Tuesday, February 09, 2016

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

(Guest post by Rupali Samuel)


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:
“42. 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 alone:
“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”
The 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 Chauhan 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. UoI 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 re-examined. 

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.”

It, 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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