Delineating Curative Petition- An Ace in the Hole

“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.” – Lord Gordon Hewart


Curative Petition was accentuated in the contemporary times after the issuance of black warrant i.e. death warrant of four convicts of ghastly ‘Nirbhaya Gang Rape and Murder case’ by the court. It is the last to last window in the line of due justice being given to any felon. It was set forth by the Fastigium Court of India in the celebrated case of Rupa Ashok Hurra vs Ashok Hurra & Anr. Instituting this, Justice Syed Shah Mohammed Quadri articulated that, “We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final court in the country should not be open to challenge yet there may be circumstances… wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.”

Victor Cousin once quoted that, “The universal and absolute law is that natural justice which cannot be written down, but which appeals to the hearts of all”; Thus, exercising its power under Article 142(1) read with Article 145(1)(c) of the Constitution of India, the Hon’ble Supreme Court gave similar connotation and established a new concept, “Curative Petition” which gave a new penetration to the whole framework of justice, on a note that it must be mooted only in hen’s teeth cases vis-à-vis to prevent abuse of its process and to cure a gross miscarriage of justice; enunciating that “Manifest justice is curable in nature rather than incurable and this court would lose its sanctity and thus would belie the expectations of the founding fathers that justice is above all.” In this, the court reiterated the view of the Supreme Court Bar Association v. Union of India and Anr. and held that “it, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to “supplant” substantive law applicable to the case or case under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly.”

There are few preceding occurrences on which the Apex Court re-evaluated its judgment after giving the final order, such as A.R. Antulay v. R.S. Nayak & Anr. , Supreme Court Bar Association v. Union of India and Anr. and M.S. Ahlawat v. State of Haryana and Anr. ; However, in these cases, it was held that these petitions can never be filed under Article 32 of the Constitution of India. In the well – known case of Harbans Singh v. State of Uttar Pradesh , the Court reconsidered its own judgement even after the dismissal of the Review Petition under Article 137 of the Constitution of India. This was the instance that gave a pellucid vision of this concept in the Indian Legal/Justice System. Regarding the application of this extraordinary power, Justice Amarendra Nath Sen, in this case, mentioned that “this Court retains and must retain, an inherent power and jurisdiction for dealing with any extraordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly used only in exceptional circumstances for furthering the ends of justice.” In the pre-Constitutional era, this was also talked in the case of Raja Prithwi Chand Lall Chowdhry v. Rai Bahadur Sukhraj Rai & Ors.


In seeking of relief ex debito justitiae under this, the Court proclaimed that the following requirements must be satisfied for the same:

i. Violation of principles of natural justice where he was not a party to the matter, but the judgment adversely affected his interests.

ii. He was party to the matter, but was not served with notice of the proceedings and the matter proceeded as though he had the choice.

iii. Wherein the proceedings a Learned Judge failed to disclose his connection with the subject matter.

iv. The parties giving scope for an apprehension of bias and that the judgment adversely affects the petitioner.

Further, the Court stated that the petitioner must specify that the grounds mentioned therein had been taken in the review petition and was dismissed by circulation. It must contain a Senior Advocate’s certification concerning the fulfilment of the above requirements.

In addition to this, it must be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of (if available). When a majority of the learned Judges on this Bench conclude that the matter needs hearing, it should be listed before the same Bench (as far as possible) which may pass appropriate orders. The Bench may appoint a Senior Counsel to assist it at any stage as Amicus Curiae. If the Bench at any stage founds that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner.

It is usually decided by judges in chamber, unless a specific request for an open-court hearing is allowed and there is no limitation period for it, but must be filed within a “reasonable time”.


There were many cornerstones on which the Court relied upon while evolving this concept; These were:

• Article 142(1) of the Constitution of India which provides that “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.”

• Article 145(1)(c) of the Constitution of India which authorize that, “ Subject to the provisions of any law made by Parliament the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including- rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III.”

• Order XL Rule 1 of the Supreme Court Rules, 1966, in this, “The Supreme Court may review its judgment or order, but no application for review is to be entertained in a civil proceeding except on the grounds mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceeding except on the ground of an error apparent on the face of the record.”

• Order XLVII, Rule 1 of the Supreme Court Rules, 1966 which mentions that “The Court may, for sufficient cause shown, excuse the parties from compliance with any of the requirements of these rules, and may give such directions in matters of practice and procedure as it may consider just and expedient.”

• Order XLVII, Rule 6 of the Supreme Court Rules, 1966 which states, “Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”


There is a famous comment by former British Prime Minister, William Ewart Gladstone, “Justice Delayed is Justice Denied.” Watching the sequence of events few days before, this was aptly befitted. The tool which has evolved to furnish justice has become the ammunition to proscribe justice. But it had become an aegis by the convicts of Nirbhaya in order to prevent themselves from hanging. This was the barbaric incident that triggered unfathomable fear in every woman and raised serious questions on the law and order and the safety and well-being of women in the country. But even after the 7 years of that haunting night, the offenders had delayed hanging just because a boon was used a bane. The system must adopt apt measures to prevent its misuse for the sake of unequivocal justice as every spurious petition will become a nail in the coffin of the bona fide justice seeker.

“Gone are the days where implementation of draconian system of law or interpretation thereof were insisted upon – Flexibility of the law Courts presently are its greatest virtue and as such justice oriented approach is the need of the day to strive and forge ahead in the 21st century.” – Justice Umesh Chandra Banerjee.

This article is authored by Shardool Singh, student of 2nd Year B.A. LL.B(Hons.) at Faculty of Law, University of Allahabad.

Also Read – Dying Declaration Under The Indian Evidence Act, 1872: At A Glance

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