CONSTITUTIONAL LAW: CURIOUS CASE OF CURATIVE PETITION

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Introduction Vis-à-vis Origin Of Curative Petition

To begin with, it is significant to know what is actually meant by Curative Petition & when & how this petition is beseeched. Grown from the revolutionary case of Ashok Hurra to the suitable usability of the case of Nirbhaya. The Curative Petition has provided & proved that here & now judiciary will make all efforts to give right & appropriate together with unprejudiced justice to the petitioner. Basically, it is the last constitutional recourse accessible for grievance redressal subsequent to the dismissal or exhaustion of the review plea or petition. Consequently, the aggrieved person can request the court of law to review & revisit the decision ruled by them. It is intended to make sure that there is no breakdown of justice & also to avert the mishandling of the entire process. The entreating of the petition is essentially decided by the judges-in-chamber i.e. in-camera session, unless a particular request for an open-court hearing is allowed. The Indian courts have been extremely watchful in the invocation of this petition as this is the last remedy available after utilizing all the other alternative remedies.

The notion of Curative petition has its root & is sprouted form the momentous case of Rupa Ashok Hurra v. Ashok Hurra & Anr. where a question regarding the avaibility of the relief to the grieved person against the ultimate ruling of the Supreme court subsequent to the dismissal of review petition was raised. Every curative petition beseeched is grounded on the principles put forth by the Supreme Court in the aforementioned case. It was ruled by the apex court that in order to avert the severe abuse of judicial process in addition to wiping out the possibility of foundering of justice, it might review its rulings in the process of exerting its intrinsic powers. The court employed the Latin maxim actus curiae neminem gravabit, connoting that an act of the court shall prejudice nobody. As stated above, the purpose of Curative Petition is twofold(i) to circumvent miscarriage of justice &; (ii) to avert abuse of process. For this purpose, the word curative was proposed by the court. Nevertheless, it is necessitated that the petitioner explicitly states the grounds cited there had been implored in the review petition which was filed earlier & subsequently it was dismissed by circulation (i.e., in open-court, nowadays instructed for multiple cases like death penalty review petitions, etc.).

For the valid invocation of the Curative Petition, it is ought to be authorized by a senior advocate then, afterward, it is without fail circulated amid the three Seniors most judges & the judges who approved the impugned judgment, if available. It is to be taken not of that there is no time limit provided to file a Curative Petition. Under Art.137 of the Constitution of India, the Supreme Court is bestowed with the power to review or revisit its own orders or judgments.

Constitutional Backdrop Of Curative Petition

The notion of Curative Petition is deliberated by the Art.137 of the Constitution of India. It provides that in the matter of laws & norms framed by the Parliament under Art.145 of the Constitution of India, the  Supreme Court is vested with the superior power to review or revisit any judgement decided or order passed by it. Such a Curative petition requires to be filed within 30 days from the date of judgement or order passed.

Essential Principles Established By The Apex Court To Invoke Curative Petition

The Supreme court has determined explicit grounds for the purpose of beseeching curative petition which are as follows:

  1. Curative Petition can only be filed once the review plea is exhausted & consequently dismissed against the final judgment by the court of law.
  2. Curative Petition can only be taken into consideration only if the petitioner successfully shows that their principle of natural justice (audi alteram partem) has been violated & that they were not provided with the proper occasion to be heard & the judgment has been passed accordingly.
  3. Such a petition must be compulsorily first passed on to bench of three Seniors most judges & the judges who approved the impugned judgment, if available. It is to be noted that, only if the majority of the judges ascertains that the matter requires hearing then it must be listed before the similar Bench.
  4. Importantly, Curative Petition should be infrequent instead of usual.
  5. At any point of contemplation of the curative petition, the Bench can request a senior counsel to facilitate it as amicus curiae namely friend of the court.
  6. It is usually determined by judges-in-chamber until a particular demand for an open-court hearing is permitted.
  7. The emergency costs can also be imposed by the court of law to the petitioner in case, his petition doesn’t fulfil the abovementioned conditions & prerequisites.

Process To File A Curative Petition

For the valid filing of the Curative Petition, the Supreme court must be vested with the immanent & unqualified jurisdiction to entertain such petitions. According to Order XLVIII, Supreme Court Rules 1966, subsequent to the dismissal of the review petition, under Art.137 of the Indian constitution , which encompasses the apex court’s power to review or reconsider its own decisions & orders, through circulation,  a curative petition could be filed under the immanent jurisdiction of the Supreme Court to cure the recurrent exploitation of its process & also to cure the severe denial of justice in accordance with the principles set out in the consequential case of Rupa Ashok Hurra v. Ashok Hurra & Anr. The petition could be either civil or criminal in nature. Such a petition will then be passed to the three senior most judges & the judges who has passed the challenged decision. Notedly, the petition can also be refuted by the in case, if such petition has no merit, but if plea believes to be fair & correct it may be listed before the similar bench for hearing.

Furthermore, the affirmation which may go along with the Curative Petition must evidently state that the plea is administered by the decision ruled in the infamous Ashok Hurra case, it must not entail any novel grounds excluding the ones that had been cited in the review petition & was discharged on circulation. It must go with the senior Advocate’s certificate that the petition fulfills the necessities set out in the aforementioned case, authorized or attested copy of the judgement/ order & also a certificate of the Supreme Court’s Advocate-on-Record (AOR) so that it is the first Curative Petition in the challenged matter. It is to be noted that, the Limitation Act, 1963 is not applicable on the filing of the Curative Petition & the same court fee will be charged that has been charged in the initial proceedings.

While filing the Curative Petition, one has to take in account that there rests no intra-court appeal & the well-established principle that the court’s action shall prejudice nobody. The notion of Curative Petition came into effect bearing in mind that it would be an exceptionally robust discretionary power & could be practiced only in the occasional circumstances. The filing of the Curative Petition & determining it in light of obvious illicitness & unfairness in the exceptional cases, the significant fundamentals such as the doctrine of stare decisis & the principle of finality & legal certainty of law stated by the Supreme Court should be essentially taken care of.

Benefits Of Filing Curative Petition

  1. Curative Petition provides preclusion against the bigotry, it is an efficacious instrument against conceivable biasness of the Indian judicial system & judges.
  2. Such a petition offers a way to be heard if unheeded & not provided just occasion of representing themselves in the court of law.
  3. This petition also averts any sought of misconception that would emerge in the process followed or stating the judgement.

Drawbacks Of Filing Curative Petition

  1. Curative Petition makes the judicial process prolonged & cumbrous as it is a supplementary step in cases in which this petition is beseeched.
  2. Such a petition goes against the apex court’s powers, which is an eminent institution & questions its veracity.

Momentous Case Laws Where Curative Petition Was Implored

The case of Rupa Ashok Hurra v. Ashok Hurra & Anr., was a marital cacophony where the question of cogency of a divorce decree reached the apex court subsequent the woman retreated the consensus she had given to divorce by mutual consent. The ruling held that technical glitches & trepidations over the resumption of cases & had to submit to a final forum for eliminating errors made in a decision where judicial administration might be impacted.

It was decided by the court that a Curative Petition can be besought only if the petitioner successfully proves there was an infringement of the principles of natural justice (audi alteram partem), & that he wasn’t provided with an occasion to be heard by the court before ruling out an order. Further, it will also be admitted where a judge is unsuccessful in disclosing the facts that raise the reasonable apprehension of bias.

The apex court further stated that Curative Petitions should be beseeched infrequently instead of regular, & must be submitted after duly examining all the merits. A Curative Petition should be backed by authorization by a senior advocate, establishing considerable grounds for submission. It should be primarily passed to a three senior-most judges’ bench & the judges who passed the concerned ruling, provided if available. Only when a majority of the judges settle that the matter requires hearing, it must be listed before the similar Bench.

Nevertheless, it was stated by the court that at any point of contemplation of the Curative Petition, the concerned bench is vested with the discretion to request a senior counsel to aid it as court’s friend. At any stage of consideration, if it is found that the petition lacks merit & is irksome, it might levy exemplary costs on the petitioner

Another case that implored Curative Petition is Naresh Shridhar Mirajkar v. State of Maharashtra, considering the writ petition filed in the apex court contested an oral order of the Bombay High Court.  The court in this case stated that, it was proposed that the High Court might issue the writ to the Supreme Court & to other High Court as well & single bench in both High Court & Supreme Court might issue the writ to another quorum of Judges on a bench in the same court. However, this was regarded as a wrong presupposition.

Notedly, the High Court isn’t eligible to issue writ to the apex court because unlike an appeal which is a petition made to a higher court, the writ is a command from the higher to the lower court or any government official to take certain action according to the law. Likewise, a High Court is forbidden to issue a writ to another High Court. The writ doesn’t go to a court placed on the same plane in the subject-matter jurisdiction.

Where the district court exerted the powers vested with the High Court, the writ issued would be unacceptable. Subsequent to hearing both the parties in all justice, it was noted by the bench that the court’s jurisdiction under Article 32 of the Indian Constitution can’t be beseeched & impugn a final decision or order passed by this court post using the last recourse provided under Art.137 read with Order XL Rule 1, Supreme Court Rules, 1996.

The infamous case of Yakub Abdul Razak Memon v. State of Maharashtra where the Curative Petition of Yakub Menon’s serial blast filed by him subsequent to the death penalty judgment on dismissal of review petition. But the apex court repudiated his petition, further alleging that no rights were unfavorably impacted & there was no non-objectivity in rendering the judgment. Justice Kurian didn’t approve with the opinion of Justice Anil Dave, he accentuated that unquestionably, Curative Petitions should be heard in keeping with the regulations established by the Supreme Court in Rupa Ashok Hurra v. Ashok Hurra & Anr.

In the much celebrated case of Naz Foundation Trust v. Suresh Kumar Koushal, the judgment rendered by Justice(s) S. A Bobde & Ashok Bhushan illuminated the position that it might not always be vital to examine the merits of the case given by the bar. The thing that is to be taken note of is that the Curative Petition was brought before the CJI, since the issues were of significant importance & public interest, the Curative Petition was brought before the CJI, to be listed before the appropriate bench.

In C.B.I. v. Keshub Mahindra, it has been made clear that the Curative Petitions is not administered by the provisos envisaged under The Limitations Act 1963, but the court also made it very clear that the petition is required to be filed within a rational time. In the instant case, the Curative Petition was dismissed asserting that no acceptable reason was cited in the petition clarifying the reason that why it took 14 years for the petitioners to beseech the last available resort & file the Curative Petition.

In the horrendous Nirbhaya Gang Rape Case, the fast track court found four accused of rape & murder & were consequently sentenced death penalty. Later, Delhi High Court as well upheld the decision of the fast track court. The Supreme court repudiated the review petitions of the three out of four convicts & were sentenced death penalty. Curative Petition was filed by the Counsel for the convicts in the apex court which was refuted by the court & consequently mercy petition was filed was also dismissed. Little short while later, the Delhi Court issued a death warrant for the all the four convicts in the case.

Conclusion

It is undisputed that justice is an essential element for the purpose of having an idyllic society. Judges of any court aren’t Gods & are bound to make errors too as they are human as well & as it goes without saying to err is human, it is normal for them to make mistakes eventually. The verdict rendered by the apex court is final, conclusive & binding & therefore can’t be reviewed or reconsidered. There is no intra-court appeal against the decision delivered by the Supreme Court. However, there are quite a few voids where distressed parties do have an opportunity to pursue redressal by means of review or curative petition. With the purpose of ensuring fair functioning of the judicial system the concept of Curative Petition was introduced to rectify any fallacy that could arise in the decision rendered by the apex court.

With the critical analysis of the notion of Curative Petition, it can be certainly said that it is the final accessible judicial relief & is solely grounded on the judicial discretion. Such a petition was introduced in the Indian Judicial System with the purpose to rectify the inadvertent human mistakes that can be made even by the judges & to deliver the accurate judgement & for this the apex court has also taken sworn to make all the possible efforts.

Author: Vaidehi Gupta, from Tamil Nadu National Law University, Tiruchirappalli.

Editor: Kanishka Vaish, Editor, LexLife India.

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