The Indian Judiciary, after independence, has come a long way. With remarkable achievements on its side, it became more than a mere adjudicating body, to the holder of the fundamental rights as well as the guardian of our constitution. One of the most important reasons behind our judiciary’s commendable work in protecting and safeguarding our rights is the independency granted by our constitution. But, in our contemporary world, it can be seen that in numerous instances the judiciary has gone beyond the boundaries set by the constitution. One such instance is the formulation of the judicially-devised mechanism of Curative Petition. In the recent past, we all have heard about this term in the Nirbhaya Case. 6 men, who brutally raped 23-year-old young women in Delhi, were punished after 8 long years, despite the whole world knowing that they are guilty. This article would talk about what Curative Petition means and why the birth of Curative Petition is more of a burden on our already overburdened justice system.
Curative Petition: Meaning and Origin
A curative appeal is the final constitutional remedy available to the court for redressal of grievances after the review plea is denied or has been expired. The concept of curative petition emerged in the case of Rupa Ashok Hurra v. Ashok Hurra and Anr.[i] in 2002. The question which led to the emergence of this concept was that whether an aggrieved party is entitled to some relief against the final order of the Supreme Court after the rejection of the review petition.
The petitions are considered if the petitioner can prove that there has been a violation of rules of natural justice and there were several facts which were brought to the court’s attention but were dismissed by the court before the order was passed. These petitions are heard by the three senior-most judges and the judges who rejected the review petition. When the majority of judges concluded that the case needs to be heard then only it is referred to the same bench. The Bench can, at any point in time while hearing the petition, ask the senior counsel to assist it as Amicus Curiae. A curative petition is normally decided by the judges in the chamber unless a special appeal for an open court hearing is permitted.
Whether Creation Of Curative Petition Was A Rule Of Necessity?
After the conceptualization of the modalities of Curative Petition by the Supreme Court, questions have been raised in the minds of lawyers and various academicians that whether it was a part of necessity to introduce Curative Petition in our justice system despite the existence of ‘review petition’ in our constitutional framework.
Before the case of Rupa Hurra, there were numerous instances where the Supreme Court was approached under Article 32, it was held that its order, which has resulted in the ruination of justice, is amenable for correction. In all these cases the Supreme Court supplicated its power under Article 142 to do away any injustice caused by its orders. Now the question arises that why the Supreme Court has not talked about the concept of the curative petition in any other case but in Rupa Hurra’s Case only? The answer to this question is that in this case none of the members of the council has talked about the formulation of this concept and also the state of affairs was changed in the case of A. R. Antulay[ii] where the court held that a writ petition cannot be used to assail any of its judgment (final judgment). In this case, the Supreme Court held that in a scenario of the review petition, the court cannot re-evaluate their decision under article 32. But despite this decision of the court, there were cases in which the Supreme court has manifested justice by invoking its power given to it by the constitution. In Harban’s case, the supreme court has overruled its previous decision to render complete justice under article 32. So, the main point of discussion is that the procedure established by the court for the curative petition is more than just a judicial creation, because if it would be the case then this concept of the curative petition would have been created by the judges even before the case of Rupa Hurra.
Is The Supreme Court Existing Framework Sufficient To Cure Injustice?
There is a need to raise questions on the rationale given by the judges for the creation of a curative petition and for this purpose, it is important to examine the provisions of the Constitution of India.
- Discretionary Power of the Supreme Court:
Article 136 of the Constitution allows the Supreme Court to grant special leave to file a petition against any decision or order in any matter or cause passed or rendered by any court or tribunal in the jurisdiction of India.[iii] We need to look upon the two significant points mentioned in Article 136 of the Constitution. Firstly, the leave can be granted by the Supreme Court against any decision or order and, secondly, such decision or order can be passed by any court or tribunal in the territory of India. Such special power is provided to the Supreme Court so that it can grant leave to appeal against any judgement passed by any court of law. It is hereby submitted that the term ‘any’ will logically cover the Supreme court itself. The Supreme Court has rightly held that Article 136 provides unrestricted discretionary power to it so that it can render complete justice to all the people of the country.
C.J. Mahajan in his judgement has stated that the power vested in Article 136 is exceptional in nature and this power must be used by the Supreme Court sparingly and with care, and only in rare and extraordinary cases. This power should be used when the court comes to the opinion that an individual has been dealt arbitrarily or the trial of court or tribunal within the jurisdiction of India has not given a reasonable deal to a party, then no legal obstacles of any sort can stand in the way of the exercise of that authority and also, it is the responsibility of the court to ensure that injustice is not perpetrated by judgements of courts and tribunals.[iv]
The Supreme Court has stated numerous times in its judgements that Article 136 has been inserted to not to confer any right to the person aggrieved by any judgment of a court. Hence, it was concluded by the court that Article 136 is residual in nature that allows the Supreme Court to deal with any of the decisions through its discretion.[v]
- Plenary Jurisdiction of the Supreme Court:
Article 142 of the Indian Constitution provides the Supreme Court with the constitutional authority that can be invoked in appropriate situations to provide complete justice in its true nature in its given case. This power functions as a distinct and independent basis of jurisdiction.
In the view of the Supreme Court, the words ‘Such order as is necessary for doing complete justice’ in Article 142 are of the widest scope and allow the Supreme Court to render any order that might be essential for complete justice in a case before it.[vi] The application filed under Article 142 is curative in nature and it also extends to the avoidance of injustice on any ground including violation of the concepts of natural justice or suffering from an element of bias.[vii] In Supreme Court Bar Association v. Union of India[viii], it was held that the power under Article 142 exists independent of the statutes, to achieve complete justice between the parties.
Henceforth, there is a modus operandi that in the presence of specific provisions of the constitution, i.e. Articles 136 and 142, capable of coping with both usual and exceptional situations, the creation of curative petition can be rendered redundant. Even after the denial of the review petition, if the decision suffers any human fallibility, the same can be corrected by filing a special leave petition according to Article 136, and then complete justice can be made by invoking the inherent power granted under Article 142.
Sometimes, in the process of imparting justice, Supreme Court gives birth to such mechanisms which in true sense are in excess of the existing constitutional framework. The court should keep in mind the very provision of the Constitution while setting forth such mechanisms. In contrary to what has been shown to us by using empirical data, the modalities of the curative petition have not achieved any such purpose, for which it has been created. Curative Petition was not required to be in existence because having such a rigid framework of the second review it may be possible that the court would not be able to impart justice at all. Rather, of using such a mechanism, the court could have imparted justice by invoking its inherent jurisdiction under article 142, if and when required.
[i] AIR 2002 SC 1771
[ii] (1984) 2 SCR 495
[iii] INDIA CONST. art. 136, cl. 1
[iv] Dhakeswari Cotton Mills Ltd. V. Commissioner of Income Tax, West Bengal, AIR 1955 SC 65
[v] N. Suriyakala v. A. Mohasdas and ors., (2007) 9 SCC 196
[vi] K.M. Nanavati v. the State of Bombay, AIR 1961 SC 112, at p. 120
[vii] Murtaza v. Yasin, AIR 1916 PC 8
[viii] (1998) 4 SCC 409
ABOUT THE AUTHORS
Aayush Maheshwari is a first-year B.A. LL.B. (Hons.) student at Rajiv Gandhi National University Of Law, Patiala. His keen interest lies in the field of Human rights and Constitutional law.
Bhavya Kala is a first-year B.A.LL.B. (Hons.) student at Rajiv Gandhi National University Of Law, Patiala. His keen interest lies in the field of Competition law and Criminal law.