Explained: Curative petition

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Why is the curative petition breaking news?

The barbaric and horrendous gang rape of Nirbhaya in 2012 shook the conscience of every individual in the country. It triggered unfathomable fear in every woman, raised serious questions of the law and order of the country and created unprecedented pressure on the government for stricter rules on safety and well-being of women.

The judicial journey of the case has been long and difficult, but nevertheless remarkable in itself. It has not only revealed the loopholes of the existing system, but has quickened and encouraged for the formation of a better and safer environment for women and juveniles in India.

However, the time invested in exhausting the available procedures before finally punishing the convicts has sadly made amplified the maxim ‘justice delayed is justice denied’.

The five accused were charged for the offences of kidnapping, rape and murder. One of the convicts committed suicide in prison, while and the juvenile convict was sentenced to three years in a reformatory centre. The remaining three convicts were tried in fast track court and were found guilty of rape and murder and were sentenced to death by hanging in 2013. The decision was upheld by the Delhi High Court in 2014, and subsequent review pleas filed by the convicts were dismissed by the Supreme Court.

The counsel for the convicts filed for curative petition in 2019, arguing that the young age and socio-economic background should be considered as mitigating factors. This argument was rejected as well. The mercy petitions filed before the President of India weren’t given a positive reply either. The Delhi Court has finally issued a fresh death warrant, fixing the hanging of all men for February 1st, 2020.

What is a curative petition and how did it develop?

A curative petition is the final and last option available to the people for redressal of grievances in the court of law and to acquire justice as mentioned and promised by the Constitution of India after the review plea is dismissed or has been exhausted. For some, it is the last opportunity for the unheard of being heard. For others, it is a Supreme Court creation which goes against its own power.

The Constitution explicitly speaks of the review power of the Supreme Court of India under Article 137. But the concept of curative petition is fairly new in the field of law in India. The Supreme Court of India evolved the idea of curative petitions in the landmark judgment of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002).

In this case, the question was raised of whether an aggrieved person is entitled to any relief against the final order/judgment of the Supreme Court after dismissal of review petition, either under Article 32 of the Constitution or otherwise.

The five-judge bench of the highest court observed that Article 142 of the Constitution empowers the Supreme Court to act in whatever manner they may deem fit to establish complete justice. Therefore, to protect the substantive rights of the litigant, the Constitution Bench came up with the theory of a curative petition.

The main idea behind the introduction of the new concept was that though the judges do their best to fairly decide a case, their action is subject to human limitations and there may arise a situation where they would have to reconsider their decision in order to prevent abuse of power and to cure the gross miscarriage of justice.

The court used the Latin maxim, ‘actus curiae neminem gravabit”, which means that an act of the court shall prejudice no one. The maxim becomes applicable because it would not only be proper but also obligatory both legally and morally to rectify the error.

What are the grounds that allow entertainment of curative petition?

Supreme Court held that only in the rarest of the rare cases, where very strong reasons are present for the court to look into the matter again would it accept an application seeking reconsideration of an order of the apex court which has become final on dismissal of a review petition.

A petitioner is entitled to relief under curative petition, if he establishes that:

  • Violation of principles of natural justice where he was not a party to the matter, but the judgment adversely affected his interests.
  • He was party to the matter, but was not served with notice of the proceedings and the matter proceeded as though he had the choice.
  • Wherein the proceedings a Learned Judge failed to disclose his connection with the subject matter.
  • The parties giving scope for an apprehension of bias and that the judgment adversely affects the petitioner.

In the curative petition thus filed, the petitioner shall assert the grounds mentioned therein, which have been taken in the review petition and that it was dismissed by circulation. The curative petition should also contain a certification by a Senior Advocate with regard to the fulfillment of the above requirements.

The curative petition is then circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of in the petition. It is only when majority concludes that the matter needs hearing, that it should be listed before the same Bench to pass appropriate orders.

The court in the 2002 case added that if at any stage it finds that the petition is displeasing, it could impose exemplary damages on the petitioner. Moreover, it is usually decided by judges in chamber, unless a specific request for an open-hearing is made. The court did not mention any limitation period to file the petition but it was pointed out that it should be within a reasonable time.

Review petition vs. Curative petition vs. Mercy petition

As per article 137 of the Constitution and the rules made under Article 145, the Supreme Court has the power to review its pronounced judgment as an exception to the principle of stare decisis. It is to be filed within 30 days of the pronouncement of the judgment.

If the review petition is dismissed, the curative petition becomes the last judicial resort to turn the judgment in one’s favor. It differs from a mercy petition filed under Article 72 before the President and under Article 161 before the Governor, in that such mercy petitions are based on the claims of mercy, and not on the legality of the judgement petitioned against.

Conclusion

Rectification of an order stems from the fundamental principle of rule of law that proves justice is above all. The introduction of curative petitions strengthens the accountability of the judicial system in India by providing an opportunity to undo possible wrongs, making an individual more empowered with life under Article 21 of the Constitution but at the same time, it becomes essentially necessary to be cautious while dealing with these petitions so as to prevent its misuse by the applicants and to save the precious time of the courts. 

Author: Shambhavi Sirothia from Symbiosis Law School, Pune.

Editor: Anna Jose Kallivayalil from NLU, Delhi.

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