The Last Word:
As per standards of Hurra, (2002) 4 SCC 388 a Curative Petition shall be circulated amongst “3 Senior-Most Judges” of SC and “Judges who passed the Judgment complained of, if available”. When a Majority concludes, a hearing is required – it should be listed.
Hon’ble Justice Dipak Misra:
“Needless to say, the availability has been mentioned. While this Court exercises the jurisdiction in respect of a Curative Petition, it is actually the Principal Judgment/Main Judgment, which is under assail. The Curative Petition is filed against the Main Judgment which is really complained of. The Judges, who delivered the Main Judgment admittedly were not available in office. If as a principle it is laid down, the Judges who decide the Review [Dave, Chelameshwar and Joseph JJ], in absence of the Judges who have demitted the Office [Sathasivam and Chauhan JJ], are to be made parties by a judicial imperative, that would not be appropriate.”
“Mr. Mukul Rohatgi, Learned Attorney General would submit 3 Senior-Most Judges have been categorically stated to be parties to the Bench. If the Curative Petition is dealt with by 3 Senior-Most Judges, as in this case by the Chief Justice of India and 2 Senior-Most Judges, the Order would not become void. In our considered opinion, the submissions canvassed by Mr. Mukul Rohatgi, Learned Attorney General, deserves acceptation.”
The optimal Bench for a circulation of Yakub’s Curative Petition would have been CJI Dattu and Hon’ble Judges Thakur, Dave, Chelameshwar and Joseph. It is inexcusable, if Chelameshwar and Joseph JJ were available and did not receive Yakub’s Curative Petition. If Chelameshwar and Joseph JJ were not available, the process is not robbed of its legitimacy.
Hon’ble Justice Dipak Misra:
“We disagree with the view expressed by Kurian Joseph, J in this regard. As a sequitur, the dismissal of the Curative Petition by the 3 Senior-Most Judges of this Court has to be treated as correct and not vitiated by any kind of procedural irregularity.”
The Last Word:
Senior Advocate, Raju Ramachandran?
Hon’ble Justice Dipak Misra:
“Mr. Raju Ramachandran, Learned Senior Counsel, would emphasize on the word ‘Judgment’ as the dismissal of the Review Petition has been captioned as ‘Judgment’. The nomenclature, in our considered opinion, is not relevant. The purpose of saying so is that solely because the dismissal of the Review Petition has been nomenclatured as ‘Judgment’, it will not come within the ambit and sweep of the concept of “Judgment complained of”.“
The Last Word 