SC opens an extra window for final appeal

A Supreme Court judgment can now be challenged not only in a review petition but also in a 8216;8216;curative petition8217;8217; in case...

A Supreme Court judgment can now be challenged not only in a review petition but also in a 8216;8216;curative petition8217;8217; in cases where the principles of natural justice can be said to have been violated.

This is the outcome of a radical judgment delivered today by a five-judge Constitution bench headed by Chief Justice S P Bharucha which also laid down a 8216;8216;mechanism8217;8217; through which the apex court can issue a 8216;8216;curative writ.8217;8217;

Justice S S M Quadri, delivering the judgment on behalf of the bench, said: 8216;8216;We think a petitioner is entitled to relief ex debito justice in the interest of justice if he establishes violation of principles of natural justice in that he was not a party to the lis petition but the judgment adversely affected his interest or, if he was a party, he was not served with notice of the proceedings.8217;8217;

The circumstances in which the new jurisdiction of curative writ can be invoked include cases where a judge failed to disclose his connection with the subject matter or the parties giving scope for an apprehension of bias and the judgement adversly affects the petitioner.

The curative petition can be filed only after the petition exhausted the option of the review petition. In fact, the petitioner 8216;8216;shall aver specifically that the grounds mentioned in a petition had been taken in the review and that it was dismissed by circulation.8217;8217;

As a safeguard adopted to ensure that a curative petition is filed only in deserving cases, the court directed that it will have to be accompanied by a certification by a senior advocate stating that the judgment did violate the the principles of natural justice.

Reaffirming that a final order of the apex court could not be 8216;8216;assailed8217;8217; under Article 32 of the Constitution, the bench said: 8216;8216;To cure a gross miscarriage of justice this court may reconsider its judgments in exercise of its inherent power.8217;8217;

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Article 32 empowers a petitioner to approach the apex court directly if he felt his fundamental rights were violated. Today8217;s landmark judgement came on a bunch of writ petitions which had raised the question whether a Supreme Court judgement could be challenged by way of a writ petition under Article 32.

The bench has incorporated strict conditions in the mechanism of curative writs to ensure that a 8216;8216;floodgate8217;8217; was not opened for filing of second review peitions under its 8216;8216;guise.8217;8217;

8216;8216;It is common ground that except when very strong reason exists, the court should not entertain an application seeking reconsideration of an order of this court which has become final on dismissal of a review petition,8217;8217; the bench said adding it 8216;8216;is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained.8217;8217;

8216;8216;Since the matter relates to final judgement of the court, though on limited grounds, the curative petition has to be first circulated to a bench of three seniormost judges and the judges who have passed the order under challenge.8217;8217;

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The petition would be entertained only when a majority of these judges conclude that it needed to be heard and it would consequently be placed before the same bench which passed the order in question. But during the hearing if the court found that the curative petition was without any merit, a cost could be imposed on the petitioner, it said.