The Sanvidhan Rakshak Samiti (SRS) and Junior Advocates and Law Students Association (JALSA) contends that the requirement creates unjustified discrimination between lakhs of practicing advocates and a small group of designated Senior Advocates, effectively conferring gatekeeping authority upon a select few without any rational basis or intelligible differentia as mandated by binding Constitution Bench jurisprudence.
SRS has relied on the Constitution Bench judgment in Prem Chand Garg v. Excise Commissioner, U.P., AIR 1963 SC 996, which struck down similar Supreme Court Rules that imposed restrictive conditions on access to constitutional remedies, holding that the Court’s rule-making power cannot override or create barriers to a citizen’s fundamental right of access to justice.
In a move that has ignited a nationwide debate on equality before law and meaningful access to justice, the National President of SRS, Adv. Nilesh Ojha, has submitted a detailed representation to the Hon’ble Chief Justice of India seeking the immediate abolition of the mandatory requirement of obtaining a certificate from a Senior Advocate for filing Curative Petitions before the Supreme Court of India. The representation contends that this condition creates an unjust barrier for ordinary litigants, undermines the constitutional guarantee of equal access to justice, and effectively reserves the Court’s final remedy for a privileged few rather than making it available to all citizens on equal footing.
Background: Creation of Curative Jurisdiction
The curative jurisdiction was evolved by a Constitution Bench of the Supreme Court in Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388 to prevent gross miscarriage of justice that remains unremedied even after dismissal of review petitions. The Court recognized that review petitions are ordinarily decided in chambers by circulation and may be dismissed ex parte, creating the possibility that serious errors could go uncorrected. The curative petition was therefore conceived as an extraordinary remedy to grant relief ex debito justitiae — as a debt of justice — in the cases where fundamental principles of natural justice and fairness have been violated.
The Constitution Bench clarified that relief may be granted, inter alia, where there has been violation of principles of natural justice — such as where a person affected by the judgment was not a party to the proceedings, was not served with notice, or where a judge failed to disclose a connection giving rise to a reasonable apprehension of bias. The Court further directed that curative petition would be circulated to a Bench comprising the three senior-most Judges and the Judges who delivered the impugned judgment, and that the Court may impose exemplary costs where the petition is found to be frivolous or vexatious.
Importantly, while prescribing procedural safeguards to prevent abuse, the Court required that the curative petition contain a certification by a Senior Advocate confirming that the conditions for invoking curative jurisdiction were satisfied. SRS argues that this requirement — introduced without articulated reasoning or demonstrable necessity — has evolved into a substantive barrier to justice rather than a procedural safeguard.
The observations of the Supreme Court reads thus;
“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. ”
“Justice Cannot Depend on Wealth or Connections”
SRS has emphasized that the curative petition represents the last constitutional avenue to correct grave injustice after all other remedies have been exhausted. However, obtaining certification from a designated Senior Advocate often entails substantial professional fees and access to elite legal networks concentrated in metropolitan legal circles.
The representation states that an ordinary citizen who cannot afford senior counsel fees or lacks professional access is effectively shut out from the Supreme Court’s final remedy. In this manner, the rule operates not merely as a procedural requirement but as an economic and social barrier, transforming a constitutional safeguard into a privilege available only to the affluent or well-connected.
“A Condition Without Reason or Logic” – Constitutional Violations Alleged :-
The Association has argued that the impugned condition creates unjustified discrimination between lakhs of practicing advocates and a small group of designated Senior Advocates, effectively granting gatekeeping authority to a select few without any rational basis. According to the representation, such a classification violates the constitutional guarantee of equality before law under Article 14 and runs contrary to Article 39-A, which mandates equal access to justice irrespective of economic capacity.
The Association also invoked international human rights standards, including Article 14 of the International Covenant on Civil and Political Rights (ICCPR) and Articles 2 and 7 of the Universal Declaration of Human Rights (UDHR), which affirm equality before courts and protection against discrimination.
It further contended that there is no logical justification for requiring certification only from a designated Senior Advocate that the grounds raised in the curative petition were earlier taken in the review petition and that the review was dismissed by circulation in chambers. These facts, the Association noted, are matters of record and can be verified directly from court files, and could equally be certified by any competent advocate, whether designated or not.
According to SRS, the requirement therefore does not serve any legitimate objective or bear a rational nexus to the purpose of curative jurisdiction. Instead, it operates as an arbitrary barrier that restricts access to the Supreme Court’s final corrective remedy, particularly for litigants lacking financial resources or elite professional connections, thereby undermining the constitutional promise of equal justice for all.
“Condition Filters People More Than Petitions”
The Association has sharply criticized the requirement, stating that it functions less as a safeguard against frivolous litigation and more as a barrier that screens litigants themselves. According to SRS, the rule disproportionately affects ordinary citizens who lack the financial means or professional access to secure certification from a designated Senior Advocate, thereby filtering people rather than the merits of their petitions.
The Association alleges that the requirement places decisive control over access to justice in the hands of a small professional group, thereby creating an informal privilege filter over the Court’s jurisdiction.
Critics argue that such a mechanism introduces a hierarchy within the Bar, discriminates against non-designated advocates, and may result in denial of remedy even in cases involving grave injustice, thereby undermining the constitutional principle that justice must be accessible to all.
Landmark Judgments Relied Upon
Central to the representation is reliance on the Constitution Bench ruling in Prem Chand Garg v. Excise Commissioner, U.P., which held that the Supreme Court’s rule-making power is subordinate to fundamental rights and cannot impose conditions that restrict access to constitutional remedies. The Association argues that the certification requirement functions precisely as such a restriction by placing an additional barrier between the citizen and the Court’s corrective jurisdiction.
In Shrilekha Vidyarthi v. State of U.P., (1991) 1 SCC 212 the Hon’ble Supreme Court unequivocally held that the Constitution does not envisage or permit unfairness or unreasonableness in State action in any sphere of its activity, as such conduct would be contrary to the ideals embodied in the Preamble. Since judicial functioning is also an exercise of State power, courts are equally bound by the constitutional mandate of fairness, non-arbitrariness, and reasonableness, and cannot act in a discriminatory or unguided manner. In para 25, the Court approvingly quoted Wade’s Administrative Law, emphasizing that the notion of unfettered discretion is alien to a public authority, which holds power only to be exercised for the public good.
Further, it is well settled that any decision taken without a governing principle, discernible rule, or rational standard is inherently unpredictable and therefore antithetical to the rule of law. In Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600 (Five-Judge Bench).
In Maneka Gandhi v. Union of India, (1978) 1 SCC 248, the Hon’ble Supreme Court held that any procedure which is arbitrary, unjust, or unreasonable cannot be regarded as “procedure established by law” within the meaning of Article 21, nor can it be said to satisfy the guarantee of equality under Article 14. The Court emphasized that the principle of reasonableness permeates Article 14, and arbitrariness is the very antithesis of equality. Consequently, a procedure that is unfair, oppressive, or lacking in rationality would violate both Articles 14 and 21, as constitutional governance requires that State action be just, fair, and reasonable at every stage.
In Noida Entrepreneurs Association v. NOIDA, (2011) 6 SCC 508, the Hon’ble Supreme Court reaffirmed that all State action must be non-arbitrary and capable of justification on the touchstone of Article 14 of the Constitution. The Court held that actions of the State or its instrumentalities must be guided by discernible principles that satisfy the tests of reasonableness, relevance, and fairness, as the functioning of a democratic government necessarily demands equality and the absence of arbitrariness and discrimination.
The Court further emphasized that the rule of law prohibits arbitrary exercise of power and requires authorities to act strictly in accordance with law. Any decision that is unguided by principle, rule, or rational standard is inherently unpredictable and therefore antithetical to constitutional governance. State action must not only be free from actual discrimination but must also avoid even the appearance of bias, favouritism, or nepotism, as public confidence in the fairness of institutions is integral to the constitutional scheme.
Additionally, the Court recognized the Public Trust Doctrine as part of the law of the land, observing that public authorities hold power in trust for the people and must exercise it for public benefit. This doctrine, flowing from Article 21, reinforces the obligation of the State to act transparently, responsibly, and in a manner that advances, rather than undermines, the rights and interests of citizens.
What Happens Next?
The representation is expected to trigger intense debate within the legal community.
If reconsidered, the demand could lead to one of the most significant changes to the Court’s curative jurisdiction since its creation.
Now the Million Dollar question is if justice is a constitutional promise, can its final door be guarded by privilege rather than principle?
