Despatches from the Supreme Court – Day 4

Blog from Shalini Sharma, Phd Candidate at SOAS who is currently on fieldwork in India studying the media experience and strategies of Bhopal Movement.

26-04-2011, DAY 4

Today, to me it seemed that Mr. Salve essentially repeated the arguments he had made on the last hearing. He started from where he had left the Court last time- distinction between mistakes and errors. He said that, in accordance with the order given in Hurra vs Hurra, a curative petition is allowed only when the judgement is wrong on account of the acts of court. When an error is accepted as mistake of the court then it is court’s duty to rectify it. This is derived from the maxim of actus curae which means that an act of the court shall prejudice no one. Hence in such a case Court says, “yes we did a mistake” and admits a curative petition. These mistakes arise from violation of natural justice and the bias of the judge/s. However, in this particular case none of the two is apparent hence the curative is not admissible.

Explaining this further he said that Union of India in its curative petition has not stated violation of natural justice as a ground for seeking curative. Also, it can’t be said that bias of a judge is apparent.

Besides, the accused should not be made to suffer due to mistakes that the court has committed, he argued and cited certain judgements of Supreme Court. In no circumstances can one allow the violation of rights under Articles 14 and 21 that the Constitution gives to all its citizens including the accused. Article 14 ensures equality before law or equal protection of laws. Article 21 ensures that no person shall be deprived of his life or personal liberty except according to the procedure established by law.

He also pointed out that not hearing a potentially aggrieved party is not sufficient condition for admission of a curative petition. It has to be established that not hearing the aggrieved party has actually resulted in abuse or miscarriage of justice. Thus he argued that miscarriage of justice can be a consequence if a curative petition is allowed without hearing but is certainly not a ground for allowing curative petition at the first place.

He insisted that proper procedure of law should be followed in all circumstances. He raised following points:

a)This court cannot bypass the process by admitting and acting upon the curative petition when the matter regarding the appropriate section of the Indian Penal Code (IPC) under which the accused should be charged is already placed in the Bhopal sessions court.
b)It is important that Principle of finality of orders is held. He said curative petitions can be allowed only on a narrow scope because the principle of finality of orders is equally important.
c)He said that by asking the court to direct that the charges against the accused be altered to 304 Part II, the prosecution (CBI) is asking the Supreme Court to look at the evidence that is currently pending on appeal and revision before the Bhopal courts and this is procedurally not correct.

Mr. Salve then took the judges through Paragraphs 9, 15, 33, 39, 47-50 of the Hurra Vs Hurra judgement. These mainly dealt with the question- can the jurisdiction of the Apex Court, under Article 32 of the Constitution, be invoked to challenge the validity of a final judgement/order passed by this Court after exhausting the remedy of review under Article 137 of the Constitution? Hr argued that it will create a bad precedence if the highest court of the land readily overruled the view expressed by it in earlier cases.

He then said that curative petitions are not designed to revisit the judgements of the court and they are only meant to address mistakes in the way decision was made. He said that mistakes are different from saying that the judgement was wrong. For correction of errors in matters of criminal justice two issues are important- review and jurisdiction for review. If the court has made a mistake, the process of review/revision are open for remedying them. Curative petitions are remedies only for actus curae i.e when mistakes are made by the courts and the correction is done by recalling the order. He repeated that it is the violation of Principle of Natural justice and not gross miscarriage of justice which is a ground for a curative petition. Moreover, He pointed out, the judgement of 1996 has nowhere prohibited the lower court judge from sentencing under charges higher than 304 Part A and so no charge is to be made out against the accused. With this concluded his argument.

Since it was already 1:00 pm the court broke for lunch. In the canteen we were surprised to find that a world exclusive report by Times Now, one of the key English national television channels in India, showed Julian Assange claiming that Indians more than any other nationality in the world have accounts in Swiss banks thus debasing Indian rupee. Lunch time always passes quickly and so soon we found ourselves walking back to the Chief court. Mr. Jayprakash, of Bhopal Gas Peedit Sangharsh Sahyog Samiti (BGPSSS) was already there. He had been furious that so little time was given to the victims and that too only on the first day. Since then it had been mainly accused who had been given the time to argue their case. Mr. Salve, representing Keshub Mahindra, alone argued for 1.5 days. I ask JP about Abdul Jabbar (BGPMUS) who shared that he had not been keeping well however he is following the case from Bhopal and is updated on it regularly.

Now it was Senior Advocate Mr. C.U. Singh representing Respondent No. 3, Mr. Vijay Gokhale, who started his argument by saying that while he agreed with the arguments made by senior advocate Harish Salve, he only wanted to add a few more nuances to it. He pointed out that curative petition was for the purpose of correcting mistakes committed by the court for a very limited species of judicial error. In passing the judgement on Hurra Vs Hurra the court was cognizant that there were constitutional and statutory provisions for addressing grievances but what happens when that provision is exhausted. In such cases it is only when the court finds an error that shakes the judicial conscience that a curative petition be allowed.

He further argued that that it is only in a case where review under Rule 137 of the Supreme Court has been invoked by the party and the Supreme Court has disposed off the case only after that can a curative petition be allowed. When it can be shown that the court has committed an error and despite pointing out that error in the review petition the court does not address the grievance only on those cases curative petition would be allowed. However, he argued, CBI/Union of India is not a party which has invoked a review that was disposed off by the Court without hearing. This is a case where remedy in form of review always existed by the party decided not to use it for over 15 years after the 1996 order. The grounds for a curative requires error on the face of the record, he said. At this point a Judge remarked that this is a case of errors on the face of the record and something more.
He then stressed that a Curative can only be available to a party which has filed a review petition. He pointed out that grounds in which review petition is maintainable are different from the grounds in which curative petition is maintainable. He said review petitions were meant to address the content of judgements and correct errors while curative petitions addressed grievances caused due to the process by which judgement was reached and corrected “mistakes”.

At this point Judges said that by saying so he is essentially contradicting the case made by Mr. Salve who had argued that there are grounds of review and there are certain other grounds for a curative while what Mr. Singh is saying is that the grounds of review and curative are same with a precondition that a review should have been filed by a party. Following this discussion with judges, Mr. Singh agreed that the decision on Hurra Vs Hurra was illustrative and not exhaustive (ie. it can be applicable to much wider range of cases).

The judge then read out the paragraph from Hurra vs Hurra, which Mr. Singh had himself read out earlier, and argued that this can be read as meaning that only a nonparty can file a curative. However since a review that has been disposed off in circulation is a necessary precondition to a curative it implies that the stage of a curative can never be reached because a review as argued by Mr. Singh is filed by a party while a curative by a non party.

Mr. Singh did not address this argument by Court and instead pointed out that the CBI had not filed a review petition after the 1996 judgement therefore it was not entitled to file a curative petition. The judges pointed out while CBI had not filed the review petition the NGOs had. Mr. Singh then pointed out that the review petition of NGO’s was heard and then dismissed so there was no violation of principles of natural justice. Then the Additional Solicitor General, Indira Jaisingh read the March 1997 order in which review petition filed by the NGO’s was dismissed without hearing (by circulation). At this Mr. Singh pointed out that the NGO’s were not the aggrieved parties. This was countered by Advocate Parekh stating that the NGO’s represented the victims and therefore was the aggrieved parties.

Mr. Singh then came back to an earlier argument that following the 1996 order no applications were ever made for enhancement of charges before the CJM court by the CBI or the government of MP. He said that the appeals filed by the Government of MP and CBI against the order of 7th June 2010 clearly mention that the Supreme Court order of 1996 does not stop the lower courts from enhancing the judges. Hence through their own actions the CBI and government of MP have shown t hat there has been no irremediable injustice which is the necessary condition for the curative petition to be admitted.

The CJI at this point stated that the CBI may feel that the session court would also consider itself bound to this order just as the Bhopal CJM’s court which felt itself bound by the ‘96 judgement (with regard to the appropriate sections of IPC under which accused could be charged). He wondered whether a clarification from the Supreme Court stating that the order of 1996 did not prohibit a lower court from framing a higher charge than 304 if appropriate under IPC. To this, the Senior Counsel responded by saying that the grounds of a curative are limited and not even applicable in this case. The CJI pointed out that the Court is conscious of its powers and how best to exercise that power. He said, that this court if not so powerless that even in cases of manifest injustice it will restrict itself only to the grounds of bias and natural justice. He stressed that when we have extraordinary situations staring at us we can’t restrict ourselves only to these grounds and none other. He then pointed out that 1996 order was an unusual order. He said that this is an unusual case where an unusual judgement was given in unusual circumstances. He said that “This court does not pass such orders” and if the senior advocate has objections to Court’s observation that he should show that the order was a usual one by giving examples of similar such orders. Or the counsel of accused must show that by issuing a clarification in form of a curative to Sessions Court so that it does not interpret the 1996 order as binding, the Apex court will be against the law. He then pointed out that one of NGO represented by Mr. Uday Lalit is now seeking enhancement of charges from 304 A (manslaughter) to 302 (murder). At this the Chief Justice clarified that Mr Lalit was merely seeking a clarification on the 1996 judgement so that the case could be transferred to lower courts leaving them to apply their own mind to decide on the charges depending on the merits of the case.

Today’s proceedings jolted everyone including me whose illusions of Courts being passive receiver of Lawyers’ arguments, courtesy mainstream movies, just came down in one go. I am not sure what the fate of this case eventually would be but certainly a courtroom is not always a place where you are bowling alone rather one that sometimes throws the ball back at you saying- Sorry, not allowed!

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