Can a citizen challenge a Supreme Court judgment on the ground that it violates his/her fundamental rights guaranteed under the Constitution? An advocate has raised this issue in an unusual Public Interest Litigation before the Supreme Court.
The PIL seeks to reopen the debate on the issue, which was settled by the apex court in 2002, in Rupa Ashok Hurra's case. In that case, a five-judge Constitution Bench had held that a final judgment/order passed by the Supreme Court cannot be assailed under Article 32 of the Constitution by an aggrieved person irrespective of whether he was a party to the case or not.
Terming the issue raised in the PIL as "too important", a three-judge Bench headed by Chief Justice of India YK Sabharwal has sought the assistance of former Attorney General Soli J Sorabjee and Additional Solicitor General Gopal Subramanian as to arrive at a prima facie conclusion on the issue.
The court would consider issuing notices to the Centre and other parties after getting the views of Sorabjee and Subramanian as Amicus Curiae.
According to the petitioner, advocate Shiva Kant Jha, Judiciary (like Legislature and Executive) is a 'State' within the meaning of Article 12 of the Constitution. Therefore, in principle, if one thinks that one's fundamental rights have been violated by the Court's verdict, one has the right to challenge that verdict under Article 32. The fundamental rights are basically rights against the 'State', he argued.
Article 32 provides remedies for enforcement of fundamental rights guaranteed under the Constitution and one can directly move the apex court for it.
Jha, a retired chief commissioner of Income Tax, contended that the court has every right to dismiss such a petition but after entertaining it and not at the very outset on the ground that it was not maintainable.
One can always approach the usual appellate fora against an order or a judgment but if one is aggrieved by a Supreme Court judgment one could only file a review petition.
However, in Hurra's case, recognising the need for flexibility and substantive justice, the apex court devised the mechanism of curative petition, which could be used by an aggrieved person who was not a party or was not heard. It can also be used where the judge failed to disclose his connection in any manner with the subject before him.
Invoking the doctrine of ex debito justitiae, Jha contended that in Hurra's case a very narrow construction was placed and pleaded that the court determine proper frontiers of the doctrine.