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SCOI Analysis: What could Naz's section 377 curative constitution bench look like and what can it do?

What a curative constitution bench could have looked like in 2015
What a curative constitution bench could have looked like in 2015

Even as the Supreme Court is yet to upload its order referring the curative petitions filed by Naz Foundation and others to the five Judge Constitution bench, a debate has already begun over the scope and composition of the bench among observers.

The debate mainly centers over two issues.

Can curative even cure here?

One, whether the constitution bench can go beyond the scope of curative petitions as laid down in the court’s judgment in the Rupa Ashok Hurra v. Ashok Hurra, which invented the curative remedy for petitioners aggrieved with the dismissal of the review petitions, filed against the court’s main judgments.

In Hurra, the court’s concern was whether any relief could be given to the petitioners who challenge the final judgment of the Supreme Court, though after disposal of review petitions, complaining of the gross abuse of the process of Court and irremedial injustice.

But it was also concerned with specifying the requirements to entertain a curative petition under the inherent power of the Supreme Court, so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition.

The court was clear that except when very strong reasons exist, the court should not entertain an application seeking reconsideration of an order of the Supreme Court which became final on dismissal of a review petition.

More important, the court held: “It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained.”

In the next paragraph, the court held:

“Nevertheless, we think that 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 judgment 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.

The court also held in Hurra that the curative petitioner must state specifically, that the grounds mentioned in the curative petition had been taken in the review petition and that it was dismissed by circulation (i.e., in open court, as now mandated for several cases such as death penalty review petitions).

The curative petition must also contain a certification by a senior advocate that it fulfils these Hurra requirements.

If one reads these paragraphs carefully, what emerges are the following:

The curative petitioner, no doubt, has to specify that the grounds mentioned in the curative had been taken in the review, which was dismissed in circulation.

The two grounds, specifically mentioned, are available if the petitioner asks for them, without the bench having to discuss their merits.

But it means that the bench also has the discretion to hear the curative petitioner on grounds other than these two on merits.

Successful curatives through the ages

Indeed, this is how the Supreme Court has decided the only three curative petitions that were successful so far.

The three are National Commission for Women v Bhaskar Lal Sharma, Navneet Kaur v. Government of the National Capital Territory of Delhi, and State of Madhya Pradesh v. Sugar Singh.

The court invoked grounds other than the two specifically mentioned in Hurra in two of these three cases. In Sugar Singh, it invoked the  denial of natural justice ground while recalling its earlier order.

Correction: The originally published story omitted to mention that Sugar Singh was cured on a different ground to Hurra. We regret the error.

Therefore, as the curative petitioners in the Naz case cannot convincingly invoke the two grounds mentioned in Hurra, the argument that they may not be successful in crossing the threshold barrier, to convince the bench about the merits, lacks force.

So, under what grounds to cure?

This means that the curative petitioner can challenge the dismissal of his or her review petition on grounds other than those mentioned in the review petition.

A review petition is filed against the main judgment. A curative petition, which is also filed against the main judgment, cannot invoke new grounds against the main judgment.

But it can invoke new grounds against the dismissal of the review petition. Otherwise, the logic of two separate remedies, namely review and curative, cannot be explained.

Further, Hurra does not lay down all the grounds on which a curative petition may be entertained, giving scope for the future benches to invent new grounds, if necessary.

But which judges will hear it?

The second issue concerns the composition of the constitution bench to hear the curative petition.

Hurra makes it clear that when the majority of judges on a curative bench (usually comprising, if available, the three senior-most judges and the judges who passed the original Supreme Court judgment petitioned against), conclude that the matter needs hearing, then it should be listed.

Hurra adds that it should be listed before the same bench (as far as possible) which may pass appropriate orders.

The Naz curative petition was first taken up in circulation on 22 April 2014 by four judges, namely, the then chief justice, P Sathasivam, and justices RM Lodha, HL Dattu, and Sudhansu Jyoti Mukhopadhaya, who directed that it be listed for hearing in the open court.

When the matter did come up on 2 February of this year, all these four judges had retired, and the three senior-most Judges constituted the bench.

Since these three Judges had referred the matter to the Constitution bench, it is likely that the three will also find a place in the Constitution bench, which is likely to hear the matter in the coming weeks.

It remains to be seen whether Chief Justice of India (CJI) TS Thakur will strictly go by seniority in choosing the members of the Constitution bench hearing the curative matter, or assign it to any of the other five-judge constitution benches currently hearing other matters after Thakur’s recently heightened schedule for constitution benches.

Thakur may also have the option of forming a new five-judge bench, without giving any regard to seniority, to hear the curative matter, as Hurra is silent on the composition of the bench if the original authors of the main judgment had retired in the meantime, as is the case here.

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