M J Antony: The cure that isn't

OUT OF COURT

Should a case dismissed in a review petition be reopened?

Four decades ago, the Bombay High Court orally prohibited publication of the statement of a witness given in open court. When some journalists moved the Supreme Court against such order violating the freedom of speech and expression, a nine-judge Constitution bench unanimously held that an order of the court could not be called in question.

The times have changed. Now, even Supreme Court judgements are routinely challenged in the same court. So much so, the Constitution bench headed by the Chief Justice regretted the other day that the avenues for reopening decided cases are being abused.

The observation came while deciding the "curative petition" in a "review petition" in the appeal, Sumer vs State of UP. The provision for a review petition was made in 1966 under which the judgements of the Supreme Court could be re-examined by the same bench if there was an "error apparent on the record". This was supposed to be a rare event. Only errors of facts and gross mistakes of law justified such review.

However, review petitions are routinely filed "" and dismissed "" without a hearing. In rare instances, review petitions have been successful, as in the classic case of Congress leader A R Antulay.

Two years ago, the Supreme Court opened yet another door for reopening a case which has already been dismissed in a review petition. A litigant could be lucky the third time.

This new method was devised in a Constitution bench judgement, Rupa Ashok Hurra vs Ashok Hurra. In that judgement, the judges grappled with the question of finality of judgements.

How many times can a case be reopened, that too at the apex level? If the review process goes on endlessly, "litigation would have no end, except when legal ingenuity is exhausted," as an English judge said.

The court recognised this dilemma and observed in the Hurra judgement: "The Almighty alone is the dispenser of absolute justice." The rest can err. Ensuring certainty and finality of a judgement of the court of last resort could not be made an end in itself.

Therefore, the court slowly turned around to assert that "even the law bends before justice" and errors should be corrected. The interest of finality of the decision must yield where the interest of justice so demands. This is the new view.

Thus, the new "curative petition" was forged. It must be accompanied by a recommendation of an advocate, designated as "senior", stating that the case requires re-examination as there was violation of the principles of natural justice in the earlier decisions. The curative petition has to be first circulated to a bench of three senior-most judges. They will decide by a majority that the case should be re-examined. Only then the case will be heard by the judges who heard the case originally. Such strict conditions were imposed to prevent a flood gate of petitions for reopening final judgements.

However, in the case of Sumer, the Constitution bench for the first time gave vent to the rampant misuse of the provision for curative petitions.

It said: "The apprehension of the bench (which delivered the Hurra judgement) that the remedy provided may not open the flood gates for filing a second review petition has come true as is evident from the filing of large numbers of petitions. It was expected that the curative petitions will be filed in exceptional and in the rarest of rare cases, but in practice, it has just been opposite."

Certificates of senior counsel come easily, but perhaps not cheaply. The judgement quoted one such certificate to show how casually they are issued.

As long as the legal profession is driven by the lure of money, litigants who lose their cases will be advised to file review petitions, though the chances of succeeding is equal to winning a lottery. Now the curative petition gives the lawyers one more chance to squeeze their clients.

The Sumer judgement does not mention whether the senior-most judges screened the petition, as required by the Hurra judgement. If it was done, perhaps it could have cut out the abuse of process.