Judges: S.P. Bharucha, C.J., S.S.M. Quadri, U.C. Banerjee, S.N. Variava and Shivaraj V. Patil, JJ.

Facts:

The present petition was filed for seeking re-consideration of the order passed by Apex Court in review petitions filed either under Article 32 of the Constitution or otherwise. The maintainability of present petition challenged on ground that no relief against a final judgment/order of this Court can be granted to the aggrieved person, after the dismissal of the review petition.

Issues:

(i) Whether an aggrieved person is entitled to any relief against a final judgment/order of this Court, after dismissal of the review petition, either under Article 32 of the Constitution or otherwise?

(ii) Whether an order passed by the Supreme Court itself can be corrected under its inherent powers after dismissal of the review petition on the ground that it was passed either without jurisdiction or in violation of the principles of natural justice or due to unfair procedure giving scope for bias which resulted in abuse of the process of the Court or miscarriage of justice to an aggrieved person?

(iii) What are the requirements to entertain curative petition under the inherent power of the Apex Court?

Law:

Constitution of India - Article 32 - Remedies for enforcement of rights conferred by this Part. -

(1) The right to move to the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2) Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause(2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

Contentions:

Petitioners

(i) Principle of finality of the order of Apex Court had to be given a go-by and the case re-examined where the orders were passed without jurisdiction or in violation of the principles of natural justice, violation of any fundamental rights or where there has been gross injustice.

(ii) This Court had inherent jurisdiction to examine the final orders.

(iii) As from the order of the Apex Court no appeal would lie, therefore, an application, which should be certified by a senior counsel in regard to existence of permissible ground, has to be entertained to correct a judgment of this Court.

(iv) Article 129 of the Constitution declared this Court to be a court of record so it would have inherent powers to pass appropriate orders to undo injustice to any party resulting from judgments of this Court.

Respondent

(i) Remedy provided under Article 32 of the Constitution would not be available to a person aggrieved by the final order of this Court.

(ii) In case of gross miscarriage of justice, the Apex Court ought to exercise its inherent powers by entertaining an application to examine the final order of this Court, even when a review was rejected, in the rarest of the rare cases.

(iii) An order of Apex Court could not be said to violate fundamental rights conferred under Part III of the Constitution and, therefore, on that ground no relief could be claimed.

(iv) Article 137 of the Constitution read with Order XL Rule 1 of the Supreme Court Rules, 1966 provided for review of an order of Apex Court which will be considered by the same Bench unless the same Judges are not available by reason of demitting the office.

Analysis:

Challenge to final judgment under Article 32 of Constitution

(i) Writ jurisdiction is a supervisory jurisdiction over inferior Courts/Tribunals. Thus, writ of certiorari or any other writ cannot be issued to co-ordinate courts and a fortiori to superior courts. Thus, a High Court cannot issue a writ to another High Court; nor can one Bench of a High Court issue a writ to a different Bench of the same High Court. Also, writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. Though, the judgments/orders of High Courts are liable to be corrected by the Supreme Court in its appellate jurisdiction under Articles 132, 133 and 134 as well as under Article 136 of the Constitution, the High Courts are not constituted as inferior courts in our constitutional scheme. Therefore, the Supreme Court would not issue a writ under Article 32 of the Constitution to a High Court.

(ii) Further, neither a smaller Bench not a larger Bench of the Supreme Court can issue a writ under Article 32 of the Constitution to any other Bench of the Supreme Court. Article 32 of the Constitution can be invoked only for the purpose of enforcing the fundamental rights conferred in Part III and it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III. It may further be noted that the superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution.

(iii) Thus, a final judgment/order passed by this Court cannot be assailed in an application under Article 32 of the Constitution of India by an aggrieved person whether he was a party to the case or not.

Inherent power to correct order passed after review

(i) 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 courts/tribunals and authorities in India. 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. 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. However, when re-consideration of a judgment of the Highest Court is sought the finality attached both to the law declared as well as to the decision made in the case, is normally brought under challenge.

(ii) However, the concern of Apex Court for rendering justice in a cause is not less important than the principle of finality of its judgment. These are competing principles - ensuring certainty and finality of a judgment of the Court of last resort at one place and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principle of natural justice or apprehension of bias due to a Judge who participated in decision making process not disclosing his links with a party to the case, or abuse of the process of the court etc as another one. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty.

(iii) Though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, 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. The duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment. It is essentially in public interest that a final judgment of the final court in the country should not be open to challenge yet there may be circumstances wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.

(iv) Thus, to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power.

Requirements to entertain Curative Petition under inherent power of Apex Court

(i) Except when very strong reasons exist, the Court should not entertain an application seeking reconsideration of an order of Apex Court which has become final on dismissal of a review petition.

(ii) A petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgement 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.

(iii) 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.

(iv) The curative petition shall contain a certification by a Senior Advocate with regard to the fulfillment of the above requirements.

(v) Since the matter relates to re-examination of a final judgment of Apex Court, the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges conclude that the matter needs hearing, it should be listed before the same Bench (as far as possible) which may pass appropriate orders. It shall be open to the Bench to ask a senior counsel to assist it as amicus curiae. In the event of the Bench holding that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner.

Conclusion:

(i) A final judgment/order passed by this Court cannot be assailed in an application under Article 32 of the Constitution of India by an aggrieved person whether he was a party to the case or not.

(ii) To prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power.

(iii) The Registry is directed to process present petitions, notwithstanding that they do not contain the averment that the grounds urged were specifically taken in the review petitions and the petitions were dismissed in circulation.

Important Precedents:

(i) A.R. Antulay v. R.S. Nayak MANU/SC/0002/1988

(ii) Supreme Court Bar Assn. v. Union of India MANU/SC/0291/1998