Supreme Court's DMRC Judgement: Bigger Than Bhopal Gas Tragedy?

"Justice By The Chancellor's Foot" is an old adage that aptly describes the Supreme Court's (SC) judgement on 'Curative Petition' of Delhi Metro Rail Corporation (DMRC). In old England, the Lord Chancellor's Foot was used to describe the variability of equitable justice, which simply meant that the fairness of a decision depended on the conscience of the Chancellor, who was the judge. When two disputed parties went to court during the reign of King Henry VIII, the judge would use equitable justice to make a decision. However, the decision may not be the same if a different judge, who had a different conscience, would hear the case. This was mainly as the Chancellor's Foot was an uncertain measure, just like the length of a person's foot varies.

In the commercial dispute between DMRC v/s DAMEPL (Delhi Airport Metro Express Private Limited), the decision of the bench that composed of three senior most SC judges led by CJI DY Chandrachud, can be said to have delivered "Justice By The Chancellor's Foot" for the simple reason that a 'Curative Petition' was allowed and upheld in an arbitration matter.

DRMC v/s DAMEPL could be the first instance anywhere in the world, where a 'fifth layer' of appeal post Arbitration Award, after the rejection of the 'Review Petition' by SC was allowed. That too in a commercial dispute to overturn the final judgement of the Apex court in ugly spectacle of judicial intervention in an arbitration matter.

SC's 'Maryada' (Limit) of Jurisdiction: Union Of India v/s Union Carbide

There can be no doubt whatsoever that Bhopal Gas Tragedy was the rarest of rare cases, where the leakage of over 40 tons of methyl isocyanate gas from a pesticide plant of Union Carbide, a U.S. company in India, had turned the city of Bhopal into a mass graveyard, severely affecting even the future generations to be born there. The parallel to the incident can only be found in history when the United States detonated two atomic bombs over the Japanese cities of Hiroshima and Nagasaki.

Yet, in 2010 when the government filed a "Curative Petition" seeking higher compensation for the victims of the Bhopal Gas Tragedy from Union Carbide, the SC declined. In 2023, a 5-Judge Bench led by Justice S.K. Kaul not only rejected the government's petition but also "narrowed the scope of the Curative Jurisdiction." The Bench held that a curative petition can be entertained when there is a ‘gross miscarriage of justice’, fraud or suppression of material facts. The Union of India did not justify the petition on either of these grounds. Instead, the Bench viewed that allowing this Curative Petition would open a ‘Pandora’s box‘ stating—”We find it difficult to accept that this Court can devise a Curative Jurisdiction that is expansive in character."

"If I am sitting in Article 226 jurisdiction (when the case is still under High Court), I would certainly not hesitate to mould the relief wherever required. In a suit, I will be more constrained and here we are in Curative (in SC). There is 'Maryada' in the jurisdiction. We as judges are bound by the 'Maryada' (limit) of Jurisdiction." said Justice Kaul while rejecting the government's appeal in the Bhopal Gas Tragedy case. Other judges on the bench included Justices Sanjeev Khanna, Abhay S Oka, Vikram Nath and JK Maheshwari.

In comparison to the Bhopal Gas Tragedy, where the magnititude of crime was so unimiginable that it was difficult to put a count to dead and injured, can the commercial dispute between DMRC v/s DAMEL be categorised as the country's rarest of rare cases that had shaken the conscience of the court in a manner to have warranted setting aside of an Arbitration Award through 'Curative Petition?'

The Bhopal Gas Tragedy matter was old enough, but the sheer enormity of the catastrophe when understood by this government, compelled it to correct another historic blunder by the past governments through a Curative Petition. But the conscience of the judges was not shaken enough and the SC did not budge on the principles of Doctrine of Finality.

When the SC could let an evil on earth like Union Carbide go nearly scot free, the comprehension of the compulsion, behind the move by the Milord's to re-open a matter of mere commercial dispute that had reached its finality, is mind boggling.

Does allowing DMRC Curative Petition not have the impact to weaken India's global standing as a commercial hub, where trade disputes can be settled without much ado via effective Arbitration Laws? Will it not affect trade and investments into the country?

Did SC Weaponise Curative Petitions And Weakened Arbitration?

The concept of Curative Petition was born in 2002, when principles governing it were established by the SC in the case of Rupa Ashok Hurra Vs Ashok Hurra. Before Curative Petition, a Review Petition in the SC was the last layer of appeal, as is the practice globally. But in the Hurra case, the conscience of the court (judges) -- so shaken -- gave birth to yet another layer of appeal in the form of Curative Petition. From that day, every Curative Petition in India is decided on the basis of principles laid down by the SC in the Hurra case of 2002. This was a case of a matrimonial discord where the question of validity of a decree of divorce reached the SC after the woman withdrew the consent she had given to divorce by mutual consent.

In line with the Hurra case, consider justice as a pawn in the game of chess. On the chessboard, each player's skill decides the outcome but the game should be played as per the set rules - Knight can't move as the Queen. The primary objective behind allowing a Curative Petition in the Hurra case was akin to curing the game of chess, in which the pawn mistakenly took a wrong position and the game suffered due to that. Curative Petitions simply hold the objective to prevent the miscarriage of justice and cure the same with an account to minimize abuse in the process of law and look for lapses in the judicial system.

More than 600 Curative Petitions have been filed in the SC in these two decades since the Hurra case, but rarely any passed the muster at SC, until the bench of Justice Chandrachud, BR Gavai and Surya Kant upheld DMRC's Curative Petition in a commercial dispute against an Arbitration Award that was allowed by the division bench of SC itself.

Was the DMRC v/s Arbitration case bigger than Bhopal Gas Tragedy, that it shook the conscience of the nation? No! It was a mere commercial dispute involving a public limited company with a private player, who cannot be judged on the basis of perceptions. The SC judgement that upholds the Curative Petition, after the dismissal of the review petition in the DMRC matter, does not reason any abuse of judicial process nor can it be considered a rarest or rare case. Failing these two tests, was the SC justified in upholding the Curative Petition?

The DMRC filed its curative petition in the SC in June 2022 nearly 8 months after its review petition was dismissed by Justice L Nageswararao and Justice SR Bhat in November 2021. Before it won reprieve through the Curative Petition, the DMRC had lost an arbitration that stretched for 4.5 years and was concluded in May 2017 in favour of DAMEPL. The hearing on the Curative Petition was held nearly 18 months after it was filed and DMRC got the benefit of 'time shopping' after filing the Curative Petition till both J. Nageswararao and J. Bhat retired. Had the hearing on the Curative Petition happened earlier, there was a possibility that J. Bhat could have possibly and ideally been on the bench hearing the same since he retired in October 2023 more than a year after DMRC filed the Curative Petition.

As in the Hurra case, the rule says that the Judge who heard the Review Petition ought to be on the bench hearing the Curative Petition. Was DMRC wary of this rule to have waited for Justice Baht to retire before pressing on the hearing of its Curative Petition? Above everything, the Curative Petition now also casts a shadow over the SC bench that rejected the Review Petition and upheld the order against DMRC, though nothing is prejudiced in court judgements.

Principles of Curative Petition

To bring a Curative Petition, it is key for the petitioners to establish gross miscarriage in the "delivery of justice due to a bias or abuse of the process of law." The petitioner is entitled to relief Ex Debito Justitiae (fair trial) via a Curative Petition if it is established that there was a violation of Principles of Natural Justice in that the petitioner was not a party to the lis (suit) but the judgment 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. Then, if a Judge during the proceedings failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affecting the petitioner. To restrict filing of the curative petitions only in genuine cases, the Hurra case provided that it contain a certification by a Senior Advocate with regard to the fulfilment of all the requirements provided in the judgment. Unfortunately, in most of the cases, the certification is casual without fulfilling the requirements of the judgment.

SC's Curative Jurisdiction is far more restricted than review proceedings, as stated in Union of India (UOI) and Ors. vs. Union Carbide Corporation & Ors (2022) in: “Although this Court in Rupa Ashok Hurra chose not to enumerate all the grounds on which a curative petition could be entertained; the Court was clear in observing that its inherent power ought not to be exercised as a matter of course, and that it should be circumspect in reconsidering an order of this Court that had become final on dismissal of the review petition.”

Precedents in the past cases as held in Lily Thomas v Union of India, that in review jurisdiction, the court is not expected to sit in appeal over its judgment: "It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated as an appeal in disguise.”

It is an aphorism that an error that is not self-evident, but needs to be deducted after following a process of reasoning, is not an “error apparent”, as held in Parsion Devi v Sumitri Devi.

Under Order 47 Rule 1 Code of Civil Procedure a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review Under Order 47 Rule 1 Code of Civil Procedure. In exercise of the jurisdiction Under Order 47 Rule 1 Code of Civil Procedure it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered, has a limited purpose and cannot be allowed to be "an appeal in disguise".

The arbitration dispute concerned civil work in a public-private partnership project involving the construction, operation, and maintenance of the Delhi Airport Metro Express Rail project. Has the SC now weaponised a Curative Petition to an extent that it can be used by aggrieved parties in commercial disputes as the last resort of appeal?

Plausibly, entertaining a Curative Petition against an Arbitral Award was an overreach by the SC, since the Arbitration Act limits judicial scrutiny only to exceptional circumstances. Especially, in the light that the arbitral award was confirmed under Section 34 and was appealed under Section 37 of the Act, which appeal was later set aside after being heard by the SC under Article 136 of the Constitution. Not only that but a further petition for review by SC under Order 47 of the Code of Civil Procedure, 1908, was rejected for lack of error on the face of the record. In N. Anantha Reddy vs. Anshu Kathuria & Ors, the SC said, “Review jurisdiction is extremely limited and unless there is a mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at its face.” Curative proceedings cannot be treated as a second review, just as review proceedings are not appeals in disguise. This was highlighted by the court in Sumer v. State of U.P.

All the above ought to have limited the jurisdiction for a Curative Petition in DMRC v/s DAMEPL commercial matter. But the Chancellor's Foot may have kicked the Doctrines of Finality and Stare Decisis in the butt. With it, the scope of Rupa Hurra case for filing of Curative Petitions seems to have widened invariably, making it a second review to the SC judgement that has reached finality. Gone with the wind is Prime Minister Narendra Modi's dream of making India a hub for international arbitrations.