Vasundhara Singh
Importance of fair trial cannot be overstated because it the only way to prevent miscarriage of justice and is an important part of a just society. A fair trial means a trial where all the bias against the accused, victim and the witness are eliminated and all the parties are given equal chance to be heard before a competent authority.
Denial of fair trial is as much injustice to the accused as it is to the victim and the society
In a democratic country like India, the right to fair trial is embodied in the constitution under Article 21 and even an accused or a convict cannot be denied their right to life and personal liberty.
The chance of impartial hearing protects an innocent person from suffering by the hands of unjust system and follows the principals of natural justice which disapproves any kind of bias and abuse pf power by the judicial authorities.
A lesser known and rarely put to use judicial instrument called curative petition made its way into headlines recently which serves the purpose of securing justice and protecting the rights of a convict. Curative petitions are petitions which have are considerably new to the Indian legal and judicial system.
It works as a last resort for the aggrieved in the hope of justice being served after a review petition is dismissed by the apex court. While some appreciate it by considering it as the last opportunity to be heard, others criticisms it by calling it an unnecessary creation which goes against the powers of the Supreme court.
What is Curative petition?
It is the last resort by the aggrieved party to receive justice which is guaranteed under the constitution of India. Curative petition can be filed after the dismissal of review petition having the same grounds as curative petition and the objective behind allowing such a petition is to minimize the abuse of law process and ensure smooth functioning of justice system.
The concept of curative petition evolved from the landmark judgement in Rupa Ashok Hurra V. Ashok Hurra and Anr [1] where the issue raised was whether an aggrieved person is entitled to relief against the final judgement of Supreme court after the dismissal of the review petition.
It is based on legal maxim “actus curiae neminem gravabit” which means that the act of court shall prejudice no one and it has to undo the wrong done to the aggrieved party.
The legal requirements required for this petition are narrow in scope and hence it was decided by the court that it should be availed in rarest of rare cases. Hearing of curative petition is usually held in judges chamber unless a specific request for an open court hearing is allowed.
Legal provisions to file a curative petition
The apex court in Supreme Court rules 2013[2] has laid down guidelines regarding the procedure of filing a curative petition which are mentioned in order XLVIII.
1. Curative Petitions shall be governed by Judgment of the Court dated 10th April, 2002 delivered in the case of ‘Rupa Ashok Hurrah v. Ashok Hurrah and Ors.’ in Writ Petition (C) No. 509 of 1997.
2. (1) The petitioner, in the curative petition, shall aver specifically that the grounds mentioned therein had been taken in the Review Petition and that it was dismissed by circulation.
(2) A Curative Petition shall be accompanied by a certificate of the Senior Advocate that the petition meets the requirements delineated in the above case.
(3) A curative petition shall be accompanied by a certificate of the Advocate on Record to the effect that it is the first curative petition in the impugned matter.
3. The Curative Petition shall be filed within reasonable time from the date of Judgment or Order passed in the Review Petition.
4. (1) The curative petition shall be first circulated to a Bench of the three senior-most judges and the judges who passed the judgment complained of, if available.
(2) Unless otherwise ordered by the Court, a curative petition shall be disposed of by circulation without any oral arguments but the petitioner may supplement his petition by additional written arguments.
(3) If the Bench before which a curative petition was circulated concludes by a majority that the matter needs hearing then it shall be listed before the same Bench, as far as possible.
(4) If the Court, at any stage, comes to the conclusion that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner.
Landmark Judgement
Rupa Ashok Hurra vs Ashok Hurra & Anr
This was a case of a matrimonial discord where the question of validity of a decree of divorce reached the SC after the woman withdrew the consent she had given to divorce by mutual consent.
Issue that arose in front of supreme court pertained to “whether an aggrieved person is entitled to any relief against the final judgment/order of the Supreme Court, after the dismissal of a review petition?”
The case was referred to a constitutional bench of three judges and after closely hearing remarks by counsels and amicus curiae, it was noted by the court that petitioner is entitled to relief ex debito justitiae if he establishes that there has been violation of natural justice or where there has been an apprehension of biasness which adversely affected the party or parties and in order to remedy the injustice, the petition is called curative petition.
It was further noted by the court, “that curative petitions ought to be treated as a rarity rather than regular and the appreciation of the Court shall have to be upon proper circumspection having regard to the three basic features of our justice delivery system to wit, the order being in contravention of the doctrine of natural justice or without jurisdiction or in the event of there is even a likelihood of public confidence being shaken by reason of the association or closeness of a judge with the subject matter in dispute.”[3]
Hence the court devised the mechanism of curative petition.
Leading cases
Yakub Abdul Razak Memon vs State of Maharashtra
Decision on curative petition filed by Yakub Memon, lone death row convict of 1993 Mumbai blasts case was repeatedly questioned by justice Kurian Joseph who was one of the judges of 3-judge bench that dismissed the review petition filed by Yakub Memon.
He was of the opinion that a curative petition should be circulated not only among the three senior-most judges of the Supreme Court but also among the judges “who passed the judgment complained of, if available.” He pointed out that neither he nor justice Chelameswar were included in process of hearing curative petition.
Memon’s curative petition was dismissed by a bench of the then Chief Justice of India HL Dattu, Justice TS Thakur and Justice AR Dave.
National Commission for Women v. Bhaskar Lal Sharma & Others
Supreme court in its 2009 judgement held that if a woman kicked her daughter in law or threatened her to divorce, it will not amount to cruelty under Sec 498A of IPC.
The respondent/victim filed a review petition against the said order which was dismissed and National Commission of Women moved court filing curative petition against the order. It was observed by the court that it was dealing with constitutional provision i.e., article 147 which empowers the court to pass such orders that will ensure justice to the aggrieved and hence allowed curative petition.
Nirbhaya rape case, a horrific crime triggered a storm of protests in the country in December 2012 when Nirbhaya was brutally raped by six men on the night of 16 December 2012 in a moving bus and was thrown out. The six men were later arrested and one of the persons committed suicide in prison and the teenager was sent to reformatory.
The remaining accused were sentenced to death by hanging by the sessions court. Both the High Court of Delhi and Supreme Court held the judgement of death by hanging declared by lower court and later Supreme Court also dismissed their review petitions. The apex court informed them to file mercy petition before the president within the limitation period.
The president rejected plea mercy and subsequent to that curative petitions were filed before the apex court as the last resort by the victims to get a stay on the death penalty.
Supreme court stated, “in our opinion, no case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra & Another, reported in 2002 (4) SCC 388. Hence, the Curative Petitions are dismissed.”
It is of utmost importance that judicial authorities endeavour to prevent the abuse of law process, curb miscarriage of justice and ensure safeguard of fundamental rights of all the citizens guaranteed under the constitution.
Judges are an integral part of justice system and it is on their shoulders the duty to prevent any kind of injustice and deliver judgments which are impartial and hold the spirit of natural justice.
It cannot be over looked that these judges are also human being and prone to errors at some level or the other. While the decisions of lower courts can be reviewed, appealed against or revised under various Articles of the Constitution, the supreme court cannot go against its own judgements in order to make changes. Therefore, the introduction of curative petition was crucial to keep a check on such errors by the apex court and to review erroneous orders passed by it.
- https://indiankanoon.org/doc/123456797/ ↑
- http://www.bareactslive.com/ACA/ACT2158.HTM#48 ↑
- https://indiankanoon.org/doc/123456797/ ↑