The Indian judiciary has seen many instances and it has travelled a long way from ‘Balaji Rule’ to ‘Mandal Commission’s case’, from ‘Golaknath’s case’ to the case of ‘Minerva mills even from ‘ doctrine of basic structure’ to ‘procedure established by law’ and today our judiciary acts as guardian of the constitution rather than being an adjudicating body. As we know the three bodies of government and their functions are also different, judiciary being the third organ endeavors to bring both other two on track. The doctrine of separation of power was evolved in order to remove any kind of difficulty which may arise out of the arbitrary action of government and to ensure that power must be separated and should vest in one body.
Even during the drafting of the Constitution, independence of the judiciary was one of the main aims of the drafters. Many legal provisions were made in order to provide security to promote independence of the judiciary. Judicial independence is the integral part of the India Constitution and this has been used by the Supreme Court perfectly. The Curative petition is one of the creations of the Supreme Court and is the result of a power vest with the judiciary.
Curative petition is the new addition in the field of law by the Hon’ble Supreme Court and it is being used in various landmark cases, even used by the convicts of Nirbhaya case. A curative petition is the last resort to the highest court that can be petitioned for redressal of grievances in court after review petition is dismissed and its ruling is final. It is the last chance of the unheard person to be heard. In simple words, it is the final and last option for the people to acquire justice as mentioned and promised by the Constitution of India.
It is a way to ask the court to review and revise their own decision and it is filed after a review petition is dismissed or used. It is meant to ensure so that there will be no miscarriage of justice and to prevent abuse of judicial powers. A curative petition is decided in the judge’s chamber, unless an open hearing request has been made.
The judiciary has always contributed in innovating and developing the constitutional jurisprudence. As a result, the order of Supreme Court is amendable if it results in miscarriage of justice. In lieu of this a process has been made by the apex court termed as Curative Petition under which the person may request the Supreme Court to reconsider the judgement by showing the miscarriage of justice and violence of principle of natural justice, even after the final verdict has been passed by the Supreme Court and dismissal of review petition by it. The origin of the concept of curative petition was firstly coined by the Supreme Court of India in ‘Rupa Hurra’s case’. The Supreme Court itself evolved the concept through judicial pronouncementand the court reconsidered its judgement after referring to it by a three- judge bench.
The Constitution provides a proper mechanism for filling the case under the jurisdiction of the Supreme Court and High Courts. The powers and functions of both the courts has been provided under the Constitution. The appellate and writ jurisdiction is conferred upon the Supreme Court while the discretionary jurisdiction is provided to grant special leave petition to appeal from any judgement. There are wide discretionary powers provided by the Supreme Court.
On the basis of these powers provided under the constitution there was a time in the country when it became the tendency of the people to challenge the judgement of the Supreme Court under article 32. The practice become deleterious for the apex court itself because no remedy was provided to those affected people so that they can challenge the decision even after dismissal of their review petition, due to which most of cases came before Supreme Court demanding writ of certiorari against its own verdict. The writ of certiorari was issued to bring the decisions of an inferior court, tribunal or public authority before the High Court for review. Similarly, the Supreme Court also used to review the judgements and the same rider applies to it. Though the orders of the High Courts were corrected through the appellate jurisdiction of the Supreme Court, there was no inferior court established in our constitutional scheme above it.
Even the review petition was rejected under Article 32 as it can be invoked only for the purpose of enforcing the fundamental rights as guaranteed under Part III of the Indian Constitution, and if the Supreme court allows the petition the scope of Article 32 will be violated and it would also conclude that judiciary is a state under Article 12 of the Constitution. So, this led to the creation of Curative Petition. 
In Rupa Hurra’s case, a constitutional bench of five judges has stated without any exception that in order to correct the gross miscarriage of justice in its final judgement, the court should allow the Curative petition of the victims of injustice who are entitled to relief and seek the second review of the final order of the court. In this case, writ petitions were filed under Article 32 before the three-judge bench and they were dismissed by the Supreme Court in the light of earlier judgement, wherein the final judgement of the Supreme Court was not reviewed through a writ petition filed under Article 32 in ‘A.R. Antulay’s case’.
But the circumstances are different in this case than the precedent set by the ‘A.R. ‘Antulay’s case’ as in the former, the petitioner was left with no other option but to file a review petition for the second time under Article 32 but in the latter case, the constitutional bench was with the view that though judges of highest court do best to render the justice to parties still situations may arise, in rarest of rare case, which would require re – consideration of a final judgement to set aside the miscarriage of justice.
It was observed that it would be the legal and moral obligation of the highest court in the country to correct an error in such a decision which would remain uncertain. The court’s concern for re-affirming the justice in a cause was not less important than the ‘principle of certainty’ in its own decisions because there would be violation of principles of natural justice. The Supreme Court on observation of the case and issues has formulated such a remedy which can maintain a balance between the finality clause of the judgement and avoiding any chance of miscarriage of justice.
This remedy has come to be known as Curative Petition.
The main development of Curative petition can been seen in many cases, but the first case in which it was used by the Supreme Court was Rupa Hurra’s case. Many litigants across the country after evolution in 2002 have filed a number of curative petitions, but only few have succeeded. Till 2012 after the evolution of this remedy only two curative petitions have been able to make out a case within the parameters of the Supreme Court which they have laid down after ‘Rupa Hurra’s case’. The intention of the Supreme Court was that the curative petition will be filed only in exceptional cases, but, in its application it is completely opposite.
In the Bhopal Gas Tragedy case, CBI filed a curative petition in 2011 after 15 years of rejection of the review petition. The petition did not fulfil the requirements made by the Supreme Court and was rejected on those grounds. The court stated that the pre-requisite condition for accepting a curative petition is only that, there should be violation of principles of natural justice even due to the earlier judgement there should be a miscarriage of justice has occurred.
The Supreme Court also rejected the Curative petition of BJP leader Subramaniam Swamy who was seeking the CBI probe on P. Chidambaram’s role in the 2G scam. Again, the Supreme Court has denied re-examining its earlier verdict relating to Indo- -Mauritius Tax Treaty through curative petition. The curative petition which was filed in the 2G-scam case, and such petition was without any merit. To the relief of the public at large, this curative petition was also rejected by the Supreme Court.
Even in the recent landmark case the convicts of Nirbhaya filed the curative petition and it is the last recourse available to them. The petition was placed on the ground that young age and the socio-economic background should be considered as mitigating factors. Even the petitioner challenged the reasoning given by the Supreme Court, pointing out reports and studies by law universities and national crime records bureau which states that the death sentence won’t have any deterrent effect on the society, which is the reason on which the sentencing by Supreme Court was based.
Thus, it is clear to be understood from the above cases how curative petitions possess and what mechanism it follows. If there is no remedy of curative petition available people would have no clear justice and they will be stopped at the stage of review petition only. This is how it is being used and developed by the Supreme Court.
Procedure and Difference of Curative Petition
Curative Petition is not different from Review Petition, it is also known as ‘second’ review petition. There is no substantive difference between both, there is only court included difference between them. As we have discussed above after the dismissal of review petition the Curative petition may be filed if it fulfills the requirement stated by the Supreme Court for its applicability. The analysis between both the petitions is restricted to their constitutional provisions in filling them.
Curative petition is filled before the Supreme Court in order to prevent the abuse of power of court and to prevent any miscarriage of justice. It is filed under article 137 of the Constitution if following grounds laid down by the Supreme Court are being followed-
- Where there is violation of principles of natural justice and in that, the aggrieved party filing a curative petition was not a party to the action but the judgment adversely affected his interest, or if he was a party to the action, but was not served with notice of the proceedings and the matter proceeded as if he had notice.
- Where in the proceedings a learned judge failed to disclose his connection with the subject matter or the parties, giving scope for an apprehension of bias and the judgment adversely affects the petitioner.
For Curative Petition the petitioner must have the grounds mentioned above and had been taken review petition and that the same be dismissed by circulation. In addition Curative petitions need to include the certificate which is indicating that the same grounds had been taken from the review petition. Further petition is to be required to be circulated to three senior most judges.
On other hand, a review petition is filed under Article 137 of the Indian Constitution and the rules made under Article 145, the Supreme Court of India has the power to review its judgement. It is the special power which is exercisable in accordance as per the Supreme Court rules, 1966 such a petition is to be filed within thirty days of the pronouncement of judgement or order and that petition should be circulated without oral arguments to the same bench that delivered the judgement. These rules provide both Civil and Criminal grounds for filing a review petition. The manner in which Supreme Court take cognizance is almost similar.
Grounds for filling the review petition are more flexible as compared to narrower grounds used for Curative petition. Thus there is no such substantive difference between them, but as the Supreme Court is reconsidering its earlier judgement, it amounts to review and later on curative. Both the petitions are different from each other in terms of their modalities.
Roscoe Pound stated that flexibility is the greatest virtue of law and thus its applicability should also be flexible rather than a rigid insistence on a strict format. This article has made a true picture of Curative Petition in Terms of its legality and its need. Even it has evaluated the concept of curative petition, keeping in mind the present and future scenario. The Supreme Court should adhere to the Constitutional framework while using such mechanisms. The law must follow the society rather than abandon the society and carry on it strict track without any deviation or without being hindered of the social changes and thus resultantly face a social catastrophe
The Supreme Court in a plethora of cases clearly stated that it would be a legal and moral obligation on the apex court to change its own decision which has passed already. As we all know that judges are also humans and they may make any errors at some level. The decisions of the lower court can be changed by the higher court, but the decision of the apex court could not go against its own order to make changes.
So, keeping this view in our mind judges of Supreme Court are also human and the error is natural and may be committed by any human, in such cases curative petition may be used but it must be applicable only when the requirement stated in the Supreme Court rules, 1966 is followed.
 Balaji v. The State of Mysore, AIR 1963 SC 649
 Indra Sawhney v. Union of India, AIR 1993 SC 477
 L. C. Golaknath v. State of Punjab, AIR 1967 SC 1643
 Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789
 Kesavananda Bharati v. State of Kerala, AIR 1973 SC, 146
 Maneka Gandhi v. Union of India, AIR 1978 SC 597
 Rupa Ashok Hurra v. Ashok Hurra and Anr., AIR 1999 SC 2870.
 The Indian Constitution,
 Abhe Singh Yadav, Law of Writs-Jurisdiction and its Efficacy 14
 Bhim Singh Yadav at p. 1776.
 A.R. Antulay v. R.S. Nayak, (1988) 4 SCC 409
 AR. Antulay v. R.S. Nayak, (1988) 4 SCC 409 [hereinafter referred as ‘A.R. Antulay’s case’], where it has been observed that when the rule making power of judiciary is concerned it is State, however, when exercise of judicial power is concerned it is not State.
 Rupa Hurra’s case
 For review petitions, circulation is to the judges who passed the impugned judgment whereas in case of curative petitions, circulation is made to the three senior most judges of the Supreme Court and the judges who had passed the impugned judgment- if available
 Central Bureau of Investigation and Ors. v. Keshub Mahindra, 1996 (6) SCC 129.
 Sistema Shyam Teleservices Ltd. (SSTL) on May 4, 2012 filed a curative petition in the Supreme Court seeking re-examination of the order cancelling its 21 2G licences and spectrum that were allocated by former Telecom Minister A. Raja. This move from the company follows the Supreme Court dismissing the review petition challenging the February 2 verdict. Nevertheless, the Supreme Court has rejected the curative petition as well.
 Pawan Kumar Gupta v. State (NCT of Delhi), 2020 SCC Online SC 340, 20-03-2020
 Rupa Hurra’s case
 The Indian Constitution., Article 145 (1950).
- Abhe Singh Yadav Law of writs and its efficacy