India the largest democracy of the world, is a secular, democratic and republic nation which hold its people most important and thus to enjoy its character to the fullest it guarantees certain fundamental rights to its citizens as well as certain rights to non-citizens. But the declaration of these rights will be meaningless unless there is an effective machinery for the enforcement of these rights, as it is remedy which makes right real. It is therefore that our constitution maker along with a long list of fundamental rights they have also provided for an effective remedy for the enforcement of these rights under Art. 32 and Art. 226 of the Constitution of India. But to prevent the misuse of the process the Supreme Court has imposed a significant restriction on the invocation the remedy by applying the doctrine of res judicata.
However, to prevent the misuse of the process the court laid down certain specific conditions for the court to entertain such a curative petition under its inherent power to prevent floodgates of unnecessary petitions seeking their second review. The requirements are the following:-
1. Court reaffirms that litigants are prohibited from challenging final decisions.
2. But in cases of miscarriage of justice it would be its legal and moral obligation to rectify the error.
3. The petitioner will have to show that there was a genuine violation of principles of natural justice and fear of the bias of the judge and that the judgement passed has adversely affected him.
4. The curative petition must accompany certification by a senior lawyer relating to the fulfilment of the requirement.
5. The petition is to be sent to the three judges of the bench who passed the judgement affecting the petition.
6. If by the majority this bench concludes that the matter need to be heard before the same bench which may pass appropriate order it should be listed.
7. They could also impose “exemplary costs” of the petitioner if his pleas lacked merit.
Criticism on Curative Petition
The process was criticized on the three points;
1. First, the framers of the constitution have given the Supreme Court power to hear and do justice at two levels:
(i) Under article 32 where it entertains petition and after extensive arguments and detailed examination delivers the final judgement, and
(ii) Under article 137 where it has power to review its decision if anything remains left to cure the defect and do justice.
In spite of this as the bench has said the judges as human beings are likely to do mistake and to hear a second review and for the sake of justice prefer justice over certainty of judgement. But what is the guarantee that the petitioner would be satisfied that he got and the judges also anticipated that, in spite of human failing they are able to do complete justice.
2. Secondly, this judgement would not benefit the common litigant as the majority of them are satisfied with the final decision of the Court under article 32 and even they do not file a review petition. It would help only the persons who are rich enough to pay senior lawyer’s fee for his certificate for filing the curative petition.
3. Thirdly, the court has imposed certain conditions to prevent its abuse similar to the condition imposed by Justice Bhagwati to prevent the misuse of Public Interest Litigation. In spite of this, the process was abused by irresponsible litigants. Therefore there is no surety that the process will not be abused the litigants.
Curative Petition as a process is outside the purview of the Constitution and was solely framed by Supreme Court out of its will. The process although is unconstitutional but for the purpose it was framed is constitutional. Even the judges of the Apex Court are human and out of the human conduct there are chances that they make mistake in deciding certain case. Every coin has two phases, good and bad, and we should not ignore the good over the bad, and therefore, although there are many points to criticize the process we should not ignore the positivity attached to it. It may waste the precious time of the Court but the thing that it can prevent the gross miscarriage of justice should also not be ignored.