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: Mercy Plea

Reading time: 4-5 minutes.

In the recent review of mercy plea, the Delhi government and the Ministry of Home Affairs has strongly recommended to the President to reject the mercy petition filed by one of the 2012 Nirbhaya gang rape-murder case convicts. In this case, the 23-year-old paramedic student was raped on the intervening night of December 16-17, 2012 inside a running bus in South Delhi by six persons and severely assaulted before being thrown out on the road. She died within 14 days.

The government also added that “this is the most heinous crime of extreme brutality committed by the applicant and there is no merit mercy petition.” However, the applicant, Vinay Sharma has now claimed that the jail authorities had without his consent submitted such plea with a mala fide intention and he seeks to withdraw it as he has not yet exhausted all other remedies available to him (curative petition before the Supreme Court under Article 137).

Akshay Kumar Singh, another convict of the above case, has filed a review petition by giving an absurd claim that death penalty must not be awarded as Delhi is a gas chamber and life is becoming short on its own due to the poisonous city.

What is a mercy plea?

Mercy plea is the last resort for convicts who have exhausted all available legal remedies for obtaining pardon/relief from their sentences. The convict approaches the President by filing a petition directly, or through prison officials, or through the Governor of the State where he is imprisoned.

The President and the Governor of the State have pardoning powers under Articles 72 and 161 respectively and they are advised by the Council of Ministers while exercising such powers (Article 74 and 163). They can grant pardon, suspend, reprieve, respite, remit or commute sentences of any person convicted of any offence. However, the pardoning power of the Governor does not extend to grant pardons in cases of death penalty or/ and in cases of the court-martial. 

Important legal provisions:

  1. Article 72 provides, the pardoning power to the President of India, it says:
  2. In all cases where the punishment or sentence is by a Court-martial.
  3. In all cases where the punishment or sentence for an offence for an offence against any law relating to a matter to the executive power of the Union extends.
  4. In all cases where the sentence is a sentence of death.
  5. Article 161 provides, that the Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to matter to which the executive power of the State extends.
  6. Section 432 of Cr.P.C. provides, Power to suspend or remit sentences.
  7. Section 433 of Cr.P.C. provides, Power to commute sentence.

Grounds on which mercy plea can be granted/rejected:

  1. In his/her mercy petition, the person concerned is required to state the grounds upon which he/she requests for the grant of pardon.
  2. These grounds may not have any value in the eyes of law for exonerating the accused person from the offence, but they might play an important role in the release of the person by the President. The grounds, such as the convicted person is the only bread earner of the family or the physical fitness of the convict, his age or the court by chance committed any mistake may be taken into consideration at the time of disposal of the mercy petition.
  3. Mercy petition, delay in disposal: Death sentence commuted to life imprisonment.

The grant of mercy plea is an act of grace and cannot be claimed as a right. (Kehar Singh v. Union of India). If the grounds for acceptance/rejection are found to be arbitrary or unreasonable in nature, then the decision of the President or the Governor is subjected to judicial review.

Other instances of mercy plea petitions:

In the Afzal Guru Case, the applicant was convicted for his role in the 2001 terrorist attack on Parliament and had been on death row after his appeal to the Supreme Court was dismissed in 2005. His execution, due on October 20, 2006, was stayed by the government because a Clemency Petition was filed by his family to the President. His mercy plea was rejected by the President APJ Abdul Kalam by stating that his petition had no merit.

President Pranab Mukherjee has dealt with a total of 35 mercy pleas (31 rejected), including two failed petitions filed by the convict of the 1993 Mumbai serial blasts financier, Yakub Memon.

President R Venkatraman has till now rejected the most number of mercy pleas which is 45. While Pratibha Patil’s Presidential term saw 34 commutations and only five rejections. The most number of commutations have been given by President Rajendra Prasad-180 and President Sarvapalli Radhakrishnan with 57. 

President Ram Nath Kovind rejected his first mercy petition, filed by Jagat Rai of Bihar, who was given Capital Punishment for killing six members of a family over a buffalo theft. He also recommended in a recent event that rapists who have been convicted under the Protection of Children from Sexual Offences (POCSO) Act should lose their right to seek a mercy plea, enunciating that women’s safety is a serious issue.

The Law Commission in its 2015 report noted the influence a president has on deciding mercy petitions by stating that, “A perusal of the chart of mercy petitions disposed by Presidents suggests that a death-row convict’s fate in matters of life and death may not only depend on the ideology and views of the government of the day but also on the personal views and belief systems of the President.”

Thus, it is essential that brakes on the disposal of mercy petitions must not be put as it only leads to more delay in imparting proper justice. Public welfare, one of the core objectives for punishment must also be taken into account while reviewing mercy pleas.

Authors: Shashank Khati from Symbiosis Law School, Pune and Anisha Goyal from Symbiosis Law School, Hyderabad.

Editor: Farsana Sadiq from Faculty of Law, Jamia Millia Islamia.