The Supreme Court’s Uncertain Jurisdiction in the s.377 Curative Petition: A Response to Rupali Samuel

(Guest post by Alok Prasanna)

Since there is no dispute on the correctness of the judgments, the wrongness of Koushal or the facts cited, where Rupali and I fundamentally disagree I guess is on the interpretation that can be placed on the effect of the judgments of the Supreme Court in Rupa Hurra, Navneet Kaur and National Commission for Women. I have taken a narrow view of the effect of these judgments and Rupali, a broader view, in the context of the scope of the curative jurisdiction of the Supreme Court of India. In this response, I will only try to justify why I took the narrow view of the above judgments.

In my view, paragraphs 49 and 51 of the Hurra case are not to be read as created two distinct sets of grounds for challenge in curative. This is clear from the connecting paragraph reproduced below:

“50. The next step is to specify the requirements to entertain such a curative petition under the inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exist, 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. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained.”

In my reading therefore, para 51 Hurra is an enumeration of the bases for which curative power is to be exercised. It is not exhaustive certainly but certainly not, in my view, two out of several possible grounds. Whatever other grounds exist, I would think they would have to be somewhat akin to the grounds mentioned in para 51. If not, it would mean that certainty and finality of Supreme Court judgments has been done away with as a concept. More so because if the curative jurisdiction is rendered broad, a curative petition becomes a tool for forum shopping within the Supreme Court which was definitely not the intent behind creating it.  
In my view, Navneet Kaur and National Commission for Women did not lay down any principles on the basis of which they may constitute binding precedent of any form for the Court to follow in Naz. They are very sketchy judgments that may, at best, be invocations of Article 142 of the Constitution in a given case. As is well established, judgments delivered in exercise of powers under Article 142 are not precedent and are generally not relied upon as having laid down principles as has been confirmed recently in State of Punjab v Rafiq Masih. If the Supreme Court does exercise its power under Article 142 in the Koushal case (I don’t dispute that it can), it will not be because of precedent established in Navneet Kaur and National Commission for Women, but on completely different grounds specific to the Koushal case. 

I maintain therefore that if the Court were to set aside the Koushal judgment in curative, it will not be based on any principle laid down in precedent.

(Alok Prasanna is a Senior Resident Fellow at the Vidhi Centre for Legal Policy)

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