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
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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