observed in the case of Rupa Ashok Hurra v. Ashok Hurra in this connection: It is neither advisable nor possible to enumerated all the grounds on which such a petition may be entertained.Nevertheless, the petitioner is entitled to relief ex debito justitiae if he
establishes the following above mentioned grounds.

The court has also imposed certain severe restrictions by this channel of review by way of curative petition for example. The ground stated in the curative petition must have been taken earlier in the review petition; A senior advocate must certify that the above requirements have been fulfilled;

 If at the stage of consideration of the curative petition, the bech holds that petition is without any merit and is vexatious, exemplary cost may be imposed on the petitioner; The petition has first to be circulated to a bench of three senior most judges and the judges who passed the judgement complained of. If the majority of these judges conclude that the matter needs to be heard, it should be listed before the same bench as far as possible; This procedural precaution is necessary because the matter relates to re-examination of the final decision of this court. The decision of the Supreme Court in Rupa Ashok Hurra v. Ashok Hurra & Anothers.[10]was a path breaking decision. For one, it got rid of the practise of litigants assailing the Supreme Courts final decisions via Article 32. In the same vein, however, it added new dimensions to its exercise of inherent power. This aspect is brought out by modalities of curative petition that Rupa ashok hurra so propounded. Propounding of modalities of curative petitions went beyond the modest exercise of inherent powers of the court of admitting meritorious petitions under any appropriate procedure but created a new procedure by which such petitions can come before Supreme Court. The rupa Ashok Hurra was an endeavour by the Supreme Court to bring order to a constitutional issue that could as well have become a hotch potch of a highly individualised judicial pronouncements. This could have been so but equally significant is the controversy that the Rupa Ashok Hurra decision has bestirred among the litigant public. This article endeavours to bring forth the controversies generated by the Rupa Ashok Hurras decision and the impact of this decision on constitutionalism.

WHETHER CURATIVE PETITION IS SECOND REVIEW PETITION OR NOT?

The term second review petition is totally a hypothetical term used purely illustratively. Since April 2002 when the Supreme Court propounded the modalities of Curative petitions, five hundred and sixty eight curative petitions have been filed before the Supreme Court2.This implies that the litigant public will not stop till they have exhausted all remedies available to the Supreme Court including that of filing of curative petitions. Before Rupa

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

Ashok Hurra, review petitions marked the finality of a Supreme Court judgment beyond which no further challenge of the judgment was allowed. At the outset, the modalities of curative petitions in Rupa Ashok Hurra involved the invocation of Article 137 of the Constitution by implication. Nowhere in Rupa Ashok Hurra is Article 137 explicitly mentioned. The Supreme Court held that under its inherent power under Article 142 of the Constitution; it can review its final order that results in a miscarriage of justice. The power of review is granted by Article 137 to the Supreme Court to review any of its judgments. Such power is not provided anywhere else in the Constitution. The Supreme Court has defined review to mean re examining or reconsidering a final decision3.The Supreme Courts review and curative actions amount to an acknowledgement by it that sometimes errors or mistakes in judgments do occur resulting in a miscarriage of justice. Such judgments ought to be corrected through a review procedure. This line of thought might have been an incentive for the litigant public to file unwarranted review and curative petitions in the hope that a mistake if found in the impunged judgment. However, the power of review can only be exercised once and not twice4 Such a limitation to the number of times the power of review can be exercised marks the first distinction between a curative petition and a second review petition Once a review petition has been disposed off, a second review petition cannot then lie with the Supreme Court. Perhaps this mantra was oblivious to the Court in Rupa Ashok Hurra when it coined the term curative action while in essence the term only amounts to a second review action. To put it in simple words as long as the Court is re-considering its earlier final judgment it amounts to review, there are no two ways to the issue. Now I would like to present the other part that it is different from Second Curative Petition. I will analysis to the grounds and Constitutional provisions involved in filing both the petitions. At this point it ought to be noted that Article 137 is the only Constitutional provision that is common in both curative petitions and review petitions. As the name suggests, curative petitions refer to petitions filed before the Supreme Court that seek to prevent the abuse of the Court process and to cure a gross miscarriage of justice. A curative petition can only be field under the following grounds.

3 4

Rupa Ashok Hurra Vs. Ashok Hurra and Anr, (2002) 4 SCC 388 at P. 416, Para 49 The Supreme Court under Article 145 of the Constitution can from time to time make rules for regulating its practice and procedure. Under this power, the Supreme Court propounded, The Supreme Court Rules, 1966; O-XL Order XL, Rule 5 of the Supreme Court Rules, 1966 provides that where an application for review of any judgment and order has been made and disposed of, no further application for review is maintainable in the

1. Where there is violation of principles of Natural justice in that the aggrieved party filing a curative petition was not a party to the lis but the judgment adversely affected his interest or if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice. 2. Where in the proceedings a learned judge failed to disclose his connection with the subject matter or the parties, giving scope for an apprehension of bias and the judgment adversely affects the petitioner. In addition to the above grounds, the curative petitioner must aver specifically that the grounds mentioned in the curative petition had been taken in the review petition and that such review had been dismissed by circulation. Also, a curative petition has to include a certificate by a Senior Advocate indicating that the same grounds in the curative petitions had also been taken in the review petition. Further, the curative petition has to be circulated to a bench of the three senior most judges and the judges who passed the judgment complained of, if available. In the event of the bench holding at any stage that such curative petition is without any merit and is vexatious, it could impose exemplary costs on the petitioner. Now I would like to elaborate the Review Petition. As I have already mentioned, a review petition is filed under Article 137 of the Constitution. And the Apex court held that the power to review is not an inherent5 .The power to review must be conferred by law either specifically or by implication. The Supreme Court Rules, 1966 made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the grounds specified in Order 47 Rule 1 of the Code of Civil Procedure, which provides:

(i) Discovery of new and important matter of evidence. (ii) Mistake or error apparent on the face of the record6.

(iii) Any other sufficient reason.

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

In the case of criminal proceedings a review lies on the ground of an error apparent on the face of the record. The Supreme Court has later held that the above restrictive view on criminal review could not have been intended and that it ought to be assumed that the contrary is the case since criminal review matters are more traumatic and touch on issues of life and liberty unlike civil reviews.A review petition lies with the Court if filed within thirty days after the pronouncement of a final Supreme Court judgment. The purpose of review is to ensure that justice is not defeated and that errors leading to miscarriage of justice are remedied. I now proceed to draw an analysis between curative petitions and review petitions. Firstly, in both the cases the petitioner are circulated to the Supreme Court: for review petitions, circulation is to the judges who passed the impugned judgment whereas in the case of curative petitions, circulation is the three senior most judges in the Supreme Court and the judges who had passed the impugned judgment if available. Secondly in both the reviews a certificate of a senior counsel is essential and in the case of curative petition the Court can impose exemplary costs for those petitions that are; unwarranted this not being so in the case of review petitions. Lastly the grounds for filing a curative petition seem to be based on natural justice principles unlike those of filing review petitions that seem broader and not necessarily restricted to natural justice. I would like to say that there is very thin line between Curative Petition and a second review petition. The Supreme Court has, however sought to lay down different grounds for filing review petitions and curative petitions. The terms and conditions of to file a curative petition proves that in totality it is different from second review petition. And one more has been raised that what is reason to justify the curative under Article 32 i.e. to provide constitutional remedies and even after allowing curative petition only one curative petition has been decided successfully and rest have no result.

CRITICAL EVALUATION
Since April 2002 when the Supreme Court propounded the modalities of Curative petitions, five hundred and sixty eight curative petitions have been filed before the Supreme Court, all the 440 curative petitions filed up to December, 2005, were summarily rejected on the specious ground that no case was made out within prescribed parameters. By it can be understood the number of accepted number of curative petition. Although it is an effort of the Supreme Court to provide justice and to remove injustice from society but there is a

question before us. Whether the Supreme Court is successful to provide justice by its new concept curative petition or not? The data that has been mentioned shows that the judiciary has been failed to provide justice. By this decision only the numbers of petitions have been increased and the number of pending cases has also been increased. It has created an unnecessary burden on the judges. But the Honble Apex Court has provided another chance to the people to get justice. The SC has said that you can file a curative petition after the rejection of review petition. Before this judgement, review petition was the last weapon to get justice. It was the last petition under which aggrieved party can appeal to the Supreme Court and if it was rejected, then there was no way of appeal. But after this judgement, an aggrieved party can go the Supreme Court under Article 32 of Indian Constitution. The number of petitions has also been increased that is mentioned. So up to some extent SC is successful to provide justice to the aggrieved party.

CASE LAWS:

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

Bench: Y.K. Sabharwal, R Pal, A Kumar FACTS OF THE CASE:
The accused were convicted for the offences charged and sentence of rigorous imprisonment for life for offence under Section 302/149 IPC was imposed by Court of Sessions. The appeal of the accused was, however, allowed by the High Court and the judgment and order of Court of Sessions was set aside. This Court, by judgment dated 10th December, 2002, allowed the appeal of the State, reversed the judgment of the High Court and restored that of the Sessions Court.

The review petitions filed by six accused including the petitioner were dismissed by order
dated October 16, 2003 This curative petition has been filed by one out of the six accused and the main thrust of the petitioner is that the evidence and the factors taken into account by the High Court for disbelieving the testimony of the eye-witnesses have not been properly appreciated by this Court while allowing the appeal of the State against judgment of acquittal.

JUDGEMENT:

The grounds urged in the curative petition show as if another regular appeal has been filed to challenge the judgment. Such a petition is an abuse of remedy provided in Rupa Ashok Hurra v. Ashok Hurra & Anr. [(2002) 4 SCC 388].The certificate itself shows that the object is to seek fresh examination of facts after the decision of the appeal and dismissal of the review petition. The certificate does not fulfill the requirements of Rupa Ashok Hurra. The Bench held that unfortunately the High Court remained on the periphery and never attempted to grapple with the substance of the evidence on record.

A perusal of the grounds taken in the curative petition makes it clear that the attempt is to have another opportunity for re appreciation of evidence. Such a course is impermissible.

Ordinarily, a curative petition of this nature deserves dismissal by imposing exemplary cost on the petitioner but, in the present case, we refrain from imposing cost considering that the petition arises out of a criminal appeal.

CASE: Zakarius Lakra And Ors. vs Union Of India (Uoi) And Anr. on 16 February, 2005(2005 CriLJ 1716, 117 (2005) DLT 675 SC)
Bench: P V Reddi, A Mathur

FACTS OF THE CASE: By this Writ Petition under Article 32 of the Constitution, the petitioners, who are the parents of the appellant in Criminal Appeal No. 824 of 2002, question the legality of the death sentence imposed on the appellant by the Additional Sessions Judge, Dehradun which was confirmed by the High Court on reference made to it and further confirmed by this Court on the appeal filed by the appellant. The petitioners prayed for quashing the death sentence on the ground that the appellant was a juvenile on the date of the commission of the offence i.e. 15.11.1994.

 A review petition was filed by the convicted appellant. In the review petition, the grounds raised were in regard to the age of the accused-appellant. In one of the grounds, it was pointed out that the school certificate filed by the petitioner along with the appeal was not taken into consideration. The review petition was dismissed. The court permitted the petitioners to convert the present petition into curative petition by making necessary amendments and following due procedure as in Hurra case. JUDGEMENT: The court allowed this review petition and alter the sentence of death to imprisonment for life as the petitioner having been a juvenile on the relevant date.

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

FACTS: The Supreme Court, on May 11, dismissed the curative petition filed by the Central Bureau of Investigation (CBI) to enhance the punishment of the accused in the Bhopal Gas Tragedy case. The petition was filed in August 2010 against an order of the apex court that diluted the charges against the accused in 1996. JUDGEMENT: The court dismissed the curative petition on the ground that; no ground falling within the parameters of Rupa Ashok Hurra vs. Ashok Hurra 2002 (4) SCC 388 is made out in thecurative petitions. no satisfactory explanation is given to file such curative petitions after about 14 years from 1996 judgment of the Supreme Court

CONCLUSION:
The project has sought to made to explain the concept of curative petition and up to what extent the SC has got success to provide justice along with the justification of Curative Petition. Curative Petition is a procedural device in Indias legal system designed for use in rare and narrowly defined situations to correct judgments entered as a result of procedural judicial error.

The curative petition is an attempt to render justice that is the one of the most commitment made by the constitution. It has attempted to provide a fair trial 7, and up to some degree it has tried to give relief to the aggrieved party. In this the features of curative petition is also showed. Feature of our justice delivery system, as is prevalent in the country, is adherence to proper and effective administration of justice in stricto. In the event there is any affection of such an administration of justice either by way of infraction of natural justice or an order being passed wholly without jurisdiction or affection of public confidence as regards the doctrine of integrity in the justice delivery system, true effect of the outweigh the course of justice- the same being the true effect of doctrine of ex debito justitiae. As an independent judiciary, under the scheme of the Constitution, the Court has played its role effectively in acting as a watchdog through judicial review over the acts of the legislature and the executive. The Supreme Courts pronouncement in this case is another attempt to fill the legislative gap.

Article 21 of constitution of India.

BIBLIOGRAPHY:
BOOKS REFERRED:

Jain M.P., Indian Constitutional Law, Lexis nexis, 5th edition 2005. Bakshi P.M., The Constitution Of India, Universal Law Publishing Co.9th edition
2009. WEBSITES REFERRED:

www.indiankanoon.com
www.vakilno1.com
http://supremecourtofindia.nic.in/