The Apex Court is Supreme
but not infallible. It is likely that some
error may creep in their judgment due to non-consideration of a statutory
provision or a 'precedent' or misinterpretation of established law.
Review Petitions in Supreme Court:
The Constitution of India provides for Article 137 for Review of its own
Judgments and remove any 'wrongs' that might have crept in the Judgments. The
said Article 137 reads as under:
"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."
Supreme Court Rules, 1966 mandate that a Review Petition is to be filed within
thirty days from the date of judgment or order and as far as possible, the same
is required to be circulated, without oral arguments, to the same Bench of
Judges who delivered the judgment/order sought to be reviewed. The Article
145(e) authorizes the Supreme Court to make rules as to the conditions subject
to which the court may review any judgment or order. In exercise of this power,
Order XL has been framed.
The word Review in legal parlance connotes a judicial re-examination of the
case. Therefore, in order to rectify an error and prevent the gross miscarriage
of justice, a provision for review has been laid down under the Section 114 of
the Code of Civil Procedure which gives a substantive right of review and Order
XLVII thereunder provides for the procedure. Review Petition is dealt with under
Section 114 and Order 47 of the CPC. Any party aggrieved by an order or judgment
may apply for reviewing the said order or judgment to the same court. It is
pertinent that Review is a discretionary right of court and the grounds for
review are limited.
It is a notion amongst the legal fraternity that even in a case, where there are
good grounds warranting hearing of review petition and allowing the same, it is
not heard as the matter goes to the same judges who had taken a particular stand
earlier and they do not normally want to deviate from their decision. Thus,
there is very rare chance that a review petition will succeed in the Supreme
Court. Moreover, the review petition first goes before those Judges in their
chamber and not in the open court and therefore there are no oral arguments by
the counsel. It is only when the Judges find something substantial in the
review petition that they decide to hear such petition in the open court wherein
the counsel gets chance to address the Court and advance his arguments in
support of the Petition but this is very rare.
As per the Supreme Court Rules, a review petition will not be entertained in a
criminal proceeding except on the ground of an error apparent on the face of the
record. In civil proceedings, a review petition is not entertained except on
the ground mentioned in Order XLVII, Rule I of the Civil Procedure Code such as:
(1) the discovery of new and important matter or evidence which, after the
exercise of due diligence, was not within the knowledge or could not be produced
by the person at the time when the decree was passed or order made; or, (2) some
mistake or error apparent on the face of the record; or, (3) any other
sufficient reason. Thus, a review petition is maintainable only on limited
No official data is available but sources reveal that the success rate of Review
Petitions in the Apex Court is less than 0.1 per cent.
Curative Petitions in Supreme Court:
A curative petition is the final and last option available to the people for
redressal of grievances in the court of law and to acquire justice as mentioned
and promised by the Constitution of India after the review plea is dismissed or
has been exhausted. It is the last opportunity for the unheard of being heard.
It is another mode for removing the 'wrongs' in an Apex Court judgment even
after dismissal of a Review Petition is filing of a 'Curative Petition' before
the Apex Court itself.
The concept of 'Curative Petition' does not find any mention in our
Constitution or any statute. This has been subsequently evolved by the Supreme
Court of India itself in the matter of Rupa Ashok Hurra vs. Ashok Hurra and
(2002) 4 SCC 388 in which the question which arose was whether an
aggrieved person is entitled to any relief against the final judgment or order
of the Supreme Court even after the dismissal of a review petition.
The evolution of the mechanism of Curative Petition by the Supreme Court is
indeed laudable and adds to the remarkable achievements as the holder of the
fundamental rights as well as the guardian of our constitution. The main idea
behind the introduction of the new concept was that though the judges do their
best to fairly decide a case, their action is subject to human limitations and
there may arise a situation where they would have to reconsider their decision
in order to prevent abuse of power and to cure the gross miscarriage of justice.
The Court after detailed hearing and consideration of the matter took refuge to
its inherent powers & held as under:
"The upshot of the discussion in our view is that this Court, to prevent abuse
of its process and to cure a gross miscarriage of justice, may re-consider its
judgments in exercise of its inherent power.
The next step is to specify the requirements to entertain such a curative
petition under the inherent power of this Court so that floodgates are not
opened for filing a second review petition as a matter of course in the guise of
a curative petition under inherent power. It is common ground that except when
very strong reasons exist, the Court should not entertain an application seeking
reconsideration of an order of this Court which has become final on dismissal of
a review petition. It is neither advisable nor possible to enumerate all the
grounds on which such a petition may be entertained.
Nevertheless, we think that a petitioner is entitled to relief ex debito
justitiae if he establishes
- violation of principles of natural justice in that he was not a party to
the lis but the judgement adversely affected his interests or, if he was a
party to the lis, he was not served with notice of the proceedings and the
matter proceeded as if he had notice and
- where in the proceedings a learned Judge failed 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 certification by
a Senior Advocate with regard to the fulfillment of the above requirements.
We are of the view that since the matter relates to re- examination of a final
judgment of this Court, though on limited ground, the curative petition has to
be first circulated to a Bench of the three senior-most Judges and the Judges
who passed the judgment complained of, if available. It is only when a majority
of the learned Judges on this Bench conclude that the matter needs hearing that
it should be listed before the same Bench (as far as possible) which may pass
It shall be open to the Bench at any stage of consideration of the curative
petition to ask a senior counsel to assist it as amicus curiae. In the event of
the Bench holding at any stage that the petition is without any merit and
vexatious, it may impose exemplary costs on the petitioner."
It is often debated as to the need of advent of the Curative Petition by the
Supreme Court despite the existence of review petition
constitutional framework and the Inherent power of the Supreme Court under
Article 142 to pass any order to do 'Complete Justice/Substantial Justice'. It
is pertinent that Article 32 was pressed into action until the Supreme Court in
the historic case of A. R. Antulay AIR 2002 SC 1771 held that a writ petition
cannot be used to assail any of its final judgment.
The Court succinctly held that in view of a specific provision for Review
petition, the court cannot re-evaluate its own decision under article 32 of the
Constitution. Thus, the Apex Court designed a new mode/platform under which
grave injustice may be redressed and the concept of 'Curative Petition' was
evolved under its inherent power to do 'complete justice.' This power functions
as a distinct and independent basis of jurisdiction.
The curative petition system was started 19 years back in 2002, as per
unauthentic information available, not even ten curative petitions have
succeeded so far out of hundreds of curative petitions that are filed every
year. Thus, in curative petitions also, the success rate is very-very low. One
of the recent example of dismissed curative petitions is in the case of 2012
Nirbhaya gang rape and murder case by two of the four death row convicts. The
five judges were unanimous in stating that the two disqualified petitioners have
not made out any case in the curative petitions filed.
The bench held thus:
The applications for stay of execution of death sentence are also rejected. We
have gone through the Curative Petitions and the relevant documents. In our
opinion, no case is made out within the parameters indicated in the decision of
this Court in Rupa Ashok Hurra vs. Ashok Hurra & Another, reported in 2002 (4)
SCC 388. Hence, the Curative Petitions are dismissed."
In one of a popular case National Commission for Women vs. Bhaskar Lal Sharma &
others, the Supreme Court in 2013 set aside its own judgment which held that the
conduct of a woman simply kicking her daughter-in-law or threatening her with
divorce would not fall within the scope of "cruelty" pursuant to Section 498 A
of the Indian Penal Code. The three judges Bench in Curative Petition (Curative)
No. 24-25 of 2010 allowed the National Commission for Women's (NCW) curative
petition by restoring the Special Leave Petition.
It would be trite to refer to the case of Naz Foundation Trust Vs. Suresh Kumar
Koushal And Others, (2016) 7 SCC 485 wherein dealing the Curative Petition, the
Apex Court held as under:
- We have heard the learned counsel for the petitioners at some length who
submit that several important issues including issues of considerable public
interest fall for consideration in these curative petitions. They submit
that these petitions could be admitted to a full-fledged hearing and the
matter examined in all its dimensions.
- The learned counsel for some of the respondents on the contrary point
out that the scope for interference in a curative petition is limited to
what is laid down by this Court in Rupa Ashok Hurra v. Ashok Hurra Rupa
Ashok Hurra v. Ashok Hurra, 2002 4 SCC 388, which tests are not satisfied in
the cases at hand. There is, therefore, no room for interference by this
Court with the view already taken. They pray for dismissal of these curative
- We do not consider it necessary at this stage to delve deep into the
merits of the submissions made at the Bar. All that we need to say is that
since the issues sought to be raised are of considerable importance and
public interest and since some of the issues have constitutional dimensions
including whether the curative petitions qualify for consideration of this
Court in the light of the judgment in Rupa Ashok Hurra case, it will be more
appropriate if these petitions are placed before a Constitution Bench ......
It would be relevant to refer to the case of Yakub Abdul Razak Memon vs State of
Maharashtra (2015) 9 SCC 552 wherein the Apex Court dismissed the Curative
Petition but there was disagreement amongst the members of the Bench in as much
as the procedure prescribed under the law has been violated while dealing with
the Curative Petition and that too while dealing with life of a person. The
Judge expressed his dissent as he felt that the mandatory procedure prescribed
under law & the rules had not been followed.
On reference, another bench of the Court, dismissing the view of the dissenting
Judge that the rules had not been followed meticulously held thus:
......we hold that the curative petition that was decided by three senior-most
Judges of this Court, can neither be regarded as void or nullity nor can it be
said that there has been any impropriety in the constitution of the Bench.
The Judges, who delivered the main judgment admittedly were not available in
office. If as a principle it is laid down that the Judges who decide the review
in the absence of the judges who have demitted the office, are to be made
parties by a judicial imperative that would not be appropriate. We are
absolutely conscious that a judgment is not to be read as a statute, but
definitely a judgment has to be understood in proper perspective. We emphasize
on the judgment as the rules have been framed in consonance with the judgment
and not in deviation thereof.
It is apposite to refer to Central Bureau of Investigation and Ors Vs. Keshub
Mahindra And Ors., (2011) 6 SCC 216 wherein the Apex Court considered the scope
of the Curative Petitions and held thus:
It is clear to us that in the criminal revisions filed by the CBI and the State
of M.P. the legal position is correctly stated. But the curative petitions are
based on a plea that is wrong and fallacious.
............Moreover, no ground falling within the parameters of Rupa Ashok
Hurra vs. Ashok Hurra 2002
(4) SCC 388 is made out in the curative
petitions. Also, no satisfactory explanation is given to file such curative
petitions after about 14 years from 1996 judgment of the Supreme Court. The
curative petitions are therefore dismissed
Thus, it is true that the Apex Court is loathe in entertaining and allowing
Review/Curative Petitions, yet it would be improper & incorrect to say that the
Review/Curative Petitions are illusory & namesake and serve no useful purpose.
Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]