The Judiciary plays a very significant role in shaping the societal structure and acting as the watchdog of democracy. Supreme Court from time to time has interpreted the fundamental rights and the constitution and is regarded as the guardian of the Indian Constitution. As per Article 32 of the Indian Constitution, the Supreme Court has extensive original jurisdiction, that is to say, Supreme Court has exclusive right to decide the cases with reference violation of fundamental rights of the citizens.
Under Article 131, the Supreme Court is considered as the highest authority who interprets the Constitution wherein the power to adjudicate disputes among centre and state is granted to the Supreme Court.
Appellate Jurisdiction of Supreme Court:
Constitutional Cases: As per Article 132(1), an appeal shall lie before the Supreme Court based on any judgement, decree, or order passed by the High court, when the High Court certifies under Article 134 – A that the case involves a substantial question of law with regard to the interpretation of the constitution.
Civil Cases: Under Article 133, the Supreme Court has the power to decide cases when an appeal shall lie to the Supreme Court based on any decision, decree, judgement or final order passed by the High Court in a civil proceeding only when the high court certifies it as per article 134 – A:
- The case involves a substantial question of law of general significance or
- The High Court is of the opinion that the matter comprising of a specific question shall be decided by the Supreme Court.
Criminal Cases: With regard to criminal cases, there are two situations according to which an appeal shall lie to the Supreme Court:
- Without a certificate wherein the High Court has reversed the appeal of the person who has been acquitted and sentences him to death.
- Wherein High Court has withdrawn to itself a trial of any case which was addressed in any Subordinate Court and in that trial, the accused was convicted and was sentenced to death.
Appeal by Special Leave:
The Supreme Court has given the power to individuals by granting a special leave to appeal, under Article 136, from any judgement, decree, sentence or order passed by any other subordinate Court or any tribunal.
Under Article 137, the Supreme Court has the power to review its own Judgements. A binding decision of the Supreme Court can be reviewed in accordance with the rules of the court as mentioned in Article 145.
According to the Rules, the Supreme Court can review the Judgement based on grounds mentioned in Order 47 rule 1 CPC and with reference to a Judgement in Criminal Proceedings, it shall take place on the grounds of an apparent error on the face of the record.
Therefore, a review petition shall lie to the Supreme Court based on following grounds:
- Discovery of new and significant issues or evidence.
- Mistake or any error which is evident on the face of the record.
- Any other substantial and sufficient reason.
In Girdhari Lal Gupta v. D.H. Mehta, the criminal appeal which involved the violation of Foreign Exchange Regulation Act,1947 did not bring S.23-C(2) of the Act into the notice of the Court. The Supreme Court reviewed the judgement rendered by it and modified the sentence of imprisonment into fine.
In Common Cause v. Union of India, The Supreme Court reviewed its decision of imposing exemplary damages on a former minister which were not justified in law.
In Devender Pal Singh v. State ( NCT of Delhi ), it was held that review petition shall only be allowed in rarest of rare cases considering not only the nature of offence but also its impact on the society.
Shabnam v. Union of Indiahad laid down the duration of the time limit within which the petition for the review of judgement can be filed which is 30 days. It was also observed that the death penalty even after the confirmation of the Supreme Court cannot be awarded unless and until the period of seven days for filing mercy petition is over.
With its wide powers, the Supreme Court has evolved the concept of ‘curative petition’. This concept came into the picture and was developed in the matter of Rupa Ashok Hurra v. Ashok Hurra & Anr.
The question before the Court was whether an aggrieved individual or party is entitled to any relief and can move to the court after his review petition has been dismissed. The court was of the view that to stop or curb the misuse and abuse of process as well as to cure miscarriage of justice dispensation mechanism, it may reconsider its judgements.
The court also provided the grounds based on which curative petition can be filed in a court of law:
- The Court shall make sure that they do not indulge into entertaining an application which seeks the reconsideration of the order pronounced by the Apex Court after the review petition is dismissed unless there are exemplary reasons to entertain such an application.
- The Petitioner has to establish that the order or the judgement passed by the court violated the Principles of Natural Justice.
- In a case, if the matter and issues present are not addressed properly and a notice of the case was not served to the parties and one of the party is of the feeling and perspective that it is the violation of Right to Fair Trial.
- When there is an ounce of bias present in the Judgement rendered by the judge.
It is important that the curative petition must be heard in the chamber of the judge unless there is a request that the hearing should take place in an open court. Not only that there is no such time duration and limitation for the filing of the curative petition. However, if it is proved that the petitioner’s plea lacks merit, then he shall be charged with heavy costs.
The main difference between the review petition and curative petition is the fact that review petition is inherently provided in the constitution of India whereas the emergence of the curative petition is in relation with the interpretation of the review petition by the Supreme Court which is enshrined in article 137.
The curative petition can be referred to as the next step of the review petition as this allows the aggrieved party to contest the judgement pronounced by the court after the dismissal of the review petition in Supreme Court.
There are certain advantages of Curative Petition which are as follows:
- Curative Petition can be considered as a tool against judicial bias. It prevents from the prejudice and preconceived notions of Judges and Judiciary.
- It prevents the misconception and misapprehension that can arise in the procedure that is being followed in pronouncing the verdict.
Every coin has two sides and similarly, Curative Petition also have a disadvantage which comes from them:
- It makes the Justice Dispensation system quite lengthy and makes it too cumbersome.
- Not only that, this provision which has been interpreted by the Supreme Court also goes against the power of the Judiciary as it is appealed to evaluate the decision given by the Highest Authority.
It can thus be concluded, that the aim to develop and evolve Curative Petition and incorporate it in Justice Dispensation Mechanism was to correct any fallacy or any other misjudgement which might have been rendered by the Supreme Court as Judges even though, they are the Guardian of Constitution are also humans and they cannot always be accurate and can make errors and mistakes. So in order to ensure that fair functioning is taking place, this concept was introduced. The instrument of Curative petition was developed and designed innovatively by the Supreme Court to obviate any miscarriage of justice which may be visible to the Judicial conscience and which they may be feeling in their heart but the petitioner or the victim apparently seemed to have exhausted all his remedies as available in the Constitution and in the Legal system being administered. The Supreme Court was of the considered opinion that rather than feeling helpless and clueless at this anomaly, there must be some mechanism to do away with that anomaly and to clear the Judicial conscience and to make it transparent and crystal white without any prickings in the same. A review process was confined to only prescribed situations as mentioned in Order 47 rule 1 and was apparently provided to cure error apparent on the face of the record, the necessity of delivering Justice to its fullest paradigm and to the last man in the queue seeking justice prompted the Supreme Court to innovatively develop the mechanism of Curative Petition. However, the misuse of the same was manifestly clear in the recent Nirbhaya Case Episode and therefore some additional safeguards are required which I hopefully presume would be provided by Hon’ble Supreme Court in due course of time.
 V.N. Shukla’s Constitution of India, pg. 554
Order XLVII, Supreme Court Rules, 2013
 V.N. Shukla’s Constitution of India, pg. 554
 AIR 1971 SC 2162
 (1999) 6 SCC 667
 (2003) 2 SCC 501
 (2015) 6 SCC 702, 710
 AIR 2002 SC 1771; https://en.wikipedia.org/wiki/Curative_petition
This article is authored by Sonakshi Chaturvedi, Second-Year, B.A.LL.B (Hons.) student at Maharaja Agrasen Institute of Management Studies, IP University
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