By Dhruva Vig
Introduction
A Curative Petition may be filed before a Court of competent authority after a review plea against the final conviction has been dismissed. A Curative Petition is meant to ensure that there is no miscarriage of justice, and to prevent the abuse of process of law.
The concept of the Curative Petition has been enshrined under Article 137 of the Indian Constitution in a very inconspicuous manner.
The provision of constitution provides that in the matter of laws and rules relating to ‘Article 145’ of the Constitution, the Supreme Court holds the power to review any judgement pronounced, or any order made, by such Court.
Such a petition seeking review needs to be filed within 30 days from the date of pronouncement of such judgement or order.
Hence, a Curative Petition may possibly be filed before the Court after a review petition against the final conviction has been dismissed. Such a petition shall only be meant to secure that there is no gross miscarriage of justice, and to prevent abuse of the judicial process.
In the event of the Bench holding at any stage that the petition so filed is without any merit or is found to be vexatious, the court may impose a penalty/exemplary costs on the petitioner for such petition.
Every Curative Petition that is filed before the court, is decided on the basis of guiding principles that have been laid down by the Supreme Court in the landmark case of Rupa Ashok Hurra Vs. Ashok Hurra & Anr[1].
This was a case of a matrimonial discord between a married couple, where the question of validity of a decree of divorce reached the Supreme Court after the woman withdrew the consent she had given to divorce by way of mutual consent.
The Supreme Court held that the guiding principle for entertaining Curative Petitions must be that they should be rare rather than regular, and be entertained with circumspection. A Curative Petition before the court must be also accompanied by certification by a senior Advocate, pointing out the substantial grounds for entertaining such a petition.
The Curative Petition must be first circulated to a bench of the three senior-most judges, and the judges who passed the said judgment in question, if available. Only after a majority of the judges in a bench have arrived at the conclusion that the matter before the court needs hearing, should it be listed, as far as possible before the same Bench.
The court was of the opinion, and laid the guiding principle, that:
“It shall be open to the Bench at any stage of consideration of the Curative Petition to ask a senior counsel to assist it as amicus curiae. In the event of the Bench holding at any stage that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner.”
What are the Legal Maxims regarding Curative Petition?
res judicata – the thing has been judged.
ex debito justitiae – from what is due to justice.
actus curiae neminem gravabit – an act of the court shall prejudice no one.
interest reipublicae ut sit finis litium – it is in the government’s interest that there be an end to litigation.
What are the legal provisions regarding Curative Petition?
The Supreme Court Rules, 2013 lays down the provisions relating to ‘Curative Petition’ under Order – XLVIII, which are as follows-
- The Curative Petitions before the Supreme Court shall be governed by Judgment of the Court, dated 10th April 2002 delivered in the case of ‘Rupa Ashok Hurrah Vs. Ashok Hurrah’.
- The petitioner in the instance of such Curative Petitions shall aver specifically that the grounds mentioned therein, which had been taken in the Review Petition and that the same was dismissed by circulation before the court itself.
- Accordingly, the Curative Petition shall also be accompanied by a certificate of the Senior Advocate that the said petition has meet the requirements which have been delineated in the above case.
- Furthermore, the Curative Petition shall be accompanied by a certificate of the Advocate-on-Record (AOR) to the effect that it is the first Curative Petition in the impugned matter before the Court.
- The Curative Petition shall be filed before the appropriate court within reasonable time from the date of judgment or order which has been passed in the Review Petition by the competent court.
- In addition, the Curative Petition shall be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment so complained of by the petitioner, if available. Unless otherwise ordered by the Court itself, a Curative Petition shall be disposed of by circulation without any oral arguments, but the petitioner may be allowed to supplement his/her petition by way of additional written arguments.
- If the Bench before which the said Curative Petition was circulated arrives at a conclusion by a majority, that the matter needs hearing, then it shall be listed before the same Bench, as far as possible.
- 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 for such Curative Petition.
- The Third Schedule of the Supreme Court Rules, 2013 lays down the “Table of Court Fees”, where Part – II of the schedule talks about “Appellate Jurisdiction”. Rule 7 under the said schedule says that a ‘Curative Petition’ shall incur “the same fee as was paid on the original proceedings”.
When can a Curative Petition be filed?
After a review petition against the final conviction is dismissed, a Curative Petition may be filed. Its purpose is to ensure that there is no gross miscarriage of justice and that the judicial process is not abused. Unless a specific request for an open-court hearing is allowed, a Curative Petition is usually decided by judges in the chamber.
In the recent case of the two Nirbhaya case convicts who filed Curative Petitions in the Supreme Court, they filed a Mercy petition and a review petition, both of which were denied by the Court. In India, a review petition can be filed to have a binding Supreme Court or High Court decision reconsidered.
In addition, if the Apex Court dismisses a review petition, the petitioner may file a Curative Petition to prevent gross abuse of process.
What all essentials need to be included?
- Once a review petition against the final conviction is dismissed, a Curative Petition can be filed.
- Only if the petitioner can show that there was a violation of natural justice principles and that he or she was not heard by the court before it decided can a Curative Petition be considered.
- It must be sent to a Bench of the three senior-most judges, as well as the judges who approved the relevant judgement, if any are available. Only when a majority of the judges agree that the case needs to be heard should it be brought before the same Bench.
- Curative Petition must be uncommon.
- The Bench can ask a senior counsel to assist it as amicus curiae, or friend of the court, at any stage of the Curative Petition’s consideration.
- Unless a specific request for an open-court hearing is allowed, it is usually decided by judges in the chamber.
Case Laws
- Yakub Abdul Razak Memon Vs. State of Maharashtra[2] –
Jurisdiction of the Court
Held:
The guiding principle of review as is well known, that is to relook at or re-examine the principal judgment. Thus, when a Court exercises its curative jurisdiction, it is principal judgment/main judgment, which is under assail. A review of a review would not lie.
The “judgment complained of” mentioned in Order 48 Rule 4(1) of the 2013 Rules is the main judgment.
The term “Order” which forms a part of the definition of “judgment” as stipulated under Order 1 Rule 2(1)(k) of 2013 Rules does not mean the order in review, but rather the main judgment.
As far as constitution of Bench to hear a Curative Petition is concerned, there may be an amalgam of the three senior-most Judges and Judges who passed the principal/main judgment complained of, but the three senior-most Judges have been categorically stated to be parties to the Bench in Order 48 Rule 4(1) and the Judges of the “judgment complained of” are to be parties, and if they are not available, it is the prerogative of the Chief Justice of India to include some other Judges.
However, if Curative Petition is dealt with by the three senior-most Judges, as in this case by the Chief Justice of India and two senior-most Judges, the order would not become void.
- Rupa Ashok Hurra Vs. Ashok Hurra & Anr. –
Grounds for filing of a Curative Petition
Held:
Reconsideration of an appeal under inherent powers of Supreme Court is possible through a Curative Petition, even after the dismissal of review petition, to prevent abuse of Court’s process and to cure a grave miscarriage of justice.
However, since the Supreme Court Judges do their best, such situations might arise only in rarest of rare cases. In such rarest of rare cases, the duty of the Court to do justice should prevail over the policy of certainty of judgment which is inherent in doctrine of precedent.
There has been a shift in approach of final courts in favour of rendering justice on the facts of the case without abrogating, but bypassing, the principle of finality of judgment noticed.
The grounds for such a petition although cannot be enumerated exhaustively, but a petitioner would be entitled to relief ex debito justitiae if he establishes:
- Violation of principles of natural justice, and
- Non-disclosure on the part of the Judge of his connection with the subject-matter or parties giving scope for apprehension of bias and that the judgment adversely affected the petitioner.
The petition must state that the grounds mentioned therein had been taken in the review petition and the same was dismissed by circulation. Moreover, the petition must be certified by a Senior Advocate, with regard to the fulfilment of the said requirements.
The procedure to be followed by the Court has been laid down in detail under relevant laws. Exemplary costs are to be imposed if the petition is meritless or vexatious.
- Haryana State Industrial Development Corporation Vs. Pran Sukh and Ors.[3] –
Court Registry refused to list the second Curative Petition for non-filing of review petition prior to Curative Petition
The Court took note of the issue of maintainability of Curative Petition, and the requirement of filing review petition prior to filing of Curative Petition. It was held that such requirement was not obviated by filing of review proceedings and disposal thereof, by identically / similarly situated person.
This would be more so, when merits of claims of said other review petitioner and applicant are the same, and the said claims have been comprehensively rejected.
Held:
The Court Registry refused to list the second Curative Petition for non-filing of review petition prior to Curative Petition. The Court held that the Curative Petition was misconceived and vexatious, as rightly recorded by Registry.
The rejection of previous Curative Petition that was filed by applicant by Registry was not assailed by applicant, and the factual situation had not changed at all.
The contention of the party that there is a change in circumstances since more than one review petition has already been filed and dismissed by similarly situated person and, therefore, no useful purpose was to be served by applicant filing its own review petition, which cannot come to aid of applicant herein as applicant is similarly placed as other association, which was found not to have locus standi, and grounds for review were same as before.
The Court made the observation that the applicant was throughout aware of the ongoing proceedings before the Supreme Court, but he did not take any action towards getting itself impleaded as a party in the abovesaid proceedings, perhaps knowing very well that the outcome of such application of similarly situated Association and the futility in assailing prevailing position.
In any case, it was held that the Applicant cannot plead violation of principles of natural justice, since the documents and grounds sought to be ventilated have already been heard and analysed by Supreme Court, which cannot be raked up again and again and yet again by means of a Curative Petition.
- Shaukat Hussain Guru Vs. State (NCT) Delhi and Anr.[4]
The petitioner’s plea in this case was that the Supreme Court had allowed his appeal to the extent that his conviction under Section 121 of Indian Penal Code was set aside, but he was convicted under Section 123 of Indian Penal Code read with Section 39 CrP.C, though this was not the charge against him, and therefore he was deprived of opportunity to defend himself.
The court held that this aspect had been considered while dismissing review and Curative Petitions. Entertaining a fresh petition under Article 32 on the same ground would require setting aside the orders passed in review and Curative Petitions, and the same was not permissible.
Held:
“The contention raised by the petitioner that his conviction under Section 123 IPC without there being any charge framed tantamount to grave miscarriage of justice and is contrary to the principles of natural justice, has already been rejected in the review petition. Thereafter, a Curative Petition which was placed in chambers by circulation before three senior-most Judges and one Judge who was a member of the Bench which initially delivered judgment (the other Judge of the Bench) and after due consideration, the Curative Petition was also rejected. In the Curative Petition also, a specific ground was raised by the petitioner that there was violation of principles of natural justice and manifest injustice was caused to him because he had not been given opportunity to defend himself for an offence under Section 123 IPC for which the charge had not been framed. By rejection of his Curative Petition, the contention so raised by the petitioner has also been rejected.
In the facts and circumstances of the case, there is no ground to entertain petition under Article 32 of the Constitution. Moreover, for granting relief prayed for by the petitioner for entertaining the present writ petition it is necessary to set aside judgment delivered by a Division Bench of the Supreme Court confirmed by dismissal of the review petition as also of the Curative Petition, which cannot be granted as not being permissible in exercise of the powers under Article 32 of the Constitution.”
Conclusion
Justice is as important for a human being as air is for a human being to live in an ideal society. Judges in any court are not Gods, nor are they perfect or error-free; they are human, and as the adage goes, “to err is human.”
They are bound to make mistakes at some point. The Supreme Court’s decision is final and irreversible, and it cannot be appealed. Although there is no internal appeal against the Supreme Court’s decision, there are some loopholes that allow aggrieved parties to seek redress through a review or Curative Petition.
The perception of Curative Petition was incorporated to correct any misconceptions that might arise in the Supreme Court of India’s judgement in order to ensure the impartial functioning of the judicial system.
References
- Rupa Ashok Hurrah Vs. Ashok Hurrah (2002) 4 SCC 388 ↑
- Yakub Abdul Razak Memon Vs. State of Maharashtra (2015) 9 SCC 552: (2015) 3 SCC (Cri) 673 : 2015 SCC OnLine SC 324, (W.P. (Crl.) No. 135 of 2015) ↑
- Haryana State Industrial Development Corporation Vs. Pran Sukh And Ors (2015) 16 SCC 659 : 2015 SCC OnLine SC 938 (IA No. 1 of 2014 in Curative Petition (C) D. No. 3040 of 2014 in RP (C) No. 2107 of 2010 in CA No. 6515 of 2009, decided on Oct 12, 2015) ↑
- Shaukat Hussain Guru Vs. State (NCT) Delhi And Anr (2008) 6 SCC 776: (2008) 3 SCC (Cri) 137, (WP (Cr.) No. 106 of 2007, decided on May 14, 2008) ↑