CONSTITUTIONAL LAW: CURIOUS CASE OF CURATIVE PETITION

Reading time : 10 minutes

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.

Explained: Curative petition

Reading time: 6-8 minutes.

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.

Explained: Curative Petition

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.

Landmark judgement

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.

 Advantages

  • 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.

Disadvantages

  • 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.

Conclusion

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.