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Are Review Petitions & Curative Petitions before the Supreme Court Illusory, namesake & a mere formality?

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 grounds.

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 Anr. (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
  1. 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
  2. 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 appropriate orders.

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 in our 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:
  1. 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.
  2. 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 petitions.
  3. 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]

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