Holding

A final judgment of the Supreme Court cannot be challenged under Article 32, but the Court may, in exceptional circumstances, revisit its own judgments using its inherent power as prescribed in Order XL VII Rule 6.

Summary

The Supreme Court considered whether a writ petition under Article 32 could be filed to challenge a Supreme Court judgment after a review petition had been dismissed, and whether the Court could correct such a judgment using its inherent powers. It held that a final order of the Supreme Court is not amenable to a writ of certiorari under Article 32, as superior courts are not "state authorities" under Article 12 and the writ jurisdiction is supervisory over inferior courts. However, the Court affirmed that in the rarest of rare cases it may reconsider its own judgments through its inherent power, guided by Order XL VII Rule 6 of the Supreme Court Rules, to prevent abuse of process or gross miscarriage of justice. The Court laid down procedural safeguards for filing a curative petition, including certification by a senior advocate and circulation to the three senior-most judges and the judges who delivered the impugned order. The writ petitions were dismissed, but the Court clarified the limited scope for exercising inherent powers to grant relief ex debito justitiae.

Issues considered

The maintainability of a writ petition under Article 32 to challenge a Supreme Court judgment after dismissal of a review petition.
Whether the Supreme Court can issue a writ of certiorari against its own orders or judgments.
The scope and limits of the Court's inherent power to reconsider its own judgments (curative petitions).
The applicability of the doctrine of ex debito justitiae in the context of Supreme Court orders.

Legislation cited

Constitution of Indias. Article 12, s. Article 124, s. Article 129, s. Article 136, s. Article 137, s. Article 141, s. Article 142, s. Article 145, s. Article 32
Supreme Court Rules, 1966s. Order XL Rule 1, s. Order XL VII Rule 6

Subjects

Article 32Writ of CertiorariInherent PowersCurative PetitionEx Debito JustitiaeFinality of JudgmentSupreme Court ReviewNatural JusticeMiscarriage of JusticeStare Decisis

Judgment

A RUPA ASHOK HURRA
--
v.
ASHOK HURRA AND ANR.

APRIL 10, 2002

B [S.P. BHARUCHA, CJ., SYED SHAH MOHAMMED QUADRI, UMESH
C. BANERJEE, S.N. VARIA VA AND SHIVARAJ V. PATIL, JJ.]
r
r-
Constitution of India, 1950:
c Articles 12 and 32-Writ Petition-Writ of certiorari-Challenging
validity of judgment of Supreme Court after dismissal of Review Petition
therein-Maintainability of-Held, not maintainable-Superior Courts of
Justice do not fall under the ambit of State or other authorities under Article
12.
D Article 142-Reconsideration of Judgment of Supreme Court after
dismissal of Review Petition-Permissibility under inherent powers-Held, \ ~
Court may reconsider its judgments in exercise of its inherent powers in rarest
of rare cases to prevent abuse of its process and to cure gross miscarriage of
justice-Grounds and procedure for such re-consideration laid down-Supreme
E Court Rules, 1966-0rder XL VJJ Rule 6.

Doctrines:

Doctrine of Ex debito Justitiae-Applicability of

Doctrine of stare decisis-discussed - ,_,
F
The common questions for consideration in the instant writ petitions
were whether writ petition under Article 32 of the Constitution of India could
be maintained to question the validity of a Judgment of Supreme Court after
the petition for review of the said judgment was dismissed; and whether the r
order passed by this Court could be corrected under its inherent powers after
G 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. '

Answering the questions, the Court
H 1006
RUPAASHOKHURRAv ASHOKHURRA 1007

HELD : Per Quadri, J. (for himself, CJ., Variava and Patil, JJ.) A
...
I.I. A fin•I judgment/order passed hy this Court cannot be assailed in
a petition under Article 32 of the Constitution of India by an aggrieved person
whether he was a party to the case or not. [1019-GJ

1.2. In view of historical background and the very nature of writ B
jurisdiction, which is a supervisory jurisdiction over inferior Courts!fribunals,
on Principle a writ of certiorari cannot bejssued to co-ordinate courts and a
fortiori 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 C
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 constitutional scheme.
Therefore, the Supreme Court would not issue a writ under Article 32 to a D
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. Article 32 can be invokeJ 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 E
enshrined in Part III. The superior courts of justice do not also fall within
the ambit of State or other authorities under Article 12 of the Constitution.
[1015-D-G]

Naresh Shridhar Miraikar and Ors. v. State of Maharashtra and Anr., [1966] F
3 SCR 744; A.R. Antulay v. R.S. Nayak and Anr., [1988) 2 SCC 602; Smt.
Triveniben v. State of Gujarat, [1989] I SCC 678; Krishna Swami v. Union of
India and Ors., [1992] 4 SCC 605; Mohd. Aslam v. Union of India, [1996] 2
SCC 749; Khodav Distilleries Ltd. and Anr. v. Registrar General, Supreme Court
of India, [1996] 3 SCC ll4; GurbachanSingh andAnr., [1996)3 SCC I17; Babu
Singh and Anr. v. Union of India and Anr, [1996] 6 SCC 565; P. Ashokan v. G
--' Union of India and Anr., [1998) 3 SCC 56; Supreme Court Bar Association v.
Union a/India and Anr., [1998) 4 SCC 409 and M.S. Ahlwatv. State o/Haryana
and Anr., [2000] I SCC 278, referred to.

Hal.< bury 's laws of England, Fourth Edition (reissue), Vol. I (I), referred
to. H
1008 SUPREME COURT REPORTS [2002] 2 S.C.R.

A 2.1. This Court, to prevent abuse of its process and to cure a gross
miscarriage of justice, may reconsider its judgments in exercise of its inherent ,._
\
power. [1023-B-C]

2.2. Principles in regard to the highest Court departing from its binding
precedent are different from the grounds on which a final judgment between
B the parties, can be reconsidered. 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. The Court is faced with competing principles-ensuring certainty
and finality of a judgment of the Court of last resort and dispensing justice
C on reconsideration of a judgment on the ground that it is vitiated, being in
violation of the principles of natural justice or giving scope for apprehension
of bias due to a Judge who participated in decision making process not
disclosing his links with a party to the case, or on account of abuse of the
process of the Court. Such a judgment, far from ensuring finality, will always
remain under the cloud of uncertainty. Though Judges of the highest Court
D do their best, subject of course to the limitation of human fallibility, yet
situations may arise, in the rarest of rare cases, which would require
l
reconsideration of a final judgment to set right miscarriage of justice
complained of. In such a case it would not only be proper but also obligatory
both legally and morally to rectify the error. The duty to do justice in these
E 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 ~hould not be open to challenge yet there may
be circumstances, wherein declining to reconsider the judgment would be
oppressive to judicial conscience and would cause perpetuation of irremediable -<.{.

injustice. [1023-E; 1031-E-H; 1032-A)
F
The Keshav Mills Co. Ltd v. Commissioner of Income-tax Bombay North,
[1965) 2 SCR 908; Magan/al Chhaganlal (P) Ltd v. Municipal CorporatiOn of
Greater Bombay and Ors., (1974) 2 SCC 402; The Indian Aluminium Co. Ltd v.
The Commissioner of Income Tax West Bengal, Calcutta, (1972) 2 SCC 150; In
G Re: Cauvery Water disputes Tribunal, (1993) Suppl. I SCC 96: 1991 Suppl. 2
SCR 497; S. Nagaraj and Ors. v. State of Karnataka and Anr., (19931 Suppl. 4 ...___,
SCC 595; Ramdeo Chauhan v. State ofAssam, [2001) 5 SCC 714; Lily Thomas I

and Ors. v. Union ofIndia and Ors., [2000] 6 SCC 224; Union of India and Anr.
etc. v. Raghubir Singh (dead) by LRs. etc. etc., (1989) 2 SCC 754; Harbans Singh ~
v. State ofUttar Pradesh and Ors., [i982) 2 SCC 101; A.R. Antulay v. R.S. Nayak
H and Anr., 1198812 SCC 602; Supreme Court Bar Association v. Union of India
RUPA ASHOK HURRA v. ASHOK HURRA 1009
and Anr., (1998( 4 SCC 409; Re: Vinay Chandra Mishra, (1995] 2 SCC 584 A
and MS. Ahlwat v. State of Haryana and Anr., (20001 I SCC 278, referred to.

The London Street Tramways Company Limited'v. The London Country
Council, LR 1898 Appeal Cases 375; Hoystead and Ors. v. Commissioner of
Taxation 1.R. 1926 AC 155; Raja Prithwi Chand Lall Choudhary v. Rai Bahadur
Sukhraj Rai and Ors. etc., AIR (1941] FC I, 2 : (1940) 2 FCR 78: 19411 MW B
Supp. 45; Venkata Narasimha Appa Row v. Court of Wards 1886 (II) Appeal
cases 660; Lloyds Bank Ltd v. Dawson and Ors., [1966] 3 All E.R. 77; Jones v.
Secretary a/State/or Social Services etc., (1972) I All E.R. 145; Fitz/eel Estates
Ltd v. Cherry (Inspector of Taxes), (1977) 3 All E.R. 996; United States of
.,,) America v. Ohio Power Company I Lawyers' Ed 2nd 683 and R. v. Bow Street C
Metropolitan Stipendiary Mdgistrate and Ors. ex parte Pinochet Ugarte, (No. 2)
(1999) I All ER 577, referred to.

'Judicial Discretion' by Aharon Barak, referred to.

2.3. A petitioner is entitled to relief ex debito justitiae if he establishes D
(I) violation of principles of natural justice in that he was not a party to the
tis but the judgment adversely affects his interests or, if he was a party to the
.(is, 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 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. E
[1035-BJ

2.4. 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 fulfilment of the above F
requirements. [1035-C]

2.5. 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 G
judgment complained of, if available. It is only when a majority of the Judges
on the said 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 arnicus curiae. In the event of the Bench
holding at any stage that the petition is without any merit and vexatious, it may H
1DIO SUPREME COURT REPORTS [2002) 2 S.C.R.

A impose exemplary costs on the petitioner. (1035-D-E]
Per Banerjee, J. (Concurring) ....__

1. There is no minner of doubt that a writ jurisdiction as envisaged
under Article 32 of the Constitution, is not available to.reconsider a decision
of this Court. (1037-H; 1038-A]
B
Naresh Shridhar Mirajkar and Ors. v. State ofMaharashtra and Anr., (1966)
3 SCR 744; A.R. Antulay v. R.S. Nayak and Anr., (1988] 2 SCC 602; Smt.
Triveniben v. State a/Gujarat, (1989] I SCC 678 and Ajit Kumar Barat v. r
r
Secretary Indian Tea A.ysociation and Ors., (2001) 5 SCC 42, relied on.
I
c 2.1. The doctrine of ex debito justitiae relates to and arises from the
~-

concept of justice; in the event there appears to be infraction of the concept,
'c
question of there being a turn around and thereby maintaining a total silence
by the law Courts would not arise. Though an Order of this Court cannot be
ascribed as an abuse of the process of the Court, but the factum of the
D 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
c..
is above all. The exercise of inherent power of this Court also stands recognised 1

by Order XL VII Rule 6 of the Supreme Court Rules, 1966. (1039-B-C-D] ...
E A.R. Antulay v. R.S. Nayak and Anr., [1988) 2 SCC 602; Synthetics and
Chemicals Ltd and Ors. v. State of UP. and Ors., [1990) 1SCC109; S. Nagaraj
and Ors. v. State of Karnat<;1ka and Anr., [1963) Supp. 4 SCC 595 and Supreme
Court Bar Association v. Union of India and Anr., [1998] 4 SCC 409, referred
to.
F ...
Mis Cathrineholm v. Norequipment Trading Ltd, (1972) 2 All ER 538;
Ostime (Inspector of Taxes) v. Australian Mutual Provident Society, (1959) 3 All
ER 246; 1960 AC 459 and Commonwealth of Massachusetts et al v. USA, (92 L
ed 968), referred to.

2.2. Manifest injustice is curable in nature rather than incurable and
G 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 silence so as to affect the parties perpetually or the
H concept of justice ought to activate the Court to find a way out to resolve the
RUPA ASHOK HURRA v. ASHOK HURRA 1011
erroneous approach to the problem. In the event there is any affectation of A.
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
technically ought not to out-weigh the course of justice the same being the
true effect of the doctrine of ex debito justitiae. [1044-F-G; 1045-D-E)
B
J. Ranga Swamy v. Govt. of A.P. and Ors., AIR (1990) SC 535,
distinguished.

R. v. Sussex Justices, ex P. McCarthy, (1924) 1 KB 256 and R v. Bow
Street Metropolitan Stipendiary Magistrate and Ors., ex parte Pinochet Ugarte
; (No. 2), (1999) 1 All E.R. 577, referred to. C
2.3. 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 justice delivery system to wit, the
order being in contravention of the doctrine of natural justice or without
jurisdiction or in the event there is even a likelihood of public confidence being D
shaken by reason of the association or closeness of a judge with the subject
matter in dispute. It is time that procedural justice system should give way
to the conceptual justice system and efforts of the law Court ought to be so
directed. [1045-H; 1046-A]

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No, 509 of E
1997.

(Under Article 32 of the Constitution of India)

WITH

W.P. (C) No. 245/99, 338, 325-326, 663, 680/2000, 374/2001 and F
108 of 1999.
Soli J Sorabjee, Attorney General, Shanti Bhushan, P.A. Mohammed,
Anil B. Divan, Rajiv Dutta, K.K. Venugopal, D.A. Dave, Parag P. Tripathi,
Ranjit Kumar, Dr. Rajiv Dhavan, P.S. Mishra, Ms. Kamini Jaiswal, Ms.
Aishwarya Rao, Ms. Bipaakkhu Borthakur, P. Vittal Rao, Ms. Gunwant G
Dara, Ms. Sudha Gupta, Vikas Singh, Yunus Malik, Ms. Pallavi Parmar,
Prashant Chaudhary, Prashant Bhushan, Sanjeev K. Kapoor, Narender Verma,
Vishal Gupta, Sanjay Pathak, Anil Mittal, K.K, Mohan, A.T. Patra, S.
Sukumaran, Nipun Malhotra, Dr. Sonia Hurra, Divyang K. Chhaya, Varun
Goswami, A.P. Medh, Dhruv Mehta, K.C. Kaushik, Prateek Jalan, Manish H
1012 SUPREME COURT REPORTS [2002] 2 S.C.R.

A Singhvi, R.N. Poddar, C. Radhakrishna, Ms. Sushma Suri, S.N. Terdol,
Sanjay R. Hegde, Satya Mitra, G. Prakash, K.B. Rohtagi, Ms. Apama
Rohtagi Jain, Manoj Aggarwal, Ranji Thomas, Javed M. Rao, Vineet Sinha, ,..._
Ashok Aggarwal, Rajender Pd. Saxena, B.S. Banthia, V.B. Saharya, Rakesh
K. Khanna, Reetesh Singh, Surya Kant, Ms. Sunita Sharma, Ms. Rekha
Pandey, D.S. Mahra, Bimal Roy Jad, Bineet Kumar, V.K. Sidharthan, B.K.
B Khurana, S. Muralidhar, S. Vallinayagam, Ms. Neeru Vaid, for the appearing
parties. In-person (NP), for petitioner in W.P. No. 374/2001.

The Judgments of the Court were delivered by
SYED SHAH MOHAMMED QUADRI, J. These writ petitions have
C comfie up before us as a Bench of three learned Judges of this Court referred .\
the 1rst 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
D 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.

E 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
F 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
Court original jurisdiction (Articles 32 and 131); appellate jurisdiction both
civil and criminal (Articles 132, 133 and 134); discretionary jurisdiction to
G grant special leave to appeal (Article I 36) 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 I 42); 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
H High Court to another High Court (Article 139) and to review judgment
RUPA ASHOK HURRA v. AS HOK HURRA [SYED SHAH MOHAMMED QUADRI, J] ] Q) 3

pronounced or order made by it (Article 137). Conferment of further jurisdiction A
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 and 140). Article 141 says that the law declared by the Supreme Court
shall be binding on all courts within tbe 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
B
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 :
c
"32. Remedies for enforcement of rights conferred by this Part.

(I} The right to move the Supreme Court by appropriate proceedings
for the enforcement of the rights conferred by this Part is
guaranteed. D
; (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
1
appropriate, for the enforcement of any of the rights conferred by
this Part. E
(3) Without prejudice to the powers conferred on the Supreme Court
by clauses (I) and (2) , Parliament may by law empower any other
court to exercise within tbe local limits of its jurisdiction all or any
of the powers exercisable by the Supreme Court under clause (2).
• F
(4) The right guaranteed by this article shall not be suspended except
as otherwise provided for by !his Constitution."

A perusal of the Article, quoted above, shows it contains four clauses.
Clause (1) guarantees the rigbt to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by Part III - fundamental
rights. By clause (2) tbe Supreme Court is vested with tbe power to issue
G
directions or orders or writs including writs in the nature of habeas corpus,
- _j
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 tbe powers of the Supreme Court in the aforementioned
clauses (I) and (2) , the Parliament is enabled, by clause (3 ), to empower by H
1014 SUPREME COURT REPORTS [2002] 2 S.C.R.

A 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
B 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 characteristics 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,
C 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 corpus, 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
ofcommon law prohibited other courts from entertaining matters falling within
D 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. " 1 In England while
E 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 v. Bijai Govind Singh (1836) l Moo. P.C. 117 . They
are discretionary writs but the principles for issuing such writs are well defined.
F In the pre-constitutional era the jurisdiction to issue the prerogative writs was ...
enjoyed only by three chartered High Courts 2 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
G 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

I. Halsbury's Laws of England, Fourth Edition (reissue), Vol. I (I) para 103.
H 2. High Courts of Bombay, Calcutta and Madras.
RUPA ASHOK HURRA v. ASHOK HURRA (SYED SHAH MOHAMMEDQUADRI, !.] I 015

of certiorari to call for records and examine the same for passing appropriate A
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 ofpersons 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 B
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 jurisdict.'on or contrary to law. Both certiorari and prohibition
are employed for the control of inferior courts, tribunals and public
authorities. " 1
~ c
- 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 principle a writ of.certiorari cannot be issued to co~
ordinate courts and a fortiori 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 D
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 E
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 F
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 and Ors. v. State of Maharashtra and G
Anr., [1966) 3 SCR 744, some journalists filed a Writ Petition in the Supreme
_.-J 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
3. Halsbury's Laws ofEngland, Fourth Edition (reisue) Vol. I (1) para !09. H
A
1016 SUPREME COURT REPORTS (2002] 2 S.C.R.

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
B 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
C 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 fhat the impugned order of the High
Court committed breach of the fundamental right of freedom of speech and
D 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 :
E "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
F 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)
G
In A.R. Antulay v. R.S. Nayak and 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 oftqis 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 -~
H Justice to assign them to a sitting Judge of the High Court for holding trial
RUPA ASHOK HURRA' ASHOK HURRA [SYED SHAH MOHAMMED QUADRI, J] 1017

from day to day R.S. Nayak v. A.R. Antulay, (1984] 2 SCC 183 at 243, was A
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, B
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 C
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 alf proceedings in the cases against the D
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 E
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 justitiae4
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 F
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 G
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

4. In accordance with the requirement of justice, as a matter of right. H
1018 SUPREME COURT REPORTS [2002] 2 S.C.R.
_...__ i:
A powers Mukharji, Oza and Natarajan, JJ. expressed the view that the Court
could do so even in a petition under Article 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
B jurisdiction that is already invested for correcting the decision under Article
137 read with Order XL Rule I 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
"4...
c Constitution could be issued to correct an earlier order of this Court Mukharji ~
r
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
D expressed by Oza, Ray, Venkatachaliah and Ranganathan, JJ. nus, 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.

E In Smt. Triveniben v. State of Gujarat, [1989] I 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 Article 14 or 21 and therefore the judgment of the court awarding
F the sentence of death is not open to challenge as violating Article 14 I
or Article 21 as has been laid down by this Court in Naresh Shridhar I
Mirajkar v. State of Maharashtra and also in A.R. Antu/ay v. 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
G is because of thi:> 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
H sentencing the condemned prisoner and even while considering the
RUPA ASHOK HURRA v. ASHOK HURRA [SYED SHAH MOHAMMED QUADRI, !.] 1019

circumstances in order to reach a conclusion as to whether the inordinate A
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.
B
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 v. R.S Nayak and Anr., [1988] 2 SCC 60:2; Krishna
Swami v. Union of India and Ors., [1992] 4 SCC 605, Mohd Aslam v. Union
of India, [1996] 2 SCC 749; Khoday Distilleries Ltd and Anr. v. Registrar C
General, Supreme Court of India, [1996] 3 SCC 114; Gurbachan Singh and
Anr. v. Union of India and Anr., [l 996] 3 SCC 117; Babu Singh Bains and
Ors. v. Union of India and Ors., [l 996] 6 SCC 565 and P. Ashokan v. Union
of India and Anr., [ 1998] 3 SCC 56.
> D
It is, however, true that in Supreme Court Bar Association· v. Union of
India and Anr., [ 1998] 4 SCC 409 a Constitution Bench and in MS. Ahlawat
v. State of Haryana and Anr., [2000] l 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 E
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 F
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 Co.1stitution cannot be invoked to challenge G
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
-J Rule 1 of the Supreme Court Rules 1966.
!

However, all the learned counsel for the parties as also the learned H
1020 SUPREME COURT REPORTS (2002] 2 S.C.R.

A 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
B 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
C 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 XL VII, 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
D 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
E case, Supreme Court Bar Association's case and Ahlawat '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 that it would inspire
confidence in the litigant public.

F Mr. K.K. Venugopal, the learned senior counsel, while adopting the
arguments of Mr. Shanti Bhushan submitted that the provisions of Order
XL VII, Rule 6 of the Supreme Court Rules, is a mere restatement of the
provisions of Article 13 7 of the Constitution and that the inherent jurisdiction
of this Court might be exercised to remedy the injustice suffered by a person.
G He suggested that a Constiflltion 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
H could be subjected to costs. He relied on the judgment of United States in
.)_
\'
RUPA ASHOK HURRA v. ASHOK HURRA [SYED SHAH MOHAMMED QUADRI, J.l 1021

United States of America v. Ohio Power Company, [l Lawyers' Ed. 2d 683] A
to show that in every jurisdiction the courts have corrected their own mistakes.
He cited the judgment of this Court in Harbans Singh v. State of Uttar Pradesh
and 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.
B
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 C
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 D
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
r
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 E
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 F
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 Chaudhry etc. v. Rai Bahadur
Sukhraj Rai and Ors. etc., (1940) 2 FCR 78]. He submitted that for correction G
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 H
1022 SUPREME COURT REPORTS [2002) 2 S.C.R.

A Supreme Court is the creature of the Constitution so the corrective power has
to be derived from the provisions 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.
B Relying on the judgment of House of Lords in R v. Bow Street Metropolitan
Stipendiary Magistrate and Ors., ex parte Pinochet Ugarte (No. 2) 's case
[1999] 1 All ER 577 he has submitted that this Court has i.nherent 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 <
......
c is that the corrective power' is a species of the review power and Articles 129,
13 7, Order XL Rule 5 and Order XL VII 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 Antu/ay 's case, Supreme Court Bar Association's case,
Ahlawat'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
D can also issue practice direction in that behalf.
.
Mr. Ranjit Kumar, the learned senfor 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
E 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 t
curative petitions on the ground of manifest illegality and palpable injustice, 'i"
in the rarest of rare cases, factors like the doctrine of stare decisis and the ~

F 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 v. Commissioner of Income-Tax
Bombay North, [1965] 2 SCR 908, which was followed by another Bench of
seven learned Judges reported in Magan/a/ Chhaganlal (P) Ltd. v. Municipal
I
Corporation of Greater Bombay and Ors., [1974] 2 SCC 402 and by a Bench t
G
of five learned Judges in the case of The Indian Aluminium Co. Ltd v. 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
H Disputes Tribunal, [1993] Suppl. 1 SCC 96 and the Bench of three learned
RUPA ASHOK HURRA' ASHOK HURRA [SYED SHAH MOHAMMED QUADRI, J] 1023

Judges in S Nagaraj and Ors. v. State of Karnataka and Anr,, [1993] Suppl.. A
4 SCC 595 and in Ramdeo Chauhan v. State of Assam, [2001] 5 SCC 714 by
three learned Judges and in the case of Lily Thomas and Ors. v. Union of
India and 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.
B
These contentions pose the question, whether an order passed by this·
Court can be corrected under its inherent powers after dismissal of the review
i;etition 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.
c
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 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 judg~ent
there will be declaration of law and its application to the facts of the case to
D
' render a decision on the dispute between the parties to the !is. It is necessary
4
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 E
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
v. 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
F
would bind the House in subsequent cases and that an erroneous decision
could be set right only by an Act of Parliament.

In Hoystead and Ors. v. Commissioner of Taxation, LR 1926 AC 155
at 165, Lord Shaw observed : "Parties are not permitted to begin fresh
G
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."
H
1024 SUPREME COURT REPORTS [2002] 2 S.C.R.

A 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 iii. Venkata Narasimha Appa Row v. Court of
Wards, (1886) {II) Appeal Cases 660 at 664). Gwyer, CJ. speaking for the
Federal Court observed.

B "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 prej11dicial
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
c observed by all Courts of last resort -Interest reipublicae ut sit finis
litium 5• 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
D 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.
E Sahai, J. speaking for himself and for Pandian, J. observed :

"Justice is a virtue which transcends all barriers. 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
F 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
G 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,

H s. It concerns the state that there be an end oflawsuits. It is in the interest of the State that there
should be an end of law-suit.
RUPA ASHOK HURRA v. ASHOK HURRA [SYED SHAH MOHAMMED QUADRI, J.] J025

l.C. in Lloyds Bank, Ltd v. Dawson and Ors., [Note (1966) 3 All E.R. 77 on A
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."
B
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 v. Secretary of State for Social Services, Hudson v. Secretary of State
for Social Services, (conjoined appeals) (1972) l All E.R. 145, who observed:

"The old view was that any departure from rigid adherence to precedent C
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 D
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. E
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." F
In Fitzleet Estates Ltd v. 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 G
a course. Nothing could be more undesirable, in fact, than to permit
litigants, after a decision has been given by this 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 H
1026 SUPREME COURT REPORTS [2002] 2 S.C.R.

A 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 ~ouse. 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
B it."

Lord Edmund-Davies observed :

"My Lords, I respectfully share your views that the Chancery Lane
decision [ 1966]. 1 All. E.R. l was correct. But even had I come to the
c 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
D 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 6 thus :

"The authority to overrule exists in most countries, whether of civil
E
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."

F 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 :
G
"When this Court decides questions of law, its decisions are, under
Article 141, binding on all courts within the territory oflndia, 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

H 6. "Judicial Discretion" at page 234.
RUPA ASHOK HURRA v. ASHOK HURRA [SYED SHAH MOHAMMED QUADRI, ll J027

country. Frequent exercise by this Court of its power to review its earlier A
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 to correct the error; but
before a previous decision is pronounced to be plainly erroneous, the Court B
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." C
In Magan/al 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 :
D
• "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 E
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 F
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 G
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? H
1028 SUPREME COURT REPORTS [2002] 2 S.C.R.

A In regard to the effect of an earlier order of this Court Sawant, J.
speaking for the Constitution Bench observed in Cauvery Water Disputes
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
B 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 Jaw expressed by it in an earlier case,
it does not do so sitting in appeal and exercising an appellate
c jurisdiction over the earlier decision. It does so in exercise of its
inherent power and only in 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. v. State of
D Bihar, [1955) 2 SCR 603.

In the cases of Ramdeo Chauhan (supra) and Lily Thomas (supra) , tpe
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 XL VII of the C.P .C. and Order XL Rule l of the Supreme Court Rules,
E 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
F , 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
G 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
H the judge's decision would lead to the promotion of a cause in which
RUPA ASHOK HlJRRA" AS HOK HURRA [SYED SHAH MOHAMMED QUADRI, J ] ] 029

the judge was involved together with one of the parties. That did not A
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 B
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." C
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 D
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 E
the 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 F
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 G
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 l of the Supreme Court Rules, conferring power of review H
1030 SUPREME COURT REPORTS [2002] 2 S.C.R.

A 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
B 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
C 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. 1
D
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 1
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.
E The next step forw.ard 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
F 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 discemiable

G
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. v. 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
H 7. It concerns the state that there be an end of lawsuits. It is in the interest of the State that
there should be an end of law-suit.
·•·
,
'
~UPA ASHOK HURRA' ASHOK HURRA [SYED SHAH MOHAMMED QUADRI, J] } 03 J
social order, the doctrine of binding precedent is circumscribed in its A
~
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),
B

... 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",
j and "sloughing off' old ones at the other. Explaining the conceptual
import of what Holmes had said, Julius Stone elaborated that it is by c
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)." D
•
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 E
justice or giving scope for apprehension of bias due to a Judge who participated
in decision making process not disclosing his links with a party to the case,
or on account of abuse of the process of the court. Such a judgmel)t, 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 F
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
G

- 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 H
1032 SUPREME COURT REPORTS [2002) 2 S.C.R.

A oppressive to judicial conscience and would 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
B certiorari against that judgment was declined by the Supreme Court of United
States in October 1955. The Government sought re-hearing of the case by
ijling 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 t,
C 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
D 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
E petitioner and another person were convicted under Section 3 02 of LP .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
F 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
G 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."
H In Antulay's case (supra) , the majority in the seven-Judge Bench of
RUPA ASHOK HURRA v. ASHOK HURRA [SYED SHAH MOHAMMED QUADRI, J] J033
this Court set aside an earlier judgment of the Constitution Bench in a collateral A
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 .-iolation
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
B
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 C
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 D
under Article 129 read with Article 142 of the 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 E
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 F
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 G
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 H
A
1034 SUPREME COURT REPORTS [2002] 2 S.C.R.

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
B 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
C Article and overruled the judgment in Re V.C. Mishra 's case (supra).

In MS. Ahlawat'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 v. State
of Haryana, [1996] 7 SCC 397. He filed an application under Article ·32 of
D 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.
E
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
F of record and also adverted to the extent of power under Article 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.
G 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
H seeking reconsideration of an order of this Court which has become final on
RUPA ASHOK HURRA v. ASHOK HURRA [BANERJEE, J ] J03 5

dismissal of a review petition, It is neither advisable nor possible to enumerate A
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 (I) violation of principles of natural justice in that
he was not a party to the !is but the judgement adversely affected his interests
or, ifhe was a party to the !is, he was not served with notice of the proceedings B
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 C
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 D
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 whc~
. 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 E
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 F
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.
G
BANERJEE, J. I have had the privilege of going through a very lucid
expression of opinion by brother Quadri and while recording my concurrence
therewith I wish to add a few paragraphs of my own.

The issue involved presently though not a concept within the ambit of H

\
I
1036 SUPREME COURT REPORTS [2002) 2 S.C.R.

A doctrine of stare decisis but akin thereto to the effect as to the scope or
finality of the decision of this Court in the nonnal 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
B 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 conf~rred
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
C 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.
D
Mr. K.K. Venugopal, the learned senior council 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
E 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
F Court for enforcement of the rights conferred by Part III of the Constitution
and stands conferred in tenns 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.

G About four decades ago, in Naresh Shridhar Mirajkar and Ors. v. State
of Maharashtra and Anr., [1966) 3 SCR 744, a nine Judge Bench of this
Court in no uncertain tenns 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
--
\.-

,I
H Court to issue writ of certiorari is concerned, it is impossible to

..
('
RUPA ASHOK HURRA v. ASHOK HURRA [BANERJEE, J.] I 037
accept the argument of the petitioners that judicial orders passed by A
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 Article 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 B
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
Article 32. The words used in Article 32 are no doubt wide; but
having regard to the considerations which we have ·set out in the
)
course of his judgment, we are satisfied that the impugned order C
cannot be brought within the scope of this Court's jurisdiction to
issue a writ of certiorari under Article 32; to hold otherwise would be
repugnant to the well-recognised limitations within which the
jurisdiction to issue writs of certiorari can be exercised and inconsistent
with the uniform trend of this Court's decisions in relation to the said
point." D
• Two decades later, this Court in A.R. Antulay v. RS. Nayak and Anr.,
(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 E
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. Trlveniben v. 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 F
jurisdiction under Article 32 to go behind or to erarnine the final verdict
reached by a competent Court. To complete the list, however, a very recent
decision of this Court in Ajit Kumar Baral v. Secretary, Indian Tea Association
and Ors... [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 G
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 H
1038 SUPREME COURT REPORTS [2002) 2 S.C.R.

A 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
B 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 ever be corrected even if it causes insurinountable
..
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
C · 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
D 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. ·4
requirement, which the law envisages? Rescue Pound stated that flexibility
t--
is the greatest virtue of law and thus its applicability should also be flexible 1
rather than a rigid insistence on a strict format. Justice of the situation shall
E have to be considered with a fair perception of such a concept rather :than ! '
'

with. a blinking light - attention ought to be focusep 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
F 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 Als
Cathrineholm v. Norequipment Trading Ltd., (1972) 2 All ER 538 has been
G stated to be rather restrictive, but since basically the same stands out to be
on the concept of justice, speaking for myself do not subscribe to such a ,
'('

j ..
criticism. The Master of the Rolls stated that if the Judgment is irregular - t-
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,
H thereafter, however, arises, the question as to the true effect of Regular and

·-
~
RUPA ASHOK HURRA • ASHOK HURRA [BANERJEE, J.] 1039

Irregular Judgments : Since the issue involves a much wider debate, we A
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 ofjustice : In the event 1B
there appears to be infraction of the concept, question of there being a tum
around and thereby maintaining a total silence by the law Courts would not
arise. It is vn this score, the learned Attorney General for· India, appearing as
Amicus Curiae, contended that Supreme Court has the jurisdiction to exercise
J !bis inherent power for the ends of justice or to prevent abuse of the propess C
of the court. Though we are not inclined to ascribe an Order of this Co.urt as
an abuse of the process of the Court, but the factum of the availability of
inhere'!! 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 siands recognised by Order XL rD
• VII 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 . E
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 etro~ brought to the
notice of this Court. Mukharji, J (as he then was) in paragtaph·40 of the F
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 G
court. But the superior court can always con-ect its own error brought
- ___,
to its notice eit)1er by: way of petition or ex debito justitiae. See
Rubinstein's Jurisidiction. and Hlegality)."

Incidentally a Seven Judge Bench of this Court in Synthetics and 1H
1040 SUPREME COURT REPORTS (2002] 2 S.C.R.

A Chemicals Ltd and Ors. v. State of UP. and Ors., [1990] 1 SCC 109 relied
upon another Judgment of Lord Denning in Ostime (Inspector of Taxes) v. -..
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 v. USA, (92 L ed 968), wherein in similar tone it has
B been stated that as soon as one finds a journey in the wrong direction, there
should always be an attempt to tum 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 Ofs. v. State of Karnataka and Anr., [1993] Supp. 4 SCC 595
seems to be rather apposite. This Court in paragraph 19 of the report, upon
C 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
D 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
E avoid abuse of process or miscarriage of justice. In Raja Prith~i
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
F developed by the Privy Council and the House of Lords. The Court
approved the principle laid down by the Privy Council in Rafunder
Narain Rae v. Bijai GovindSingh, (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 :

G " ..... 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
H possess the same authority. The Lords have however gone a
,
~
RUPA ASHOK HURRA v. AS HOK HURRA [BANERJEE, J.] 1041

-- step further, and have corrected mistakes introduced through
inadvertence in the details of judgments; or have supplied
A
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 B
under :

"It is impossible to doubt that the indulgence extended in such
J 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 c
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
D
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 provision expressly conferred the substantive power
to review any judgment or order by Article 13 7 of the Constitution. E
And clause (c) of Article 145 permitted this Court to frame rules '!5
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 XL VII Rule I of the Civil Procedure
Code. The expression 'for any other sufficient reason' in the clause F
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 G
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
v. Union of India and Anr., [1998) 4 SCC 409) this Court has had the H
1042 SUPREME COURT REPORTS [2002] 2 S.C.R.

A 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:

B "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
c 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.
D 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
E
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
F 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 provisions dealing with
a subject and thereby to achieve something indirectly which cannot
G
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 pennissible in exercise of the jurisdiction under Article
H 142. The construction of Article 142 must be functionally infonned
RUPA ASHOK HURRA '· ASHOK HURRA [BANERJEE, J.] 1043

by the salutary purposes of the article, viz., to do complete justice A
between the parties. It cannot
I
be otherwise. As already noticed
, ,
in a
case of contempt of court, the contemnor 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 B
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
j it cannot disregard a statutory provision governing a subject, except
perhaps to balance the equities between the conflicting claims of the C
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-setting. It is a "problem-solver in the nebulous areas" see K
Veeraswami v. Union a/India, [1991] 3 SCC 655: [1991] SCC (Cri) D
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 E
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 F
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 G
confident that justice is above all and would be able to obtain justice in its
true forrn 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 H
1044 SUPREME COURT REPORTS [2002] 2 S.C.R.

A 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 tenns 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 may be made in this context to a
decision of this Court in the case of J. Ranga Swamy v. Govt. of A.P. and
B 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
c 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
D 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."
E 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-
F economic conditions of the society. Manifest injustice 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
G 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 resolye 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
H careful enough to trade on the path, otherwise the same will open up Pandora's
RUPA ASHOK HURRA v. ASHOK HURRA [BANERJEE, JJ 1045

box and thus, if at all, in rarest of the rare cases the further scrutiny may be A
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
no 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 B
matter in the event the same, however, deserve such an additional appraisal
- The note of ca1i!ion sounded by Mr. Attorney as regards opening up of
pandora's box strictly speaking, however, though may be of very practical in
J 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 C
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 'Ne 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 proper and effective administration of justice
in stricto. In the event there is any affectation of such an administration of D
justice either by way of infraction of natural justice or an order being passed
wholly without jurisdiction or affection 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 E
R v. Sussex Justices, exp McCarthy, {1924) I 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 Ors., ex parte Pinochet Ugarte (No.
2) seem to be an ipoc making decision, wherein public confidence on the F
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 G
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 H
1046 SUPREME COURT REPORTS [2002] 2 S.C.R.

A 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
a8sociation 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
B 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.

C K.K.T. Petitions answered.

..