2002 (4) TMI 889 - SC - Indian Laws

Power under Art. 129 and Art. 142 can suspend advocate licences or debar advocates, subject to self-limits

SC held that it can, in exercise of its powers under Art. 129 read with Art. 142, pass orders necessary to do complete justice, which may include ... Curative petition - certification by a Senior Advocate​​​​​​​ - Entitlement to any relief against a final judgement/order of this Court, after dismissal of review petition, either under Article 32 of the Constitution or otherwise - requirements to entertain a curative petition under the inherent power of Court - power to rectify or recall the order passed by Court, specifically provided by Article 137​​​​​​​ - discretionary jurisdiction to grant special leave to appeal (Article 136) and very wide discretionary powers, in the exercise of its jurisdiction, to pass decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, which shall be enforceable throughout the territory of India in the manner prescribed (Article 142) - principle of stare decisis - doctrine 'ex debito justitiae'​​​​​​​ - Whether any relief can be given to the petitioners who challenge the final judgment of this Court, though after disposal of review petitions, complaining of the gross abuse of the process of Court and irremedial injustice. Petitioners in these writ petitions seek re- consideration of the final judgments of this Court after they have been unsuccessful in review petitions and in that these cases are different from the cases referred to above. The provision of Order XL Rule 5 of the Supreme Court Rules bars further application for review in the same matter. HELD THAT:- After giving our anxious consideration to the question we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final court in the country should not be open to challenge yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice. In Supreme Court Bar Association's case [1998 (4) TMI 531 - SUPREME COURT], on an application filed under Article 32 of the Constitution of India, the petitioner sought declaration that the Disciplinary Committees of the Bar Councils set up under the Advocates Act, 1961, alone had exclusive jurisdiction to inquire into and suspend or debar an advocate from practising law for professional or other misconduct and that the Supreme Court of India or any High Court in exercise of its inherent jurisdiction had no such jurisdiction, power or authority in that regard. A Constitution Bench of this Court considered the correctness of the judgment of this Court in Re: Vinay Chandra Mishra [1995 (3) TMI 467 - SUPREME COURT]. The question which fell for consideration of this Court was : whether the punishment of debarring an advocate from practice and suspending his licence for a specified period could be passed in exercise of power of this Court under Article 129 read with Article 142 of the Constitution of India. There an errant advocate was found guilty of criminal contempt and was awarded the punishment of simple imprisonment for a period of six weeks and was also suspended from practice as an advocate for a period of three years from the date of the judgment of this Court for contempt of the High Court of Allahabad. As a result of that punishment all elective and nominated offices/posts then held by him in his capacity as an advocate had to be vacated by him. In M.S. Ahlwat's case [1999 (10) TMI 719 - SUPREME COURT], the petitioner, who was found guilty of forging signatures and making false statements at different stages before this Court, was inflicted punishment under Section 193 IPC in Afzal vs. State of Haryana [1996 (1) TMI 434 - SUPREME COURT]. He filed an application under Article 32 of the Constitution assailing the validity of that order. Taking note of the complaint of miscarriage of justice by the Supreme Court in ordering his incarceration which ruined his career, acting without jurisdiction or without following the due procedure, it was observed that to perpetuate an error was no virtue but to correct it was a compulsion of judicial conscience. The correctness of the judgment was examined and the error was rectified. In the cases discussed above this Court reconsidered its earlier judgments, inter alia, under Articles 129 and 142 which confer very wide powers on this Court to do complete justice between the parties. We have already indicated above that the scope of the power of this Court under Article 129 as a court of record and also adverted to the extent of power under Article 142 of the Constitution. The upshot of the discussion in our view is that this Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power. The next step is to specify the requirements to entertain such a curative petition under the inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exist, the Court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgement adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner. The petitioner, in the curative petition, shall aver specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. The curative petition shall contain a certification by a Senior Advocate with regard to the fulfillment of the above requirements. We are of the view that since the matter relates to re- examination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders. It shall be open to the Bench at any stage of consideration of the curative petition to ask a senior counsel to assist it as amicus curiae. In the event of the Bench holding at any stage that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner. The point is accordingly answered. BANERJEE, J. - Held that:- 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 doctrine of stare decisis but akin thereto to the effect as to the scope or finality of the decision of this Court in the normal course of events. no manner of doubt that the plea of the availability of writ jurisdiction, as envisaged under Article 32 of the Constitution, cannot be sustained and the law seems to be well settled on this score and as such we need not delve into neither dilate any further thereon. Having regard to the conclusion, as above, does it, however, mean and imply a closed door even if the Order of this Court depicts that the same stands in violation of natural justice adversely and seriously affecting the rights of the parties or the same depicts manifest injustice rendering the order a mockery of justice can it be said that the binding nature of an Order of this Court, cannot thus be ever be corrected even if it causes insurmountable difficulty and immense public injury the debate has a very large and wide ramification and thus will have to be dealt with in a manner with care and caution and with proper circumspection as regards its impact - the principal basis being the concept of justice and this is where the principle of ex debito justitiae comes to play. Brother Quadri has taken very great pains to formulate the steps to be taken and the methodology therefor, in the event of there being an infraction of the concept of justice, as such further dilation would be an unnecessary exercise which I wish to avoid since I have already recorded my concurrence therewith excepting, however, lastly that curative petitions ought to be treated as a rarity rather than regular and the appreciation of the Court shall have to be upon proper circumspection having regard to the three basic features of our justice delivery system to wit, the order being in contravention of the doctrine of natural justice or without jurisdiction or in the event of there is even a likelihood of public confidence being shaken by reason of the association or closeness of a judge with the subject matter in dispute. In my view, it is now time that procedural justice system should give way to the conceptual justice system and efforts of the law Court ought to be so directed. Gone are the days where implementation of draconian system of law or interpretation thereof were insisted upon - Flexibility of the law Courts presently are its greatest virtue and as such justice oriented approach is the need of the day to strive and forge ahead in the 21st century. No costs. Issues: (i) Whether a writ petition under Article 32 can be maintained to challenge a final judgment/order of the Supreme Court after dismissal of a review petition; (ii) Whether, and on what grounds and procedure, the Supreme Court can entertain a curative petition in exercise of its inherent powers to re-consider a final judgment/order after dismissal of review.Issue (i): Whether Article 32 writ jurisdiction is maintainable to question a final judgment/order of the Supreme Court after review has been dismissed.Analysis: The analysis examines the character of writ jurisdiction, historical and precedent authority distinguishing supervisory writs addressed to inferior courts from jurisdiction over co-ordinate or superior Benches, and appellate/review remedies prescribed by the Constitution and Court rules. It considers prior decisions holding that judicial orders of superior courts are not amenable to writs under Article 32 and addresses authorities where final judgments of highest courts were revisited on distinct grounds.Conclusion: Article 32 cannot be invoked to challenge a final judgment/order of the Supreme Court after dismissal of the review petition.Issue (ii): Whether the Supreme Court, in exercise of its inherent or plenary powers, can re-consider a final judgment/order after dismissal of review and, if so, the permissible grounds and procedure for such curative petitions.Analysis: The analysis considers constitutional provisions (Articles 129, 137, 142, 145), Supreme Court Rules (Order XL Rule 1; Order XLVII Rule 6), comparative authorities and precedents where the highest courts corrected their own orders for grave defects. It evaluates competing principles of finality and the duty to prevent irremediable injustice, identifies categories of defect that justify intervention (violation of natural justice affecting a non-notified party or failure to disclose a judge's connection creating apprehension of bias), and prescribes procedural safeguards to prevent abuse, including prior circulation to a bench of senior judges and certification by a Senior Advocate; it also permits imposition of exemplary costs for vexatious petitions.Conclusion: The Supreme Court may, in the rarest of rare cases, exercise inherent or plenary powers to entertain a curative petition after dismissal of review where (a) principles of natural justice were violated in that the petitioner was not served or not a party yet the judgment adversely affected him/her, or (b) a judge failed to disclose a connection giving rise to an apprehension of bias and the judgment adversely affects the petitioner. Such curative petitions must aver that these grounds were taken in the review petition (dismissed on circulation), must be certified by a Senior Advocate, and shall first be circulated to a Bench of the three senior-most Judges including judges who passed the judgment complained of; only on a majority view of that Bench that hearing is warranted shall the matter be listed for hearing, with power to impose costs for frivolous petitions.Final Conclusion: Article 32 is not a vehicle to challenge final Supreme Court judgments after review is dismissed; however, a limited curative mechanism under the Court's inherent/plenary powers exists for rare, narrowly defined defects (violation of natural justice or apparent bias) subject to strict procedural safeguards to prevent abuse.Ratio Decidendi: The Supreme Court's inherent and plenary powers permit reconsideration of a final judgment in narrowly confined, exceptional circumstances to prevent irremediable miscarriage of justicespecifically where there is a proven violation of natural justice affecting a non-notified party or nondisclosure by a judge giving rise to apprehension of biasand such recourse is subject to prescribed procedural safeguards to protect finality and prevent abuse.