How to File a Curative Petition in the Supreme Court: Rupa Ashok Hurra and Order XLVIII

The question in Rupa Ashok Hurra v. Ashok Hurra was whether a person aggrieved by a final judgment of the Supreme Court, after the dismissal of a review petition, could challenge it by a writ petition under Article 32. The Constitution Bench held that a writ petition does not lie against the Supreme Court's own judgments. It recognised, however, that even a court of last resort can err in ways that cause grave injustice, and held that the Court may, in exercise of its inherent power, reconsider its judgment to prevent abuse of its process and to cure a gross miscarriage of justice.

The remedy was designed to be exceptional. The Court balanced the need for finality, which is essential to the authority of its judgments, against the need for a safety valve in the rare case where a judgment has been rendered in breach of basic principles of fairness.

The Constitution Bench declined to enumerate all the grounds on which a curative petition might succeed, but identified two. The first is a violation of the principles of natural justice: where the petitioner was not a party to the proceedings but the judgment adversely affects his or her interests, or was a party but was not served with notice and the matter proceeded as if notice had been served. The second is where a Judge failed to disclose a connection with the subject matter or the parties that gives rise to an apprehension of bias, and the judgment adversely affects the petitioner.

Beyond these, the Court has been reluctant to expand the grounds. A curative petition is not a vehicle for arguing that the judgment is wrong in law or on the facts; those arguments belong in the appeal and, within narrow limits, in the review.

The conditions laid down in Rupa Ashok Hurra are reflected in Order XLVIII of the Supreme Court Rules, 2013. The petitioner must state specifically that the grounds were taken in the review petition and that it was dismissed by circulation; the petition must carry a Senior Advocate's certificate; and it must be filed within a reasonable time. The circulation to the three senior-most Judges and the Judges who delivered the judgment ensures that the petition is considered by Judges other than those whose decision is questioned, while the power to impose exemplary costs discourages vexatious petitions.

In Brahmaputra Concrete Pipe Industries v. Assam State Electricity Board, the Court considered a curative petition in a case where the review petition had been decided after an open-court hearing rather than by circulation. It held that the Registry was not empowered to decide for itself whether such a curative petition could be entertained, and directed that it be placed before the three senior-most Judges and the Judges who had decided the case.

Successful curative petitions are rare. In Delhi Metro Rail Corporation Ltd. v. Delhi Airport Metro Express (P) Ltd., a three-judge Bench allowed a curative petition and set aside the Court's 2021 judgment that had restored an arbitral award against the Delhi Metro Rail Corporation, holding that the earlier judgment had interfered without justification with a reasoned decision of the High Court and restored an award suffering from patent illegality, resulting in a miscarriage of justice. The Court stressed that the curative jurisdiction should not be used as a matter of course.

By contrast, in Union of India v. Union Carbide Corporation, a Constitution Bench dismissed the Union of India's curative petitions seeking to enhance the compensation under the 1989 settlement of the Bhopal gas leak claims. It held that a settlement could be set aside only if it was vitiated, for instance by fraud, which had not been alleged, and that there was no basis for 'topping up' a consensual settlement decades later.

The two remedies differ at every point. A review petition is filed within thirty days, on the grounds in Order XLVII, with a certificate of the Advocate-on-Record, and is decided by the same Judges who delivered the judgment. A curative petition is filed within a reasonable time after the review is dismissed, only on grounds already taken in the review and falling within Rupa Ashok Hurra, with a certificate of a Senior Advocate, and is considered by the three senior-most Judges together with the Judges who decided the case.

Both are ordinarily decided by circulation, and both are exceptions to finality. But review addresses errors in the judgment, while the curative jurisdiction addresses something more fundamental: a judgment rendered without hearing a person it affects, or in circumstances that compromise the appearance of impartiality, or one that otherwise amounts to a gross miscarriage of justice.

If the Court allows a curative petition, it recalls or sets aside the judgment complained of and makes whatever consequential orders justice requires. It may direct a fresh hearing of the appeal, or, as in the DMRC case, restore the position that existed before the judgment and order the refund of amounts paid under it. Because the reopening of a final judgment affects parties who had relied on it, the Court frames these orders with care to avoid further injustice.

Because a curative petition can rely only on grounds taken in the review petition, the decisive work is often done at the review stage. A party who was not heard, who was not served, or who has learned of circumstances suggesting an undisclosed connection should set those facts out fully in the review petition, with supporting material. The guide to review petitions explains how a review petition is drafted and decided, and the essay on review and curative jurisdiction discusses the case law in more detail.