The Ultimate Recourse: Review and Curative Jurisprudence before the Apex Court

A judgment of the Supreme Court is the last word in a case. Article 141 makes the law it declares binding on every court in India, and there is no appeal from it. The Constitution nonetheless recognises that a court of last resort can err. Article 137 empowers the Supreme Court to review any judgment pronounced or order made by it, subject to any law made by Parliament and to rules made under Article 145. Beyond review, the Court has recognised a further, narrower remedy, the curative petition, which it created in 2002 in exercise of its inherent power.

Both remedies are exceptions to finality and are applied as such. The Court has described its approach in strong terms. In Sow Chandra Kante v. Sheikh Habib, Justice Krishna Iyer wrote: "A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility." Most review petitions are dismissed, and curative petitions succeed only in rare cases.

Order XLVII Rule 1 of the Supreme Court Rules, 2013 states the grounds. In a civil proceeding, review lies only on the grounds in Order XLVII Rule 1 of the Code of Civil Procedure: the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the petitioner's knowledge or could not be produced when the order was made; a mistake or error apparent on the face of the record; or any other sufficient reason, which the courts read as a reason analogous to the first two. In a criminal proceeding, review lies only on the ground of an error apparent on the face of the record.

An error apparent on the face of the record is one that is self-evident, not one that has to be established by a long process of reasoning on a point where two views are reasonably possible. A review is not an appeal in disguise. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, the Court held that a party is not entitled to seek a review merely to obtain a rehearing and a fresh decision, and that departure from the finality of a judgment is justified only by circumstances of a substantial and compelling character. As Sow Chandra Kante v. Sheikh Habib put it, "a mere repetition, through different counsel, of old and over-ruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient."

A change in the law is also not a ground for review. The Explanation to Order XLVII Rule 1 of the Code provides that the reversal or modification of the law on which a judgment was based, by a later decision of a superior court in another case, is not a ground for reviewing it. In Beghar Foundation v. Justice K.S. Puttaswamy (Retd.), the majority of a Constitution Bench applied this principle in dismissing the petitions seeking review of the Aadhaar judgment, even though a related question about Money Bills had since been referred to a larger Bench; one Judge dissented, holding that the petitions should await the larger Bench's decision.

A review petition must be filed within thirty days from the date of the judgment or order and must set out the grounds clearly. It must carry a certificate of the Advocate-on-Record that it is the first application for review and is based on the grounds admissible under the Rules. As the Court said in Sow Chandra Kante v. Sheikh Habib, that certificate should not be a routine affair; it is meant to ensure that only genuine cases are brought.

Unless the Court orders otherwise, a review petition is disposed of by circulation, without oral arguments, though the petitioner may supplement it by written arguments. It is circulated, as far as practicable, to the same Judges who delivered the judgment. The Court may dismiss it or direct notice to the other side. An application for an oral hearing in open court may be filed with the petition, but it is granted only occasionally. Once a review petition has been disposed of, no further review petition is entertained in the same matter.

Review petitions in death sentence cases are treated differently. In Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India, a Constitution Bench held that because a sentence of death is irreversible, review petitions in such cases must be heard orally in open court by a Bench of at least three Judges, with a limited time for oral hearing.

A petition filed after thirty days must be accompanied by an application for condonation of delay. Since an order dismissing a special leave petition at the threshold does not merge the High Court's judgment into the Supreme Court's order, a party may also, in appropriate cases, seek review of the High Court's judgment in the High Court itself, as explained in the essay on civil special leave petitions.

Occasionally, a review petition becomes the occasion for reconsidering a larger question. In Kantaru Rajeevaru v. Indian Young Lawyers Association, a Constitution Bench hearing petitions for review of the Sabarimala judgment did not decide them; by majority, it kept them pending and referred wider questions on the scope of religious freedom under Articles 25 and 26 to a larger Bench. Two Judges dissented, holding that the review petitions should simply have been dismissed. Such cases are exceptional, but they show that the review jurisdiction is exercised with an eye to the institutional consequences of the original decision.

The curative petition was created by a Constitution Bench in Rupa Ashok Hurra v. Ashok Hurra. The question was whether a party aggrieved by a final judgment of the Supreme Court, after the dismissal of a review petition, could seek relief by a writ petition under Article 32. The Court held that it could not, because the Supreme Court's judgments are not open to challenge by writ. It held, however, that the Court may, in exercise of its inherent power, reconsider its own judgment to prevent abuse of its process and to cure a gross miscarriage of justice.

The Court declined to list exhaustively the grounds on which such a petition may succeed, but identified two: where there has been a violation of the principles of natural justice, in that the petitioner was not a party to the proceedings but was adversely affected by the judgment, or was a party but was not served with notice and the matter proceeded as if he had notice; and where a Judge failed to disclose a connection with the subject matter or the parties giving rise to an apprehension of bias, and the judgment adversely affects the petitioner.

The Court attached conditions to the new remedy, which are now reflected in Order XLVIII of the Supreme Court Rules. The petitioner must state specifically that the grounds urged in the curative petition were taken in the review petition and that the review petition was dismissed by circulation. The petition must be accompanied by a certificate of a Senior Advocate that it meets these requirements, and it must be filed within a reasonable time of the order dismissing the review petition.

The curative petition is first circulated to a Bench of the three senior-most Judges and the Judges who delivered the judgment, if available. It is disposed of by circulation unless a majority of those Judges conclude that it needs a hearing, in which case it is listed, as far as possible, before the same Bench. If the Court finds at any stage that the petition is without merit and vexatious, it may impose exemplary costs.

Curative petitions rarely succeed. One notable instance is Delhi Metro Rail Corporation Ltd. v. Delhi Airport Metro Express (P) Ltd., where a three-judge Bench set aside the Court's own 2021 judgment that had restored an arbitral award against the Delhi Metro Rail Corporation. The Court held that the earlier judgment had interfered without justification with a well-reasoned decision of the High Court and had restored an award suffering from patent illegality, resulting in a miscarriage of justice. It returned the parties to the position they were in before the 2021 judgment and directed refund of amounts paid under it, while emphasising that curative jurisdiction is not to be used as a matter of course.

By contrast, in Union of India v. Union Carbide Corporation, a Constitution Bench dismissed curative petitions filed by the Union of India seeking to enhance the compensation payable under the 1989 settlement of the Bhopal gas leak claims. The Court held that a settlement could be set aside only if it was vitiated, for instance by fraud, which the Union had not alleged, and that there was no legal basis for 'topping up' a consensual settlement decades later. It noted the Union's own failure to take out the insurance policies directed earlier and the availability of undisbursed funds for pending claims.

Before filing a review petition, the first question is whether the complaint is truly one of an error apparent on the face of the record or new evidence, or merely disagreement with the view taken. A review petition that re-argues the case is likely to be dismissed by circulation without notice to the other side, and it uses up the only review the Rules allow.

Applications styled as 'clarification' or 'modification' of a final judgment are scrutinised for the same reason: if in substance they seek a review, they are treated as review petitions. Because a curative petition must rest on grounds already taken in the review petition, those grounds, particularly any complaint of a denial of hearing or of bias, should be raised fully in the review petition itself.