Reading time: 6-8 minutes.
Curative petition, which is considerably new in the field of law, is currently making headlines. The judicial instrument, which is considered as the last resort available to the aggrieved party in the journey of justice, is often faced with appreciation and criticism alike. For some, it is the last window of opportunity to be heard while for others it is an unnecessary tool devised to go against the power of judiciary, especially the Supreme Court.
Recently, the petition has been used in the country’s landmark 2012 Delhi Gang rape and murder Nirbhaya case, where two convicts filed the curative petition after the Patiala house courts awarded death sentence to four convicts in its hearing on 7 January 2019.
Following the verdict, the two convicts – Vinay Sharma and Mukesh Singh, filed curative petition to ensure that the court reviews its judgement and provides respite to them. This was the last legal recourse available to the convicts which had been dismissed by the court on January 14, 2020.
However, the same was dismissed by the Bench comprising of N.V. Ramana, Arun Mishra, Rohinton Fali Nariman, R. Banumathi And Ashok Bhushan on the grounds that it did not contain any merits and no case was made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra & Another.
The article seeks to explain the concept of curative petition and legal concepts surrounding it.
What is a Curative Petition?
It is a redressal-seeking mechanism which is the final resort by the aggrieved party to receive justice in the court of law, that is, the resort available for redressal of grievances after the dismissal of review petition having the same grounds as curative petition. The jurisprudence behind the mechanism of curative petition is to thwart miscarriage of law and order and ensure smooth functioning of justice system.
The legal requirements regarding the petition are narrow in scope and hence it is accepted only in rare cases. Generally such petitions are not heard in open court and might be heard in judge’s chamber.
The concept of petition is based on the Latin maxim “actus curiae neminem gravabit” which means that the act of the Court shall prejudice no one. It is based on the idea that the court has to undo the wrong done to a party.
The reason for its creation is to address the loopholes in the justice mechanism and cure the lapses. It ensures that everyone is equally heard and given chance to represent themselves before court of law. It also protects petitioners against corruption and biases of the system. It is a review of the order and not a matter of right. The requirements have to be fulfilled to ensure that the petition is allowed, heard and then accepted by the Bench.
Legal provisions involved
The Apex court of the country has laid down some guidelines which are required to be fulfilled in the curative petitions, which are:
- The petitioner has to prove before the court that there was serous violation of principles of natural justice.
- There was presumed bias of the judge that adversely affected him. The judgement was favoured by prejudices and had various loopholes.
- The curative petition can only be filed after dismissal of review petition which was based on the same grounds as curative one.
- The aforementioned requirements are valid only if certified by a senior lawyer.
- The petition has to be sent to three senior most judges and judges of the bench who passed the judgement affecting the petition.
- If majority of judges agree that the petition is admissible and requires hearing, it is sent to the same bench which dismissed the petition.
- It is the discretion of the court to impose exemplary costs if petitioner’s plea lacks merit.
- There is no time limit for filing a curative petition.
The concept of curative petition is based on Article 137 of the Constitution which provides that “subject to provisions of any law and rules made under Article 145, the Supreme Court has the power to review any judgment pronounced or order made by it.” Article 145 is related to procedures and practices of the court.
The idea of Curative petition was conceptualized by the Supreme Court of India in the landmark case Rupa Ashok Hurra vs. Ashok Hurra & Anr. The concept was developed by the apex court of the country to prevent exploitation of power and ensure fair delivery of justice. The issue was whether a person could claim any relief after the final verdict of the court has been pronounced and the review petition has been dismissed.
The case was referred to a constitutional bench of three judges and the matter of contention was “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”.
The court held that a petition is considered when the principles of natural justices are violated and in order to remedy the same, the petition is considered to be curative. The court in the aforementioned case stated that “in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers”. Hence the Court devised the mechanism of ‘curative’ petition.
- Prevention against the bias: It is an effective tool against the possible bias of the judicial system and Judges.
- It provides a way to be heard if unheard and not given fair chance of representation in court.
- It prevents any fallacy that could arise in the procedure followed or pronouncing of verdict.
- It makes the judicial process lengthy and cumbersome as it is an additional stage in any case.
- It goes against the powers of the Supreme Court which is an esteemed institution and questions its credibility.
Justice, like air, is important for all in society. Judges of any court are not gods and are not infallible. They are bound to make errors at some level or the other. The decision given by the apex court is final and binding and cannot be reviewed.
There is no intra appeal against SC’s verdict. Therefore to ensure fair functioning of the judicial system the concept of curative petition was incorporated to correct any fallacy that could arise in the order passed by the Supreme Court.
Author: Sakshi Sethi from Rajiv Gandhi National University Of Law, Patiala.
Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.