Tuesday, February 3, 2015

Up the endless judicial ladder /M J Antony

The was meant to be a constitutional court by the founding fathers. However, only 7 per cent of its judgments deal with constitutional issues, according to a recent study. Most of the 50,000 and more cases pending in the court are appeals from the high courts or appellate tribunals. They might have trundled from the subordinate courts to the apex court, spending years and bundles of money. Even after the Supreme Court delivers its judgment, there are two more stages to challenge its final word. They are review petitions and 'curative petitions'.

Though the last two kinds of petitions are meant to correct obvious errors that escaped the attention of the judges (like typing mistakes or wrong figures) these are increasingly used as stratagems to reargue decided cases. It would seem that the judges are so careless in writing judgments that they should pass two more tests set by the bar. These two post-decision petitions have begun to choke the court. In an average week, over 30 pages of the list of cases contain review petitions and curative petitions. They are heard in chambers of the judges during lunch time, and mostly crunched within minutes. Hardly any of them succeeds in opening up the cases again. However, lawyers advise clients who still have money left after losing all the way to file review petitions, and as a last resort, curative petitions.

Earlier this month, a number of firms moved the Supreme Court challenging a proviso introduced in 1996 in the Supreme Court Rule that obligated judges who once dismissed the case to re-examine it in open court. The court rejected the demand outright (Sesa Sterlite vs Supreme Court). This was a welcome decision as open court hearing means more adjournments, affidavits, counter affidavits, rejoinders and compilations. That process would have bloated not only the files but also the lawyers. Thus, the review petitions will continue to be massacred in lunch time.

The Supreme Court, in one of its weak moments in 2003, aspired to deliver absolute justice and opened up yet another path to rehear decided cases. It allowed the disappointed litigants to return to it even after losing the review petition. This is by way of a 'curative petition', devised by the court in its judgment, Rupa Hurra vs Ashok Hurra. A curative petition must be accompanied by a recommendation of a "senior" advocate stating that the case requires re-examination as there was violation of the principles of natural justice in the earlier decisions. The curative petition has to be first circulated to a bench of three senior-most judges. They will decide by a majority that the case should be re-examined. Only then will the case be heard by the judges who heard the case originally. Such strict conditions were imposed to prevent a floodgate of curative petitions.

The court has since regretted its decision to set a revolving door to failed litigants. In its judgment inSumer vs State of UP, the court said that "the apprehension of the bench which delivered the Hurra judgment that the remedy provided may not open the floodgates for filing a second review petition has come true as is evident from the filing of large numbers of petitions. It was expected that thewill be filed in exceptional and in the rarest of rare cases, but in practice, it has just been opposite."

There is a strong current of opinion among jurists that the Supreme Court should take up only constitutional questions. However, of the Constitution allows appeals in the garb of "special leave petitions". The constitution makers would not have imagined that this provision would open the doors to gamblers in justice. Long ago, former Attorney General told the bench when asked the difference between wager and lottery, "what happens in this court every morning from 10.30 am to about 11.30 am is a lottery." The difference, perhaps, is that you can lose lottery only once. But in the courts, you can try and try again while moving up the judicial ladder.


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