Curative - Rarest Of Rare Case; An Extraordinary Jurisdiction Of Curative Carved Out By Supreme Court For Supreme Court

Curative petition, in layman's language, means a method devised by the Supreme Court to review or to revise (relook) its own decision passed in the review petition. Any party who wishes to challenge the order of review, can file a curative petition. The normal ladder in the Supreme Court is that firstly, one files a petition challenging the High Court (or equivalent) order, then against the order of this petition, a review can be filed and eventually in rarest of the rare cases, as a final resort, one may resort to curative, subject to the fulfillment of certain conditions. Not every litigant can approach the Supreme Court by means of curative petition as it is used very sparingly by this Court.

The power of Curative is an extraordinary jurisdiction carved out by the Supreme Court for the Supreme Court, meaning thereby, the power of Curative on the Supreme Court has not been bestowed by any law made by the Parliament, but by the Supreme Court itself, exercising its power under Article 137 of the Constitution. The emergence of the curative petition is in relation with the interpretation of the review petition by the Supreme Court which is enshrined in Article 137 of the Constitution which says that:

“Article 137. 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.”

“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..”

In paragraph 52 of the said judgment, the Supreme Court carved out the following conditions to be fulfilled by a party who wishes to file curative petition:

1. the petitioner must state that the grounds mentioned in curative were taken in review petition;
2. the review petition was dismissed by circulation; and
3. a certificate by a senior advocate with regard to the fulfillment of above requirements.

To give effect to this judgment of the Supreme Court especially with regard to the pre-conditions for filing curative petition, the Supreme Court Rules were amended in the year 2013 and an attempt was made to incorporate the provision of curative petition by way of Order 48. Order 48 of the Supreme Court Rules, 2013 lays down the pre-conditions for registration of a curative petition:

1. that the grounds mentioned in curative were taken in the review petition;
2. that the review petition must be dismissed by circulation;
3. the curative petition shall be accompanied by a certificate of a Senior Advocate that the petitioner meets the aforesaid requirements; and
4. a certificate by the Advocate-on-Record to the effect that it is the first curative in the impugned matter.

It is mandatory to fulfill all the conditions mentioned above and non-fulfilling of even one of them amounts to curative not being entertained by the Supreme Court.

There have been a series of judgment in which the Supreme Court has dismissed the curative even at the stage of admission, because it did not meet one of the conditions mentioned above, in most cases, lack of proper certificate by the senior advocate.^[2]

In some cases, the Supreme Court has been reluctant to hear the parties in open Court at the stage of curative petition, while in some, they express their desire to do so. It again depends on the facts, circumstances of each case and the question involved. Like in P.N. Eshwara v. Registrar Supreme Court of India^[3], the Supreme Court held that a written submission is capable of explicit expression and that it is capable of doing adequate justice in the matter of setting forth the case of the litigant. If there is a need for an oral hearing, the Court may allow so. But that an oral hearing is mandatory in all classes of cases and at every stage of every case is not acceptable.

However, in Mohd. Arif v. Supreme Court of India^[4], the Supreme Court while hearing a death sentence case held that in all cases concerning imposing of death penalty, the Supreme Court shall keep a room for oral hearing. “Death penalty is irreversible in nature. Once a death sentence is executed, that results in taking away the life of the convict. If it is found thereafter that such a sentence was not warranted, that would be of no use as the life of that person cannot be brought back.” Thus, the Supreme Court held that limited oral hearing even at the review stage is mandated by Article 21 of the Constitution in all death sentence cases as even when there is a remote chance of deviating from such a decision already made in review, oral hearing and entertaining of curative would be justified. Hence the Court held that oral hearing, in death sentence cases, becomes too precious to be parted with.

In yet another case of Yakub Abdul Razak Memon v. State of Maharashtra,^[5] the Supreme Court held that there cannot be a review of a review and the same would not be maintainable under Article 32 of the Constitution. However, on the question of availability of Judges who heard the matter, it was held that if the judges who decided the review petition have retired and demitted office, they cannot be made parties by judicial imperative. In such cases, only the three senior most judges (including the Chief Justice of India) would hear the curative petition, which will not amount to procedural irregularity.

Recently, the Supreme Court dismissed a Curative Petition in the case of Union of India v. Union Carbide Corporation^[6], wherein a five Judge Bench heard the curative in open court inspite of the earlier review petitions being dismissed after hearing in open Court. The petition was brought by the Union of India seeking to re-open the settlement it had arrived at in the case of Bhopal gas tragedy that occurred in 1984. With respect to exercise of its power under Curative jurisdiction, the Court held that:

“28. We have great hesitation in allowing such a prayer and granting such sui generis relief through the means of curative petitions. Although this Court in Rupa Ashok Hurra chose not to enumerate all the grounds on which a curative petition could be entertained; the Court was clear in observing that its inherent power ought not to be exercised as a matter of course, and that it should be circumspect in reconsidering an order of this Court that had become final on dismissal of the review petition. Nevertheless, looking at the nature of the matter before us, it would be advisable to also examine the curative petition(s), apart from the aforesaid preliminary objection.”

In yet another case of Brahmaputra Concrete Pipe Industries v.Assam SEB^[7], this Court was examining the issue as to whether the Registry 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 relying upon the judgement of Union of India v. Union Carbide Corporation^[8] held that the question of maintainability of a curative petition is something that has to be examined by a Bench of this Court and not the Registry as it is a judicial exercise. The Court further held that the grounds on which the Registrar may refuse to receive a petition have been enumerated in Rule 5 of Order XV of the 2013 Supreme Court Rules. Hearing of a review petition in open Court cannot be brought within the ambit of the expression “that it discloses no reasonable cause” as employed in Rule 5 of Order XV of the 2013 Rules and does not empower the Registrar to decline registration of a curative petition. That would be, at best, a technical shortcoming. The Court devised a mechanism and stated that a curative petition arising from an order of dismissal of a review petition upon hearing in open Court, must contain a plea or prayer seeking excuse from compliance of making averment as contained in Order XLVIII Rule 2(1) of the 2013 Rules. The proper course for the Registry on receiving such a petition with a prayer to be excused from the above requirement would be to obtain instructions from the Judge in chambers and thereafter communicate such instructions to the parties. The Court eventually held that the Registry cannot be vested with power to decide whether a review petition, after being dismissed in open Court hearing, merited relook through the curative jurisdiction.

Hence, time and again the Supreme Court has made it explicit as to the procedural aspects of curative petition including the Judges who will be hearing the curative petition.

To conclude with, I would say with no uncertainty that the Supreme Court has placed a strict check in entertaining curative petition and has adhered to the principle of 'rarest of rare', ensuring the conditions mentioned in Rupa Ashok Hurra are met. The power to entertain Curative petition should be exercised sparingly. It is considered as the last and final resort of exercise of powers by the Apex Court, so while ensuring no injustice is done, sincere efforts shall be made for preventing the Court to become a floodhouse for all curatives.

Authors: Ms. Sneha Kalita is an Advocate-On-Record & Ms. Kavya Jhawar is an Advocate at Supreme Court. Views are personal.

^[1] Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388.