A theoretical evolution that popularised the conceptual aspects is different
from the practical one. It's been said that "Justice is the crowning glory of
the virtues" whether it is true or not, comes under the debatable umbrella of
procedural aspects of delivering justice. This paper basically tries to figure
out the crispness of the procedural part, specifically in relation to the last
resort in the way of justice that has been promised to each one of us. Curative
Petition can be simply seen as the last option in delivering justice, as it
indulges many criticisms in light of legal developments despite being the newer
concept in the legal field of the land.
Curative petitions are a newer to the field of law specifically in the context
of our country and its judicial system. It is basically seen as a last resort or
final option in delivering the justice that has been promised & guaranteed by
the mother-law (Constitution of India). Discussing the vitals, despite being a
newer concept there are many times when it witnesses the fist of criticism as it
has the capability to shake the trust that a large public bestows in the legal
system. It can not only be seen as a last resort but also become the rare one,
as the parameters within the petition may be allowed too narrow in the
practicality of the situation.
The concept of curative petitions is not new to the legal world in itself, but
the need for the same in our country is debatable. Imagine you committed a
murder, and for the same, you are sentenced to death by the apex court. Later
on, if it has been discovered that there is a mistake in delivering the
judgement on the law point, then the only last resort you are left with is the
The Constitution of India uplifts the citizens and grants
them the pearls of many rights, but when any of the rights guaranteed suffers an
injury in the legal aspect then the protection part comes into the role. In a
similar way, when the delivered justice bestows the burden of injustice in
itself then the curative petition comes as a guarded right in rendering the
Curative Petition: History & Constitutional Background
Certainty lies in the bowl of objectiveness. On the other hand, the justice
system draws maps considering the subjectiveness of the uncertain occurrence.
The case of Rupa Ashok Hurra Vs. Ashok Hurra and Anr
. before the hon'ble
Supreme Court holds the questions of premature delivery of justice and that
particularly leads to the evolution of the concept of Curative Petition. The
main issue which has been raised comprises "whether an aggrieved person is
entitled to any relief against the final judgment/order of the Supreme Court,
after the dismissal of a review petition?"
In this case, the main question lies around the relief against the final
judgement when the option of review petition has already been discharged. The
apex court considered the question that arose and stated to prevent the
miscarriage of justice and cure the same, it's a necessary step to reconsider
the judgements by exercising the inherent powers of the court. And to counter
the problem, the apex court come up with a term which is known as "Curative
Petition" with a twofold objective, firstly prevent the miscarriage of justice
and secondly restrain the abuse of process.
The concept evolved in the case of Rupa Ashok Hurra Vs, Ashok Hurra and Anr. are
not newer to the constitution itself. Article 137 of the Indian Constitution
broadly supports the idea of a curative petition. It states that the "Supreme
Court has the power to review any judgment pronounced (or order made) by it if
the matter concerns the laws and rules made under Article 145"
The Jurisprudence: Curative Petition
In the books, justice can't be climatized, it is more or less objective in
nature and subjective in application but in reality, justice is the pawn of that
chessboard where each move holds a significant position in deciding the game.
The main idea behind the concept of the curative petition is to cure the game of
chess in which the pawn mistakenly takes the wrong position and the game suffers
because of that. Simply, it holds the objective to prevent the miscarriage of
justice and cure the same with an account to minimize any kind of abuse in the
process of law and look for those lapses in the judicial system.
Curative petitions are not only the last resort left to readdress any kind of
grievances, but also, it's a kind of petition that is not generally allowed to
be heard in open courts as it's mostly brought upon & heard in the chamber of
judges and only in the rarest case it is allowed to happen in the open courts.
"The SC has held that curative petitions must be rare rather than regular, and
be entertained with circumspection." The principle on which the concept of a
curative petition is based i.e., "It is better that a guilty person go free than
an innocent be punished"
According to the rules prescribed in the Supreme court Rules of 1966, [The
same petition has to be filed within 30 days of the original judgement /order,
to the same Bench Judges who delivered the judgment or order that sought to be
reviewed.] The aggrieved parties hold the statutory right to appeal in the apex
court of the country (Supreme Court of India) and once the apex court reserves
the judgement against the statutory appeals it should be seen as a final &
There is a Latin proverb that suits the reasoning "interest Reipublicae Ut sit finis litium" It particularly means any litigation must come
to an end in the interest of society and the public at large while considering
the time taken for each litigation to reach its final outcome. Furtherance
with the justice promised and securing the interest, makers are always ready
with the possible solution and as a result, the Indian Constitution is honoured
with Article 137, which specifically inherits the power to review the orders
passed by the SC.
In occurrence with the legal developments over the period of time, the question
arose that what if the dismissal of the review petition later witnesses the
violation of natural justice? To cure that miscarriage of justice the concept of
the curative petition came into practicality to guard the justice promised by
the founding brains. This concept of the petition at the last resort evolved in
relation to the doctrine of Ex Debitio Justiciae which means the requirements in
the way of justice must be fulfilled secondly it also draws the principles from
the Latin proverb i.e., Actus Curiae Neminem Gravabit which means that the act
of court cannot be prejudice to anyone
Question on the finality of the Judgement
"Error is not a fault of our knowledge, but a mistake of our judgment giving
assent to that which is not true". Honouring such rights to question the
final order of the apex court is likely to invite someone to open the pandora's
box of litigations which must be flooded and undulated. So, to keep an eye on
and have some control the idea evolved from the Doctrine of Harmonious
Construction helps out.
It particularly ensures that the final judgement laid
down by the apex court can't be questioned until or unless it's a matter of
miscarriage of justice or abuse of process of law, having this doctrine made it
possible that the curative petition is not vulnerable to any misuse and doesn't
act as an opening gate of reservoirs which holds the numbers of probable
It emphasizes questioning the finality of judgement on the
basis of gross miscarriage, violation of principles of natural justice and abuse
of the process of law. But again, it can't be seen as a blanket guiding
principle and must be considered and applied in accordance with the facts &
circumstances of the case to deliver the justice that has been granted.
The procedure of filling a Curative Petition
It becomes important to look into the procedural aspects of filling a Curative
Petition. The Hon'ble Supreme Court has laid down specifically the prescribed
conditions & the procedure that grants the acceptance of curative petitions.
In the Handbook on Practice and Procedure and Office Procedure of the Supreme
Court of India , there are certain points made that explain the nuances in
filling the curative petition:
- There shall be Plenary Jurisdiction that has been inherent in the
Supreme Court to hear such kinds of petitions. Ref. Chapter 2 (Handbook). It
basically means that if there is lapses in regard to the merit of the
petition then the court holds a power to impose an exemplary cost.
- Curative petitions can be civil or can be criminal.
- The petitioner should clearly showcase that there was a gross
miscarriage in the delivery of justice and holds the biasness that leads to
the abuse of the process of law.
- In a petition it should be specifically highlighted on which grounds the
review should be considered as well as on which it was dismissed by the
- A senior lawyer must certify the petition, and look into that every
ground has been fulfilled.
- Petition must be circulated to the three most senior judges and the
bench who dismissed the review petition. *If available.
- It must be rare in nature and not regular.
- Adding to that, "if the majority of the judges conclude that the issue
should be heard, then it will be shipped off a similar bench beyond what
many would consider possible."
- Curative petitions are not generally allowed to be heard in open courts
as it's mostly brought upon & heard in the chamber of judges and only if
there is a particular solicitation then it is allowed to happen in the open
- The bench at any stage while considering the curative petition can ask
the senior counsel as an amicus curiae (Friend of the court).
Additionally with the above procedural aspects, the handbook specifically states
that no new grounds will be considered in the curative petition and the grounds
that were brought upon had to be taken in the application for review, which may
particularly be dismissed by the circulation.
Grounds of Rejection
If the Hon'ble Bench concurs at any stage of the petition that it does not hold
the merit, then the bench inherent with the powers may impose a plenary cost on
Special Leave Petition v/s. Review Petition : Comparative look
Special Leave Petition:
SLP can be filed under Article 136 of the Indian Constitution before the hon'ble
SC. It states that an appeal can be directly made to the SC against any order or
decree passed by any court or tribunal in India.
Review Petition basically prayed before the hon'ble court to review its order or
judgement that has already been pronounced. The court may accept such petitions
in consideration of grave error by judicial lords and fallibility.
The legal remedies guaranteed, somehow comprise the crispness of the order in
the filing process: A review Petition is followed by a curative petition which
is overlooked by a mercy petition. A convict who is awarded the death sentence
and that sentence particularly upheld by the order of the apex court, then
he/she has three legal options left in the bucket i.e., Review and Curative
Petition before the Hon'ble SC and on dismissal of the same the Mercy Petition
before the President.
Important Judgements: In light of legal developments
Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388; AIR 2002 SC 1771
Briefly, this case comprises the facts of matrimonial discord as the woman
withdrew her consent that she had given to the divorce by mutual agreement. The
question that arose here deals with the validity of a divorce and that was also
brought before the hon'ble SC. The apex court held in the judgement that there
are technical difficulties in relation to reopening the particular case.
However, the court entertained and evolved the concept of the curative petition,
and asked the petitioner to establish the violation of the principles of natural
While the case surrounds itself under the dilemma of Article 32 which
specifically raises the issue that "whether an aggrieved person is qualified for
any alleviation against a last judgment or request of the Supreme Court, after
excusal of Review Petition, either under Article 32 or otherwise?" The court
concluded that in relation to judicial scrutiny, every possibility of the
investigation will be done to grant justice and the court will ensure that
justice has been done regardless of reviewing its own decision a subsequent
Naresh Shridhar Mirajkar v. State of Maharashtra, 1966
In this case, the Apex Court witnesses the question that whether an order by the
Hon'ble High Court prohibiting the publication of evidence in the newspapers
which is pending to be heard in relation to the suit is amenable by a writ of
the SC under Art.32(2). Court held in his judgement that the SC does not holds
the jurisdiction to issue a writ of certiorari to the High Courts or also for
the another bench of the same court under Article 32, until or unless the
judgement laid down shows ultra-vires side and becomes a well established part
of the Indian law. " The court opened its doors even after the dismissal of
review petition in cases where the intervention the Court became imperative so
as to make justice available to the parties."
Conclusion: Way Ahead
Curative Petitions can be weighed with the help of the quote that "No one will
dare maintain that it is better to do injustice than to bear it." It can be
said that it's the last remedy in the court of last resort. The concept was
evolved in the case of Rupa Ashok Hurra v. Ashok Hurra
(2002)4 SCC 388; AIR 2002
SC 1771 and must be seen as a boon to the Indian Judicial System.
the miscarriage of justice and restrains the abuse of the process of law which
is particularly influenced by the Doctrine of Ex Debitio Justiciae and Actus
Curiae Neminem Gravabit, which has been extensively discussed in this paper. The
court holds and respects the intentions of the makers i.e., Justice promised to
each one of us and also draws the subjective lines that bounds such petitions to
be misused by the hands of many.
In light of legal developments, theories and conceptual legal debates evolved
over the period and honouring the idea of a curative petition is a result of
- Rupa Ashok Hurra vs Ashok Hurra And Anr : AIR 1999 SC 2870
- Utkarsh Anand, Explained- 1993 Mumbai serial blast: What is curative
petition?, The Indian Express, July 29, 2015
- Article 137, The Constitution Of India 1949
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.
- Express Web Desk: What is a Curative Petition? The Indian Express,
January 07, 2022
- The supreme court rules, 1966
- The State Of Tamil Nadu vs Dr.R.Ramasamy, September 27, 2013
- Legal Maxim: Actus Curiae Neminem Gravabit,
- Locke (The New Dictionary of Thoughts, p.181)
- Supreme court of India handbook on practice and procedure and office
- GS Paper 2 : Curative Petition, Drishti IAS ,
- Article 136 : The Constitution of India , 1949
Special leave to appeal by the Supreme Court
- Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India
- Nothing in clause ( 1 ) shall apply to any judgment, determination,
sentence or order passed or made by any court or tribunal constituted by or
under any law relating to the Armed Forces
- Ankit Kumar : Rupa Ashok Hurra vs. Ashok Hurra Case Summary 2002 SC ,
lawplanet.in, https://lawplanet.in/rupa-ashok-hurra-vs-ashok-hurra/ , May 13,
- Aristotle (The New Dictionary of Thoughts, p.370)