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(2002) 4 Supreme Court 388

(Before S.P. Bharucha, C.J. And Syed Shah Mohammed Qudri,

Umesh C. Banerjee, S.N. Variava and Shiveraj V. Patii., JJ)

Writ Petition (C) No. 509 of 1997

Rupa Ashok Hurra                ………………           Petitioner

Versus

Ashok Hurra Na another       …..………….             Respondents

With

WPs (C) Nos. 245 of 1999, 338, 325-26, 663, 680 of 2000, 374 of 2001 and 108 of 1999

Birla Textiles and another    …………….               Petitioners

Versus

Union of India and Others    …………….               Respondents


CURATIVE JURISDICTION IN INDIA

Per Syed Shah Mohammed Quadri, J.

Per Banerjee, J.

Constitution ofPakistan(1973) Articles 187, 188, 189 and 204
r/w Constitution ofIndia(1950) Articles 142, 137, 141 and 129

24.       There is no gainsaying that the Supreme Court is the court of last resort – the final court on questions both of fact and of law including constitutional law.  The law declared by this Court is the law of the land; it is precedent for itself and for all the court/tribunals and authorities inIndia.  In a judgment there will be declaration of law and its application to the facts of the case to render a decision on the dispute between the parties to the lis.  It is necessary to bear in mind that the principles in regard to the highest court departing from its binding precedent are different from the grounds on which a final judgment between the parties, can be reconsidered.  Here, we are mainly concerned with the latter.  However, when reconsideration of a judgment of this Court is sought the finality attached both the law declared as well as to the decision made in the case, is normally brought under challenge.  It is, therefore, relevant to note that so much was the value attached to the precedent of the highest court that in London Street Tramways Co Ltd. v. London County Council the House of Lords laid down that its decisions upon a question of law was conclusive and would bind the House in subsequent cases and that an erroneous decision could be set right only by an Act of Parliament.

40.       The petitioners in these writ petition seek reconsideration of the final judgments of this Court after they have been unsuccessful in review petitions and in that these cases are different from the cases referred to above.  The provision of Order XL Rule 5 of the Supreme Court Rules bars further application for review in the same matter.  The concern of the Court now is whether any relief can be given to the petitioners who challenge the final judgment of this Court, though after disposal of review petitions, complaining of the gross abuse of the process of court and irremedial injustice. In a State likeIndia, governed by rule of law, certainty of law declared and the final decision rendered on merits in a lis between the parties by the highest court in the country is of paramount importance. The principle of finality is insisted upon not on the ground that a judgment given by the Apex Courtis impeccable but on the maxim interest reipublicae ut sit finis litium.

41.       At one time adherence to the principle of stare decisis was so rigidly followed in the courts governed by the English jurisprudence that departing from an earlier, precedent was considered heresy.   With the declaration of the practice statement by the House of Lords, the highest court in England was enabled to depart from a previous decision when it appeared right to do so.  The next step forward by the highest court to do justice was to review its judgment inter parties to correct injustice.  So far as this Court is concerned, we have already pointed out above that it has been conferred the power of review it own judgments under Article 137 of the Constitution. The role of the judiciary to merely interpret and declare the law was the concept of a bygone age.  It is no more open to debate as it is fairly settled that the courts can so mould and lay down the law formulating principles and guidelines as to adapt and adjust to the changing conditions of the society, the ultimate objective being to dispense justice.  In the recent years there is a discernible shift in the approach of the final courts in favour of rendering justice on the facts presented before them, without abrogating but bypassing the principle of finality of the judgment.  In Union of India v. Raghubir Singh Pathak, C.J speaking for the Constitution Bench aptly observed: 9SCC pp. 766-67, para 10).

 “10.  But like all principles evolved by man for the regulation of the social order, the doctrine of binding precedent is circumscribed in its governance by perceptible limitations, limitations arising by reference to the need for readjustment in a changing society, a readjustment of legal norms demanded by a changed social context.  This need for adapting the law to new urges in society brings home the truth of the Holmesian aphorism that “the life of the law has not been logic it has been experience’ (Oliver Wendell Holmes: The Common Law, p.5) and again when he declared in another study (Oliver Wendell Holmes: Common Carriers and the Common Law, (1943) 9 Curr LT 387, 388) that ‘the law is forever adopting new principles from life at one end’, and ‘sloughing off’ old ones at the other.  Explaining the conceptual import of what Holmes had said, Julius Stone elaborated that it is by the introduction of new extra-legal propositions emerging from experience to serve as premises, or by experience-guided choice between competing legal propositions, rather than by the operation of logic upon existing legal propositions, that the growth of law tends to be determined (Julius Stone: Legal Systems & Lawyers Reasoning, pp. 58-59).”

42.       The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment.  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.  Almighty alone is the dispenser of absolute justice – a concept which is not disputed but by few.  We are of the view that though Judges of the highest court do their best, subject of course to the limitation of human fallilbillity, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of.  In such case it would not only be proper but also obligatory both legally and morally to rectify the error.  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 thought 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.

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.

50.       The next step is to specify the requirements to entertain such a curative petition under the inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power.  It is common ground that except when very strong reasons exist, the Court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition.  It 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 in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice, and (2) 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.

52.       The petitioner, in the curative petition, shall aver specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation.  The curative petition shall contain a certification by a Senior Advocate with regard to the fulfillment of the above requirements.

 53.       We are of the view that since the matter relates to re-examination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a Bench of the three senior most Judge and the Judges who passed the judgment complained of, if available.  It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders.  It shall be open to the Bench at any stage of consideration of the curative petition to ask a Senior Counsel to assist it as amicus curiae.  In the event of the Bench holding at any stage that the petition is without any merit and vexatious, it may impose exemplary  costs on the petitioner.

 64.       Adverting to the true purport of the maxim, therefore, it is not gainsaid that the same relates to and arises from the concept of justice: in the event there appears to be infraction of the concept, question of there being a turnaround and thereby maintaining a total silence by the law courts would not arise.  It is on this score, the learned Attorney-General forIndia, appearing as amicus curiae, contended that the Supreme Court has the jurisdiction to exercise this inherent power for the ends of justice or to prevent abuse of the process of the court.  Though we are not inclined to ascribe and order of this Court as an abuse of the process of the court, but the factum of the availability of inherent power for the ends of justice cannot in any way be decried.  The Constitution of India assigned a pivotal role on to the Supreme Court providing therein the supremacy of law with the rationale being justice is above all.  The exercise of inherent power of this Court also stands recognized by Order XLVII Rule 6 of the Supreme Court Rules, 1966, which reads as below :

“6.  Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court”.

 68.       Incidentally, this Court stands out to be an avenue for redressal of grievance not only in its revisional jurisdiction as conferred by the Constitution but as a platform and forum for every grievance in the country and it is in his context Mr. Shanti Bhushan, appearing in support of some of the petitioners, submitted that the Supreme Court in its journey for over 50 years has been able to obtain the confidence of the people of the country, whenever the same is required —- be it the atrocities of the police or a public grievance pertaining to a governmental action involving multitudes of problems. It is the Supreme Court,  Mr. Shanti Bhushan contended, where the people feel confident that justice is above all and would be able to obtain justice in its true form and sphere and this is beyond all controversies. It has been contended that finality of the proceeding after an order of the Supreme Court, there should be, but that does not preclude or is said to preclude this Court form going into the factum of the petition for gross injustice caused by an order of the Supreme Court itself under the inherent power being an authority to correct its errors  —– any other view should not and ought not to be allowed to be continued. Needless to record here, however, that review jurisdiction stand foisted upon this Court in terms of the provisions of the Constitution, as noticed hereinbefore and it is also well settled that a second review petition cannot be said to be maintainable. Reference may be made in this context to a decision of this Court in the case of J. Ranga Swamy v. Govt. of A.P. wherein this Court in paragraph 3 stated as below: (SCC p. 290)

 “3. We are clearly of the opinion that these applications are not maintainable. The petitioner, who appeared in person, referred to the judgment in Antulay case. We are, however, of the opinion that the principle of that case is not applicable here. All the points which the petitioner urged regarding the constitutionality of the government orders in question as well as the appointment of respondent instead of petitioner to the post in question had been urged before the Bench, which heard the civil appeal and writ petitions originally. The petitioner himself stated that he was heard by the Bench at some length. It is, therefore, clear that the matters were disposed of after a consideration of all the points urged by the petitioner and the mere fact that the order does not discuss the contentions or give reasons cannot entitle the petitioner to have what is, virtually, a second review.”

 69.       True, due regard shall have to be had as regards opinion of the Court in Ranga Swamy but eh situation presently centres around that in the event of there being any manifest injustice would the doctrine of ex debito justitiae be said to be having a role to play in sheer passivity or to rise above the ordinary heights as it preaches that justice is above all. The second alternative seems to be in consonance with time and the present phase of socio-economic conditions of the society. Manifest injustice is curable in nature rather than incurable and this Court would lose its sancity and thus would belie the expectations of the founding fathers that justice is above all. There is no manner of doubt that procedural law/procedural justice cannot overreach the concept of justice and in the event an order stand out to create manifest injustice,  would the same be allowed to remain in silentio so as to affect the parties perpetually or the concept of justice ought to activate the Court to find a way out to resolve the erroneous approach to the problem? Mr. Attorney-General, with all the emphasis in his command, though principally agreed that justice of the situation needs to be looked into and relief be granted is so required but in the same breath submitted that the Court ought to be careful enough to tread on the path, otherwise the same will open up a Pandora’s box and thus, it at all, in rarest fo the rare cases, further scrutiny may be made. While it is true that law courts have overburdened themselves with the litigation and delay in disposal of matters in the subcontinent is not unknown and in the event of any further appraisal of the matter by this Court, it would brook no further delay resulting in consequences which are not far to see but that would by itself not in may view deter this Court from further appraisal of the matter in the event the same, however, deserves such an additional appraisal — the note of caution sounded by Mr. Attorney-General as regards opening up of a Pandora’s box, strictly speaking, however, though may be very practical in nature but the same apparently does not seem to go well with the concept of justice as adumbrated in our Constitution. True it is, that practicability of the situation needs a serious consideration more so when this Court could no without it for more than 50 years, which by no stretch of imagination can be said to be a period not so short. I feel it necessary, however, to add that it is not that we are not concerned with the consequences of reopening of the issue but the redeeming feature of our justice delivery system, as is prevalent in the country, is adherence to proper and effective administration of justice in stricto. In the event there is any affectation of such an administration of justice either by way of infraction of natural justice or an order being passed wholly without jurisdiction or affection of public confidence as regards the doctrine of integrity in the justice delivery system, technicality ought not to outweigh the course of justice —- the same being the true effect of the doctrine of ex debito justitiae. The oft-quoted statement of law of Lord Hewart, C.J. in R. v. Sussex Justices; ex p McCarthy that it is of fundamental importance that justice should not only be done, should manifestly and undoubtedly be seen to be done, had this doctrine underlined and administrated therein. In this context, the decision of the House of Lords in R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 2) seems to be an epoch-making decision, wherein public confidence in the judiciary is said to be the basic criterion of the justice delivery system —- any act or action even if it is a passive one, if erodes or is even likely to erode the ethics of judiciary, the matter needs a further look.

 70.       Brother Quadri has taken very great pains to formulate the steps to be taken and the methodology therefore, in the event of there being an infraction of the concept of justice, as such further dilation would be an unnecessary exercise which I wish to avoid since I have already recorded my concurrence therewith excepting, however, lastly that curative petitions ought to be treated as a rarity rather than regular and the appreciation of the Court shall have to be upon proper circumspection having regard to the three basic features of our justice delivery system, to writ, the order being in contravention of the doctrine of natural justice or without jurisdiction or in the event of there being even a likelihood of public confidence being shaken by reason of the association or closeness of a Judge with the subject-matter in dispute. In my view, it is now time that procedural justice system should give way to the conceptual justice system and efforts of the law courts ought to be so directed. Gone are the days when implementation of the draconian system of law or interpretation thereof were insisted upon —- flexibility of the law courts presently are its greatest virtue and as such justice-oriented approach is the need of he day to strive and forge ahead in the 21st Century. No costs.

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