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History of Curative Petition and Its Scope In India and in Reference To Nirbhaya Case and Ayodhya Case

This article is written by Amiya Ranjan Das, an practicing Advocate at Delhi. This article deals with all the aspects of the curative petition, consisting of its history in India.

History of Curative Petition and Its Scope In India and in Reference To Nirbhaya Case and Ayodhya Case.


The Constitution of India ensures JUSTICE, SOCIAL, ECONOMICAL and POLITICAL to all its citizens. To ensure justice, equity and good conscience, the Constitution has established a three tier judicial system with the Supreme court at the apex and confess various jurisdictions, original, appellate and advisory.

The Apex court has always contributed in innovating and developing the Constitutional jurisprudence. As a result, the order of the Supreme court is amenable for rectification if it results in a miscarriage of justice. In lieu of this, a process has been conceived by the Apex court – termed as CURATIVE PETITION under which an aggrieved person may request the Supreme Court to reconsider its judgement by showing gross miscarriage of justice and violation of principles of natural justice, even after the final verdict of Supreme Court and dismissal of Review Petition. Curative Petition is the last constitutional remedy available to a person whose Review Petition has been dismissed by the Supreme Court.

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A curative petition is supported by Article 137 of the Constitution. The Constitution of India expressly lays down various jurisdiction of the Apex court, and also provides the power to the Supreme court to review its own judgement under Article 137. As the Supreme court is the last appellate court, the only remedy available to the party aggrieved from order A is the apex court was to file a Review Petition under Article 137, which was the last constitutional remedy available. Any such petition needs to be filed within 30 days from the day of the passing of the judgment.

The concept of CURATIVE PETITION finds its origin in the case of Rupa Ashok Hurra vs. Ashok Hurra. The circumstances leading to the origin commence from the case of A.R. Antalya. In A.R. Antalya vs. R.S. Nayak, the appellant sought to challenge the order of the Supreme Court via writ petition under Article 32, which was dismissed by a two Judge Bench of the Supreme Court where it was held that the decision of the Supreme Court could not be challenged through writ under Article 32.

However, the fact scenario in Rupa Ashok Hurra case was completely different to the one in A.R. Antalya. In Rupa Ashok Hurra a writ petition under Article 32 had been filed before the three Judge Bench and dismissed since the court in an earlier judgement A.R. Antulay had held that a final Supreme Court judgement can not be assailed via writ petition under Article 32. However, the three Judge Bench referred these writ petitions to a Constitutional Bench seeking its opinion as to whether an aggrieved person is entitled to any relief against a final judgement/order of the Supreme Court, after dismissal of a Review Petition, either under Article 32 of the Constitution or otherwise. The Constitutional also went ahead to take the same view that a writ petition under Article 32 cannot assail a final Supreme Court judgement. Unlike in A.R. Antulay, in Rupa Ashok Hurra, there was no appropriate procedure that petitioners could have adopted to come before Supreme Court in case the court decided to dismiss their writ petitions. This is what prompted the court in Rupa Ashok Hurra to propound the modalities of a Curative Petition.

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In the Apex Court, there lies no appeal against an order of its own which means that there is no intra court appeal in the Supreme Court. It is also a well-settled principle that an act of the court shall prejudice no one; the same is based on the Latin Maxim “actus curiae neminemgravabit”. Considering that it would be an extremely strong discretionary power which could only be exercised in rare cases.

It may be noted that while introducing such a concept, it was mentioned that the basis of such petitions can only be limited to the question of law and law only, no question of facts and numbers would be entertained under such a petition.


As per the dictum laid down in Hurra vs. Hurra, A petitioner is entitled to relief under Curative Petition, if he/she establishes:

1. Violation of principles of natural justice where he/she was not party to the lis but the judgement adversely affected his/her interests.

2. He/She was not a party to the lis, but he/she was not served with notice of proceedings and the matter proceeded as if he/she has the choice.

3. Where in the proceedings a Learned Judge failed to disclose his connection with the subject matter.

4. The parties giving scope for an apprehension of bias and the judgement adversely affects the petitioner.

( However, these grounds are not exhaustive. )

In the Curative Petition thus filed, the petitioner shall assert the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. The Curative Petition should also contain a certification by a senior advocate with regard to the fulfilment of the above requirements. The Supreme Court exercises its authority of Curative Petition through Article 142 of Constitution.

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The procedural aspects laid down in the Handbook on Practice and Procedure and Office Procedure of The Supreme Court of India. The following points under the handbook, explain in detail the procedure and requisites that shall be fulfilled for filing a Curative Petition.
The Supreme Court shall have Inherent and Plenary Jurisdiction to hear such petitions. It is made clear under Chapter 2 of the Handbook.

Order XLVIII of the Supreme Court Rules states when can a Curative Petition be filed which is after the dismissal of a case in exercise of review jurisdiction under Article 137 of the Constitution, by way of circulation, a curative petition can be filed under the inherent jurisdiction of the Court to prevent abuse of its process and cure gross miscarriage of justice, as per the law laid down in the case of Rupa Ashok Hurra vs. Ashok Hurra and Anr. It can be either a civil petition or a criminal petition.

The handbook further adds on that such a petition which is filed under Order XLVIII of the rules shall be circulated to and heard by a bench of three senior most judges as well as the judges who passed the judgment in question. Unless otherwise ordered by the court, such a petition shall be disposed of by circulation without any oral arguments. But in case the Bench before which such a curative petition is circulated deems just and proper, it may list the same for hearing before the same Bench, as far as possible.
The affidavit which may accompany the curative petition shall clearly mention that the petition is governed by the judgment of the Court as given in the case of Rupa Ashok Hurra Vs. Ashok Hurra.

Chapter X of the Handbook enlists how various petitions that are to be submitted before the Apex Court are to be prepared. It shall be made following the below-listed grounds:

1- It shall be governed by the laws laid down under landmark judgment given in the matter of Rupa Ashok Hurra Vs. Ashok Hurra.

2- It shall contain specifically that no new grounds have been taken and the grounds mentioned in the petition had been taken in the application for review, which was dismissed by circulation.

It shall always be accompanied with the following:

A certificate of the senior advocate that the petition meets the requirements delineated in the case mentioned.

A certified or authenticated copy of the judgment or order complained.

A certificate of the advocate-on-record to the effect that it is the first curative petition in the impugned matter.

The handbook also states clearly that there is no limit within which a curative petition must be filed, it also specifically mentions that it shall not be governed by the provisions of The Limitations Act, 1963. However, it does mention that the same must be filed within a reasonable time from the date of the impugned judgment.

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The tactful exhaustion of all the available remedies by the accused in the Nirbhaya Case has caused much criticism for delaying the hanging of the accused. The timeline of events in this case are as follows:

In Harbans Singh v State of UP & Others case, the Apex Court prompted by the discovery of gross injustice having been done to a convict, which expressly prohibits separate execution of convicts of a joint crime. In the above mentioned case, one had got his punishment reduced to life term, another got a stay on his execution, and a third swung unaware of all these fluctuations of fortune faced by his fellow-convicts. To prevent such injustice happening again, the Supreme Court laid it down that all the death-sentenced convicts in a case will have to be executed together.

A- The Supreme Court passed its verdict awarding death sentence to all the four convicts of the case on May 5, 2017.

B- Their Review Petitions were dismissed on July 9, 2018.

Since then, the accused have been filling Curative Petitions not together but one-by-one so as to delay the justice. After the rejection of their Curative Petitions, they filed Mercy Petition under Article 72 on the same pattern and after the rejection of the same by the President, they have filed further Curative Petitions challenging the rejection of Mercy Petition which has resulted in delaying of their hanging on two occasions.

Now the convicts filing mercy and curative petitions separately and continually, and the President and the Judges having to decide on each one separately, here a question has arise: Can't each one be hanged as and when he has exhausted all remedies? Why wait till all the accused have?


In November 2019, the long awaited Ayodhya – Babri Masjid dispute pending before the Apex Court was finally resolved, with the judgement being pronounced that the disputed land (2.77 acres) to be handed over to a trust (to be created by Government of India) to build the Ram Janmabhoomi (revered as the birthplace of Hindu deity, Ram) temple. The court also ordered the government to give an alternate 5 acres of land in another place to the Sunni Waqf Board for the purpose of building a mosque.

Following the pronouncement of judgement, many Review Petitions were filed in the Supreme Court and they were all dismissed. After the dismissal of Review Petition, the Curative Petition was filed before the Apex Court against the erstwhile judgement. The Ayodhya case is one of the longest running case of India. The Curative Petition has the effect of stretching the already stretched out case.

The Curative Petition which is filed before the Apex Court, The Petitioner has resorted to the legal maxim Ex dolomalo non orituractio, meaning 'no right of action can have its origin in fraud' to state that,"No right (possession, ownership, prayer) can be claimed if it was founded on an illegality in which the claimant was or was not complicit."


The decision of the Supreme Court of India in Rupa Ashok Hurra vs. Ashok Hurra was in more ways than one, a path breaking decision. For one, it got rid of the practice of litigants assailing the Supreme Courts final decisions via Article 32. In the same vein, however, it added a new dimension to its exercise of inherent power i.e. be propounding of modalities of Curative Petition.Though there is a narrow line difference between a Curative Petition and Review Petition, the Apex court has laid down distinct ground for filling both these petitions and this makes it evident that both the petitions are different totally.

Thus it can be said that the idea of Curative Petition is a constitutional remedy which is the last resort that was originated to rectify the decision of Supreme Court by themselves as a legal and moral obligation in deciding rarest of rare cases. Also there is a need to fix the legislation and judiciary to devote more into jurisprudence of Curative Petition and to evolve proper rules and regulations for the same.

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