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EVOLUTION OF THE CONCEPT OF CURATIVE PETITION

Author - Shubham More, Student at NLIU, Bhopal

Best Citation - Shubham More, EVOLUTION OF THE CONCEPT OF CURATIVE PETITION, ILE Monthly Review, 1
(3) of 2023, Pg. 05-11, ISBN - 978-81-961828-8-5

. Abstract petitions have been denied, a petitioner may

still dispute a final ruling or decision issued by
A curative petition is a legal tool that enables a
the Supreme Court of India by filing a curative
petitioner to request a review of a court's final,
petition, which is thought of as a last resort. The
irrevocable judgment or order. The Indian
curative petition is regarded as a defense
Supreme Court has acknowledged this idea as
against any error in judgment. In the case of
an extraordinary remedy to avoid a miscarriage
Rupa Ashok Hurra v. Ashok Hurra and Another, 27
of justice as it has developed over time. The
the Supreme Court of India first introduced the
Supreme Court's historic decision in the case of
idea of a curative petition. The court ruled that a
Rupa Ashok Hurra v. Ashok Hurra, which said
curative petition could be filed to correct any
that a curative petition may be granted in
mistakes the court may have made that led to
exceptional and unusual circumstances when
a serious miscarriage of justice.
the decision contains a fundamental error, is
responsible for the development of curative A curative petition may be submitted, by the
petitions. Supreme Court, because natural justice
principles were broken, someone was not a
Since then, numerous cases have been brought
party to the proceedings, or the petitioner was
before the Supreme Court using the curative
not given a hearing before the verdict was
petition system, and various judgments have
rendered. The curative petition cannot be used
broadened the reach and applicability of this
in place of a review or appeal because of its
remedy. According to the Supreme Court, a
restricted scope. In later Supreme Court rulings,
curative petition can only be filed after all other
such as Pankajakshi (Dead) Via Lrs. v. Chandrika
options have been explored. Additionally, the
and Others 28
and Rupa Ashok Hurra v. Ashok
petitioner must show that natural justice was
Hurra and Others,29 the notion of the curative
violated and that the error in the judgment goes
petition has been further developed. The court
to the heart of the issue.
noted in its ruling that the idea of a curative
Keywords: Curative petition, evolution, concept, petition is not new and has been accepted in
legal mechanism, review, final judgment, Indian many jurisdictions as a remedy to correct any
Supreme Court, exceptional remedy, mistakes or flaws in a judgment that might
miscarriage of justice, Rupa Ashok Hurra v. have led to a miscarriage of justice. The court
Ashok Hurra, a fundamental error, scope, mentioned that the Supreme Court of the
applicability, violation of natural justice, United States first acknowledged the idea of a
safeguard, alternative, regular remedies, law. curative petition in the case of United States v.
Duane,30 and that it was later acknowledged by
INTRODUCTION

In India, a petitioner who has exhausted all other

legal options may use the concept of a curative 27 (2002) 4 SCC 388
petition as a legal remedy. Even after review 28 (2004) 3 SCC 440
29 (2002) 4 SCC 388
30 (1874) 88 U.S. 366

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courts in other nations, such as Australia, fundamental rights or in instances of egregious

Canada, and South Africa. injustice after they have exhausted all other
legal options. The Rupa Ashok Hurra v. Ashok
The notion of the curative petition was invented
Hurra landmark case,33 which established the
in India to offer another layer of protection
legal foundation for filing curative petitions in
against injustice and to guarantee that litigants
India, can be credited with the creation of the
are not denied justice owing to a procedural
curative petition as a legal remedy in that
mistake or omission. According to the Supreme
country.
Court of India, a curative petition cannot
replace an appeal or a review petition and In Rupa Ashok Hurra v. Ashok Hurra (II),34 the
should only be filed in extraordinary situations, Supreme Court of India ruled that in
such as where there has been a violation of the extraordinary circumstances where a review
natural justice principles or other factors that petition had been denied without the petitioner
were not previously taken into account. Overall, having a chance to be heard, curative
the curative petition is a significant legal applications could be filed. The court said that
remedy that Indian plaintiffs may use as a last only serious unfairness or a miscarriage of
resort to correct any errors the court may have justice could be the basis for a curative petition,
made and avert any miscarriage of justice. and even then, only after all other legal options
had been exhausted. This ruling was regarded
HISTORICAL DEVELOPMENT OF CURATIVE
as an important advancement in the Indian
PETITION
legal system since it gave people who had been
Curative petitions have become a common denied justice another way to seek remedy.
judicial remedy in several countries, including
The emergence of the curative petition as a
India and Brazil. It gives people one last chance
recognized legal remedy in India over the
to request justice when their fundamental rights
following years was aided by several further
have been violated or when there has been a
cases. In the 2009 case of Haridas Das v. Usha
serious injustice.
Rani Banik, 35
the Supreme Court decided that if
In the Reclamaço case from 2002, the phrase 31 there had been a procedural or natural justice
"curative petition" was first used in Brazilian law. violation, curative petitions might still be
The Brazilian Supreme Court ruled that in brought even after a review petition had been
extraordinary circumstances to amend a final dismissed. This judgment allowed people to
judgment that had resulted in a violation of seek remedy in situations when their legal rights
basic rights or cases of egregious injustice, had been violated, broadening the scope of
curative petitions could be submitted. The Court curative petitions in India.
noted that Curative petitions should only be
The Supreme Court further defined the scope
filed as a last resort and only after all other legal
and intent of curative petitions in the 2013
options have been exhausted. 32
decision of Rupa Hurra v. Ashok Hurra (II).36 The
In India, the idea of curative petitions has a brief court decided that curative petitions could only
but significant history. Curative petitions are be brought when the petitioner could show that
regarded as an unusual remedy that enables the contested judgment had caused a serious
people to seek justice for a breach of their injustice. Curative petitions should only be
submitted in extraordinary circumstances, the

31 Reclamação 2138, STF (Brazilian Supreme Court), decided on February 7,

2002
32 Mota, R. F. (2012), “Curative Petitions: A Brazilian Perspective”, In M. P.

Scharf, & S. S. Zarrabian (Eds.), Emerging Issues in Sustainable 33 Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388
Development: International Trade Law and Policy Relating to Natural
Resources, Energy, and the Environment (pp. 437-448). Cambridge Scholars 35 Haridas Das v. Usha Rani Banik, (2009) 1 SCC 496
Publishing. 36 Rupa Hurra v. Ashok Hurra (II), (2013) 10 SCC 1

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court noted, and they should not be used in be filed.38 The Supreme Court finds it
place of standard legal procedures. challenging to assess the merits of each
petition because the method is not clearly
Curative petitions have significantly and
defined. Because of this, the procedure is
contentiously evolved in India. On the one hand,
frequently unclear, and it is unclear what
curative petitions offer an essential legal option
constitutes extraordinary circumstances.
for people looking for justice in unusual
Because of the confusion it has caused among
situations. However, some legal experts contend
litigants, the number of frivolous petitions has
that curative petitions compromise the finality
increased. The idea of a curative petition is said
of judgments and can result in never-ending
to lose its significance and turn into a mere
litigation. Others contend that curative petitions
procedural instrument in the absence of
do not solve the underlying problems with the
defined rules. 39
The potential abuse of curative
legal system and only assist a small portion of
petitions is another issue brought up frequently.
society.37
The curative petition has been used in several
Curative petitions continue to be a significant high-profile cases in recent years, raising
legal remedy in India despite these critiques. concerns about possible abuse. Curative
They offer a final option for people seeking petitions, according to critics, are frequently
justice and make sure the legal system is held utilized as a last-ditch effort to reverse a
responsible for its choices. The growth of decision, even when the petitioner has not
curative petitions in India demonstrates a made a compelling case. Due to a surge in
dedication to the ideas of natural justice and litigation as a result, the already overburdened
basic rights. It will be crucial to strike a balance judicial system becomes even more backed up.
between ensuring justice and upholding the
The scope of a curative petition, according to
finality of decisions as the idea of curative
some legal professionals, is too limited. Only in
petitions develops.
extraordinary cases, such as when the
CRITICISM SURROUNDING THE CONCEPT petitioner has been denied justice due to a
breach of the fundamental right to a fair trial or
Curative petitions are frequently criticized for the principles of natural justice, may a curative
their potential use as a means of getting petition be submitted. This has the potential to
around the ordinary legal system. A curative be a substantial limitation in some
petition can be used as a last resort to appeal circumstances since it means that a curative
any decision, even if the petitioner did not make petition cannot be used to challenge a decision
a reasonable effort to do so earlier, because it based on factual or legal errors.
enables a petitioner to contest a Supreme Court
final ruling after exhausting all other legal Additionally, the idea of a curative petition
procedures. As a result, there can be a waste of breaches the doctrine of finality, which is a
judicial funds and a delay in the delivery of cornerstone of the legal system. According to
justice. the idea of finality, a judgment rendered by a
competent court is conclusive and enforceable
The lack of transparency in the process is and cannot be contested outside of the
another issue leveled at curative petitions. appeals process. Yet, a curative petition
Confusion among litigants and attorneys has enables a petitioner to contest a Supreme Court
resulted from the Supreme Court's failure to
establish clear rules on the grounds and
conditions under which a curative petition may
38 Singh, R., & Muthiah, S. (2015). Curative Petition: A Judicial Review of
Judicial Review in India. Journal of Indian Law and Society, 6(2), 155-172.
37Ahuja, P. (2019). Curative Petitions in India: A Critical Analysis. Indian 39 Bhatt, S. (2014). Curative Petition: A Critical Appraisal. Journal of the

Journal of Law and Justice, 10(2), 153-162. Indian Law Institute, 56(4), 442-463.

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decision that has been rendered in its entirety, A curative petition is essentially a technique to
which may violate the doctrine of finality. 40 ask for judicial review of a court's final decision.
A curative petition is only accessible as a last
While being a notable advancement in Indian
resort, after all, other remedies have been
law, the curative petition has drawn criticism
exhausted, whereas judicial review is available
from a variety of sources. The lack of procedural
at various stages of the legal process, even
clarity, the limited scope of curative petitions,
during a trial or appeal. In other words, it serves
and the violations of the notion of finality are
as a method of reconsidering a decision that
some of the critiques leveled at curative
has become final. The idea of a curative petition
petitions. To make sure that the curative petition
is based on the idea of judicial review because
is only utilized in exceptional situations and
it allows the court to examine its judgments and
does not result in the abuse of the judicial
fix any mistakes that may have happened. This
system, these objections must be addressed.
makes sure that, even in situations when the
CURATIVE PETITION AND JUDICIAL REVIEW legal system has run its course, justice is served
and the ideals of natural justice are preserved.
Judicial review and curative petition are two To ensure that the judiciary can carry out its
interrelated legal ideas. While judicial review is a constitutional duty of maintaining the ideals of
system that enables courts to review and justice, fairness, and equity, curative petitions
possibly invalidate laws or government are considered as a means of doing so.
activities that are unlawful, the curative petition
is a legal remedy that aims to repair an error Judicial review and curative petition have a
that has occurred within the judicial process. crucial relationship. A judicial review method
The relationship between judicial review and used to repair mistakes made during the legal
curative petitions, as well as their effects on the procedure is the curative petition. It enables
Indian legal system, will be discussed in this courts to examine their rulings and fix any
essay. mistakes that may have occurred. The curative
petition is a crucial instrument for making sure
A curative petition is a last-resort remedy that the legal system is impartial and just in this way.
may be brought in extraordinary cases. After Yet, some legal professionals disagree with the
having exhausted all other available legal use of curative petitions as a judicial review
options, such as appeal and review, the petition mechanism. They contend that the curative
may be submitted. The curative petition, petition should only be utilized in extraordinary
according to the court, is a rare remedy that situations and that, in all other situations, the
can only be approved under specific conditions. standard appeal and review procedures should
On the other hand, judicial review is a procedure be used. Additionally, they contend that the use
that gives courts the power to examine and of curative petitions jeopardizes the finality of
perhaps invalidate unconstitutional laws or judgments, which is a cornerstone of the legal
government actions. As it enables the judiciary system. 41
to serve as a check on the executive and
legislative arms of government, it is a crucial The Indian Supreme Court has defended the
element of every democracy. Article 13 of the use of curative petitions as a type of judicial
Indian Constitution, which calls for the review despite the criticism. According to the
invalidation of legislation that violates basic court's ruling in Rupa Ashok Hurra v. Ashok
rights, has a provision for judicial review. Hurra, the curative petition is a rare remedy that
is only ever authorized under extreme
conditions. It also underlined the need to

40Krishnamurthy, G. (2014). Curative Petition: An Evaluation. Journal of the 41Abhinav Chandrachud, The Curative Petition: A Critique, Economic and
Indian Law Institute, 56(2), 151-161. Political Weekly (2005)

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guarantee that justice is served in all situations grounds of egregious irregularity, fraud, or error.
and that while the finality of verdicts is an This procedure is used to request the revocation
important value, it is not an absolute one. of a judgment that was obtained through fraud
or error, but it is not used to contest the validity
COMPARATIVE ANALYSIS
of a judgment. 43
A plaintiff may request a review of a court's final But the Indian legal system is the only one that
verdict on the grounds of a violation of natural recognizes the concept of a curative petition.
justice principles or a serious miscarriage of Both academics and practitioners of the law
justice through the use of a curative petition, a have criticized it. 44
As the concept of a curative
notion that is unique to the Indian legal system. petition permits a party to appeal a decision
Although the legal systems of the United States, even after all other available remedies have
Brazil, and South Africa do not recognize been exhausted, some critics contend that it
curative petitions, these nations do have some compromises the finality of the court's
processes in place that serve a comparable decisions. They contend as well that the rules
function. In this comparative examination, we established by the Supreme Court of India for
will look at the Indian legal idea of a curative the submission of curative petitions are
petition and contrast it with the legal systems in ambiguous and open to misuse due to the
the USA, Brazil, and South Africa. latitude for interpretation they provide.
The idea of a curative petition does not exist in
In conclusion, the idea of a curative petition is a
the United States. Nonetheless, there are several
distinctive aspect of the Indian legal system
procedures in place for requesting a review of a
that enables a plaintiff to request a review of a
court's ultimate decision. They consist of
court's final verdict on the grounds of a serious
appeals, writ of certiorari requests, and motions
miscarriage of justice or a violation of natural
for reconsideration. Reconsideration motions
justice principles. Although the legal systems of
are submitted to the same court that rendered
the United States, Brazil, and South Africa do not
the judgment in appeal to the court to
accept this idea, these nations do have
reevaluate its ruling in light of fresh information
institutions in place that fulfill a comparable
or a change in the law. The Supreme Court of
function. Although the use of curative petitions
the United States is asked to examine a decision
in India has drawn criticism, they continue to be
made by a lower court through petitions for writ
a crucial tool for guaranteeing access to justice,
of certiorari. Appeals are filed with the proper
redressing severe injustice, and stopping
appeal court to have a trial court's ruling miscarriages of justice.
reviewed. 42
IMPACT OF REFORMS INTRODUCED
Embargos de declaraço, or "clarificatory
appeals," are a process in effect in Brazil that Aruna Shanbaug v. Union of India led to
permits a petitioner to request an explanation changes to the curative petition procedure in
of a ruling on the grounds of ambiguity or India's Supreme Court in 2018. A minimum of
obscurity. Although a judgment may not be three justices were required to hear a curative
contested on its merits using this procedure, it petition, a senior advocate had to be appointed
may be clarified to prevent further as amicus curiae, and the petition had to be
disagreements. A "rescission application" is a sent to all Supreme Court judges, among other
procedure that permits a plaintiff in South Africa improvements. With these changes, the
to ask for the reversal of a judgment on the Supreme Court's broader bench would consider

43 The Curative Petition: A Comparative Study by Dr. (Mrs.) Justice B. S.

42The Curative Petition: A Comparative Analysis of India, United States and Chauhan (Indian Bar Review, 2016)
South Africa by Purvi Pokhariyal and Dhruv Rathi (National Law University 44 Curative Petitions: An Innovation in India's Judicial Review by Michael D.

Journal of Legal Studies, 2017) Kirby (University of New South Wales Law Journal, 2003)

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curative petitions, and the procedure would be judgment errors. The research project attempts
more open and equitable. 45 to bring to light the different adjustments and
enhancements that the Indian curative petition
These reforms have had a variable effect. On
system is capable of receiving. They include
the one hand, the Supreme Court's rulings in
shortening the deadline for submitting curative
curative petition cases have become more
petitions, facilitating access for litigants, and
consistent as a result of the necessity for a
enhancing the clarity and uniformity with which
minimum of three judges. Also, it has increased
the judicial system applies the curative petition
the number of curative petitions submitted,
concept.
showing that litigants are increasingly eager to
contest Supreme Court rulings that have been According to the examination of the literature,
rendered in finality. The requirement for a senior there is a sizable corpus of legal scholarship,
attorney to serve as amicus curiae have, on the case law, and government publications on the
other hand, drawn criticism for allegedly idea of the curative petition in India that can be
causing delays in the hearing of curative a useful source for further study on the topic.
petitions. 46 The empirical research on the use of curative
petitions in India has also revealed that while
The problem of costs is yet another area of
the remedy is not frequently employed, it has
worry. According to the Supreme Court, the
been successful in correcting some judgment
petitioner is responsible for paying the costs
errors.
associated with filing a curative petition. This
has drawn criticism for creating a hurdle in the The study project has, in general, provided
way of poor litigants receiving justice since they information on the development of curative
cannot afford the fees associated with petitions in India and its potential to increase
submitting a curative petition. access to justice and avert injustices. The
results of this study can lead to further
Nevertheless, there are still worries about the
investigation into the subject as well as
efficacy of the remedy and the obstacles that
policymakers and legal professionals who are
poor litigants have in accessing justice, even
working to enhance the curative petition system
though the changes made to the curative
in India.
petition procedure in India have had some
positive effects. Further changes are required to BIBLIOGRAPHY
guarantee that the curative petition procedure
Books Referred:
is equitable, open, and available to everyone.

CONCLUSION 1. MP Jain, “Indian Constitutional Law”

2. DD Basu, “Introduction to Constitution of
An exhaustive account of the idea, its India”
development, and its importance in the Indian Journal Articles Referred:
legal system has been given by the study
3. Dhruv Tiwari, Vardhan Narayan, “Re-
project on the evolution of curative petitions in
Colouring the Coloured Walls of the
India. According to the report, the Supreme
Constitution: A Futile Judicial Exercise of
Court of India first adopted the idea of curative
Creating the Curative Petition”
petitions as a last-ditch effort to avoid a
4. Divyendu Shekhar, Roshni Rashmi,
miscarriage of justice. Since then, however, it
“Curative Petition: Last Remedy in Court
has developed into a crucial tool for correcting
of Last Resort
45 "Curative Petitions: An Innovation in India's Judicial Review" by Michael 5. Mota, R. F. (2012), “Curative Petitions: A
D. Kirby, University of New South Wales Law Journal, 2003.
46 Aruna Shanbaug v. Union of India: The Apex Court Redefines Curative
Brazilian Perspective”, In M. P. Scharf, & S.
Petition" by Nishant Gokhale and Prithviraj Sarda, Economic and Political S. Zarrabian (Eds.), Emerging Issues in
Weekly, 2019.

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Sustainable Development: International 5. Reclamação 2138, STF (Brazilian

Trade Law and Policy Relating to Natural Supreme Court), decided on February 7,
Resources, Energy, and the Environment 2002
(pp. 437-448). Cambridge Scholars 6. Haridas Das v. Usha Rani Banik, (2009) 1
Publishing. SCC 496
6. Ahuja, P. (2019). Curative Petitions in
India: A Critical Analysis. Indian Journal
of Law and Justice, 10(2), 153-162.
7. Singh, R., & Muthiah, S. (2015). Curative
Petition: A Judicial Review of Judicial
Review in India. Journal of Indian Law
and Society, 6(2), 155-172.
8. Bhatt, S. (2014). Curative Petition: A
Critical Appraisal. Journal of the Indian
Law Institute, 56(4), 442-463.
9. Krishnamurthy, G. (2014). Curative
Petition: An Evaluation. Journal of the
Indian Law Institute, 56(2), 151-161
10. Abhinav Chandrachud, The Curative
Petition: A Critique, Economic and
Political Weekly (2005)
11. The Curative Petition: A Comparative
Analysis of India, United States, and
South Africa by Purvi Pokhariyal and
Dhruv Rathi (National Law University
Journal of Legal Studies, 2017)
12. The Curative Petition: A Comparative
Study by Dr. (Mrs.) Justice B. S. Chauhan
(Indian Bar Review, 2016)
13. "Curative Petitions: An Innovation in
India's Judicial Review" by Michael D.
Kirby, University of New South Wales Law
Journal, 2003.
14. Aruna Shanbaug v. Union of India: The
Apex Court Redefines Curative Petition"
by Nishant Gokhale and Prithviraj Sarda,
Economic and Political Weekly, 2019.
Cases Referred:

1. Rupa Ashok Hurra v. Ashok Hurra and

Another
2. Rupa Hurra v. Ashok Hurra (II), (2013) 10
SCC 1
3. Pankajakshi (Dead) Via Lrs. v. Chandrika
and Others
4. United States v. Duane

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