# RUPA ASHOK HURRA v. ASHOK HURRA AND ANR

- **Citation:** [2002] 2 S.C.R. 1006
- **Court:** Supreme Court of India
- **Decided:** 2002-04-10
- **Bench:** S.P. Bharucha, Syed Shah Mohammed Quadri, Umesh C. Banerjee, S.N. Varia Va, Shivaraj V. Patil
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rupa-ashok-hurra-v-ashok-hurra-and-anr-18407
- **Pages:** 41

## Headnote

r
rConstitution 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 Cour

## Text

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--
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
rConstitution 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.
to.
Hal.< bury 's laws of England, Fourth Edition (reissue), Vol. I (I), referred
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
B
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
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
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
,._
\
l
oppressive to judicial conscience and would cause perpetuation of irremediable
-<.{.
F
injustice. [1023-E; 1031-E-H; 1032-A)
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 of Assam, [2001) 5 SCC 714; Lily Thomas
and Ors. v. Union of India 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
...___,
I
)
.,,
•
'
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
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
F
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
1 DIO
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
B of this Court. (1037-H; 1038-A]
Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra 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
is above all. The exercise of inherent power of this Court also stands recognised
c..
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.
G
2.2. 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 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
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)
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
A.
B
(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 :
D
"Whether the judgment of this Court dated March 10, 1997 in Civil
Appeal No.1843 of 1997 can be regarded as a nullity and whether a
writ petition under Article 32 of the Constitution can be maintained to
question the validity of a judgment of this Court after the petition for
review of the said judgment has been dismissed are, in our opinion,
questions which need to be considered by a Constitution Bench of this
Court."
The other writ petitions were tagged to that case.
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 B
in aid of the Supreme Court. It is a Court of record and has all the powers of
such a Court including power to punish for contempt of itself (Article 129).
Since the jurisdiction of this Court under Article 32 of the Constitution
is invoked in these writ petitions, we shall advert to the provisions of Article
'
32 of the Constitution. It is included in Part III of the Constitution and is c
,,.,
quoted hereunder :
"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 D
guaranteed.
;
(2) The Supreme Court shall have power to issue directions or orders
•
or writs, including writs in the nature of habeas corpus, mandamus,
1
prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by
E
this Part.
(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 G
rights. By clause (2) tbe Supreme Court is vested with tbe power to issue
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
of common 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 Courts2 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 of persons before the High
Court for review so that the court may determine whether they should be
quashed, or to quash such decisions. The order of prohibition is an order 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
1016
SUPREME COURT REPORTS
(2002] 2 S.C.R.
A 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,
E
F
G
the learned Judge observed :
"It was suggested that the High Courts might issue writs to this Court
and to other High Courts and one Judge or Bench in the High Court
and the Supreme Court might issue· a writ to another Judge or Bench
in the same Court. This is an erroneous assumption. To begin with the
High Courts cannot issue a writ to the Supreme Court because the writ
goes down and not up. Similarly, a High Court cannot issue a writ to
another High Court. The writ does not go to a court placed on an
equal footing in the matter of jurisdiction. Where the county court
exercised the powers of the High Court, the writ was held to be wrongly
issued to it (See:· In re The New Par Consols, Limited [1898 (1) Q.B.
669)." (Emphasis supplied)
In A.R. Antulay 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
-
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)
-'
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.
A powers Mukharji, Oza and Natarajan, JJ. expressed the view that the Court
i
_...__
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
B
constitute a source of jurisdiction and they are to be exercised in aid of a
jurisdiction that is already invested for correcting the decision under Article
137 read with Order XL Rule 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
D
subordinate to the larger Benches of this Court. To the same effect is the view
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
G
subsequent events after the final judicial verdict is pronounced and it
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
>
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!
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.
It is, however, true that in Supreme Court Bar Association· v. Union of D
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
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
.........
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RUPA ASHOK HURRA v.