CURATIVE PETITION AND THE INDIAN SUPREME COURT - BY MINCHU MARIAM PUNNOOSE, NUALS If I was asked to name any

particular Article in this Constitution as the most important- an Article without which this Constitution would be a nullity- I could not refer to any other Article except this one ....... It is the very soul of the constitution and the very heart of it,

Dr . Ambedkar.

It is true that a declaration fundamental right is meaningless unless there is effective machinery for the enforcement of fundamental rights. It is the remedy which makes the right real. If there is no remedy there is no right at all. It was, therefore, in the fitness of the things that our Constitution makers having incorporated a long list of fundamental rights have also provided for an effective remedy for the enforcement of these rights under Article 32 of the Constitution. Article 32 is itself a fundamental right. Article 226 also empowers all the High Courts to issue the writs for the enforcement of fundamental rights.

Article 32 of the Indian Constitution read thus:

32. (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and

certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this constitution.

A perusal of the Article, quoted above, shows it contains four clauses

. Clause (1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III - fundamental rights.

By clause (2) the Supreme Court is vested with the power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate for the enforcement of any of the rights conferred by Part III. Without prejudice to the powers of the Supreme Court in the aforementioned clauses (1) and (2), the Parliament is enabled,

by clause (3), to empower by law any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). The constitutional mandate embodied in clause (4) is that Article 32 shall not be suspended except as otherwise provided for by the Constitution.

Article 32 thus provides for an expeditious and inexpensive remedy for the

protection of fundamental rights from legislative and executive interference. Art 32(1) explains that Supreme Courts power to enforce fundamental right is widest. There is no limitation in regard to the kind of proceedings envisaged in Art.32 (1) except that the proceeding must be appropriate and this requirement must be judged in the light of the purpose for which the proceedings to be taken, namely, enforcement of fundamental rights. It is not obligatory for the court to follow the adversary system. The constitution makers did not lay down any particular form of proceedings for enforcement of such fundamental rights nor did they stipulate such proceeding should confirm to any rigid pattern or a straight-jacket formula because they knew that in a country like India where there is so much of poverty, ignorance, illiteracy, deprivation, and exploitation, any instance on a right formula of proceeding for enforcement of fundamental right would become self defeating[1].

The traditional rule is that the right to move the Supreme Court is only available to those whose fundamental rights are infringed. The power vested in Supreme Court can only be exercised for the enforcement of fundamental rights. The writ under which the remedy is asked for under Article 32 must be correlated to one of the fundamental rights sought to be enforced. The remedy must seek through appropriate proceedings.

The traditional rule of locus standi has been now considerably relaxed. The court now permits public interest litigation or social interest litigations at the instance of public spirited citizens for the enforcement of the constitutional and other legal rights of any person or group of persons who because of their poverty or socially or economically disadvantaged position are unable to approach the court for relief.

Apart from all these Supreme Court can be approached through appeals by special leave under Article 136 of our constitution. For the infringement of our fundamental rights if any we can approach the Supreme Court under Article 32 and can restore it. Under Article 136 the Supreme Court is authorised to grand in its discretion special leave to appeal from (a) any judgement, decree, determination, sentence or order, (b) in any case or matter, (c) passed or made by any court or tribunal in the territory of India. The only exception to this power of the Supreme Court is with regard to any judgement, etc of any court or tribunal constituted by or under any law relating to the Armed Forces.

Article 136 vests a very wide range of powers to the Supreme Court. This article vests special residuary powers which can be exercised outside the purview of the ordinary law. Article 132 to 135 deals with ordinary appeals to the Supreme Court in such cases where the needs of justice demands interference by the highest court of the land. The Article 136 vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals by granting special leaves against any kind of judgement or order made by any court or tribunal in any proceedings and the exercise of this power is left entirely to the discretion of the court unfettered by any judgement or any restrictions and this power cannot be curtailed by any legislation short of amending the article itself.[2] A party cannot take advantage by approaching the Supreme Court directly under article 136 instead of approaching high court under article 226.[3] under Article 136 the word Order is not qualified by the adjective final as it can be seen under Articles 132 to 135. So it can grant special leave to appeal even from interlocutory order.

So the wide discretionary which the Supreme Court enjoying under this article has to be exercised very cautious. It should be granted to exceptional cases only and also uniform standard should be adopted in granting special leave. Is has been held by the court that it being an exceptional and overriding powers it has to be exercised sparingly and with caution and only in special extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula or rule.[4] When leave is limited to certain grounds it would not be appropriate to put a very narrow and grammatical construction of the grounds. Often the grounds set out in special leave applications are overlapping and often repeated and also may be vague. The attempt of the court must be to find out what was the grievance or contention and the discretion should not be exercised to refuse the leave on the ground that the grounds should not be ascertained. And even though the court has granted special leave the court is not bound to decide every question of law that is included. If the special leave is obtained by making false and misleading statement of material fact the Supreme Court will be justified in revoking the leave to appeal. And also if the petitioner was found guilty of suppression of any material facts it was held that his special leave petition was to be rejected. The petitioner must come before the courts with clean hands.

POWER TO REVIEW ITS JUGEMENTS UNDER ARTICLE 137

Under article 137 the Supreme Court has expressly been given the power to review its own judgements. This is subject to any law passed by the parliament. This power can be exercised under the rules made by the court under the Article 145, on grounds mentioned in the order 57, Rule 1 of C.P.C.A review will lie in the supreme court on:-

(1)

Discovery of new important matters of evidence;

(2)

Mistake or error on the face of the record;

(3)

Any other sufficient reason.[5]

A judgement of the Supreme Court or the final court has been held final.[6]a review on such a judgement is an exceptional phenomenon, it would be permitted only where a grave and glaring error or other well established ground is made out. In a review petition, an error of substantial nature only can be reviewed. When a plea of self defence is taken and if the court is satisfied that it is probable and there is basis for the same and if the benefit is to be given to the accused then the legality of the conviction itself is involved. If the court is satisfied about probability and basis of such plea such a question can be examined[7].

FINAL ORDERS CAN BE REVIEWED: CURATIVE PETITIONS

In a judgement of far reaching consequences in Rupa Ashok Hurra v. Ashok

Hurra,[8]a five judge constitution bench of the Supreme court has unanimously held that in order to rectify gross miscarriage of justice in its final judgement which cannot be challenged the court will allow curative petition by the victim of miscarriage of justice to seek a second review of the final order of the court. It was of the view that though the judges of the highest court do their best subject to the limitation of human fallibility yet situations may arise, in the rarest of rare cases, which would require reconsideration of a final judgement to set right miscarriage of justice.[9] The court observed that it would be the legal and moral obligation of the apex court to rectify error in such a decision that otherwise would remain in the cloud of uncertainty. This judgement was given in a bunch of petitions on the question whether a petitioner could question a final judgement even after the dismissal of the review petition. The courts concern for reordering justice in a cause was not less important than the principle of certainty in its judgements because there could be grounds that such a decision was in violation of natural justice and that there was an abuse of the courts judicial process. In the decision of the Rupa Ashok Hurra v. Ashok Hurra, justice quadric observed that we are persuaded to hold that the duty to do justice in these rarest of rarest cases shall have to prevail over the policy of certainty of judgements as though it is essential in public interest that a final judgement of the final court in the country should not be open to challenge.

To entertain the curative petitions, the court has laid down certain specific conditions. Its laid down in order to prevent floodgates of unnecessary petitions seeking their second review.

The requirements which are needed in order to accept the curative petitions are

(i)

Court reaffirms that litigants are barred on challenging final decisions.

(ii) In cases of miscarriage of justice it would be its legal and moral obligation to rectify the error.

(iii) The petitioner will have to establish that there was a genuine violation of principles of natural justice and fear of the bias of the judge and judgement that adversely affected him.

(iv) The curative petition must accompany certification by a senior lawyer relating to the fulfilment of the requirements.

(v) The petition is to be sent to the three judges of the bench who passed the judgement affecting the petition.

(vi) If the majority of the judges on this bench conclude that the matter needed hearing before the same bench which may pass appropriate order it should be listed.

(vii) They could also impose exemplary costs of the petitioner if his pleas lacked merit.

The decision of the Supreme Court in Rupa Ashok Hurra v. Ashok Hurra & Anothers.[10]was a path breaking decision. For one, it got rid of the practise of litigants assailing the Supreme Courts final decisions via Article 32. In the same vein, however, it added new dimensions to its exercise of inherent power. This aspect is brought out by modalities of curative petition that Rupa ashok hurra so propounded. Propounding of modalities of curative petitions went beyond the modest exercise of inherent powers of the court of admitting meritorious petitions under any appropriate procedure but created a new procedure by which such petitions can come before Supreme Court. The rupa Ashok Hurra was an endeavour by the Supreme Court to bring order to a constitutional issue that could as well have become a hotch potch of a highly individualised judicial pronouncements. This could have been so but equally significant is the controversy that the Rupa Ashok Hurra decision has bestirred among the litigant public. This article endeavours to bring forth the controversies generated by the Rupa Ashok Hurras decision and the impact of this decision on constitutionalism.

The case of Rupa Ashok Hurra, its commentary can be divided into four parts. The first part deals with the factual background that lead to the decision of the said case. It provides a justification for propounding the modalities of curative petitions. Its second part looks at what distinguishes a curative petition from a second review petition, so to speak. The third part deals at the ex debito justitiae[11] obligation that the court expounded in order to propound the modalities of curative petitions. The last part is the conclusion and suggests an alternative that the court could have adopted in place of curative petitions in dealing with the issues raised in Rupa Ashok Hurra.

Still there is confusion whether it is necessary to the Supreme Court to propound the modalities of curative petitions. Even without curative petitions persons aggrieved by a final Supreme Court decision resulting in a miscarriage of justice would still able to approach the court for assailing a judgement of the court. In India the Supreme Court is the guardian angel of fundamental rights; a cause it has furthered with a lot of enthusiasm. This enthusiasm has been called judicial activism.

Prior to Rupa Ashok hurra, the Supreme Court in a number of had held that an order of it, which results in miscarriage of justice, is amenable for correction. The cases like M.S Ahlawat Harbans Singh v. state of Uttar Pradesh[12] and Supreme Court Bar association v. Union of India[13]. In the mentioned cases here the court invokes its inherent power under Article 142 to do complete justice[14]. In these cases before the court via Article 32. These cases had been distinguished in Rupa ashok hurra on the ground that no one had joined issue with regard to the maintainability of a writ petition under Article 32. However, the state of affairs was changed in A.R.Antulay v. Union of India[15] where the court ruled that a final judgement cannot assail via a writ petition.

In Rupa Ashok Hurra and A.R Anulay the matters were referred to larger benches by smaller ones. In the A.R Anulay, a division Bench and a three judge Bench in the case of Rupa Ashok Hurra. In the Anulays case the constitutional bench consisted of seven judges and in the case of Rupa Ashok hurra it consisted of five judges. The

issues that was there in the Anulays case was the Supreme Court in an earlier case had ordered that the appellant there in be tried by a High Court judge as opposed to a special judge as laid down by the Act of 1952 this was a clear violation of the statutory provision of the Criminal law amendment Act 1952. The petitioner first appeared before the High Court. However, his objection were rejected by the High Court Judge ruled that he had been granted powers by the Supreme Court through its earlier order to proceed with the trial of the appellant. In A.R.Antulay vs. R.S.Nayak & Anr. The question debated before a seven-Judge Bench of this Court was whether the order dated February 16, 1984, passed by a Constitution Bench of this Court, withdrawing the cases pending against the appellant in the Court of Special Judge and transferring them to the High Court of Bombay with a request to the Chief Justice to assign them to a sitting Judge of the High Court for holding trial from day to day, was a valid order. It is relevant to notice that in that case the said order was not brought under challenge in a petition under Article 32 of the Constitution. Indeed, the appellant's attempt to challenge the aforementioned order of the Constitution Bench before this Court under Article 32 of the Constitution, turned out to be abortive on the view that the writ petition under Article 32, challenging the validity of the order and judgment passed by the Supreme Court as nullity or otherwise incorrect, could not be entertained and that he might approach the court with appropriate review petition or any other application which he might be entitled to file in law. However, he held that the said order was not one such order as to be recalled because it could not be said to be based on a view which was manifestly incorrect, palpably absurd or patently without jurisdiction.

On the question of power of the Supreme Court to review its earlier order under its inherent powers the judges expressed the view that the Court could do so even in a petition under Articles 136 or Article 32 of the Constitution. But in it the judges gave a dissenting opinion holding that the appeal could not be treated as a review petition, also gave a dissenting opinion that inherent powers of the Court do not confer or constitute a source of jurisdiction and they are to be exercised in aid of a jurisdiction that is already invested for correcting the decision under Article 137 read with Order XL Rule 1 of the Supreme Court Rules and for that purpose the case must go before the same Judges as far as practicable.[16]

The question debated before a seven-Judge Bench of the Supreme Court was whether the order passed by a Constitution Bench of the Supreme Court, withdrawing the cases pending against the appellant in the Court of Special Judge

and transferring them to the High Court of Bombay with a request to the Chief Justice to assign them to a sitting Judge of the High Court for holding trial from day to day was a valid order. It is relevant to notice that in that case the said order was not brought under challenge in a petition under Article 32 of the Constitution. Indeed, the appellant's attempt to challenge the aforementioned order of the Constitution Bench before this Court under Article 32 of the Constitution, turned out to be abortive on the view that the writ petition under Article 32, challenging the validity of the order and judgment passed by the Supreme Court as nullity or otherwise incorrect, could not be entertained and that he might approach the court with appropriate review petition or any other application which he might be entitled to file in law. By majority of 5 : 2 the appeal was allowed and all proceedings in the cases against the appellant before the High Court pursuant to the said order of the Constitution Bench dated February 16, 1984, were set aside and quashed. And the majority of the judges observed, it was a duty of the Court to rectify the mistake by exercising inherent powers. The learned Judge held that it would be wholly erroneous to characterise the directions issued by a five-Judge Bench as a nullity liable to be ignored and so declared in a collateral attack. However, five learned Judges were unanimous that the Court should act ex debito justitiae. On the question of power of the Supreme Court to review its earlier order under its inherent powers Court could do so even in a petition under Articles 136 or Article 32 of the Constitution[17].

The appellant then sort to challenge this order via writ petition under Art;32 which was dismissed by a two judge bench of the Supreme Court also that the dismissal would not prejudice the right of the appellant there in referred to as the petitioner to approach the Supreme Court with an appropriate review petition or to file any other application, which he may be entitled in law to file. Because of that the petitioner approached the Supreme Court through special leave petition under Article 136 to question the High Courts jurisdiction to try his case in violation of Article 14 and 21 and the provisions of the 1952 Act .[18] It then follows that in A.R Anthulay an appropriate procedure to assail a final Supreme Court judgement was available to the appellant. This meant that at this point there was no need for the Court to propound any new procedures for assailing any of its final judgement that results in a miscarriage of justice.

In Rupa Ashok Hurras case the petition has been filed by a writ petition under Article 32 before the three judge bench and dismiss since the Court in an earlier judgement, A.R Antulay had held that a final Supreme Court judgement cannot be

assailed or reviewed by a writ petition under Article 32[19]. However, writ petition was again filed before the same three judge bench. This prompted the three judge bench to refer these writ petitions to a constitutional Bench seeking its opinion as to whether an aggrieved person is entitled to any relief against a final judgement or the order of the Supreme Court, after dismissal of a review petition either under Article 32 of the constitution or otherwise.

It is instructive to note that two possible routes confronted the constitutional bench to uphold the already laid down dictum or principle that a final Supreme Court judgement cannot be reviewed by a writ petition or overlook this dictum and in the interest of justice admit these writ petitions. In India even though its for the first time that it allows for the revision of its own final judgement its not surprising since our supreme court is regarded as the guardian of fundamental rights[20]. Under Article32 it comes the writ petitions regarding the fundamental rights. In Indian set up a constitutional bench[21] can overrule a decision of a division bench. It is because of the reason that in India we have a hierarchy of courts and Benches hearing matters before them. So a higher bench can overrule a smaller Bench.

The constitutional bench admitted both the cases of Rupa Ashok Hurra and Antulay were admitted with caution. [22]Unlike in A. R Antulay, in Rupa Ashok Hurra, there was no appropriate procedure that petitioners could have adopted to come before the Supreme Court in case the Court decided to dismiss their writ petitions. This prompted the court in Rupa ashok hurra to propound the modalities of a curative petition.

CURATIVE PETITIONS AND SECOND REVIEW PETITIONS

The litigant public seems to have taken curative petitions to amount to the last remedy that is available to a litigant before the Court finally closes its doors to litigation. It was in April 2002 that the Supreme Court propounded the modalities of Curative petitions, and since then around five hundred and sixty eight curative petitions have been filed before the Supreme Court. It implies that the litigant public will not stop till they have exhausted all the remedies available to the Supreme Court including that of the filing of curative petitions. Earlier the review petitions marked the finality of a Supreme Court Judgement beyond which no further challenge of the judgement was allowed.

The modalities of curative petitions in curative petition in Rupa Ashok Hurra involved the invocation of Article 137 of the constitution by implication. But in Rupa Ashok Hurras case it is not explicitly mentioned. The Supreme Court held that under its inherent power under Article 142 of the constitution; it can review its final order that results in the miscarriage of justice.[23]By Article 137 the Supreme Court has granted the power to review any of its judgements. It has defined it as that review means re examining or reconsidering its final decision.[24]In both the curative petition and review actions, the Supreme Court is only reconsidering its final judgement as such in both the endeavours the activity is the same save for different words being adopted to describe these activities. The fact that the Article 137 is an integral part of the procedure for filing the curative petitions is further enhanced by curative petitioners averring in their petitions that such petitions are filed under Article 137, 141, and 142[25]. In Rupa Ashok Hurra, it was necessary that the Supreme Court wore the mantle of infallibility due to the fact that its decisions are final and that no higher court exists to correct an error by the Supreme Court. Sometimes errors and mistakes do occur in the judgements of the Supreme Courts decision that would result in the miscarriage of justice to remove that defect the curative petitions are allowed in the Supreme Court.

There are some distinctions between the curative petitions and the second review petitions. The power to review is up to the supreme courts option. The power of review can only be exercised once and not twice. Such a limitation to the number of times the power of review can be exercised marks the first distinction between the two. Once a review petition has been disposed off, a second review petition cannot then lie with the in Supreme Court.[26]On the legal side curative action of the Supreme Court does not amount to second review petition. But the power to review is inherent in curative actions of the court. The highest court of the land in a

country should not be ruled by any pressure of expediency or anything. It must be very cautious and vigilant while invoking or introducing anything new. It should not do anything unconstitutional. In simple words as long as the court is reconsidering its earlier final judgement it amounts to review, there are no two ways to the issue.

Review petitions are provided in the constitution, unlike curative petitions which are a result of a Supreme Court pronouncement. Article 137 is the only constitutional provision that is common in both curative petitions and review petitions. As the name itself says, curative petitions refer to petitions filed before the Supreme Court that seeks to prevent the abuse of the Court process and to cure a gross miscarriage of justice.[27] Curative petitions are filed after the disposal of a review petition and actions are filed under Article 137, 141, 142. There is no prescribed period for filing a curative petition.[28] An application for invoking the inherent power of this Court might require that it should be certified by a senior advocate and in case of frivolous application the petitioner could be subjected to costs. He relied on the

judgment of United States in United States of America Vs. Ohio Power Company[29] to show that in every jurisdiction the courts have corrected their own mistakes. He cited the judgment of this Court in Harbans Singh Vs. State of Uttar Pradesh & Ors[30], to show that even after the dismissal of the Review Petition the Supreme Court reconsidered its own judgment; he pleaded for laying down guidelines in regard to entertaining such an application.

Chapter II of the Supreme Court rules 1966,E deals with the review power of the Supreme Court, it reads like,

(1) Article 137 of the constitution provides that subject to provisions of any law and the rules made under Article 145 the Supreme Court had the power to review any judgement pronounced or order made by it. Under Supreme Court Rules 1966, such a petition is to be filed within 30 days from the date of judgement or order as far as practicable, it is to be circulated without oral argument to the same bench judges, who deliver the judgements or order sort to be reviewed.

(2) As laid down by this Court, in the case of Rupa Ashok Hurra v. Ashok Hurra[31] even after the dismissal of a review petition under Article137 of the constitution, Supreme Court, may entertain the curative petition and reconsider its judgements/orders, in exercise of its inherent powers, in order to prevent abuse of its process, to cure gross miscarriage of justice and such a petition can be filed only if a senior advocate certifies that it meets the requirements of this case. Such a petition has to be first circulated, in chambers, before a bench comprising of three senior most judges and such serving judges who were members of the bench which passed the judgement/order, subject matter of the petition.

So a curative petition can only be filed under certain grounds which are clearly laid down in the judgement of the path braking decision in Rupa Ashok Hurra that Constitution Bench of the Supreme Court has unanimously ruled that a person -who is aggrieved by a final judgment or order of the apex court, after a petition for `review' of the same has been dismissed -- "is entitled to relief `ex debito justicae[32]' if he establishes. It can be filed where there is a violation of principles of natural justice in that the aggrieved party filing a curative petition was not a party to the lis but the judgement adversely affected his interest 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. Secondly 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 judgement adversely affects the petitioner. In addition to this, curative petition had also been taken in the review petition and that such a review had been dismissed by circulation. Circulation means the discussion at a judicial conference and not in court through oral arguments[33]. Curative petition has to also include a certificate by a Senior Advocate indicating that the same grounds in the curative petition had also been taken in the review petition. It has to be circulated to a bench of three senior most judges and the judges who passed the judgement complained of, if available. In the event of the bench holding at any stage that such curative petition without any merit and is vexatious, it could impose exemplary costs on the petitioner.

It was argued in the Rupa Ashok Hurras the remedy provided under Article 32 of the Constitution would not be available to a person aggrieved by the final order of this Court; and also didnt supported that in case of gross miscarriage of justice, this Court ought to exercise its inherent powers by entertaining an application to

examine the final order of this Court, even when a review was rejected, in the rarest of the rare cases. It was observed that where the order was passed without jurisdiction or in violation of the principles of natural justice, the case would fall in the rarest of the rare cases. In regard to reconsideration of the judgment under the inherent power of the Court, it referred to the judgment of the Federal Court in Raja Prithwi Chand Lall Choudhry etc.Vs. Rai Bahadur Sukhraj Rai & Ors. etc[34]. He submitted that for correction of a final judgment of this Court on the ground of lack of jurisdiction or violation of principle of natural justice, a curative petition could be entertained which might be heard by an appropriate Bench composed of the senior Judges as well as Judges who passed the order. It was also submitted that while considering such curative petitions on the ground of manifest illegality and palpable injustice, in the rarest of rare cases, factors like the doctrine of stare decisis and the finality and the certainty of the law declared by this Court are required to be kept in mind. The power of review must be conferred by law either specifically or by implication. The Supreme Court Rules,1966 made in exercise of the powers under Article 145 of the constitution prescribe that in civil cases, review lies on any of the grounds specified in order 47 Rule 1 of the code of Civil Procedure, it provides

(i)

Discovery of new and important matter of evidence.

(ii)

Mistake or error apparent on the face of the record.

(iii)

Any other sufficient reason.

In the case of criminal proceedings a review lies on the ground of an error apparent on the face of the record it means an error which strikes one on merely looking at the record. And does not require any long drawn process of reasoning on points where there may, conceivably, be two options. A review petition lies with the court if filed within thirty days after the pronouncement of a final Supreme Court judgement.[35]The purpose of review is to ensure that justice is not defeated and that errors leading to miscarriage of justice are remedied.[36]

While the court observed about the curative petition it held that a petitioner was entitled to relief if he established violation of principles of natural justice in that he was not a party to the dispute, but the judgment adversely affected his interests or if he was a party to the dispute, but was not served with notice of the proceedings and the matter proceeded as if he had notice. Also 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. Regarding the fulfilments of the requirements,[37] Justice Banerjee in his concurring judgment has, however, written that curative petitions ought to be treated as a rarity rather than regular. Justice Quadri has written in the order that 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 judgment also says that 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.[38]

CONCLUSION

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.[39] The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. Since April 2002 when the Supreme Court propounded the modalities of curative petitions, 568 curative petitions have been filed before the Supreme Court during the month of November and December, 2006. But the fact is that so far no curative petition has been successful before the Supreme Court. It is because of the reason that so far no curative petition has been able to make out a case within the Rupa Ashok Hurra parameters. Secondly there was no other ground that results in miscarriage of justice that have been alleged in

a curative petition have succeeded. And above all the court felt it necessary to control the floodgates of litigation which resulted in the limited grounds on which the court would accept curative petitions. The court must ensure that the formalities of filing an application for curative petition should not deny anyone justice. There is a big difficulty in filing a meritorious claim in a curative petition. The court observed that it would be the legal and moral obligation of the apex court to rectify error in a decision that otherwise would remain in the cloud of uncertainty. This judgement was given in a bunch of petitions on the question whether a petitioner could question a final judgement even after the dismissal of the review petition.

The curative petitions apart from the stringent procedures that have to be fulfilled are nothing but the second review petitions. The writ petitions in Rupa Ashok Hurra raised fundamental questions, which are not fully answered still there is some vagueness. It can be said that the Supreme Court can review its own judgements or final orders. Article 137 of the Constitution grants the Supreme Court the power of review of any of its final decisions. This power of review as per Article 137 is not restricted to only one time use in relation to a final Supreme Courts decision. It is through the supreme courts pronouncement and in exercise of its power under the Article 145 that review power has been used only once in any relevant final Supreme Court decision.

Our framers of the constitution have given the Supreme Court to hear petition and do justice at two levels: under article 32 where it entertains petitions and extensive arguments and detailed examination delivers the final judgement and (ii) power of review under Article 137 if anything remains left to cure the defect and do justice. In spite of this the judges has said that the judges as human beings are likely to do mistakes and hear a second review and for the sake of justice prefer justice over certainty of judgement. The acceptances of judicial decisions are based on certainty.

The guarantee that the petitioner would be satisfied that he got justice and the

judges also anticipated that, in spite of human failing they are able to do complete justice. Secondly, this judgement would not benefit the common litigant. Majority of them are satisfied with the final decision of the Court under and do not file a review petition. It would help only the rich who had enough money to pay senior lawyers fee for his certificate for filing the curative petition. Thirdly, the court has imposed certain conditions to prevent its abuse. Similarly justice Bhagwati has imposed certain conditions to prevent the misuse of public interest litigation. In spite of this, it is abused by irresponsible litigants. Recently for instance, in Balcos case a public interest litigation was filed challenging the Central Governments policy decision to disminvest its shares to private persons. In this case lot of precious time of the apex court was wasted, hearing was done and it had to reiterate the principles of public interest litigation and to give warning against its misuse.

[1] Constitution of india m.p jain

[2] Basu, D.D- an introduction to the constitution of India p 223

[3] Jyotendra Singhjibv. S. T Tripathy AIR 1954 SC 1991

[4] D.C Mills v. Commissioner of Income-tax, W.B AIR 1955 SC 55

[5] Loknath tolaram v. B. N Rangamani AIR 1975 SC 279

[6] R. D Sugar v. V. Nagary AIR 1976 SC 2183

[7] Constitution of india - pande

[8] AIR 2002 SC 1771

[9] S.P. Bharucha C.J

[10] (2002) 4 SCC 388

[11] Ex debito justitiae has been used in common law doctrine to mean as a matter of right; in accordance with the requirements of justice.

[12] (1982) 2 SCC 101

[13] (1998) 4 SCC 409

[14] Rupa ashok hurra v. Ashok hurra

[15] (1984) 3 SCR 482

[16] Venkitachalam justice

[17] Rupa ashok hurra v. Ashok hurra (2002) 4 SCC 388 para 20

[18] A.R. Antulay v R.S.Naiyak (1988)2SCC 602

[19] Ashok Hurra v Rupa Bipin Zaveri (1997)4 SCC 226

[20] In India the Supreme Court Stands poised with a responsibility to uphold constitutionalism in our country, this responsibility has resulted in the Supreme Court to refer itself to as the guardian angel of the constitution and fundamental rights. It is also referred in the case of V.C Mohan v. Union of India (2002) 3 SCC 451

[21] A Constitutional bench refers to a bench of the Supreme court consisting of more than three judges looking at a matter that is of constitutional significance.

[22] The writ petition filed in rupa ashok hurra were the last petition to assil a final supreme court decision.

[23] Rupa ashok hurra v Ashok hurra and Anr (2002) 4 SCC para 49

[24] S. Nagaraj v. State of Karnataka 1993 Supp (4) SCC 595, 619 Para 49

[25] Curative petitions reported in law reports suggest that a curative petitioner has to aver in the petition that it is filed under Articles 137, 141, and 142 of the constitution.

[26] Rupa ashok hurra v. Ashok hurra and anr (2002) 4 SCC 388 para 50 the court has stated that the modalities of curative petition do not amount to a passport for filing the second review petitions.

[27] (2002) 4 SCC 416, para 49

[28] The supreme Court Rules, 1966

[29] 1 Lawyers Ed 2d 683

[30] (1982) 2 SCC 101

[31] (2002) 4 SCC 388

[32] In common law it is called as of right rule. It means in accordance with the settled practice.

[33] P.N Eswara iyer v. Registrar, SC of India (1980) 4 SCC 680 p. 687, para 14

[34] (1940) 2 FCR 78

[35] Supreme Court Rules, 1966, o-XL relating to review.

[36] Lilly Thomas v. Union of India (2000) 6 SC 224

[37] The Hindu on supreme court ruling on curative petitions By T. Padmanabha Rao

[38] Friend of the Court

[39] Shaukat Hussain Guru v. State (NCT) Delhi and Anr AIR 2008 SC 2419