Curative Petitions in the Supreme Court: The Last Legal Remedy

When the Supreme Court of India dismisses a review petition, the constitutional journey would, by ordinary reckoning, be over. The court has the last word. But in 2002, a five-judge Constitution Bench of the Supreme Court recognised that there may be exceptional circumstances in which even the court’s final judgment is tainted by such fundamental procedural defects that allowing it to stand would create a gross miscarriage of justice. From this recognition was born the curative petition, the last legal remedy known to Indian law.

The curative petition was created in Rupa Ashok Hurra v Ashok Hurra [(2002) 4 SCC 388]. The facts involved a divorce case in which the Supreme Court had upheld a consent decree. Mrs. Rupa Ashok Hurra, the petitioner, sought to challenge the Supreme Court’s own judgment on the ground that the decree had been obtained in circumstances amounting to a violation of natural justice.

After the review petition was dismissed, she filed a writ petition under Article 32, asking the Supreme Court to review its own judgment as a new original matter. A three-judge bench referred the question to a five-judge Constitution Bench: can the Supreme Court, which is the final court in the country, recall or revisit its own order even after dismissing a review petition?

The five-judge bench held:

• The principle of finality of judgments is fundamental, a constant re-litigation of decided matters would destroy the rule of law
• However, the Supreme Court possesses inherent powers (as distinct from the statutory or constitutional appellate powers) to prevent abuse of its process and to do complete justice under Article 142
• In exceptional and narrow circumstances, specifically, where there is a violation of the principles of natural justice or where a judge who participated in the judgment had a conflict of interest that was not disclosed, the court can entertain a “curative petition” to recall the judgment

Thus, the curative petition is a judicially created remedy, not one provided for in the Constitution or any statute.

Grounds for a Curative Petition: Extremely Narrow

The Supreme Court in Rupa Ashok Hurra specified the grounds on which a curative petition may be entertained:

Ground 1: Violation of principles of natural justice

The most common ground. This arises where:

• The petitioner was not heard before the court passed the adverse order (the audi alteram partem rule, hear the other side)
• The petitioner was not served with notice of the hearing
• The petitioner’s counsel was not given an opportunity to address the court and the order was passed without hearing

A party that was heard but whose arguments were not accepted cannot claim a violation of natural justice, the right is to be heard, not to succeed.

Ground 2: Undisclosed conflict of interest

Where a judge who participated in the bench that passed the judgment had a personal interest in the outcome, or had a prior professional connection with one of the parties, and this fact was not disclosed either by the judge or was unknown to the parties at the time, a curative petition may be filed on the ground that the judge should have recused.

What is NOT a ground:

The court has repeatedly emphasised that the following do not constitute grounds for a curative petition:

• The court made an error of law or fact in its judgment
• New evidence has emerged since the judgment
• The law has changed since the judgment
• The reasoning of the court is incorrect or poorly articulated
• The petitioner wishes to re-argue the case

Curative petitions premised on these grounds are summarily rejected. Courts have described attempts to use curative petitions as a third review as an abuse of process.

Procedural Requirements

The Supreme Court Rules, 2013 (Order XLVIII, Curative Petition) govern the procedure:

1. Filing condition: A curative petition can only be filed after the review petition has been dismissed (either by speaking order or in chambers). If the review was dismissed without hearing, the curative petition may argue that the review should have been listed for oral hearing.
2. Certification by Senior Advocate: The curative petition must be certified by a Senior Advocate that the grounds are bona fide, that the petition sets out a curative ground, and that it is not a disguised third review.
3. Circulation without hearing: The curative petition is first circulated to the three senior-most judges of the Supreme Court and the judges who passed the impugned judgment (if still on the bench). They consider the petition in chambers, without oral argument.
4. Oral hearing: Only if the majority of judges who consider the petition in chambers take the view that it requires oral hearing is the matter listed for hearing by an open court bench.
5. No fixed limitation period: There is no specific period of limitation prescribed for filing a curative petition, but the court has held that it must be filed within a reasonable time and without undue delay.

The Relationship with Article 142

The Supreme Court’s power to pass a curative petition order is grounded in Article 142 of the Constitution, which provides that the Supreme Court “may make such order as is necessary for doing complete justice in any cause or matter pending before it.” Article 142 is the source of the court’s extraordinary power to do equity, it has been used by the court to pass orders that no statute specifically authorises, where justice requires it.

The curative petition is the most direct intersection of Article 142 with the court’s review jurisdiction. The court, in exercising curative petition jurisdiction, is essentially saying: “This judgment is final, but our inherent power to do complete justice under Article 142 requires us to revisit it in these exceptional circumstances.”

Success Rate and Notable Instances

The curative petition has an extremely low success rate. Very few curative petitions have resulted in any variation of the original judgment. Courts have been vigilant in preventing the curative petition from becoming a tool for prolonging litigation indefinitely.

Notable instances where curative petitions have been considered substantively (though not always resulting in variation):

• In several death penalty cases, curative petitions have been filed arguing that the review was decided in chambers without oral hearing, the court has, in some capital cases, converted the chamber hearing to an open court hearing on curative petitions
• Constitutional bench matters involving fundamental rights have, in some instances, been re-examined on curative petitions raising natural justice grounds

Key Takeaways

• The curative petition was created by the Supreme Court in Rupa Ashok Hurra v Ashok Hurra [(2002) 4 SCC 388] as a judicially created remedy of last resort, grounded in the court’s inherent powers and Article 142, to address situations where even the court’s final order is tainted by a fundamental violation of natural justice.
• The grounds for a curative petition are confined to: violation of principles of natural justice (primarily the right to be heard) and undisclosed conflict of interest of a judge, errors of law, fresh evidence, and change in law are not curative grounds and petitions based on these are dismissed summarily.
• Procedurally, a curative petition requires Senior Advocate certification, is first decided in chambers by circulation to the three senior-most judges and the judges who wrote the impugned judgment, and reaches open court hearing only if the circulating judges in chambers are of the opinion that it merits hearing.

This article is for informational purposes only and does not constitute legal advice. Readers should seek appropriate professional counsel for their specific circumstances.

META TITLE: Curative Petition Supreme Court India: Last Legal Remedy