Sounding the gavel on curative jurisdiction

Sounding the gavel on curative jurisdiction

Subject: Polity

Sec: Judiciary

Context:

• SC’s recent ruling in the DMRC-DAMEPL case may undermine India’s image regarding dispute resolution.

The Delhi Metro Rail judgment:

• This was a decision of a three-judge Bench of the Court in a curative petition in Delhi Metro Rail Corporation Ltd. (“DMRC”) vs Delhi Airport Metro Express Pvt Ltd (“DAMEPL”)
• DAMEPL succeeded before an Arbitral Tribunal in a high value claim.
• The challenge to the award moved to the Supreme Court which upheld the award after setting out the limited scope to challenge an award under Indian law.

What is Curative Jurisdiction:

• ‘Curative Petition’ is a term coined by the Supreme Court in 2002 by its judgment in the case of Rupa Ashok Hurra v. Ashok Hurra.
• Curative Jurisdiction allows the Court to correct its judgments even after they have become final.
• This is distinct from the power of review under Indian law, which enables all courts to rectify errors which are apparent from their records.
• The Supreme Court held that to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers.
• It is guaranteed under Article 137 of Constitution of India, which gives the power to the Supreme Court to review its own judgements and orders.
•  It says that, subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have the power to review any judgment pronounced or order made by it.

Process of Curative Jurisdiction:

• The court has devised what has been termed as a curative petition in which the petitioner is required to aver specifically that the grounds mentioned therein had been taken in the review petition filed earlier and that it was dismissed by circulation, which must be certified by a senior advocate.
• The curative petition is then circulated to the three most senior judges and to the judges who delivered the impugned judgment if available.
• No time limit is given for filing curative petition

Requirements for Curative Petition:

• To entertain a curative petition, the Supreme Court has laid down specific conditions:
  • The petitioner must establish that there was a genuine violation of principles of natural justice and fear of the bias of the judge and judgment that adversely affected him.
  • The petition must state specifically that the grounds mentioned had been taken in the review petition and that it was dismissed by circulation.
  • The curative petition must accompany certification by a senior lawyer relating to the fulfillment of the above requirements.
  • The petition is to be sent to the three senior most judges and judges of the bench who passed the judgment affecting the petition, if available.
  • If the majority of the judges on the above bench agree that the matter needs hearing, it is sent to the same bench if possible.
  • The court may impose “exemplary costs” to the petitioner if his plea lacks merit.

How is Curative Jurisdiction different from power of review?

• Curative Jurisdiction is distinct from the power of review under Indian law, which enables all courts to rectify errors which are apparent from their records.
• Examples of changes in the Court’s views include the right of privacy, decriminalization of homosexuality and so on.
• Curative Jurisdiction is different as it is not merely the Court changing its view on a position of law but is a reversal of the Court’s own view in a specific case, above and beyond even the power of review.