TABLE OF CONTENTS

S L.
NO.

TOPIC

PG.
NO.

1.

SYNOPSIS

3-6

2 3.

ACKNOWLEDGEMENT INTRODUCTION

8 9

4. 5. 6.

CURATIVE PETITIONS AND SECOND REVIEW PETITIONS

14 16 18

CONCLUSION REFERENCE/BIBLIOGRAPHY

SYNOPSIS CURATIVE PETITION-IS IT WAY TO EX-DEBITO JUSTITAE?

STATEMENT OF PROBLEM
Curative Petition is a procedure which was evolved by Supreme Court which provides an aggrieved to request the court to reconsider its judgement even after the final verdict of Supreme Court and even after the Dismissal of review petition by showing gross miscarriage of judgment. Even after the evolution of this new petition in Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) which was advancement even after the dismissal of review petition. The question arises whether our judicial system has adopted this new petition or is it still on papers and could not unchained itself from the criticism raised on it like whether it do justice to the validity of judgement of apex body i.e. Supreme court or whether Indian constitution permits Supreme Court to make such provision.

REVIEW OF LITERATURE

Compensation to Bhopal gas victims: will justice ever be done? Indian Journal of Medical Ethics Vol IX No 2 April-June 2012

This article talks about the delay in the justice provided to the Bhopal Gas Tragedy victims, which closely relates to the curative petition filed on 26th anniversary of this tragedy on December 3, 2010 but still nothing effective has been done. This arose a question that is still curative petition resting in papers and will never evolve from its dormant stage. Comparison between Curative Petition and Second Review Petition National Law University, Orissa (NLUO) at Cuttack, February 26, 2010 This article talks about the comparison between Curative petition and Second review petition, in the further article it is discussed that how second review petition is a hypothetical term and creates confusion among a different term as curative petition which also acts as an obstacle towards its transparency.

Guarding the Guards: The Judiciary as State within the Meaning of Article 12 of the Constitution

National Law School of India Review, Vol. 18, No. 2, 2006 The particular topic in the article The genesis of the curative petition: judicial creativity or judicial folly? talks about the complexity of this petition which is also an obstacle towards its growth.

OBJECTIVES

To find out whether curative petition are given required importance in the Indian courts

What are the required conditions to file a curative petition, which further helps in finding out whether these conditions are too complex to apply it in reality?

Whether curative petitions are misused to delay the procedure and what are the counter steps given for it to prevent such misuse.

Is there any difference between curative petition and second review petition

To find out some cases to analyse the activeness of curative petition.

HYPOTHESIS

Curative writ requires more attention and it still just exist on papers due to its complications

Conditions necessary to file Curative writ are too complex which gets it dismissed in the end.

There is no difference existing between Curative petition and second review petition, it is just a confusion which also acts as an obstacle towards its implication.

Cases like of Bhopal gas tragedy, shows the delay in decisions even after filing the curative petitions, which also creates another obstacle for it and retards its working.

DATA COLLECTION
SECONDARY DATA COLLECTION Library resources Internet Research papers submitted in Journals Articles published by various universities Articles taken from the books Case Studies Case Laws and judgment of various cases Articles taken from various websites and law journals Cases referred from Databases.

ACKNOWLEDGEMENT

I would like to begin by thanking the Institute of Law, Nirma University for providing me this golden opportunity to come up with this research project on the Curative Petition. It helped me gain knowledge and furtherance into the legal field thorugh the study of a very relevant subject in our countrys legal provisions.

I would also like to thank our professor, Mr. Yogesh Madan Dharangutti, for providing important insight and assistance with my project. Special thanks to Adv. Vikram Singh, who during the course of my internship, suggested me relevant cases and journals regarding the completion of my research.

REGARDS

INTRODUCTION
Curative Petition is a procedure which was evolved by Supreme Court of India through judicial pronouncement which provides that if an aggrieved person, even after final verdict given by Supreme Court on India and even after dismissal of review petition or second review petition, can request the court to reconsider its judgment by showing gross miscarriage of justice upon him. The proper mechanism has been established under the law regarding the cases coming which are coming to The Supreme Court of India. Supreme Court of India has been established under the Article 124 of the Constitution of India which specifies its jurisdiction and powers, and also enables Parliament to bestow further powers and jurisdictions on it. The Constitution bestowed on the Supreme Court original jurisdiction (Articles 32 and 131); appellate jurisdiction in both civil and criminal (Articles 132 133, 134); and also the discretionary jurisdiction to grant special leave to appeal (Article 136) and also very wide discretionary powers, in the exercise of its jurisdiction, and to pass decree or make such order which is mandatory for doing complete justice in any cause or matter pending before it, which shall be enforceable throughout the territory of India in the manner prescribed (Article 142). There has been many considerable debate held and focused in recent days on the important topic of 'curative petition' filed by the Central Bureau of Investigation [CBI] in the Supreme Court of India in terms of the Bhopal Gas tragedy. The question which it emphasized on was that what is 'curative petition' and what is the origin of it and significance of this very important legal expression under Indian constitutional law? The answers to these very

pertinent questions are found in the celebrated judgment given by the Supreme Court of India in the case entitled, "Rupa Ashok Hurra vs. Ashok Hurra and another"1.

SUPREME COURT OF INDIA Honble the Chief Justice, Honble Mr. Justice Syed Shah Mohammed Quadri, Honble Mr. Justice Umesh C. Banerjee, Honble Mr. Justice S.N. Variava and Honble Mr. Justice Shivaraj V. Patil

Rupa Ashok Hurra Petitioner and M/s. Birla Textiles and another Petitioners versus Ashok Hurra and another Respondents and Union of India and others Respondents Case No: Writ Petition (C) No. 509 of 1997 (With W.P.(C) No. 245/99, 338, 325-326, 663, 680/2000, 374/2001 and 108 of 1999)

Date of Decision: April 10, 2002 The judgment of far reaching consequences of Rupa Ashok Hurra v. Ashok Hurra2, a supreme court bench comprising of five judges has unanimously held that if in order to rectify gross miscarriage of justice even in its final judgement which cannot be further challenged the court shall allow curative petition by the victim of miscarriage of justice to seek a second review of the final order given by the court. It was 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 judgment to set right miscarriage of justice.3 The court after observing that it should be the moral and legal obligation of the apex court to rectify its own error in such a decision that otherwise would still remain in the uncertaintys clouds. This judgment was answer to all the petitions which gave rise to the question that whether a petition could question the final judgment given by the Supreme Court of India even after the dismissal of the review petition filed by him. The major concern of courts for reordering justice in a cause of gross miscarriage of justice was not of less importance than the principle of certainty which is
1 2 3

[(2002) 4 SCC 388]

AIR 2002 SC 1771 S.P. Bharucha C.J

followed in its judgments because there could be grounds that in such decisions can be 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 open to challenge4.

In the case of Rupa Ashok Hurra v. Ashok Hurra5 , the petition has been filed by a writ petition which was under Article 32 before the three judge bench and was subsequently dismiss since the Court in its earlier judgment in the case of A.R Antulay V. Union of India6, had held that a final judgment of Supreme Court of India cannot be reviewed or assailed by a writ petition under Article 32. The Curative petition propounded in the said case is basically the ultimate result of judicial activism which was pronounced in the said case.

It is important to note that two possible routes which were confronted by the constitutional bench to uphold the already laid down principle or dictum, that a final judgment of Supreme Court of India cannot be reviewed by a writ petition or overlook this dictum and admit these writ petitions in the interest of justice. In India it was for the first time that Supreme Court of India, with the virtue of power any petition, allows for the revision of its own final judgment, although its not surprising since our supreme court is regarded as the guardian of fundamental rights7.The writ petitions regarding the fundamental rights comes under the Article 32. In Indian a decision of a division bench can be overruled by the set up a constitutional bench8. It is because of the reason that in India we have a hierarchy of benches and courts hearing matters before them. So a higher bench can correctly overrule an order passed by a smaller Bench.

AIR 2002 SC 1771 5 AIR 2002 SC 1771 6 1998 4 SCC 409 7 In India the Supreme Court Stands poised with a responsibility to uphold constitutionalism in our country, this responsibility has resulted in the Supreme Court to refer itself to as the guardian angel of the constitution and fundamental rights. It is also referred in the case of V.C Mohan v. Union of India (2002) 3 SCC 451 8 A Constitutional bench refers to a bench of the Supreme Court consisting of more than three judges looking at a matter that is of constitutional significance.

The constitutional bench admitted both the cases of Rupa Ashok Hurra and A.R. Antulay were admitted with proper caution.9Unlike in A. R Antulay, in Rupa Ashok Hurra, there was no appropriate procedure that petitioners could have adopted to come before the Supreme Court in case the Court decided to dismiss their writ petitions. This prompted the court in Rupa ashok hurra to propound the modalities of a curative petition. The Supreme Court of India has unanimously ruled out, in this particular case, that a person, who is aggrieved by final judgement or order of the apex court, even after the petition is dismissed for `review' of the same, is entitled to `ex debito justitiae' if he establishes:-

(1)Violation of principles of natural justice in that he was not a party to the `lis' (legal dispute) but his interests were adversely affected by the judgment or, even if he was a party to the lis, he was not served with a notice of the proceedings and the matter proceeded as if he had notice and (2)Where in the proceedings the connection with the subject-matter or the parties giving scope for an apprehension of bias was not disclosed properly by the learned judge and the petitioner was adversely affected by the judgment. In order to accept the curative petitions, the requirements which are needed are mentioned below:

(i) It is needed to be reaffirmed by the Court that litigants are further barred on challenging the final decisions given by the Court.

(ii)It would be its moral and legal obligation to rectify the error in the case of gross miscarriage of justice.

(iii)A genuine violation of principles of natural justice is needed to established by the petitioner and fear of the biasness of the judge and final judgement that adversely affected him.

9The writ petition filed in rupa ashok hurra was the last petition to assail a final Supreme Court decision.

(iv)The curative petition must be accompanied by the certification obtained by a senior lawyer relating to the fulfillment of the requirements.

(v)The petition is to be sent to the three judges of the bench who passed the judgment affecting the petition.

(vi)If the majority of the judges on this bench conclude that the matter needed hearing before the same bench which may pass appropriate order it should be listed.

(vii)If the pleas of petitioner lacked merit then Exemplary cost can be imposed on him by the court.

CURATIVE PETITIONS AND SECOND REVIEW PETITIONS

There are some distinctions between the curative petitions and the second review petitions. The power to review is up to the supreme courts option. The first distinction between the two is the limitation to the number of times the power of review can be used by the court. A second review petition cannot lie within Supreme Court once the review petition has been disposed off. 10On the legal side curative action of the Supreme Court does not amount to second review petition. But the power to review is inherent in curative actions of the court. The highest court of the land in a country should not be ruled by any pressure of expediency or anything. It must be very vigilant and cautious while introducing or invoking anything new. It should not do anything unconstitutional. In simple words as long as the court is reconsidering its earlier final judgement it amounts to review, there are no two ways to the issue. The modalities of curative petitions in curative petition in Rupa Ashok Hurra involved the invocation of Article 137 of the constitution by implication. But in Rupa Ashok Hurras case it is not 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 the miscarriage of justice.11By Article 137 the Supreme Court has granted the power to review any of its judgements. It has defined it as that review means re examining or reconsidering its final
10 Rupa ashok hurra v. Ashok hurra and anr (2002) 4 SCC 388 para 50 the court has stated that the modalities of curative petition do not amount to a passport for filing the second review petitions. 11 Rupa ashok hurra v Ashok hurra and Anr (2002) 4 SCC para 49

decision.12In both the curative petition and review actions, the Supreme Court is only reconsidering its final judgement as such in both the endeavours the activity is the same save for different words being adopted to describe these activities. The fact that the Article 137 is an integral part of the procedure for filing the curative petitions is further enhanced by curative petitioners averring in their petitions that such petitions are filed under Article 137, 141, and 14213. In Rupa Ashok Hurra, it was necessary that the Supreme Court wore the mantle of infallibility due to the fact that its decisions are final and that no higher court exists to correct an error by the Supreme Court. Sometimes errors and mistakes do occur in the judgements of the Supreme Courts decision that would result in the miscarriage of justice to remove that defect the curative petitions are allowed in the Supreme Court. Review petitions are provided in the constitution, unlike curative petitions which are a result of a Supreme Court pronouncement. Article 137 is the only constitutional provision that is common in both curative petitions and review petitions. As the name itself says, curative petitions refer to petitions filed before the Supreme Court that seeks to prevent the abuse of the Court process and to cure a gross miscarriage of justice.14 Curative petitions are filed after the disposal of a review petition and actions are filed under Article 137, 141, 142. There is no prescribed period for filing a curative petition.15 An application for invoking the inherent power of this Court might require that it should be certified by a senior advocate and in case of frivolous application the petitioner could be subjected to costs. He relied on the judgment of United States in United States of America Vs. Ohio Power Company16 to show that in every jurisdiction the courts have corrected their own mistakes. He cited the judgment of this Court in Harbans Singh Vs. State of Uttar Pradesh & Ors17, to show that even after the dismissal of the Review Petition the Supreme Court reconsidered its own judgment; he pleaded for laying down guidelines in regard to entertaining such an application.

12 S. Nagaraj v. State of Karnataka 1993 Supp (4) SCC 595, 619 Para 49 13 Curative petitions reported in law reports suggest that a curative petitioner has to aver in the petition that it is filed under Articles 137, 141, and 142 of the constitution. 14 (2002) 4 SCC 416, para 49 15 The supreme Court Rules, 1966 16 1 Lawyers Ed 2d 683 17 (1982) 2 SCC 101

CONCLUSION

The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.18 The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. Since April 2002 when the Supreme Court propounded the modalities of curative petitions, 568 curative petitions have been filed before the Supreme Court during the month of November and December, 2006. But the fact is that so far no curative petition has been successful before the Supreme Court. It is because of the reason that so far no curative petition has been able to make out a case within the Rupa Ashok Hurra parameters. Secondly there was no other ground that results in miscarriage of justice that have been alleged in a curative petition have succeeded. And above all the court felt it necessary to control the floodgates of litigation which resulted in the limited grounds on which the court would accept curative petitions. The court must ensure that the formalities of filing an application for curative petition should not deny anyone justice. There is a big difficulty in filing a meritorious claim in a curative petition. The court observed that it would be the legal and moral obligation of the apex court to rectify error in 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.

18

Shaukat Hussain Guru v. State (NCT) Delhi and Anr AIR 2008 SC 2419

The curative petitions apart from the stringent procedures that have to be fulfilled are nothing but the second review petitions. The writ petitions in Rupa Ashok Hurra raised fundamental questions, which are not fully answered still there is some vagueness. It can be said that the Supreme Court can review its own judgements or final orders. Article 137 of the Constitution grants the Supreme Court the power of review of any of its final decisions. This power of review as per Article 137 is not restricted to only one time use in relation to a final Supreme Courts decision. It is through the supreme courts pronouncement and in exercise of its power under the Article 145 that review power has been used only once in any relevant final Supreme Court decision.

Our framers of the constitution have given the Supreme Court to hear petition and do justice at two levels: under article 32 where it entertains petitions and extensive arguments and detailed examination delivers the final judgement and (ii) power of review under Article 137 if anything remains left to cure the defect and do justice. In spite of this the judges has said that the judges as human beings are likely to do mistakes and hear a second review and for the sake of justice prefer justice over certainty of judgement. The acceptances of judicial decisions are based on certainty.

The guarantee that the petitioner would be satisfied that he got justice and the judges also anticipated that, in spite of human failing they are able to do complete justice. Secondly, this judgement would not benefit the common litigant. Majority of them are satisfied with the final decision of the Court under and do not file a review petition. It would help only the rich who had enough money to pay senior lawyers fee for his certificate for filing the curative petition. Thirdly, the court has imposed certain conditions to prevent its abuse. Similarly justice Bhagwati has imposed certain conditions to prevent the misuse of public interest litigation. In spite of this, it is abused by irresponsible litigants. Recently for instance, in Balcos case a public interest litigation was filed challenging the Central Governments policy decision to disinvest its shares to private persons. In this case lot of precious time of the apex court was wasted, hearing was done and it had to reiterate the principles of public interest litigation and to give warning against its misuse.

REFERENCE/BIBLIOGRAPHY

Rupa Ashok Hurra v Ashok Hurra (2002) 4 scc 388 Curative petition (Civil) No. 345-347/2010 filed by Union of India in the Supreme Court of India, 2010 Indian Journal of Medical Ethics Vol IX No 2 April-June 2012 Tripathi, Anurag. Comparison between Curative Petition and Second Review Petition. National Law University, Orissa (NLUO) at Cuttack, February 26, 2010 Ramnath, Kalyani. Guarding the Guards: The Judiciary as State within the Meaning of Article 12 of the Constitution. National Law School of India Review, Vol. 18, No. 2, 2006.