Curative petition

India has a unified Judicial system with the Supreme Court standing at the apex.1
There are High Courts below the Supreme Court, under each High Court there
exists a system of subordinate courts. The Supreme Court thus enjoys the topmost
position in the judicial hierarchy of the country. It is the supreme interpreter of the
Constitution and the guardian of the people’s Fundamental Rights. It is the ultimate
court of appeal in all civil and criminal matters and the final interpreter of the law of
the land, and thus helps in maintaining a uniformity of law throughout the country.

1.2 POWER TO REVIEW

Under Art. 137, the Supreme Court has power to review any judgment pronounced
or order made by it. But this special power is, however, exercisable in accordance
with, and subject to any parliamentary legislation and rules made by the Court itself
under its rule making power.

Under Art. 145(e), the Supreme Court is authorised to make rules as to the
conditions subject to which the Court may review any judgment or order.2 In
exercise of this power, Order XL has been framed.

According to the rules of the Court, in a civil proceeding, review of a Court decision
will lie on the following grounds:

1. discovery of new and important matter of evidence;

2. mistake or error apparent on the face of the record;3

1
However the Supreme Court does not exercise administrative control over the High Courts.

3
CST v. Pine Chemicals Ltd., (1995) 1 SCC 58 ; Devidayal Rolling Mills v. Prakash Chimanlal Parikh, AIR 1993 SC
1982 : (1993) 2 SCC 470
3. any other sufficient reason, e.g., that there are in the judgment certain unmerited
observations against the petitioner.4

The expression, ‘for any other sufficient reason’ has been given an expanded
meaning and a decree or order passed under misapprehension of true state of
circumstances has been held to be sufficient ground to exercise the power.5

The Apex Court has clarified that a review is by no means an appeal in disguise.

The Court has justified review of its own judgment with the following remarks:6

"Review literally and even judicially means re-examination or reconsideration. Basic

philosophy inherent in it is the universal acceptance of human fallibility
Rectification of an order thus stems from the fundamental principle that justice is
above all. It is exercised to remove the error and not for disturbing finality."

In Hindustan Sugar Mills v. State of Rajasthan,7 the Court accepted the review petition
because the assumption on which it made certain observations in the earlier decision
was shown to be unfounded. These observations were, therefore, deleted from the
judgment.

The Court has ruled that it is not precluded from recalling or reviewing its own
order if it is satisfied that it is necessary to do so for the sake of justice, 8 or the
previous decision suffers from an error apparent on the face of the record.9 Review
of a judgment on account of some mistake or error apparent on the face of the record

4
Dayanand v. Nagaraj, AIR 1976 SC 2183 : (1976) 2 SCC 932
5
S. Nagaraj v. State of Karnataka, (1993) Supp. 4 SCC 595
6
Ibid.;Also see, Lily Thomas v. Union of India, AIR 2000 SC 1650 : (2000) 6 SCC 224.Also see, Lily Thomas v.
Union of India, AIR 2000 SC 1650 : (2000) 6 SCC 224
7
AIR 1981 SC 1681.
8
Supra, Note 7
9
Sheonandan Paswan v. State of Bihar, AIR 1987 SC 877; Deo Narain Singh v. Daddan Singh, (1986) Supp SCC
530.
has to be decided on the facts of each case as an erroneous decision by itself does not
warrant a review of each decision.10

Review is a serious matter; it is not rehearing of the appeal all over again. A
judgment once delivered is final—this is the normal rule. A departure from that
principle can be justified only when circumstances of a substantial and compelling
character make it necessary to do so. A judgment is not reconsidered except "where
a glaring omission or patent mistake or like grave error has crept in the earlier
decision".11 "The mere fact that two views on the same subject are possible is no
ground to review the earlier judgment passed by a Bench of the same strength."12

As the Supreme Court has observed:13

"It is well settled that a party is not entitled to seek a review of a judgment delivered by this
Court merely for the purpose of a rehearing and a fresh decision of the case. The normal
principle is that a judgment pronounced by the Court is final and departure from that
principle is justified only when circumstances of a substantial and compelling character make
it necessary to do so."14

For example, the Court will review its judgment if its attention was not drawn to a
material statutory provision during the first hearing, or if a manifest wrong has been
done and it is necessary to pass an order to do full and effective justice. "A review
proceeding cannot be equated with the original hearing of the case, and the finality
of the judgment delivered by the Court will not be reconsidered except where a
glaring omission or patent mistake or like grave error has crept in earlier by judicial
fallibility."

10
Akhilesh Yadav v. Vishwanath Chaturvedi, 2013 CrLJ 1636 (1637)
11
Chandra Kanta v. Sheik Habib, AIR 1975 SC 1500; P.N. Eswara Iyer v. Registrar, Supreme Court of
India, AIR 1980 SC 808 ; Avtar Singh Sekhon v. Union of India , AIR 1980 SC 2041.
12
Lily Thomas v. Union of India, AIR 2000 SC 1650 at 1663.
13
Northern India Caterers v. Lt. Governor of Delhi , AIR 1980 SC 674.
14
Sajjan Singh v. State of Rajasthan , AIR 1965 SC 845.
Thus review of a judgment or order has been allowed if the order sought to be
reviewed is based on a decision per incuriam , or on an incorrect assumption of facts
or law or a non consideration of a contention made, or if the judgment is
inconsistent with the operative portion or an interim order which was granted
subject to the outcome of the appeal or to clarify an ambiguity.

The Court has described its review power as follows in Lily Thomas :15

" the power of review can be exercised for correction of a mistake and not to
substitute a view. Such powers can be exercised within the limits of the statute
dealing with the exercise of power. The review cannot be treated like an appeal in
disguise. The mere possibility of two views on the subject is not a ground for
review."

In this case, the Court refused to review its earlier judgment in Sarla Mudgal v. Union
of India16 as there was no error apparent on the face of the record; no new material
had come to light after the judgment. The earlier judgment was held not violative of
any of the fundamental rights guaranteed to the citizens. Review power cannot be
exercised merely because there is possibility of taking a different view.

The expression "error apparent on the face of the record" is an error which is based
on clear ignorance or disregard of the provisions of the law. The error should be
something more than a mere error; it must be one manifest on the face of the record.
An error is not apparent on the face of the record if it is not self evident and if it
requires an examination or argument to establish it.17

15
(1993) Supp. 4 SCC 595
16
AIR 1995 SC 1531
17
P.N. Eswara Iyer v. Registrar, Supreme Court of India, AIR 1980 SC 808; Chandra Kanta v. Sheikh
Habib, AIR 1975 SC 1500; Sheonandan Paswan v. Bihar, AIR 1983 SC 1125
But, recently, the Supreme Court has given an expansive scope to the Court’s power
of review. The Court has observed:18

" to maintain a review petition it has to be shown that there has been miscarriage of
justice. Of course, the expression "miscarriage of justice" is all embracing."

In A.R. Antulay v. R.S. Nayak,19 the Supreme Court has stated that it has, de hors Art.
137, inherent power ex debito justitiae to recall an order made by it earlier if it was
made by the Court by mistake. The Supreme Court being the Apex Court, and there
being no higher forum where one could question any of its decisions, it is not only
appropriate but also the duty of the Court to rectify the mistake in any of its
decisions.

The Court has emphasized that the basic fundamental of the administration of
justice is that no man should suffer because of the mistake of the Court. Ex debito
justitiae, the Court must do justice to him. If a man has been wronged, so long as it
lies within the human machinery of administration of justice, the wrong must be
remedied. Some of the situations where the Court may exercise such a power are:

(1) violation of a fundamental right;

(2) violation of the principles of natural justice;

(3) mistake of the Court;

(4) judgement was obtained by fraud;

(5) the Court made the earlier order without jurisdiction.

18
Suthenthiraraja v. State , AIR 1999 SC 3700, at 3703
19
AIR 1988 SC 1531
In the instant case, the Court (Bench of 7 Judges) recalled by majority (5:2) an order
made earlier by a Bench of five Judges in R.S. Nayak v. A.R. Antulay20

In that case, the Court had transferred a case pending against Antulay in a special
court under the Prevention of Corruption Act for trial to the Bombay High Court.
The order was made in 1984. This direction was now challenged after four years
before the Supreme Court on the ground of "non-perception of certain provisions
and certain authorities which would amount to derogation of the constitutional
rights of the citizen." The Court now took the view that it was proper for it to actex
debito justitiae in favour of the appellant whose fundamental rights have been
infringed. The Court had given directions in the earlier case suo motu without
observing the principle of audi alteram partem. This had deprived the appellant of a
right of appeal to the High Court and thus he was prejudiced. The said direction had
also violated the fundamental rights of the appellant guaranteed to him by Arts. 14
and 21.

The Supreme Court also ruled that the directions given by it in 1984 were violative
of the limits of the Court’s jurisdiction since the Court could not confer jurisdiction
on a High Court which by relevant law was exclusively vested in the Special Judge
and the decision was given per incuriam.

The Court now recalled the direction given by it in 1984 and directed that the
corruption case against Antulay be tried by the Special Judge appointed under
the Prevention of Corruption Act.

Some of the observations made by the Court on its inherent right to correct its own
mistakes may be taken note of here.

SABYASACHI MUKHARJI, J, (majority view) observed in this connection:21

20
AIR 1988 SC 1531
"But the Superior Court can always correct its own error brought to its notice either
by way of the petition or ex debito justitiae".

SABYASACHI MUKHARJI, J., observed at another place:22

"In rectifying the error, no procedural inhibitions should debar this Court because no person
should suffer by reason of any mistake of the Court".

And further

"The Court has power to review either under section [Art.] 137 or suo motu the directions
given by this Court".

The learned Judge said at another place

"But directions given per incuriam and in violation of certain constitutional

limitations and in derogation of the principles of natural justice can always be
remedied by the Court ex debito justitiae ."

And, again, he said explaining the scope of the inherent power of the Supreme
Court to review de hors Art. 137:

"We are of the opinion that this Court is not powerless to correct its error which has
the effect of depriving a citizen of his fundamental rights and more so, the right to
life and liberty. It can do so in exercise of its inherent jurisdiction in any proceeding
pending before it without insisting on the formalities of a review application.
Powers of review can be exercised in a petition filed under Article 136 or Article 32
or under any other provision of the Constitution if the Court is satisfied that its

21
AIR 1988 SC at 1547.
22
Ibid.
directions have resulted in the deprivation of the fundamental rights of a citizen or
any legal right of the petitioner."23

In Common Cause24, on a review petition, the Court reversed its own earlier
judgment25 on the ground that it suffered from patent error of law resulting in
serious miscarriage of justice. In the instant case, the petition of review was allowed.

In 1997, the Supreme Court had held a Central Minister guilty of committing the tort
of "malfeasance in office" and imposed exemplary damages of Rs. 50 lacs payable by
the Minister to the Central Government. But in its decision in 1999, the Court
reversed its earlier decision. It ruled that though the conduct of the Minister was
wholly unjustified, "it falls short of ‘misfeasance in public office’ which is a specific
tort and the ingredients of that tort are not wholly met in the case." That being so,
there was no occasion to award exemplary damages. Therefore, the direction made
by the Court in 1997 to pay Rs. 50 lacs as exemplary damages was now recalled by
the court. Nevertheless it has been held that a subsequent judgment of the Supreme
Court is no ground for review nor the fact that the earlier order was contrary to a
matter of practice, nor will the Court re-appreciate the evidence. A point not argued
at the hearing of the appeal will not be permitted to be raised in review and a second
review petition against a reviewed judgment will not be entertained.

According to the Court Rules, review petition is filed within 30 days from the date of
the judgment or order sought to be reviewed [Order XL, r. 2]. Ordinarily, an
application for review is disposed of by circulation without any detailed arguments
unless otherwise ordered by the Court26.

23
Supra Note 23
24
Common Cause-A Regd. Society v. Union of India , AIR 1999 SC 2979 : (1999) 6 SCC 667
25
Common Cause-A Regd. Society v. Union of India , AIR 1997 SC 1203
26
Order XL, Rule 3
 To avoid the petition for review being disposed of by circulation, the petition is
often couched as an application for clarification. This has been deprecated and has
been visited with exemplary costs.

According to the Rules made by the Supreme Court27, a review in a criminal

proceeding is available on the ground of an "error apparent on the face of the
record"28. This rule has been broadly interpreted by the Court. As the Court has
observed in Eswara: "The substantive power is derived from Art. 137 and is as wide
for criminal as for civil proceedings We see no insuperable difficulty in equating the
area in civil and criminal proceedings when review power is invoked from the same
source."

In G.L Gupta v. D.N. Mehta29, the Supreme Court reviewed its earlier decision in a
criminal appeal because a statutory provision30, which had a vital bearing on the
case, was not brought to its notice. The Court modified the sentence of
imprisonment to fine.

1.3 CURATIVE PETITION

Even after a review petition filed under Art. 137 is rejected by the Court, that may
not be the end of the road. The court may still review the case under its inherent
power but on very restricted grounds.

A constitution bench of the Supreme Court, in Rupa Ashok Hurra v. Ashok

Hurra31, held that a curative petition, with a view to preventing abuse of its process
and to curing a gross miscarriage of justice, be entertained by the apex court only in
exceptionally strong circumstances. Admitting the impossibility of enumerating all

27
Order XL of the Supreme Court Rules, 1966
28
Rule 1 of Order XL
29
AIR 1992 SC 402.
30
s. 23-C(2) of the Foreign Exchange Act, 1947
31
(2002) 4 SCC 388.
 the permissible grounds for allowing a curative petition, it, nevertheless, opined that
a petitioner is entitled to relief ex debito justitiae if he establishes:

(i) violation of principles of natural justice in that he was not a party to the lis but the
judgment 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
(ii) (ii) where in the proceedings a judge failed to disclose his connection with the
subject-matter or the parties giving scope for an apprehension of bias and the
judgment adversely affected the petitioner.

However, with a view to curtailing abuse of curative petition and to ensuring that
the remedy does not open the floodgates for filing a second review petition, the
Apex court also laid down that a curative petition be accompanied with a certificate
by a senior advocate stating that the grounds mentioned in the petition had been
taken up in the earlier review petition and it was dismissed. However, the remedy
of curative petition, to the dismay of the Supreme Court, has been frequently used
as a second review petition and the requisite certification, in most of the cases, is
merely treated as casual one by senior advocates. 32

In Sumer v. State of Uttar Pradesh,33 the Supreme Court did not allow the petitioner to
use the remedy of curative petition to have another opportunity to urge the court to
have a fresh examination of facts and to re-appreciate the evidence. The petitioner
was sentenced by the trial court to rigorous imprisonment for life under sections 302
and 149 of the IPC. The Allahabad High Court, on appeal, however, set aside the
judgment and order of the trial court. Subsequently, the Supreme Court, allowing
the appeal of the state, reversed the judgment of the high court and restored order of
the trial court. A review petition filed by the petitioner was also dismissed. In the

32
Sumer v. Stale of Uttar Pradesh, (2005) 7 SCC 220.
33
Supra, note 32
 instant curative petition, the petitioner urged that the Supreme Court, while
allowing the appeal of the state against judgment of acquittal, has not properly
appreciated the evidence and the factors taken into account by the high court for
disbelieving the testimony of the eyewitnesses. The apex court categorically held
that such a plea is impermissible under the guise of a curative petition as it
amounted to a sort of regular appeal challenging the earlier judgment of the court
and thereby an abuse of the remedy of curative petition. Dismissing the petition, the
apex court observed:

The main thrust of the petitioner is that the evidence and the factors taken into
account by the High Court for disbelieving the testimony of the eye-witnesses have
not been properly appreciated by this Court while allowing the appeal of the State
against judgment of acquittal. The grounds urged in the curative petition show as if
another regular appeal has been filed to challenge the judgment. Such a petition is
an abuse of remedy provided in Rupa Ashok Hurra’s case.

The apex court, during the year under survey, also disallowed another curative
petition 34 as certificate accompanying the petition did not

specifically set out the grounds, if any, for entertaining the curative petition and
thereby it did not fulfil the requirements and parameters of the Rupa Ashok Hurra
case. However, in Zakarius Lakra & Ors v. Union of India35, relying upon the Rupa
Ashok Hurra, though the apex court refused to entertain a petition filed under
article 32 of the Constitution seeking quashing of the death sentence awarded to the
son of the petitioner and replacing it by life imprisonment on the ground that the
fact that the convict at the time of commission of the crime was a juvenile was not
taken into account by the court in the review petition, allowed the petitioner to
convert it into a curative petition by making necessary amendments.

34
Sidram S Patil & Ors v. Gurunath Shivappa Patil & Ors. (2005) 2 SCC 358.
35
(2005) 3 SCC l6l.
 The court has observed in this connection :

"...this Court, to prevent abuse of its process and to cure a gross miscarriage of
justice, may reconsider its judgments in exercise of its inherent power:"

Such a curative petition under the Court’s inherent power can be filed, seeking
review of a decision which has become final after dismissal of a review petition
under Art. 137, on very strong grounds, such as,

1. Variation of the principle of natural justice—the right to be heard, as for example,

when the affected person was not served notice or not heard during the
proceedings;
2. A Judge who participated in the decision—making process did not disclose his links
with a party to the case, i.e. the question of bias;
3. Abuse of the process of the court.

The above list of the grounds to move a curative petition is not exhaustive. The court
has observed in this connection:

"It is neither advisable nor possible to enumerated all the grounds on which such a
petition may be entertained."

While opening the channel of review by way of curative petitions, the court has
imposed several severe conditions thereon, for example:

1. The grounds stated in the curative petition must have been taken earlier in the
review petition;
2. A senior advocate must certify that the above requirements have been fulfilled;
3. If at any stage of consideration of the curative petition, the bench holds that the
petition is without any merit and is vexatious, exemplary costs may be imposed on
the petitioner;
4. The petition has first to be circulated to a bench of three senior-most judges and the
judges who passed the judgement complained of. If a majority of these Judges
conclude that the matter needs to be heard, it should be listed before the same bench
(as far as possible).

This procedural precaution is necessary because "the matter relates to re-

examination of a final decision of this court." The requirements are stringently
enforced and the jurisdiction to entertain such petitions though frequently invoked,
is rarely exercised.

1.4 JURISPRUDENCE BEHIND CURATIVE WRIT

PETITION

The objective behind allowing such a petition is only to minimize any abuse of the
processes of law and to cure gross miscarriage and lapses in the system of justice.

It is considered as the last and final option available for redressal of grievances.
It is generally not allowed to happen in an open court and is heard in the chamber of
the judge.

It is a rare phenomenon that the same may be heard in an open court.

The aggrieved parties have the statutory right to appeals or civil reviews or
revisions depending on the nature of dispute and issues which escalate vertically to
appellate/ revisional/ reviewing forums.

The General jurisprudence of Appeals allows parties to use their chance in the
highest court of the country i.e., The Supreme Court of India by way of Writs, SLP’s
or statutory appeals.

Once a decision is given by the Supreme Court of India the same may be considered
final and binding. The reasoning behind the same lies in the Latin maxim “interest
Reipublicae Ut sit finis litium” which means in the interest of society and public as a
whole, any litigation must come to an end considering the time taken for each
litigation to reach a final outcome.

However, in the interest of justice, the founding fathers and mothers inserted Article
137 of the Constitution, which allows a review of orders passed by the Supreme
Court.

The question which came to the light was regarding any situation where the parties
feel that even after the revision petition, the justice has not been served. The
question seemed logical and practical as the main aim of the judiciary is to give
proper meaning to the provisions of law and any miscarriage of justice shall be
harmful for the society at large.