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CASE NO.:

Writ Petition (civil) 509 of 1997

PETITIONER:

RUPA ASHOK HURRA

RESPONDENT:

ASHOK HURRA & ANR.

DATE OF JUDGMENT: 10/04/2002

BENCH:

S.P. Bharucha CJI & S.S.M. Quadri & Umesh C. Banerjee & S.N. Variava & Shivaraj V. Patil

JUDGMENT:

JUDGMENT

WI T H

(W.P.(C)No.245/1999, W.P.(C) No.338/2000, W.P.(C)

Nos.325-326/2000,W.P.(C)No.663/2000, W.P.(C)No.680/2000,

W.P.(C) No.374/2001)

Delivered by

Syed Shah Mohammed Quadri,J

U.C. Banerjee, J.

J U D G M E N T

Syed Shah Mohammed Quadri, J.

These writ petitions have come up before us as a Bench

of three learned Judges of this Court referred the first

mentioned writ petition to a Constitution Bench observing

thus :

"Whether the judgment of this Court dated March

10, 1997 in Civil Appeal No.1843 of 1997 can be

regarded as a nullity and whether a writ petition

under Article 32 of the Constitution can be

maintained to question the validity of a judgment

of this Court after the petition for review of the

said judgment has been dismissed are, in our

opinion, questions which need to be considered by

a Constitution Bench of this Court."

The other writ petitions were tagged to that case.

In these cases the following question of constitutional

law of considerable significance arises for consideration :

whether an aggrieved person is entitled to any relief against a

final judgment/order of this Court, after dismissal of review

petition, either under Article 32 of the Constitution or

otherwise.

In our endeavour to answer the question, we may begin

with noticing that the Supreme Court of India is established by

Article 124 of the Constitution which specifies its jurisdiction

and powers and enables Parliament to confer further jurisdiction

and powers on it. The Constitution conferred on the Supreme

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Court original jurisdiction (Articles 32 and 131); appellate

jurisdiction both civil and criminal (Articles 132, 133, 134);

discretionary jurisdiction to grant special leave to appeal

(Article 136) and very wide discretionary powers, in the

exercise of its jurisdiction, to pass decree or make such order as

is necessary for doing complete justice in any cause or matter

pending before it, which shall be enforceable throughout the

territory of India in the manner prescribed (Article 142); powers

like the power to withdraw any case pending in any High Court

or High Courts to itself or to transfer any case from one High

Court to another High Court (Article 139) and to review

judgment pronounced or order made by it (Article 137).

Conferment of further jurisdiction and powers is left to be

provided by Parliament by law (Article 138). Parliament is also

enabled to confer further powers on the Supreme Court

(Articles 134(2), 139, 140). Article 141 says that the law

declared by the Supreme Court shall be binding on all courts

within the territory of India and Article 144 directs that all

authorities civil and judicial, in the territory of India, shall act in

aid of the Supreme Court. It is a Court of record and has all the

powers of such a Court including power to punish for contempt

of itself (Article 129).

Since the jurisdiction of this Court under Article 32 of

the Constitution is invoked in these writ petitions, we shall

advert to the provisions of Article 32 of the Constitution. It is

included in Part III of the Constitution and is quoted

hereunder :

"32. Remedies for enforcement of rights

conferred by this Part. -

(1) The right to move 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."

A perusal of the Article, quoted above, shows it contains

four clauses. Clause (1) guarantees the right to move the

Supreme Court by appropriate proceedings for the enforcement

of the rights conferred by Part III - fundamental rights. By

clause (2) the Supreme Court is vested with the 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 Part III. Without prejudice to the

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powers of the Supreme Court in the aforementioned clauses (1)

and (2), the Parliament is enabled, by clause (3), to empower by

law 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). The constitutional mandate embodied

in clause (4) is that Article 32 shall not be suspended except as

otherwise provided for by the Constitution.

Inasmuch as the Supreme Court enforces the fundamental

rights by issuing appropriate directions, orders or writs,

including writs in the nature of habeas corpus, mandamus,

prohibition, quo warranto and certiorari, it may be useful to

refer to, in brief, the characterisitics of the writs in general and

writ of certiorari in particular with which we are concerned

here. In English law there are two types of writs -- (i) judicial

procedural writs like writ of summons, writ of motion etc.

which are issued as a matter of course; these writs are not in

vogue in India and (ii) substantive writs often spoken of as high

prerogative writs like writ of quo warranto, habeas corups,

mandamus, certiorari and prohibition etc.; they are frequently

resorted to in Indian High Courts and the Supreme Court.

"Historically, prohibition was a writ whereby the royal courts of

common law prohibited other courts from entertaining matters

falling within the exclusive jurisdiction of the common law courts;

certiorari was issued to bring the record of an inferior court into

the King's Bench for review or to remove indictments for trial in

that court; mandamus was directed to inferior courts and

tribunals, and to public officers and bodies, to order the

performance of a public duty. All three were called prerogative

writs." In England while issuing these writs, at least in theory,

the assumption was that the King was present in the King's

Court. The position regarding the House of Lords is described

thus, "of the Court of Parliament, or of the King in Parliament

as it is sometimes expressed, the only other supreme tribunal in

this country." in Rajunder Narain Rai Vs. Bijai Govind Singh

(1836 (1) Moo. P.C. 117). They are discretionary writs but the

principles for issuing such writs are well defined. In the pre-

constitutional era the jurisdiction to issue the prerogative writs

was enjoyed only by three chartered High Courts in India but

with the coming into force of the Constitution, all the High

Courts and the Supreme Court are conferred powers to issue

those writs under Article 226 and Article 32, respectively, of

the Constitution. In regard to the writ jurisdiction, the High

Courts in India are placed virtually in the same position as the

Courts of King's Bench in England. It is a well-settled

principle that the technicalities associated with the prerogative

writs in English Law have no role to play under our

constitutional scheme. It is, however, important to note that a

writ of certiorari to call for records and examine the same for

passing appropriate orders, is issued by a superior court to an

inferior court which certifies its records for examination.

"Certiorari lies to bring decisions of an inferior court, tribunal,

public authority or any other body of persons before the High

Court for review so that the court may determine whether they

should be quashed, or to quash such decisions. The order of

prohibition is an order issuing out of the High Court and directed

to an inferior court or tribunal or public authority which forbids

that court or tribunal or authority to act in excess of its

jurisdiction or contrary to law. Both certiorari and prohibition are

employed for the control of inferior courts, tribunals and public

authorities."

Having carefully examined the historical background and

the very nature of writ jurisdiction, which is a supervisory

jurisdiction over inferior Courts/Tribunals, in our view, on

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principle a writ of certiorari cannot be issued to co-ordinate

courts and a fortiorari to superior courts. Thus, it follows that 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; much less can 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 to a High Court. Further, neither a smaller Bench

nor 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. It is pointed out above that Article 32 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.

In Naresh Shridhar Mirajkar & Ors. vs. State of

Maharashtra & Anr. [1966 (3) SCR 744], some journalists filed

a Writ Petition in the Supreme Court under Article 32 of the

Constitution challenging an oral order passed by the High Court

of Bombay, on the Original Side, prohibiting publication of the

statement of a witness given in open court, as being violative of

Article 19(1)(a) of the Constitution of India. A Bench of nine

learned Judges of this Court considered the question whether

the impugned order violated fundamental rights of the

petitioners under Article 19(1)(a) and if so whether a writ under

Article 32 of the Constitution would issue to the High Court.

The Bench was unanimous on the point that an order passed by

this Court was not amenable to the writ jurisdiction of this

Court under Article 32 of the Constitution. Eight of the learned

Judges took the view that a judicial order cannot be said to

contravene fundamental rights of the petitioners. Sarkar,J. was

of the view that the Constitution does not contemplate the High

Courts to be inferior courts so their decisions would not be

liable to be quashed by a writ of certiorari issued by the

Supreme Court and held that this Court had no power to issue a

writ of certiorari to the High Court. To the same effect are the

views expressed by Shah and Bachawat, JJ. Though, in his

dissenting judgment Hidayatullah,J. (as he then was) held that a

judicial order of the High Court, if erroneous, could be

corrected in an appeal under Article 136 of the Constitution, he,

nonetheless, opined that the impugned order of the High Court

committed breach of the fundamental right of freedom of

speech and expression of the petitioners and could be quashed

under Article 32 of the Constitution by issuing a writ of

certiorari to the High Court as subordination of the High Court

under the scheme of the Constitution was not only evident but

also logical. In regard to the apprehended consequences of his

proposition, the learned Judge observed :

"It was suggested that the High Courts might issue

writs to this Court and to other High Courts and

one Judge or Bench in the High Court and the

Supreme Court might issue a writ to another Judge

or Bench in the same Court. This is an erroneous

assumption. To begin with the High Courts cannot

issue a writ to the Supreme Court because the writ

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goes down and not up. Similarly, a High Court

cannot issue a writ to another High Court. The

writ does not go to a court placed on an equal

footing in the matter of jurisdiction. Where the

county court exercised the powers of the High

Court, the writ was held to be wrongly issued to it

(See : In re The New Par Consols, Limited [1898

(1) Q.B. 669]." (Emphasis supplied)

In A.R.Antulay vs. R.S.Nayak & Anr. [1988 (2) SCC

602], the question debated before a seven-Judge Bench of this

Court was whether the order dated February 16, 1984, passed

by a Constitution Bench of this Court, withdrawing the cases

pending against the appellant in the Court of Special Judge and

transferring them to the High Court of Bombay with a request

to the Chief Justice to assign them to a sitting Judge of the High

Court for holding trial from day to day. [R.S.Nayak vs.

A.R.Antulay (1984) 2 SCC 183 at 243], was a valid order. It is

relevant to notice that in that case the said order was not

brought under challenge in a petition under Article 32 of the

Constitution. Indeed, the appellant's attempt to challenge the

aforementioned order of the Constitution Bench before this

Court under Article 32 of the Constitution, turned out to be

abortive on the view that the writ petition under Article 32,

challenging the validity of the order and judgment passed by

the Supreme Court as nullity or otherwise incorrect, could not

be entertained and that he might approach the court with

appropriate review petition or any other application which he

might be entitled to file in law. While so, in the course of the

trial of those cases the appellant raised an objection in regard to

the jurisdiction of the learned Judge of the High Court to try the

cases against him. The learned Judge rejected the objection and

framed charges against the appellant, which were challenged by

him by filing a Special Leave Petition to appeal before this

Court wherein the question of jurisdiction of the High Court to

try the cases was also raised. It was numbered as Criminal

Appeal No.468 of 1986 and was ultimately referred to a seven-

Judge Bench. By majority of 5 : 2 the appeal was allowed and

all proceedings in the cases against the appellant before the

High Court pursuant to the said order of the Constitution Bench

dated February 16, 1984, were set aside and quashed.

Mukharji, Oza and Natarajan, JJ. took the view that the earlier

order of this Court dated February 16, 1984 which deprived the

appellant of his constitutional rights, was contrary to the

provisions of the Act of 1952 and was in violation of the

principles of natural justice and in the background of the said

Act was without any precedent and that the legal wrong should

be corrected ex debito justitiae Ranganath Misra,J., with whom

Ray,J., agreed, while concurring with the majority, observed

that it was a duty of the Court to rectify the mistake by

exercising inherent powers. Ranganathan,J. expressed his

agreement with the view of the majority that the order was bad

being in violation of Articles 14 and 21 of the Constitution.

However, he held that the said order was not one such order as

to be recalled because it could not be said to be based on a view

which was manifestly incorrect, palpably absurd or patently

without jurisdiction. In that he agreed with Venkatachaliah,J.

(as he then was) who gave a dissenting opinion. The learned

Judge held that it would be wholly erroneous to characterise the

directions issued by a five-Judge Bench as a nullity liable to be

ignored and so declared in a collateral attack. However, five

learned Judges were unanimous that the Court should act ex

debito justitiae. On the question of power of the Supreme

Court to review its earlier order under its inherent powers

Mukharji, Oza and Natarajan,JJ. expressed the view that the

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Court could do so even in a petition under Articles 136 or

Article 32 of the Constitution. Ranganath Misra,J. gave a

dissenting opinion holding that the appeal could not be treated

as a review petition. Venkatachaliah,J. (as he then was) also

gave a dissenting opinion that inherent powers of the Court do

not confer or constitute a source of jurisdiction and they are to

be exercised in aid of a jurisdiction that is already invested for

correcting the decision under Article 137 read with Order XL

Rule 1 of the Supreme Court Rules and for that purpose the

case must go before the same Judges as far as practicable.

On the question whether a writ of certiorari under Article

32 of the Constitution could be issued to correct an earlier order

of this Court Mukharji and Natarajan,JJ. concluded that the

powers of review could be exercised under either Article 136 or

Article 32 if there had been deprivation of fundamental rights.

Ranganath Misra, J. (as he then was) opined that no writ of

certiorari was permissible as the Benches of the Supreme Court

are not subordinate to the larger Benches of this Court. To the

same effect is the view expressed by Oza, Ray, Venkatachaliah

and Ranganathan,JJ. Thus, in that case by majority of 5 : 2 it

was held that an order of the Supreme Court was not amenable

to correction by issuance of a writ of certiorari under Article 32

of the Constitution.

In Smt. Triveniben vs. State of Gujarat [1989 (1) SCC

678], speaking for himself and other three learned Judges of the

Constitution Bench, Oza, J., reiterating the same principle,

observed :

"It is well settled now that a judgment of court can

never be challenged under Articles 14 or 21 and

therefore the judgment of the court awarding the

sentence of death is not open to challenge as

violating Article 14 or Article 21 as has been laid

down by this Court in Naresh Shridhar Mirajkar

vs. State of Maharashtra and also in A.R.Antulay

vs. R.S.Nayak, the only jurisdiction which could

be sought to be exercised by a prisoner for

infringement of his rights can be to challenge the

subsequent events after the final judicial verdict is

pronounced and it is because of this that on the

ground of long or inordinate delay a condemned

prisoner could approach this Court and that is what

has consistently been held by this Court. But it

will not be open to this Court in exercise of

jurisdiction under Article 32 to go behind or to

examine the final verdict reached by a competent

court convicting and sentencing the condemned

prisoner and even while considering the

circumstances in order to reach a conclusion as to

whether the inordinate delay coupled with

subsequent circumstances could be held to be

sufficient for coming to a conclusion that

execution of the sentence of death will not be just

and proper."

Jagannatha Shetty,J. expressed no opinion on this aspect.

We consider it inappropriate to burden this judgment

with discussion of the decisions in other cases taking the same

view. Suffice it to mention that various Benches of this Court

reiterated the same principle in the following cases :

[A.R.Antulay vs. R.S. Nayak & Anr. [1988 (2) SCC 602],

Krishna Swami vs. Union of India & Ors. [1992 (4) SCC 605],

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Mohd.Aslam vs. Union of India [1996 (2) SCC 749], Khoday

Distilleries Ltd. & Anr. vs. Registrar General, Supreme Court

of India [1996 (3) SCC 114], Gurbachan Singh & Anr. vs.

Union of India & Anr. [1996 (3) SCC 117], Babu Singh Bains

& Ors. vs. Union of India & Ors. [1996 (6) SCC 565] and

P.Ashokan vs. Union of India & Anr. [1998 (3) SCC 56].

It is, however, true that in Supreme Court Bar

Association vs. Union of India & Anr. [1998 (4) SCC 409], a

Constitution Bench and in M.S.Ahlwat vs. State of Haryana &

Anr. [2000 (1) SCC 278] a three-Judge Bench, and in other

cases different Benches quashed the earlier judgments/orders of

this Court in an application filed under Article 32 of the

Constitution. But in those cases no one joined issue with regard

to the maintainability of the writ petition under Article 32 of the

Constitution. Therefore, those cases cannot be read as authority

for the proposition that a writ of certiorari under Article 32

would lie to challenge an earlier final judgment of this Court.

On the analysis of the ratio laid down in the

aforementioned cases, we reaffirm our considered view that 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.

In fairness to the learned counsel for the parties, we

record that all of them at the close of the hearing of these cases

conceded that the jurisdiction of this Court under Article 32 of

the Constitution cannot be invoked to challenge the validity of a

final judgment/order passed by this Court after exhausting the

remedy of review under Article 137 of the Constitution read

with Order XL Rule 1 of the Supreme Court Rules 1966.

However, all the learned counsel for the parties as also

the learned Attorney-General who appeared as amicus curiae,

on the notice of this Court, adopted an unusual unanimous

approach to plead that even after exhausting the remedy of

review under Article 137 of the Constitution, an aggrieved

person might be provided with an opportunity under inherent

powers of this Court to seek relief in cases of gross abuse of the

process of the Court or gross miscarriage of justice because

against the order of this Court the affected party cannot have

recourse to any other forum.

Mr.Shanti Bhushan, the learned senior counsel appearing

for the petitioner, submitted that the principle of finality of the

order of this 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. He

invited our attention to Order XLVII, Rule 6 of the Supreme

Court Rules, 1966 and submitted that this Court had inherent

jurisdiction and that cases falling in the aforementioned

categories should be examined under the inherent jurisdiction

of this Court. According to the learned counsel Article 129

would not be available to correct a judgment of this Court but

he pleaded that as from the order of the Apex Court no appeal

would lie, therefore, an application, by whatever name called,

which should be certified by a senior counsel in regard to

existence of permissible ground, has to be entertained on any of

the aforementioned grounds to correct a judgment of this Court.

He cited Antulay's case, Supreme Court Bar Association's case

and Ahlwat's case as instances in which this Court had

corrected its earlier judgments. He advocated : (i) for oral

hearing on such an application and (ii) for hearing by a Bench

of Judges other than those who passed the order on the ground

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that it would inspire confidence in the litigant public.

Mr.K.K.Venugopal, the learned senior counsel, while

adopting the arguments of Mr.Shanti Bhushan submitted that

the provisions of Order XLVII, Rule 6 of the Supreme Court

Rules, is a mere restatement of the provisions of Article 137 of

the Constitution and that the inherent jurisdiction of this Court

might be exercised to remedy the injustice suffered by a person.

He suggested that a Constitution Bench consisting of senior

judges and the judges who passed the order under challenge,

could be formed to consider the application seeking correction

of final orders of this Court. He added that to ensure that

floodgates are not opened by such a remedy, an application for

invoking the inherent power of this Court might require that it

should be certified by a senior advocate and in case of frivolous

application the petitioner could be subjected to costs. He relied

on the judgment of United States in United States of America

Vs. Ohio Power Company [1 Lawyers' Ed. 2d 683] to show

that in every jurisdiction the courts have corrected their own

mistakes. He cited the judgment of this Court in Harbans Singh

Vs. State of Uttar Pradesh & Ors. [1982 (2) SCC 101] to show

that even after the dismissal of the Review Petition the Supreme

Court reconsidered its own judgment; he pleaded for laying

down guidelines in regard to entertaining such an application.

Mr.Anil B.Divan, the learned senior counsel, submitted

that 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. He relied on the judgment of this

Court in Supreme Court Bar Association's case (supra) to show

that such a power was exercised by this Court and pleaded to

fashion appropriate procedure for entertaining application to

reconsider earlier judgment of this Court at the instance of an

aggrieved person to do justice to the parties.

The learned Attorney-General argued that the remedy

provided under Article 32 of the Constitution would not be

available to a person aggrieved by the final order of this Court;

he nonetheless supported the contentions urged by other learned

counsel that in case of gross miscarriage of justice, this 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. According

to him where the order was passed without jurisdiction or in

violation of the principles of natural justice, the case would fall

in the rarest of the rare cases. He, however, contended that an

order of this 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. He

submitted that under Article 137 read with Order XL Rule 1 of

the Supreme Court Rules, 1966 review of an order of this Court

is provided which will be considered by the same Bench unless

the same Judges are not available by reason of demitting the

office. In regard to reconsideration of the judgment under the

inherent power of the Court he referred to the judgment of the

Federal Court in Raja Prithwi Chand Lall Choudhry etc. Vs.

Rai Bahadur Sukhraj Rai & Ors. etc. [1940 (2) FCR 78]. He

submitted that for correction of a final judgment of this Court

on the ground of lack of jurisdiction or violation of principle of

natural justice, a curative petition could be entertained which

might be heard by an appropriate Bench composed of the senior

Judges as well as Judges who passed the order.

Dr.Rajiv Dhavan, the learned senior counsel, argued that

since the Supreme Court is the creature of the Constitution so

the corrective power has to be derived from the provisions

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conferring jurisdiction on the Supreme Court like Articles 32

and 129-140; such a power does not arise from an abstract

inherent jurisdiction. The corrective power must be exercised

so as to correct an injustice in a case of patent lack of

jurisdiction in a narrow sense, not in the Anisminic's broader

sense, and gross violation of natural justice. Relying on the

judgment of House of Lords in R v Bow Street Metropolitan

Stipendiary Magistrate and others, ex parte Pinochet Ugarte

(No.2)'s case [1999 (1) All ER 577] he has submitted that this

Court has inherent power to correct its own judgment where a

party through no fault of his own has been subjected to an

unfair procedure giving scope for bias. His further contention

is that the corrective power is a species of the review power and

Articles 129, 137, Order XL Rule 5 and Order XLVII Rules 1

and 6 indicate that this Court has inherent power to set right its

own judgment. He referred to the decisions of this Court in

Antulay's case, Supreme Court Bar Association's case,

Ahlwat's case and Triveniben's case (supra) to impress upon us

that this Court has earlier exercised this power. He submitted

that the Supreme Court can also issue practice direction in that

behalf.

Mr. Ranjit Kumar, the learned senior counsel, invited our

attention to various provisions of the Constitution dealing with

different types of jurisdictions of this Court and advocated that

in case of manifest illegality and palpable injustice this Court

under its inherent powers could reconsider final judgment/order

passed by this Court. He submitted that the composition of the

Bench might include senior-most Judges along with the Judges

who passed the order, if available. It is also his submission that

while considering such curative petitions on the ground of

manifest illegality and palpable injustice, in the rarest of rare

cases, factors like the doctrine of stare decisis and the finality

and the certainty of the law declared by this Court are required

to be kept in mind. He referred to the judgment of this Court

rendered by seven learned Judges in The Keshav Mills Co.Ltd.

vs. Commissioner of Income-Tax Bombay North [1965 (2)

SCR 908], which was followed by another Bench of seven

learned Judges reported in Maganlal Chhaganlal (P) Ltd. vs.

Municipal Corporation of Greater Bombay & Ors. [1974 (2)

SCC 402] and by a Bench of five learned Judges in the case of

The Indian Aluminium Co.Ltd. vs. The Commissioner of

Income-tax, West Bengal, Calcutta [1972 (2) SCC 150]. He

stressed that the power of re-consideration of an earlier decision

had to be very restricted; when the power of review is very

limited and circumscribed as is evident from the decision of the

Constitution Bench in Cauvery Water Disputes Tribunal [1993

Suppl.(1) SCC 96] and the Bench of three learned Judges in

S.Nagaraj & Ors. vs. State of Karnataka & Anr. [1993 Suppl.(4)

SCC 595] and in Ramdeo Chauhan vs. State of Assam [2001

(5) SCC 714] by three learned Judges and in the case of Lily

Thomas & Ors. vs. Union of India & Ors. [2000 (6) SCC 224]

the exercise of inherent power for correcting the manifest

illegality and palpable injustice after dismissal of the review

petition has to be much narrower than the power of review.

These contentions pose the question, whether an order

passed by this Court 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.

There is no gainsaying that 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

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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. It is necessary to bear in mind that 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. Here,

we are mainly concerned with the latter. However, when

reconsideration of a judgment of this 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.

It is, therefore, relevant to note that so much was the value

attached to the precedent of the highest court that in The

London Street Tramways Company, Limited Vs. The London

County Council [LR 1898 Appeal Cases 375], the House of

Lords laid down that its decision upon a question of law was

conclusive and would bind the House in subsequent cases and

that an erroneous decision could be set right only by an Act of

Parliament.

In Hoystead & Ors. Vs. Commissioner of Taxation [LR

1926 AC 155 at 165], Lord Shaw observed :

"Parties are not permitted to begin fresh litigations

because of new views they may entertain of the

law of the case, or new versions which they

present as to what should be a proper apprehension

by the Court of the legal result..... If this were

permitted litigation would have no end, except

when legal ingenuity is exhausted."

To the same effect is the view expressed by the Federal

Court of India in Raja Prithwi Chand Lall Choudhary's case

(supra) placing reliance on dicta of the Privy Council in

Venkata Narasimha Appa Row vs. Court of Wards [1886 (II)

Appeal Cases 660 at 664]. Gwyer, CJ. speaking for the Federal

Court observed :

"This Court will not sit as a court of appeal from

its own decisions, nor will it entertain applications

to review on the ground only that one of the parties

in the case conceives himself to be aggrieved by

the decision. It would in our opinion be intolerable

and most prejudicial to the public interest if cases

once decided by the Court could be re-opened and

re-heard : "There is a salutary maxim which ought

to be observed by all Courts of last resort --

Interest reipublicae ut sit finis litium . Its strict

observance may occasionally entail hardship upon

individual litigants, but the mischief arising from

that source must be small in comparison with the

great mischief which would necessarily result from

doubt being thrown upon the finality of the

decisions of such a tribunal as this."

In S. Nagaraj's case (supra), an application was filed by

the State for clarification of the order passed earlier. It was

urged by the petitioner that any modification or recalling of the

order passed by this Court would result in destroying the

principle of finality enshrined in Article 141 of the

Constitution. Sahai, J. speaking for himself and for Pandian,J.

observed :

"Justice is a virtue which transcends all barriers.

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Neither the rules of procedure nor technicalities of

law can stand in its way. The order of the Court

should not be prejudicial to anyone. Rule of stare

decisis is adhered for consistency but it is not as

inflexible in Administrative Law as in Public Law.

Even the law bends before justice."

The learned Judge referring to the judgment of Raja Prithwi

Chand Lall Choudhury's case (supra) further observed :

"Even when there was no statutory provision and

no rules were framed by the highest court

indicating the circumstances in which it could

rectify its order the courts culled out such power to

avoid abuse of process or miscarriage of justice."

The position with regard to conclusive nature of the

precedent obtained in England till the following practice

statement was made by Lord Gardiner, L.C. in Lloyds Bank,

Ltd. Vs. Dawson and Ors. [Note 1966 (3) All E.R. 77] on

behalf of himself and the Lords of Appeal in Ordinary,

"They propose therefore to modify their present

practice and, while treating former decisions of

this House as normally binding, to depart from a

previous decision when it appears right to do so."

The principle in regard to departing from an earlier view

by the House, after the said practice statement, is reflected in

the speech of Lord Reid in Jones Vs. Secretary of State for

Social Services, Hudson Vs. Secretary of State for Social

Services (conjoined appeals) [1972 (1) All E.R. 145], who

observed:

"The old view was that any departure from rigid

adherence to precedent would weaken that

certainty. I did not and do not accept that view. It

is notorious that where an existing decision is

disapproved but cannot be overruled courts tend to

distinguish it on inadequate grounds. I do not

think that they act wrongly in so doing; they are

adopting the less bad of the only alternatives open

to them. But this is bound to lead to uncertainty

for no one can say in advance whether in a

particular case the court will or will not feel bound

to follow the old unsatisfactory decision. On

balance it seems to me that overruling such a

decision will promote and not impair the certainty

of the law.

But that certainty will be impaired unless this

practice is used sparingly. I would not seek to

categorise cases in which it should or cases in

which it should not be used. As time passes

experience will supply some guide. But I would

venture the opinion that the typical case for

reconsidering an old decision is where some broad

issue is involved, and that it should only be in rare

cases that we should reconsider questions of

construction of statutes or other documents."

In Fitzleet Estates Ltd. Vs. Cherry (Inspector of Taxes)

[1977 (3) All E.R. 996] Lord Wilberforce observed :

"My Lords, in my firm opinion, the 1966 Practice

Statement was never intended to allow and should

not be considered to allow such a course. Nothing

could be more undesirable, in fact, than to permit

litigants, after a decision has been given by this

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House with all appearance of finality, to return to

this House in the hope that a differently constituted

committee might be persuaded to take the view

which its predecessors rejected. True that the

earlier decision was by majority : I say nothing as

to its correctness or as to the validity of the

reasoning by which it was supported. That there

were two eminently possible views is shown by the

support for each by at any rate two members of the

House. But doubtful issues have to be resolved

and the law knows no better way of resolving them

than by the considered majority opinion of the

ultimate tribunal. It requires much more than

doubts as to the correctness of such opinion to

justify departing from it."

Lord Edmund-Davies observed :

"My Lords, I respectfully share your views that the

Chancery Lane decision [1966 (1) All.E.R. 1] was

correct. But even had I come to the opposite

conclusion, the circumstances adverted to are such

that I should not have thought it 'right' to depart

from it now. To do so would have been to open

the floodgates to similar appeals and thereby to

impair that reasonable certainty in the law which

the Practice Statement [Note 1966 (3) All E.R. 77]

itself declared to be 'an indispensable foundation

upon which to decide what is the law and its

application to individual cases'."

The law existing in other countries is aptly summarised

by Aharon Barak in his treatise thus :

"The authority to overrule exists in most countries,

whether of civil law or common law tradition.

Even the House of Lords in the United Kingdom is

not bound any more by its precedents. The

Supreme Court of the United States was never

bound by its own decisions, and neither are those

of Canada, Australia, and Israel."

To what extent the principle of stare decisis binds this

Court, was considered in the case of Keshav Mills Co. Ltd.

(supra). The question before a Constitution Bench of Seven

learned Judges of this Court was : to what extent the principle

of stare decisis could be pressed into service where the power

of this Court to overrule its earlier decisions was invoked. The

Court expressed its view thus :

"When this Court decides questions of law, its

decisions are, under Article 141, binding on all

courts within the territory of India, and so, it must

be the constant endeavour and concern of this

Court to introduce and maintain an element of

certainty and continuity in the interpretation of law

in the country. Frequent exercise by this Court of

its power to review its earlier decisions on the

ground that the view pressed before it later appears

to the Court to be more reasonable, may

incidentally tend to make law uncertain and

introduce confusion which must be consistently

avoided. That is not to say that if on a subsequent

occasion, the Court is satisfied that its earlier

decision was clearly erroneous, it should hesitate

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to correct the error; but before a previous decision

is pronounced to be plainly erroneous, the Court

must be satisfied with a fair amount of unanimity

amongst its members that a revision of the said

view is fully justified. It is not possible or

desirable, and in any case it would be inexpedient

to lay down any principles which should govern

the approach of the Court in dealing with the

question of reviewing and revising its earlier

decisions."

In Maganlal Chhaganlal's case (supra), a Bench of seven

learned Judges of this Court considered, inter alia, the question

: whether a judgment of the Supreme Court in Northern India

Caterers' case was required to be overruled. Khanna, J.

observed :

"At the same time, it has to be borne in mind that

certainty and continuity are essential ingredients of

rule of law. Certainty in law would be

considerably eroded and suffer a serious set back if

the highest court of the land readily overrules the

view expressed by it in earlier cases, even though

that view has held the field for a number of years.

In quite a number of cases which come up before

this Court, two views are possible, and simply

because the Court considers that the view not taken

by the Court in the earlier case was a better view

of the matter would not justify the overruling of

the view. The law laid down by this Court is

binding upon all courts in the country under

Article 141 of the Constitution, and numerous

cases all over the country are decided in

accordance with the view taken by this Court.

Many people arrange their affairs and large

number of transactions also take place on the faith

of the correctness of the view taken by this Court.

It would create uncertainty, instability and

confusion if the law propounded by this Court on

the basis of which numerous cases have been

decided and many transactions have taken place is

held to be not the correct law."

In the case of The Indian Aluminium Co. Ltd. (supra),

the question before a Constitution Bench of five learned Judges

was : when can this Court properly dissent from a previous

view?

In regard to the effect of an earlier order of this Court

Sawant, J. speaking for the Constitution Bench observed in

Cauvery Water Distputes Tribunal's case (supra) as follows :

"The decision of this Court on a question of law is

binding on all courts and authorities. Hence under

the said clause the President can refer a question of

law only when this court has not decided it.

Secondly, a decision given by this Court can be

reviewed only under Article 137 read with Rule 1

of Order XL of the Supreme Court Rules, 1966

and on the conditions mentioned therein. When,

further, this Court overrules the view of law

expressed by it in an earlier case, it does not do so

sitting in appeal and exercising an appellate

jurisdiction over the earlier decision. It does so in

exercise of its inherent power and only in

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exceptional circumstances such as when the earlier

decision is per incuriam or is delivered in the

absence of relevant or material facts or if it is

manifestly wrong and productive of public

mischief. [See : Bengal Immunity Company Ltd.

Vs. State of Bihar (1955 (2) S.C.R. 603)]

In the cases of Ramdeo Chauhan (supra) and Lily

Thomas (supra), the question before the Court was, the scope of

the power of review of a judgment of this Court under Article

137 of the Constitution read with Section 114, Order XLVII of

the C.P.C. and Order XL Rule 1 of the Supreme Court Rules,

1966.

In the case of Ex parte Pinochet Ugarte (No 2) (supra),

on November 25, 1998 the House of Lords by majority 3 : 2

restored warrant of arrest of Senator Pinochet who was the

Head of the State of Chile and was to stand trial in Spain for

some alleged offences. It came to be known later that one of

the Law Lords (Lord Hoffmann), who heard the case, had links

with Amnesty International (A.I.) which had become a party to

the case. This was not disclosed by him at the time of the

hearing of the case by the House. Pinochet Ugarte, on coming

to know of that fact, sought reconsideration of the said

judgment of the House of Lords on the ground of an appearance

of bias not actual bias. On the principle of disqualification of a

judge to hear a matter on the ground of appearance of bias it

was pointed out,

"The principle that a judge was automatically

disqualified from hearing a matter in his own cause

was not restricted to cases in which he had a

pecuniary interest in the outcome, but also applied

to cases where the judge's decision would lead to

the promotion of a cause in which the judge was

involved together with one of the parties. That did

not mean that judges could not sit on cases

concerning charities in whose work they were

involved, and judges would normally be concerned

to recuse themselves or disclose the position to the

parties only where they had an active role as

trustee or director of a charity which was closely

allied to and acting with a party to the litigation.

In the instant case, the facts were exceptional in

that AI was a party to the appeal, it had been

joined in order to argue for a particular result and

the Law Lord was a director of a charity closely

allied to AI and sharing its objects. Accordingly,

he was automatically disqualified from hearing the

appeal. The petition would therefore be granted

and the matter referred to another committee of the

House for rehearing per curiam"

On the point of jurisdiction of the House to correct any

injustice in an earlier order, it was observed :

"In principle it must be that your Lordships, as the

ultimate court of appeal, have power to correct any

injustice caused by an earlier order of this House.

There is no relevant statutory limitation on the

jurisdiction of the House in this regard and

therefore its inherent jurisdiction remains

unfettered. In Cassell & Co. Ltd. v Broome

(No.2) [1972 (2) All ER 849 = 1972 AC 1136]

your Lordships varied an order for costs already

made by the House in circumstances where the

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parties had not had a fair opportunity to address

argument on the point."

And it was held,

"An appeal to the House of Lords will only be

reopened where a party through no fault of its own,

has been subjected to an unfair procedure. A

decision of the House of Lords will not be varied

or rescinded merely because it is subsequently

thought to be wrong."

We may notice here that in these cases except in Raja

Prithwi Chand Lall Choudhary (supra) and Ex parte Pinochet

Ugarte (No.2) (supra), the question was in what circumstances

the ratio in the earlier judgment of the highest court having

precedent value could be departed. In the aforementioned two

cases the decision was rendered on an application seeking

reconsideration of the final judgment of the Federal Court and

House of Lords respectively. In view of the specific provision

of Article 137 of the Constitution read with Order XL Rule 1 of

the Supreme Court Rules, conferring power of review on this

Court, the problem in entertaining a review petition against its

final judgment which its precursor - the Federal Court - had to

face, did not arise before this Court.

The petitioners in these writ petitions seek re-

consideration of the final judgments of this Court after they

have been unsuccessful in review petitions and in that these

cases are different from the cases referred to above. The

provision of Order XL Rule 5 of the Supreme Court Rules bars

further application for review in the same matter. The concern

of the Court now is whether any relief can be given to the

petitioners who challenge the final judgment of this Court,

though after disposal of review petitions, complaining of the

gross abuse of the process of Court and irremedial injustice. In

a State like India, governed by rule of law, certainty of law

declared and the final decision rendered on merits in a lis

between the parties by the highest court in the country is of

paramount importance. The principle of finality is insisted

upon not on the ground that a judgment given by the apex Court

is impeccable but on the maxium "Interest reipublicae ut sit

finis litium

At one time adherence to the principle of stare decisis

was so rigidly followed in the courts governed by the English

Jurisprudence that departing from an earlier precedent was

considered heresy. With the declaration of the practice

statement by the House of Lords, the highest court in England

was enabled to depart from a previous decision when it

appeared right to do so. The next step forward by the highest

court to do justice was to review its judgment inter partie to

correct injustice. So far as this Court is concerned, we have

already pointed out above that it has been conferred the power

to review its own judgments under Article 137 of the

Constitution. The role of judiciary merely to interpret and

declare the law was the concept of bygone age. It is no more

open to debate as it is fairly settled that the courts can so mould

and lay down the law formulating principles and guidelines as

to adapt and adjust to the changing conditions of the society,

the ultimate objective being to dispense justice. In the recent

years there is a discernable shift in the approach of the final

courts in favour of rendering justice on the facts presented

before them, without abrogating but by-passing the principle of

finality of the judgment. In Union of India and Anr. etc. Vs.

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Raghubir Singh (Dead) by Lrs. etc. etc. [1989 (2) SCC 754]

Pathak, CJ. speaking for the Constitution Bench aptly

observed :

"But like all principles evolved by man for the

regulation of the social order, the doctrine of

binding precedent is circumscribed in its

governance by perceptible limitations, limitations

arising by reference to the need for re-adjustment

in a changing society, a re-adjustment of legal

norms demanded by a changed social context.

This need for adapting the law to new urges in

society brings home the truth of the Holmesian

aphorism that "the life of the law has not been

logic it has been experience"(Oliver Wendell

Holmes : The Common Law, p.5), and again when

he declared in another study (Oliver Wendell

Holmes : Common Carriers and the Common Law,

(1943) 9 Curr LT 387, 388) that "the law is forever

adopting new principles from life at one end", and

"sloughing off" old ones at the other. Explaining

the conceptual import of what Holmes had said,

Julius Stone elaborated that it is by the

introduction of new extra-legal propositions

emerging from experience to serve as premises, or

by experience-guided choice between competing

legal propositions, rather than by the operation of

logic upon existing legal propositions, that the

growth of law tends to be determined (Julius Stone

: Legal Systems & Lawyers Reasoning, pp.58-59)"

The concern of this Court for rendering justice in a cause

is not less important than the principle of finality of its

judgment. We are faced with competing principles - ensuring

certainty and finality of a judgment of the Court of last resort

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.

Such a judgment, far from ensuring finality, will always remain

under the cloud of uncertainty. Almighty alone is the dispenser

of absolute justice - a concept which is not disputed but by a

few. We are of the view that 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. After giving our anxious

consideration to the question we are persuaded to hold that the

duty to do justice in these rarest of rare cases shall have to

prevail over the policy of certainty of judgment as though 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, as mentioned above, wherein declining

to reconsider the judgment would be oppressive to judicial

conscience and cause perpetuation of irremediable injustice.

It may be useful to refer to the judgment of the Supreme

Court of United States in Ohio Power Company's case (supra).

In that case the Court of Claims entered judgment for refund of

tax, alleged to have been overpaid, in favour of the tax payer.

On the application of the Government a writ of certiorari

against that judgment was declined by the Supreme Court of

United States in October 1955. The Government sought re-

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hearing of the case by filing another application which was

dismissed in December 1955. A second petition for hearing

was also rejected in May 1956. However, in June 1956 the

order passed in December 1955 was set aside sua sponte (of its

own motion) and that case was ordered to be heard along with

two other pending cases in which the same question was

presented. In those two cases the Supreme Court held against

the tax payer and, on the authority of that judgment, reversed

the judgment of the Court of Claims. Four learned members of

the Court, in per curiam opinion, rested the decision "on the

ground of interest in finality of the decision must yield where

the interest of justice so required". Three learned members

dissented and held that denial of certiorari had become final and

ought not to be disturbed. Two learned members, however, did

not participate.

This Court in Harbans Singh's case (supra), on an

application under Article 32 of the Constitution filed after the

dismissal of special leave petition and the review, reconsidered

its judgment. In that case, among others, the petitioner and

another person were convicted under Section 302 of I.P.C. and

sentenced to death. In the case of one of the remaining two

convicts, the Supreme Court commuted the death sentence to

life imprisonment. While staying the death sentence of the

petitioner, A.N.Sen, J. in his concurring opinion, noticed the

dismissal of the petitioner's special leave, review petitions and

the petition for clemency by the President and observed :

"Very wide powers have been conferred on this

Court for due and proper administration of justice.

Apart from the jurisdiction and powers conferred

on this Court under Articles 32 and 136 of the

Constitution, I am of the opinion that this Court

retains and must retain, an inherent power and

jurisdiction for dealing with any extraordinary

situation in the larger interests of administration of

justice and for preventing manifest injustice being

done. This power must necessarily be sparingly

used only in exceptional circumstances for

furthering the ends of justice."

In Antulay's case (supra), the majority in the seven-Judge

Bench of this Court set aside an earlier judgment of the

Constitution Bench in a collateral proceeding on the view that

the order was contrary to the provisions of the Act of 1952; in

the background of that Act without precedent and in violation

of the principles of natural justice, which needed to be corrected

ex debito justitiae.

In Supreme Court Bar Association's case (supra), on an

application filed under Article 32 of the Constitution of India,

the petitioner sought declaration that the Disciplinary

Committees of the Bar Councils set up under the Advocates

Act, 1961, alone had exclusive jurisdiction to inquire into and

suspend or debar an advocate from practising law for

professional or other misconduct and that the Supreme Court of

India or any High Court in exercise of its inherent jurisdiction

had no such jurisdiction, power or authority in that regard. A

Constitution Bench of this Court considered the correctness of

the judgment of this Court in Re: Vinay Chandra Mishra

[(1995) 2 SCC 584]. The question which fell for consideration

of this Court was : whether the punishment of debarring an

advocate from practice and suspending his licence for a

specified period could be passed in exercise of power of this

Court under Article 129 read with Article 142 of the

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Constitution of India. There an errant advocate was found

guilty of criminal contempt and was awarded the punishment of

simple imprisonment for a period of six weeks and was also

suspended from practice as an advocate for a period of three

years from the date of the judgment of this Court for contempt

of the High Court of Allahabad. As a result of that punishment

all elective and nominated offices/posts then held by him in his

capacity as an advocate had to be vacated by him. Elucidating

the scope of the curative nature of power conferred on the

Supreme Court under Article 142, it was observed :

"The plenary powers of the Supreme Court under

Article 142 of the Constitution are inherent in the

Court and are complementary to those powers

which are specifically conferred on the Court by

various statutes though are not limited by those

statutes. These powers also exist independent of

the statutes with a view to do complete justice

between the parties. These powers are of very

wide amplitude and are in the nature of

supplementary powers. This power exists as a

separate and independent basis of jurisdiction apart

from the statutes. It stands upon the foundation

and the basis for its exercise may be put on a

different and perhaps even wider footing, to

prevent injustice in the process of litigation and to

do complete justice between the parties. This

plenary jurisdiction is, thus, the residual source of

power which the Supreme Court may draw upon as

necessary whenever it is just and equitable to do so

and in particular to ensure the observance of the

due process of law, to do complete justice between

the parties, while administering justice according

to law. It is an indispensable adjunct to all other

powers and is free from the restraint of jurisdiction

and operates as a valuable weapon in the hands of

the Supreme Court to prevent "clogging or

obstruction of the stream of justice"."

Inspite of the width of power conferred by Article 142, the

Constitution Bench took the view that suspending the advocate

from practice and suspending his licence was not within the

sweep of the power under the said Article and overruled the

judgment in Re V.C.Mishra's case (supra).

In M.S.Ahlwat's case (supra), the petitioner, who was

found guilty of forging signatures and making false statements

at different stages before this Court, was inflicted punishment

under Section 193 IPC in Afzal vs. State of Haryana [1996 (7)

SCC 397]. He filed an application under Article 32 of the

Constitution assailing the validity of that order. Taking note of

the complaint of miscarriage of justice by the Supreme Court in

ordering his incarceration which ruined his career, acting

without jurisdiction or without following the due procedure, it

was observed that to perpetuate an error was no virtue but to

correct it was a compulsion of judicial conscience. The

correctness of the judgment was examined and the error was

rectified.

In the cases discussed above this Court reconsidered its

earlier judgments, inter alia, under Articles 129 and 142 which

confer very wide powers on this Court to do complete justice

between the parties. We have already indicated above that the

scope of the power of this Court under Article 129 as a court of

record and also adverted to the extent of power under Article

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142 of the Constitution.

The upshot of the discussion in our view is that this

Court, 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.

The next step is to specify the requirements to entertain

such a curative petition under the inherent power of this 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

under inherent power. It is common ground that except when

very strong reasons exist, the Court should not entertain an

application seeking reconsideration of an order of this Court

which has become final on dismissal of a review petition. It is

neither advisable nor possible to enumerate all the grounds on

which such a petition may be entertained.

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 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.

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.

The curative petition shall contain a certification by a Senior

Advocate with regard to the fulfillment of the above

requirements.

We are of the view that since the matter relates to re-

examination of a final judgment of this Court, though on

limited ground, 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 on this Bench conclude

that the matter needs hearing that it should be listed before the

same Bench (as far as possible) which may pass appropriate

orders. It shall be open to the Bench at any stage of

consideration of the curative petition to ask a senior counsel to

assist it as amicus curiae. In the event of the Bench holding at

any stage that the petition is without any merit and vexatious, it

may impose exemplary costs on the petitioner.

Insofar as the present writ petitions are concerned, the

Registry shall process them, 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.

The point is accordingly answered.

============================================================================================

====================================

BANERJEE, J.

I have had the privilege of going through a very lucid

expression of opinion by brother Quadri and while recording my

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concurrence therewith I wish to add a few paragraphs of my own.

The issue involved presently though not a concept within the

ambit of doctrine of stare decisis but akin thereto to the effect as to

the scope or finality of the decision of this Court in the normal

course of events. There cannot possibly be any manner of doubt

that the matter once dealt with by this Court attains a state of

finality and no further grievance can be had in regard thereto. The

founding fathers of the Constitution decidedly provided that the

decision of this Court as final, conclusive and binding final and

conclusive inter-parties and binding on all. But the makers have

also conferred a power of review of the Judgment of this Court and

the perusal of the provisions of Articles 137 and 145 makes it

abundantly clear. In the event, however, a party stands aggrieved

by reason of a rejection of review, the question posed as to whether

a litigant thereof to suffer the onslaught for all times to come and

in perpetuity when on the face of the Order it appears to be wholly

without jurisdiction or in violation of natural justice a further

factum of there being a bias or gross or manifest injustice, which

shocks the conscience of a reasonable man: needless to record that

the facts, as noticed above, are not only unwarranted but possibly

in the region of impossibility or more appropriately improbable

Mr. K.K.Venugopal, the learned senior counsel appearing in

support of one of the matters before this Bench, has been rather

emphatic in his submissions as regards the apprehension of bias

and it is his contention that a mere likelihood of bias should

prompt this Court to allow a further consideration of the matter.

Incidentally, be it noted that in all these matters, petitions under

Article 32 of the Constitution have been filed with a prayer for

issuance of the Writ of Certiorari. We called for the records in

some of the matters, which stand concluded by decisions of this

Court and the principal issue thus arises as to the maintainability of

a petition under Article 32 of the Constitution. There is no denial

of the fact that the right exists to move this Court for enforcement

of the rights conferred by Part III of the Constitution and stands

conferred in terms of Article 32 and the language used therein is of

widest possible amplitude but as regards the issuance of writs, the

view seems to be rather well settled in the negative.

About four decades ago, in Naresh Shridhar Mirajkar and

others vs. State of Maharashtra and another (1966) 3 SCR 744, a

nine Judge Bench of this Court in no uncertain terms negatived the

availability of writ jurisdiction under Article 32 and with utmost

clarity and felicity of expression stated:

"We are, therefore, satisfied that so far as the

jurisdiction of this Court to issue writ of certiorari is

concerned, it is impossible to accept the argument of

the petitioners that judicial orders passed by High

Courts in or in relation to proceedings pending before

them, are amenable to be corrected by exercise of the

said jurisdiction. We have no doubt that it would be

unreasonable to attempt to rationalise the assumption of

jurisdiction by this Court under Art. 32 to correct such

judicial orders on the fanciful hypothesis that High

Courts may pass extravagant orders in or in relation to

matters pending before them and that a remedy by way

of a writ of certiorari should, therefore, be sought for

and be deemed to be included within the scope of Art.

32. The words used in Art. 32 are no doubt wide; but

having regard to the considerations which we have set

out in the course of this judgment, we are satisfied that

the impugned order cannot be brought within the scope

of this Court's jurisdiction to issue a writ of certiorari

under Art. 32; to hold otherwise would be repugnant to

the well-recognised limitations within which the

jurisdiction to issue writs of certiorari can be exercised

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and inconsistent with the uniform trend of this Court's

decisions in relation to the said point."

Two decades later, this Court in A.R.Antulay vs. R.S. Nayak

and another (1988) 2 SCC 602, relying upon the nine Judge Bench

Judgment, came to a conclusion that in view of the decision in

Mirajkar case, it must be taken as concluded that the judicial

proceedings in this Court are not subject to the writ jurisdiction

under Article 32 of the Constitution and that is so on account of the

fact that Benches of this Court are not subordinate to larger

Benches thereof and certiorari is not admissible thus for quashing

of the Orders made on the judicial side of the court. In Smt.

Triveniben vs. State of Gujarat (1989) 1 SCC 678, a Constitution

Bench of this Court also in no uncertain terms laid down that it

will not be open to this Court in exercise of its jurisdiction under

Article 32 to go behind or to examine the final verdict reached by a

competent Court. To complete the list, however, a very recent

decision of this Court in Ajit Kumar Barat vs. Secretary, Indian

Tea Association and others (2001) 5 SCC 42 one of us (Shivaraj

V. Patil, J) upon consideration of Mirajkar (supra) and Antulay

(supra) came to a conclusion that authority of an Order passed by

this Court itself cannot be subjected to writ jurisdiction of this

Court.

On the wake of the aforesaid, there is thus no manner of

doubt that the plea of the availability of writ jurisdiction, as

envisaged under Article 32 of the Constitution, cannot be sustained

and the law seems to be well settled on this score and as such we

need not delve into neither dilate any further thereon.

Having regard to the conclusion, as above, does it, however,

mean and imply a closed door even if the Order of this Court

depicts that the same stands in violation of natural justice adversely

and seriously affecting the rights of the parties or the same depicts

manifest injustice rendering the order a mockery of justice can it

be said that the binding nature of an Order of this Court, cannot

thus be ever be corrected even if it causes insurmountable

difficulty and immense public injury the debate has a very large

and wide ramification and thus will have to be dealt with in a

manner with care and caution and with proper circumspection as

regards its impact - the principal basis being the concept of justice

and this is where the principle of ex debito justitiae comes to play.

Can it be said that the justice delivery system of the country is such

that in spite of noticing a breach of public interest with a

corresponding social ramification, this Court would maintain a

delightful silence with a blind eye and deaf ear to the cry of a

society in general or even that of a litigant on the ground of finality

of an Order as passed by this Court ? True the finality shall have

to be maintained but is it the principal requirement, which the law

envisages? Roscoe Pound stated that flexibility is the greatest

virtue of law and thus its applicability should also be flexible

rather than a rigid insistence on a strict format. Justice of the

situation shall have to be considered with a fair perception of such

a concept rather than with a blinking light attention ought to be

focussed on a larger social perspective since law is meant for the

society and if flexibility is its virtue, which law enjoys, its

corresponding primary duty thus would be to change the legal

horizon and perspective with the appropriate socio-economic

change. The law must follow the society rather than abandon the

society and carry on it strict track without any deviation or without

being hindered of the social changes and thus resultantly face a

social catastrophe.

Lord Denning's exposition of the doctrine 'ex debito

justitiae' in A/s Cathrineholm vs. Norequipment Trading Ltd.

(1972 (2) All ER 538) has been stated to be rather restrictive, but

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since basically the same stands out to be on the concept of justice,

speaking for myself do not subscribe to such a criticism. The

Master of the Rolls stated that if the Judgment is irregular that

is, which ought not to have been signed at all then the defendant

is entitled ex debito justitiae to have it set aside but in the event it

is otherwise regular, question of setting aside of the Judgment

would not arise. It is, thereafter, however, arises, the question as to

the true effect of Regular and Irregular Judgments : Since the issue

involves a much wider debate, we refrain ourselves to attribute

meanings thereto or to dilate on the ramifications of the

terminology having regard to further enunciation of the doctrine by

both the English Courts and the Indian Supreme Court.

Adverting to the true purport of the maxim, therefore, it is no

gainsaid that "the same relates to and arises from the concept of

justice : In the event there appears to be infraction of the concept,

question of there being a turn around and thereby maintaining a

total silence by the law Courts would not arise. It is on this score,

the learned Attorney General for India, appearing as Amicus

Curiae, contended that Supreme Court has the jurisdiction to

exercise this inherent power for the ends of justice or to prevent

abuse of the process of the court. Though we are not inclined to

ascribe an Order of this Court as an abuse of the process of the

Court, but the factum of the availability of inherent power for the

ends of justice cannot in any way be decried. The Constitution of

India assigned a pivotal role on to the Supreme Court providing

therein the supremacy of law with the rationale being justice is

above all. The exercise of inherent power of this Court also stands

recognised by Order XLVII Rule 6 of the Supreme Court Rules,

1966, which reads as below:

"6 Nothing in these rules shall be deemed to limit or

otherwise affect the inherent powers of the Court

to make such orders as may be necessary for the

ends of justice or to prevent abuse of the process

of the Court."

The observations of this Court in A.R. Antulay (supra) lends

concurrence to such an exercise of power by this Court ex debito

justitiae. The Court can exercise its inherent power in the event of

there being an error brought to the notice of this Court.

Mukharji,J (as he then was) in paragraph 40 of the Judgment in

A.R. Antulay (supra) very lucidly and with utmost precision

stated:

"The question of validity, however, is important in that

the want of jurisdiction can be established solely by a

superior court and that, in practice, no decision can be

impeached collaterally by any inferior court. But the

superior court can always correct its own error brought

to its notice either by way of petition or ex debito

justitiae. See Rubinstein's Jurisdiction and Illegality)."

Incidentally a Seven Judge Bench of this Court in Synthetics

and Chemicals Ltd. and others vs. State of U.P. and others (1990) 1

SCC 109 relied upon another Judgment of Lord Denning in Ostime

(Inspector of Taxes) vs. Australian Mutual Provident Society

(1959 (3) All ER 245 : 1960 AC 459) and the dissent noting by

Justice Jackson in the case of Commonwealth of Massachusetts et

al vs. USA (92 L ed 968), wherein in similar tone it has been

stated that as soon as one finds a journey in the wrong direction,

there should always be an attempt to turn to the right direction

since law courts ought to proceed for all times in the right path

rather than in the wrong. Adverting to the issue of inherent power,

the observations of this Court in S. Nagaraj and others vs. State of

Karnataka and another (1993 Supp. (4) SCC 595) seems to be

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rather apposite. This Court in paragraph 19 of the report, upon

relying on the fundamental principles of jurisprudence that justice

is above all, stated as below:

"Review literally and even judicially means re-

examination or re-consideration. Basic philosophy

inherent in it is the universal acceptance of human

fallibility. Yet in the realm of law the courts and even

the statutes lean strongly in favour of finality of

decision legally and properly made. Exceptions both

statutorily and judicially have been carved out to

correct accidental mistakes or miscarriage or justice.

Even when there was no statutory provision and no

rules were framed by the highest court indicating the

circumstances in which it could rectify its order the

courts culled out such power to avoid abuse of process

or miscarriage of justice. In Raja Prithwi Chand Lal

Choudhury v. Sukhraj Rai (AIR 1941 FC 1,2 : 1940

FCR 78 : (1941) 1 MLJ Supp 45) the Court observed

that even though no rules had been framed permitting

the highest Court to review its order yet it was available

on the limited and narrow ground developed by the

Privy Council and the House of Lords. The Court

approved the principle laid down by the Privy Council

in Rajunder Narain Rae v. Bijai Govind Singh [(1836) 1

Moo PC 117 : 2 MIA 181 : 1 Sar 175] that an order

made by the Court was final and could not be altered:

". nevertheless, if by misprision in

embodying the judgments, by errors have

been introduced, these Courts possess, by

Common law, the same power which the

Courts of record and statute have of rectifying

the mistakes which have crept in . The

House of Lords exercises a similar power of

rectifying mistakes made in drawing up its

own judgments, and this Court must possess

the same authority. The Lords have however

gone a step further, and have corrected

mistakes introduced through inadvertence in

the details of judgments; or have supplied

manifest defects in order to enable the decrees

to be enforced, or have added explanatory

matter, or have reconciled inconsistencies.

Basis for exercise of the power was stated in the same

decision as under:

"It is impossible to doubt that the indulgence

extended in such cases is mainly owing to the

natural desire prevailing to prevent

irremediable injustice being done by a Court

of last resort, where by some accident,

without any blame, the party has not been

heard and an order has been inadvertently

made as if the party had been heard."

Rectification of an order thus stems from the

fundamental principle that justice is above all. It is

exercised to remove the error and not for disturbing

finality. When the Constitution was framed the

substantive power to rectify or recall the order passed

by this Court was specifically provided by Article 137

of the Constitution. Our Constitution-makers who had

the practical wisdom to visualise the efficacy of such

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provision expressly conferred the substantive power to

review any judgment or order by Article 137 of the

Constitution. And clause (c) of Article 145 permitted

this Court to frame rules as to the conditions subject to

which any judgment or order may be reviewed. In

exercise of this power Order XL had been framed

empowering this Court to review an order in civil

proceedings on grounds analogous to Order XLVII

Rule 1 of the Civil Procedure Code. The expression

'for any other sufficient reason' in the clause has been

given an expanded meaning and a decree or order

passed under misapprehension of true state of

circumstances has been held to be sufficient ground to

exercise the power. Apart from Order XL Rule 1 of the

Supreme Court Rules this Court has the inherent power

to make such orders as may be necessary in the interest

of justice or to prevent the abuse of process of Court.

The Court is thus not precluded from recalling or

reviewing its own order if it is satisfied that it is

necessary to do so for sake of justice."

In one of its recent pronouncements [Supreme Court Bar

Association vs. Union of India and another (1998 (4) SCC 409)]

this Court has had the occasion to deal with the issue at some

length relying upon Article 129 read with Article 142 of the

Constitution. The plenary powers of the Supreme Court, as

envisaged under Article 142, stand out to be complimentary to

those powers to do complete justice between the parties and it is on

this score in paragraphs 47 and 48 of the report, this Court

observed:

"47 The plenary powers of this Court under Article

142 of the Constitution are inherent in the Court and are

complementary to those powers which are specifically

conferred on the Court by various statutes though are

not limited by those statutes. These powers also exist

independent of the statutes with a view to do complete

justice between the parties. These powers are of very

wide amplitude and are in the nature of supplementary

powers. This power exists as a separate and

independent basis of jurisdiction apart from the statutes.

It stands upon the foundation and the basis for its

exercise may be put on a different and perhaps even

wider footing, to prevent injustice in the process of

litigation and to do complete justice between the

parties. This plenary jurisdiction is, thus, the residual

source of power which this Court may draw upon as

necessary whenever it is just and equitable to do so and

in particular to ensure the observance of the due process

of law, to do complete justice between the parties,

while administering justice according to law. There is

no doubt that it is an indispensable adjunct to all other

powers and is free from the restraint of jurisdiction and

operates as a valuable weapon in the hands of the Court

to prevent "clogging or obstruction of the stream of

justice". It, however, needs to be remembered that the

powers conferred on the Court by Article 142 being

curative in nature cannot be construed as powers which

authorise the Court to ignore the substantive rights of a

litigant while dealing with a cause pending before it.

This power cannot be used to "supplant" substantive

law applicable to the case or case under consideration

of the Court. Article 142, even with the width of its

amplitude, cannot be used to build a new edifice where

none existed earlier, by ignoring express statutory

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provisions dealing with a subject and thereby to achieve

something indirectly which cannot be achieved directly.

Punishing a contemner advocate, while dealing with a

contempt of court case by suspending his licence to

practice, a power otherwise statutorily available only to

the Bar Council of India, on the ground that the

contemner is also an advocate, is, therefore, not

permissible in exercise of the jurisdiction under Article

142. The construction of Article 142 must be

functionally informed by the salutary purposes of the

article, viz., to do complete justice between the parties.

It cannot be otherwise. As already noticed in a case of

contempt of court, the contemner and the court cannot

be said to be litigating parties.

48. The Supreme Court in exercise of its jurisdiction

under Article 142 has the power to make such order as

is necessary for doing complete justice "between the

parties in any cause or matter pending before it". The

very nature of the power must lead the Court to set

limits for itself within which to exercise those powers

and ordinarily it cannot disregard a statutory provision

governing a subject, except perhaps to balance the

equities between the conflicting claims of the litigating

parties by "ironing out the creases" in a cause or matter

before it. Indeed this Court is not a court of restricted

jurisdiction of only dispute-settling. It is well

recognised and established that this Court has always

been a law-maker and its role travels beyond merely

dispute-settling. It is a "problem-solver in the nebulous

areas" (see K. Veeraswami v. Union of India (1991) 3

SCC 655 : 1991 SCC (Cri) 734) but the substantive

statutory provisions dealing with the subject-matter of a

given case cannot be altogether ignored by this Court,

while making an order under Article 142. Indeed, these

constitutional powers cannot, in any way, be controlled

by any statutory provisions but at the same time these

powers are not meant to be exercised when their

exercise may come directly in conflict with what has

been expressly provided for in a statute dealing

expressly with the subject."

Incidentally, this Court stands out to be an avenue for

redressal of grievance not only in its revisional jurisdiction as

conferred by the Constitution but as a platform and forum for

every grievance in the country and it is on this context Mr.Shanti

Bhushan, appearing in support of the some of the petitioners,

submitted that the Supreme Court in its journey for over 50 years

has been able to obtain the confidence of the people of the country,

whenever the same is required be it the atrocities of the police or

a public grievance pertaining to a governmental action involving

multitudes of problems. It is the Supreme Court, Mr. Shanti

Bhushan contended, where the people feel confident that justice is

above all and would be able to obtain justice in its true form and

sphere and this is beyond all controversies. It has been contended

that finality of the proceeding after an Order of the Supreme Court,

there should be, but that does not preclude or said to preclude this

Court from going into the factum of the petition for gross injustice

caused by an Order of the Supreme Court itself under the inherent

power being an authority to correct its errors any other view

should not and ought not be allowed to be continued. Needless to

record here, however, that review jurisdiction stand foisted upon

this Court in terms of the provisions of the Constitution, as noticed

hereinbefore and it is also well-settled that a second review petition

cannot be said to maintainable. Reference maybe made in this

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context to a decision of this Court in the case of J.Ranga Swamy v.

Govt. of A.P. & Ors. (AIR 1990 SC 535), wherein this Court in

paragraph 3 stated as below :-

"We are clearly of the opinion that these

applications are not maintainable. The petitioner,

who appeared in person, referred to the judgment

in Antulay's case (1988) 2 SCC 602 : (AIR 1988

SC 1531). We are, however, of the opinion that

the principle of that case is not applicable here.

All the points which the petitioner urged

regarding the constitutionality of the Government

orders in question as well as the appointment of

respondent instead of petitioner to the post in

question had been urged before the Bench, which

heard the civil appeal and writ petitions originally.

The petitioner himself stated that he was heard by

the Bench at some length. It is, therefore, clear

that the matters were disposed of after a

consideration of all the points urged by the

petitioner and the mere fact that the order does not

discuss the contentions or give reasons cannot

entitle the petitioner to have what is virtually a

second review."

True, due regard shall have to have as regards opinion of the

Court in Ranga Swamy (supra), but the situation presently centres

round that in the event of there being any manifest injustice would

the doctrine of ex debito justitiae be said to be having a role to play

in sheer passivity or to rise above the ordinary heights as it

preaches that justice is above all. The second alternative seems to

be in consonance with time and present phase of socio-economic

conditions of the society. Manifest justice is curable in nature

rather than incurable and this court would lose its sanctity and thus

would belie the expectations of the founding fathers that justice is

above all. There is no manner of doubt that procedural

law/procedural justice cannot overreach the concept of justice and

in the event an Order stands out to create manifest injustice, would

the same be allowed to remain in silenco so as to affect the parties

perpetually or the concept of justice ought to activate the Court to

find a way out to resolve the erroneous approach to the problem.

Mr.Attorney General, with all the emphasis in his command,

though principally agreed that justice of the situation needs to be

looked into and relief be granted if so required but on the same

breath submitted that the Court ought to be careful enough to trade

on the path, otherwise the same will open up Pandora's box and

thus, if at all, in rarest of the rare cases the further scrutiny may be

made. While it is true that law courts has overburdened itself with

the litigation and delay in disposal of matters in the subcontinent is

not unknown and in the event of any further appraisal of the matter

by this Court, it would brook on further delay resulting in

consequences which are not far to see but that would by itself not

in my view deter this Court from further appraisal of the matter in

the event the same, however, deserve such an additional appraisal

The note of caution sounded by Mr. Attorney as regards opening

up of pandora's box strictly speaking, however, though may be of

very practical in nature but the same apparently does not seem to

go well with the concept of justice as adumbrated in our

constitution. True it is, that practicability of the situation needs a

serious consideration more so when this Court could do without it

for more than 50 years, which by no stretch of imagination can be

said to be a period not so short. I feel it necessary, however, to add

that it is not that we are not concerned with the consequences of

reopening of the issue but the redeeming feature of our justice

delivery system, as is prevalent in the country, is adherence to

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proper and effective administration of justice in stricto. In the

event there is any affectation of such an administration of justice

either by way of infraction of natural justice or an order being

passed wholly without jurisdiction or affectation of public

confidence as regards the doctrine of integrity in the justice

delivery system technicality ought not to out-weigh the course of

justice the same being the true effect of the doctrine of ex debito

justitiae. The oft quoted statement of law of Lord Hewart, CJ in R

v. Susssex Justices, ex p McCarthy (1924 (1) KB 256) that it is of

fundamental importance that justice should not only be done,

should manifestly and undoubtedly be seem to be done had this

doctrine underlined and administered therein. In this context, the

decision of the House of Lords in R v. Bow Street Metropolitan

Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No.2)

seem to be an ipoc making decision, wherein public confidence on

the judiciary is said to be the basic criteria of the justice delivery

system any act or action even if it a passive one, if erodes or even

likely to erode the ethics of judiciary, matter needs a further look.

Brother Quadri has taken very great pains to formulate the

steps to be taken and the methodology therefor, in the event of

there being an infraction of the concept of justice, as such further

dilation would be an unnecessary exercise which I wish to avoid

since I have already recorded my concurrence therewith excepting,

however, lastly that curative petitions ought to be treated as a rarity

rather than regular and the appreciation of the Court shall have to

be upon proper circumspection having regard to the three basic

features of our justice delivery system to wit, the order being in

contravention of the doctrine of natural justice or without

jurisdiction or in the event of there is even a likelihood of public

confidence being shaken by reason of the association or closeness

of a judge with the subject matter in dispute. In my view, it is

now time that procedural justice system should give way to the

conceptual justice system and efforts of the law Court ought to be

so directed. Gone are the days where implementation of

draconian system of law or interpretation thereof were insisted

upon - Flexibility of the law Courts presently are its greatest virtue

and as such justice oriented approach is the need of the day to

strive and forge ahead in the 21st century. No costs.