Curative Petition

Introduction

India the largest democracy of the world, is a secular, democratic and republic nation which hold its people most important and thus to enjoy its character to the fullest it guarantees certain fundamental rights to its citizens as well as certain rights to non-citizens. But the declaration of these rights will be meaningless unless there is an effective machinery for the enforcement of these rights, as it is remedy which makes right real. It is therefore that our constitution maker along with a long list of fundamental rights they have also provided for an effective remedy for the enforcement of these rights under Art. 32 and Art. 226 of the Constitution of India. But to prevent the misuse of the process the Supreme Court has imposed a significant restriction on the invocation the remedy by applying the doctrine of res judicata. 
The rule of res judicata is based on the consideration of public policy as it is in the larger interest of the society that the finality should be attached to the binding decisions of the courts of competent jurisdiction, and that individuals should not be made to face the same litigation twice. Thus the jurisdiction of the Supreme Court can under Art. 32 cannot be invoked to challenge the validity of a final judgement/order passed by the court[1]. Under Article 137 of the Indian Constitution Supreme Court has power to review its own decision and the court’s decision in the review petition is final decision of the land which cannot be challenged in any court of law. Then arises the question whether an aggrieved person is entitled to any relief against the final judgement of the Supreme Court, once the review petition is dismissed by the Court. 

This question for the first time came in front Supreme Court for its consideration in the case of Rupa Ashok Hurra vs Ashok Hurra[2], where the Supreme Court came up with the concept of Curative Petition. A five Judges bench in this case held that in order to rectify gross miscarriage of justice in its final judgement which cannot be challenged again the Court will allow the victim of miscarriage of justice to file curative petition to seek a second review of the final order of the Court. 

The term Curative Petition can be defined as the last constitutional resort available to an aggrieved person for the redressal of grievances in court after the dismissal or exhaustion of review petition. The Five Judges Bench headed by Chief Justice S.P. Bharucha said: “we are of the view that though judges of the highest Court do their best subject to the limitation of human fallibility yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgement to set right miscarriage of justice.” Thus it is would be moral and legal obligation of the apex court to rectify error is such a decision that otherwise would have remained under the cloud of uncertainty.

However, to prevent the misuse of the process the court laid down certain specific conditions for the court to entertain such a curative petition under its inherent power to prevent floodgates of unnecessary petitions seeking their second review. The requirements are the following:-

1. Court reaffirms that litigants are prohibited from challenging final decisions.
2. But in cases of miscarriage of justice it would be its legal and moral obligation to rectify the error.
3. The petitioner will have to show that there was a genuine violation of principles of natural justice and fear of the bias of the judge and that the judgement passed has adversely affected him.
4. The curative petition must accompany certification by a senior lawyer relating to the fulfilment of the requirement.
5. The petition is to be sent to the three judges of the bench who passed the judgement affecting the petition.
6. If by the majority this bench concludes that the matter need to be heard before the same bench which may pass appropriate order it should be listed.
7. They could also impose “exemplary costs” of the petitioner if his pleas lacked merit.

Criticism on Curative Petition

The process was criticized on the three points;
1. First, the framers of the constitution have given the Supreme Court power to hear and do justice at two levels:
(i) Under article 32 where it entertains petition and after extensive arguments and detailed examination delivers the final judgement, and
(ii) Under article 137 where it has power to review its decision if anything remains left to cure the defect and do justice.

In spite of this as the bench has said the judges as human beings are likely to do mistake and to hear a second review and for the sake of justice prefer justice over certainty of judgement. But what is the guarantee that the petitioner would be satisfied that he got and the judges also anticipated that, in spite of human failing they are able to do complete justice.

2. Secondly, this judgement would not benefit the common litigant as the majority of them are satisfied with the final decision of the Court under article 32 and even they do not file a review petition. It would help only the persons who are rich enough to pay senior lawyer’s fee for his certificate for filing the curative petition.

3. Thirdly, the court has imposed certain conditions to prevent its abuse similar to the condition imposed by Justice Bhagwati to prevent the misuse of Public Interest Litigation. In spite of this, the process was abused by irresponsible litigants. Therefore there is no surety that the process will not be abused the litigants.

Conclusion

Curative Petition as a process is outside the purview of the Constitution and was solely framed by Supreme Court out of its will. The process although is unconstitutional but for the purpose it was framed is constitutional. Even the judges of the Apex Court are human and out of the human conduct there are chances that they make mistake in deciding certain case. Every coin has two phases, good and bad, and we should not ignore the good over the bad, and therefore, although there are many points to criticize the process we should not ignore the positivity attached to it. It may waste the precious time of the Court but the thing that it can prevent the gross miscarriage of justice should also not be ignored.

Reference     

[1] Rupa Ashok Hurra vs Ashok Hurra,(2002) 4 SCC 388, 403
[2] (2002) 4 SCC 388, 403
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Author: Harsh Srivastava, Shri Ramswaroop Memorial University

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