Context: Recently, CJI in response to an oral mentioning said that curative petition against the SC judgement holding Maratha reservation law unconstitutional will be listed in due course.
Background: In 2021, Supreme Court declared the Maharashtra government law providing for reservation benefits to Marathas as unconstitutional on the ground of breach of 50% ceiling limit.
About Curative petition:
- Curative petition is a petition filed for reconsideration of final judgement or order passed by the supreme court, after exhausting the remedy of review under Article 137 of the Indian Constitution.
- In Rupa Ashok Hurra case, the supreme court came up with the idea of curative petition to prevent abuse of its process and to cure gross miscarriage of justice.
Reasoning given by Supreme court to introduce curative petition:
- To take into consideration rarest of rare cases.
- To prevent miscarriage of justice.
- To prevent fraud or suppression of material facts. (Union of India v Union Carbide)
- To rectify any error which has been brought to the notice.
- To meet circumstances where declining to reconsider the judgement would be oppressive to judicial conscience.
- If the judgement causes perpetuation of irremediable injustice.
Constitutional provisions in favor of curative petition:
- Inherent powers of Supreme Court along with the powers flowing out of Article 142 to do complete justice.
Provisions related to the powers of Supreme Court:
Article 32: Remedies for enforcement of rights conferred by this Part. — (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
Article 129: Supreme Court to be a court of record. — The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
Article 136: Special leave to appeal by the Supreme Court. — (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
Article 137: Review of judgments or orders by the Supreme Court. — Subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.
Article 142: Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.—
(1) 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 order 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 Presidentmay by order1 prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securingthe attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
Grounds of filing curative petition:
- Filing of petition has to be treated as a rarity rather than regular mechanism.
- It can be filed if, the order is in contravention of principle of natural justice, or
- The order being without jurisdiction or
- Non-disclosure by judge of any conflict of interest, giving scope for apprehension of bias.
- Judgement has adversely affected the petitioner.
Mechanism followed:
- Certification by a Senior advocate with respect to fulfilment of above-mentioned requirements.
- Curative petition first has to be circulated to a bench of 3 senior most judges of supreme court and judges who passed the judgement.
- If the majority of bench concludes that the matter needs hearing, it is listed before the same bench.
- Bench may ask a senior counsel to assist them as amicus curiae.
- If the bench at any stage holds that petition is without any merit and vexatious, it may impose exemplary cost on petitioner.
