Indian jurisprudence has ever since seen some landmark developments either through the legislature or the judiciary. One can go on and on about the growth and immense development that our legal system has witnessed over these years and it would never suffice.

One such case that seemingly changed how the our judicial system works and reaffirmed the fact that the Indian judiciary can go to any extent to meet the ends of justice is the landmark judgement of Rupa Ashok Hurra versus Ashok Hurra and Another[1].

A case specifically known for matrimonial discord when the question of the validity of a decree of divorce reached the Honourable Supreme Court of India (hereinafter, ‘the Apex Court) and the woman withdrew her consent that she agreed while giving in to divorce through mutual consent.

In this matter, the following question of law arose:
Whether an aggrieved person is entitled to any relief against a final judgment or order of the Supreme Court, after dismissal of Review Petition, either under Article 32 or otherwise?
A Bench comprising of Chief Justice of India, Justice S.P. Bharucha, and his companion justices, Justice S.M. Qadri, Justice U.C. Banerjee, Justice S.N. Variava and Justice S.V. Patil delivered a landmark judgement that opened a new dimension in the justice delivery system of this country.

The court opined that since the case invokes the jurisdiction of the Apex Court under Article 32[2], it would be important to discuss the provision.

Held: Article 32 invokes the writ jurisdiction in the nature of Habeas Corpus, Quo Warranto, Mandamus, Prohibition and Certiorari. With regard to writ jurisdiction, the High Courts in India are placed virtually in the same position as the court of Kings Bench in England. It is a well-settled principle that technicalities associated with prerogative writs in English law have no role to play under our constitutional scheme. It is, however, important to note that a writ of certiorari to call for records and examine the same for passing an appropriate order is issued by a superior court to an inferior court which certifies the record for examination.

On carefully examining the historical background and the nature of writ jurisdiction, which is of a superior nature over inferior courts and tribunals, the court opined that a writ of certiorari cannot be issued to co-ordinate courts and a fortiori to superior courts.

Though the jurisdiction and orders of a High Court are liable to be corrected by the Supreme Court in its appellate jurisdiction under Articles 132[3], 133[4] and 134[5] as well as under Article 136[6] of the Constitution, the High Courts are not constituted as inferior courts in our constitutional scheme.

Therefore, the apex court would not issue a writ under Article 32 to a High Court. Further, neither a smaller Bench of the Supreme Court nor a larger one can issue a writ under Article 32 to any other Bench of the Supreme Court. It may further be noted that the superior courts of justice do not fall within the ambit of “state” or “other authorities” under Article 12[7] of the Constitution.

Dr. Rajiv Dhawan, learned Senior Counsel, argued that since the Supreme Court is a creation of the Constitution so the corrective power has to be derived from the provisions conferring jurisdiction on the Supreme Court like Articles 32 and 129 to 140; such a power doesnt arise from an abstract inherent jurisdiction.

Mr. Ranjit Kumar, learned Senior Counsel, advocated that in case of any manifest illegality and palpable injustice the Supreme Court under its inherent powers could reconsider final judgment or order passed by the Honourable Court. It was submitted that the composition of the Bench might include senior-most judges along with judges who passed the order, if available. He also submitted that while considering such curative petitions on the ground of manifest illegality and palpable injustice, in the rarest of rare cases, factors like the doctrine of stare decisis and the finality and certainty of the law declared by the Apex court are required to be kept in mind.

The concern of the Apex court for rendering justice in a cause is no less important that the principle of finality of its judgment. The apex court, to prevent abuse of its process and to cure a gross miscarriage of justice, may reconsider its judgment in exercise of its inherent powers.

The next step is to specify the requirements to entertain such a curative petition under the inherent powers of the Supreme Court so that floodgates are not opened for filing a second review as a matter of course in the guise of a curative petition under the inherent powers. It is a common ground that except when very strong reasons exist, the court should not entertain an application seeking reconsideration of an order of the Apex court which has become final on dismissal of review petition.

However, a petitioner is entitled to relief ex debito justitiae if he establishes violation of principles of natural justice and where in the proceedings a learned judge fails 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.

The petitioner in the curative petition shall aver 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 certificate by a senior advocate with respect to the fulfilment of the above necessary requirement.

The curative petition: Keeping in mind that there lies no appeal against an order of the Apex Court considering that there is no intra court appeal, and the well-settled principle that an act of the court shall prejudice no one (actus curiae neminem gravabit), the concept of curative petition came into existence considering that it would be an extremely strong discretionary power and could be exercised only in rare cases.

Before delving into the crux of the curative petition, it is important to state in brief the procedure involved. The Supreme Court shall have inherent and plenary jurisdiction to hear such petitions. Order XLVIII of the Supreme Court Rules, 1966 states that after the dismissal of a case in review under Article 137[8] of the Constitution, by way of circulation, a curative petition can be filed under the inherent jurisdiction of the Apex Court to prevent abuse of its process and cure gross miscarriage of justice, as per the law laid down in the Ashok Hurra case[9].

It can either be civil or criminal petition. Such a petition shall be circulated to and heard by a bench of three senior most judges as well as the judges who passed the judgment in question. Unless otherwise ordered by the court, such a petition shall be disposed of by circulation without any oral arguments. But if the Bench before which such a petition is circulated deems just and proper, it may list the same for hearing before the same Bench, as far as possible.

The affidavit which may accompany the curative petition shall clearly mention that the petition is governed by the judgment in the Ashok Hurra case. It shall contain specifically that no new grounds had been taken and the grounds mentioned in the petition had been taken in the application for review, which was dismissed by circulation. It shall accompany with a certificate of a senior advocate that the petition meets the requirements delineated in the case mentioned, a certified or authenticated copy of the judgment or order complained of; and a certificate of the advocate-on-record to the effect that it is the first curative petition in the impugned matter.

It is specifically mentioned in the handbook that the curative petition shall not be governed by the provisions of The Limitation Act, 1963. As far as the fee is concerned, it is stated that the same fee as was paid in the original proceedings shall be levied.

Importance of this judgement:
This judgment is a bench mark in the field of judicial scrutiny. This case reaffirmed that the judiciary in this country and specially the highest judicial body, the Honourable Supreme Court will leave no stone unturned to impart justice to people. The court will go to any extent to satisfy the litigants that justice has been done even if it means to review its own decision a second time.

However, this is a matter of absolute discretion of the court. On 20th February, 2020 a three judge bench of the Apex court comprising of Chief Justice S A Bobde, Justice N V Ramanna and Justice Arun Mishra dismissed the curative petition filed by the Association for Victims of Uphaar Tragedy (AVUT), an association of victims of the 1997 Uphaar cinema fire tragedy case, sparing the Ansal brothers further jail term.

The rules around curative petition are fairly tight as the petitioner has to establish that there was a genuine violation of the principles of natural justice.

The Supreme Court on 19th March, 2020 rejected the curative petition filed by Pawan Gupta, one of the four death-row convicts in the 2012 Nirbhaya gangrape and murder case, against the dismissal of his juvenility claim. A six-judge bench headed by Justice N.V. Ramanna dismissed the plea, saying no case is made out.

“The application for oral hearing is rejected. We have gone through the curative petition and the relevant documents. In our opinion, no case is made out.. Hence, the curative petition is dismissed”, said the Bench also comprising of Justice Arun Mishra, Justice R F Nariman, Justice R Bhanumathi, Justice Ashok Bhushan and Justice A S Bopanna.

Thus it can be concluded that though curative petition is a much needed judicial relief after all reliefs are exhausted, it is purely based on judicial discretion without any specific postulates to entertain such a petition.

However, it cannot be ruled out that the judgement in Ashok Hurra case was indeed a bench mark for justice delivery system in India.

Conclusion:
As much as one wants to believe, judges arent gods. They are human beings and humans are bound to err. While decision of lower courts can be reviewed, appealed against or revised under various provisions of the Indian Constitution, the Supreme Court could not go against its own judgment to make changes. However considering the fact that errors can be made by a human being, it was important to introduce a concept wherein the Supreme Court can review an order passed by them. This is nothing but just an additional step to meet the ends of justice in totality.

End-Notes:

1. A.I.R. 2002 S.C. 177 (India).
2. 32. Remedies for enforcement of rights conferred by this Part. – (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
   (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
   (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
   (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
3. 132. Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases.- (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, [if the High Court certifies under article 134A] that the case involves a substantial question of law as to the interpretation of this Constitution.
   [***]
   (3) Where such a certificate is given, [***] any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided [***].
   Explanation- For the purposes of this article, the expression final order” includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case.
4. 133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters – [(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India [if the High Court certifies under article 134A-]
   (a) that the case involves a substantial question of law of general importance;
   and
   (b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.]
   (2) Notwithstanding anything in article 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided.
   (3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court.
5. 134. Appellate jurisdiction of Supreme Court in regard to criminal matters.- (1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court-
   (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or
   (b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or
   (c) [certifies under article 134A] that the case is a fit one for appeal to the Supreme Court: Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of article 145 and to such conditions as the High Court may establish or require.
   (2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.
6. 136. Special leave to appeal by the Supreme Court- (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
   (2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.
7. 12. Definition.- In this Part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
8. 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.
   [9] Supra Note 2.