Thursday, 20 April 2017

Curative Petition: An overview

Curative petition is a judicially formulated mechanism available to a party as the last recourse to approach the Supreme Court. The term Curative Petition was devised by the Supreme Court in Rupa Ashok Hurra v. Ashok Hurra and Anr. (2002) 4 SCC 388. The Constitution of India guaranteed that the Judgment of the Supreme Court is final and conclusive and is binding on all the parties of the proceedings.  The Constitution provides under Article 137 to file review petition before the Supreme Court if the appeal or any other proceedings is dismissed by the Supreme Court.  The situation of injustice caused to the litigant due to the infirmities in the order of dismissal of the Review petition is not addressed by the Constitution. To remedy such situation the Supreme Court evolved the remedy of Curative Petition formulated under Article 142 of the Constitution to ensure substantive justice.
The Supreme Court in Hurra’s case held that the curative petition is maintainable on two grounds, namely violation of principles of Natural Justice and on the ground of bias.  In order to get relief the petitioner has to establish that:-
(i)                 He was not a party to the case but the judgment adversely affected his interest
If he was party to the case, he was not served with the notice of the proceedings and the matter proceeded as if he had notice.
(ii)               In the proceedings the 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.
It is also stipulated by the Supreme Court that in the curative petition, the petitioner shall aver specifically that the grounds mentioned therein had been taken in the review petition and the same was dismissed. It is also necessary that the curative petition shall contain a certificate by a Senior Advocate with regard to the fulfillment of the above said requirements.
Supreme Court has the jurisdiction to exercise this inherent power for the ends of justice or to prevent abuse of the process of the court. This has been recognized by Order XLVII Rule 6 of the Supreme Court Rules, 1966. In A.R. Antulay v R.S. Nayak & Anr 1988 AIR 1531, it is held that the superior court can always correct its own error brought to its notice either by way of petition or ex debito justitiae.

Curative Petition is placed before three senior most judges of the Supreme Court including the Judges, who were part of the review petition. The decision in curative petition is discretionary and in very few cases the Supreme Court had allowed Curative Petitions. In March 2013, the Supreme Court allowed a curative petition against its 2009 judgment which held that if a woman kicked her daughter-in-law or threatened her with divorce; it would not amount to cruelty under Section 498A of the Indian Penal Code. In April 2010, the court also corrected a mistake in its verdict that had led to wrongful detention of four accused in a 21-year-old murder case without any hearing.
National Commission for Women filed a curative petition against the judgment in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 contending that it lacks sensitivity to women. The Supreme Court issued guidelines to the police not to arrest the accused in dowry harassment cases automatically without conducting  some investigation as to genuineness of allegation under Section 498A IPC and the Magistrate cannot order detention of the accused mechanically and casually.  The Supreme Court dismissed the curative petition on the ground that the parameters drawn  in Rupa Ashok Hurra v. Ashok Hurra and Anr. (2002) was not made out in this case.
In another instance the Supreme Court gave a fresh hope to lesbian, gay, bisexual and transgender (LGBT) communities, as it ordered a review of a colonial-era law that criminalizes consensual same sex relations between adults, by admitting a  batch of six curative petitions, which sought a review of a 2013 judgement upholding the 156-year-old law, and referred to a five-judge constitution bench.

Prof. (Dr.) K.K.Geetha
Dean, School of Law

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