The s.377 Curative Petition: In Favour of a Broader Jurisdiction for the Supreme Court

(Guest post by Rupali Samuel)

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In light of the
curative petitions in Suresh Kumar Koushal v.
Naz Foundation
, it has been argued by Shivendra Singh here and Alok
Prasanna here that “one of
the two narrow grounds” in Rupa Ashok Hurra v. Ashok Hurra are required
for proving maintainability. I argue that the grounds of natural justice and
apprehension of bias in paragraph 51 of Hurra
are not exhaustive and that, in light of the subsequent applications of Hurra, there is considerable room for
new grounds that further the principles laid down therein. 

Principles in Hurra

In Hurra, the question before the
constitutional bench was twofold: whether writ jurisdiction could be invoked
for relief against a final judgment of the Supreme Court, which was negatived,
and, whether the plenary powers of the Court under Article 142 permitted it to
craft a new remedy in certain cases.
In the
ensuing discussion, the Court identifies a tussle between certainty (Rule of
law) and the duty to do justice:
We are faced with competing principles — ensuring
certainty and finality of a judgment of the Court of last resort and dispensing
justice on reconsideration of a judgment
on the ground that it is
vitiated being in violation of the principles of natural justice or giving
scope for apprehension of bias due to a Judge who participated in the
decision-making process not disclosing his links with a party to the case, or
on account of abuse of the process of the court. Such a judgment, far from ensuring finality, will always
remain under the cloud of uncertainty… 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 the public interest that a final judgment of the final court in
the country should not be open to challenge, yet there may be circumstances, as mentioned above, wherein
declining to reconsider the judgment would be oppressive to judicial conscience and would cause perpetuation of irremediable injustice.”

The Court
does describe three circumstances where the interests of justice outweigh finality.
However, the principle that it upholds is not couched in terms of those grounds
“49. The upshot of the discussion in our view
is that this Court, to prevent abuse
of its process
and to cure a
gross miscarriage of justice
, may reconsider its judgments in exercise
of its inherent power.”

It goes to “specify
the requirements to entertain” such petitions with the qualification that “[i]t
is neither advisable nor possible to enumerate all the grounds on which such a
petition may be entertained”:
“51. Nevertheless, we think that a petitioner
is entitled to relief ex debito justitiae if
he establishes (1) violation of the principles of natural justice (2)..
an apprehension of bias”
enumeration of grounds in paragraph 51 is to be read with the qualifying words
‘entitled’ and ‘ex debito justitiae’. Black’s Law Dictionary defines ‘ex debito
justitiae’ as ‘from or as a debt of justice; as a matter of right’. Mwamisi, in
this paper, describes
this as the ‘non discretionary’ obligation on the Court. Thus, the enumerated
grounds are those grounds that, as a matter of right, entitle a person to
relief from the Court. However, this does not necessarily qualify the principle
elucidated at paragraphs 42 and 49 that the Court may intervene to bypass the principle of certainty so as to cure a
gross miscarriage of justice.

Development post Hurra
Post Hurra, as Raju Ramachandran argues
succintly here, the para 51
grounds have not been stipulated as the sole grounds for a curative petition.
The order dismissing the majority of curative petitions simply states that “no
case is made out within the parameters
in Hurra. Moreover, only in one of
the three cases allowing a curative petition, State of MP v. Sugar Singh, was natural
justice, i.e., an enumerated ground in paragraph 51, relied on. 

The Court in
this case recognised another ground that stems from the formulation in Hurra, namely, the deviation from an
established principle of law as validated in a later decision of the Court. Such
distortion of the law can cause not only gross miscarriage of justice in terms
of the specific circumstances of the case, but also considerable confusion in
law, thereby threatening the value of finality and certainty. 

The curative
petition in Navneet Kaur was against
the dismissal of a plea to
quash the rejection of Bhullar’s mercy petition on the ground of delay. The
Court allowed this for two reasons. First, a subsequent judgment had been
rendered by a three judge bench in Shatrugan Chauhan v. UoI which had “a crucial bearing for deciding
the petition at hand,” as it “validated
an established principle of law
” that was at stake in Navneet Kaur – that unexplained delay was
a ground for commutation of a death sentence. Note that the Court does not
expressly invoke the fact that Shatrugan
was delivered by a larger bench, but rather, that it validated an established principle of law. The Court also highlights that
the stated reason for rejection of the plea for
commutation despite the recognition of the rule that delay was a sufficient
ground, namely, that the conviction was under TADA, was rejected in Shatrugan Chauhan as having no rational
basis. Thus, the Court in Navneet Kaur
could intervene as (1) the Supreme
Court on appeal and review failed to apply an established principle of law that
(2) was validated by a later decision
where (3) the reason for deviation
from that rule in the impugned judgement was considered and rejected as an
inaccurate application of the law.  There
is also, arguably the implied condition of a serious threat to a fundamental right.
Together, these constitute a gross miscarriage of justice warranting relief by
the Court. 

The second
reason for the Court granting relief was that Shatrugan Chauhan laid down that a prisoner cannot be executed if
mentally ill (para 259, guideline 9) and Bhullar’s mental health report
indicated that he was suffering from acute mental illness. This was the
positive application of a new rule from the later case. 

The decision
of the Supreme Court in Nalsa v. Union of India both validated
several principles that were considered in Koushal
but rejected therein without adherence to established principles of law[1] and identified new
principles. See Gautam Bhatia’s analysis on this point here

Therefore, it
is ample basis for re-examination of Koushal
per Navneet Kaur.

The question in
this case was whether the Court had been right in upholding the order of a
trial judge quashing summons on the ground that ‘cruelty’ under Section 498A of
the IPC was not made out. The Court finds:
“12..[I]t was
too early a stage
, in our view, to take a stand as to whether any of the allegations had been
established or not.”

The Court,
therefore, had incorrectly applied the law on ‘cruelty’ which amounted to a
serious distortion of the law.  This
ground is supported by earlier decisions of the Court approvingly cited in Hurra including the seven judge bench decision
in A.R.
Antulay v. R.S. Nayak 
which held
that “[b]ut the superior court can always correct its own error brought to its
notice either by way of petition or ex
debito justitiae.
” I disagree with Singh’s
distinguishing of Antulay, as first, the basis for relief was
the error; secondly, the
majority opinion expressly states that that was not a case of a collateral
attack,[2] and, thirdly, Hurra only
reflects the confusion from Venkatachaliah J.’s dissent which describes the
curative petition, though not called by that name, as ‘collateral,’ in that the
original bench that passed the impugned order was not judging its correctness.[3] The further reliance on Subrata Roy Sahara v.

is wholly misplaced as the Court refrained from granting relief solely per Antulay on the ground that the
petitioner ought to have filed a curative petition which he had not. It further
interpreted Hurra broadly, observing,
“that a curative petition could be filed for corrections of such like [errors
apparent] errors.”

Therefore, the
decision in Koushal suffers from
several errors in law that create serious distortions and on that basis must be

Power to do complete justice
Finally, the
Court in Hurra approvingly cites a series
of judgments on the powers of the Court under Article 142 including Antulay and Supreme Court Bar
Assn. v. UoI 
[4] that plenary
jurisdiction is wide and may be drawn upon “as necessary whenever it is
just and equitable to do so
… to do complete justice.”

therefore, remains open to the Court to rely on this plenary power to interpret
the scope of the phrase ‘gross miscarriage of justice.’ Even so, as cases post Hurra have demonstrated, there is urgent
need for more clarity on the scope of curative petitions and for judges to
clearly state their basis for intervention when such petitions are allowed.
(Rupali Samuel is a researcher at the Delhi High Court)

[1] For example, in holding that Article 15
and 16 constitute a “fundamental right against sex… for the reason of not
being in conformity with stereotypical generalizations of binary genders.” This
was in consonance with the Supreme Court’s decision in Anuj
Garg v. Union of India
where the Court invalidated a restriction against employing
women working in bars and found, on arguments on Article 15, that the
“legislation suffers from incurable fixations of stereotype” and that “the end
result is an invidious discrimination perpetrating sexual differences.” It also
builds on earlier law to identify new propositions, such as, that “gender expression and presentation… is
protected under Article 19(1)(a) of the Constitution.” 
[2] See A R Antulay v. R S Nayak (1988) 2 SCC 602, at  para 40, per Mukharji J.
[3] See Antulay (supra), at para 123, per Venkatachaliah J.
[4] Note: The Supreme
Court in Hurra only distinguished the
decision in Supreme Court Bar Assn. v.
Union on India
on the limited point that it could not be “as authority for the
proposition that a writ of certiorari under Article 32 would lie to
challenge an earlier final judgment of this Court” since “no one joined issue
with regard to the maintainability of the writ petition.”

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