Curative petition
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This article is written by Likitha B, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho.com.

Introduction

After a review petition is dismissed or used one can ask the court to review and revise the decision given by them. This is called a curative petition. The courts have been very vigilant in the use of such a petition.

Origin

The idea of Curative petition was gradually progressed in the landmark case of Rupa Ashok Hurra Versus Ashok Hurra & another, [2002] by the decision of the Supreme Court of India where the question arose that whether an aggrieved party is allowed to get any relief against the final judgment of the Apex court (Supreme Court), even after the review petition is dismissed. The Supreme Court in the above mention held that in order to prevent grave abuse of its judicial process and to cure gross miscarriage of justice, it may reconsider its judgments in the exercise of its inherent powers. For this purpose, the court has conceived what has been coined as a “curative” petition. Here in the Curative petition, the petitioner is required to attest specifically that the grounds mentioned therein had been taken in the review petition filed earlier and that it was dismissed by circulation. 

Curative Petition must be validated by a senior advocate then, later on, it is mandatorily circulated among the three Seniors most judges and the judges who passed the challenged judgment, if available. There is no time constraint given to file a Curative Petition. Under Article 137 of the Indian Constitution, it is guaranteed i.e. powers of the Supreme Court to review its own judgments and orders.

What is a curative petition?

A curative petition shall be filed after the dismissal of the review plea against the final conviction. It is meant to secure that there is no gross miscarriage of justice, and to prevent the abuse of process. A curative petition is habitually decided by the judges in chamber unless there is an explicit request for an open-court hearing is permitted. A curative petition is the last and the final constitutional resort available for any redressal of grievances in court after a review petition has been exhausted and dismissed.

Every curative petition is intended based on the principles laid down by the Supreme Court in the landmark case of Rupa Ashok Hurra Vs Ashok Hurra and anothers, (2002). In this case the issue was of a matrimonial discord where the question of legality of a decree of divorce reached the Supreme Court even after the woman revoked the consent that she had given to divorce by mutual consent.

The Court held that technical complexities and apprehensions over the reopening of such cases had to give way to a final platform for removing the grave mistakes in a judgment where administration of justice may be affected.

The court ruled that a curative petition can be entertained if the petitioner does not fail to establish there was an infringement of the principles of natural justice, and that he was not heard by the court before passing judgement. It will also be acknowledged where a judge failed to disclose facts that raise the apprehension of bias.

The Supreme Court passed a ruling that curative petitions must be rare rather than regular and be entertained with judiciousness. A curative petition must be accompanied by certification of a senior most judge, pointing out substantial grounds for entertaining it. It must be first circulated to a bench of the three senior-most judges, and the judges who passed the concerned judgment, if available. Only when the majority of the judges decide that the matter needs hearing and should it be listed before the same Bench.

The main objectives of Curative Petition are – 

  • It is to avoid gross miscarriage of justice. 
  • And to prevent the abuse of the judicial process.

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Constitutional background of curative petition

Article 137 of the Indian Constitution endorses the concept of curative petition. It provides that in the matter of rules and laws created under A.145 of the Indian Constitution the Apex Court (Supreme Court) has the superpower to review any judgement pronounced/ order passed) by it. Such a Curative petition needs to be filed within thirty days (30 days) from the date of judgement or order.

When can a curative petition be filed?

A curative petition may possibly be filed after a review petition against the final conviction is dismissed. It is meant to secure that there is no gross miscarriage of justice, and to prevent abuse of the judicial process. A curative petition is generally decided by judges in the chamber unless a specific request for an open-court hearing is allowed.

In the recent scenario where the two Nirbhaya case convicts had filed Curative petitions in the Supreme Court  the convicts had filed a Mercy petition and review petition which has been rejected by the court. In India, a binding decision of the Supreme Court or of the High Court can be reconsidered in a review petition. Additionally, if a review petition is dismissed by the Apex Court, it may ponder a curative petition filed by the petitioner to prevent gross abuse of process. 

What are the essential pointers to be included?

  • A curative petition may be filed once a review petition against the final conviction is dismissed.
  • Curative Petition can be entertained only if the petitioner proves that there was a breach in the principles of natural justice and that he/she was not heard by the court before passing judgement.
  • It must be mandatorily first circulated to a Bench of the three Senior-most judges, and the judges who approved the concerning judgment, if available. Only when the majority of the judges determine that the matter needs hearing should it be listed before the same Bench.
  • Curative Petition must be rare rather than usual.
  • At any stage of contemplation of the curative petition, the Bench can ask a senior counsel to assist it as amicus curiae i.e., Friend of the court.
  • It is generally decided by judges in the chamber unless a specific request for an open-court hearing is allowed.

Grounds for rejection

A penalty is imposed on the petitioner in the light of the Bench holding at any time that the submitted petition is without any merit.

Advantages

  • It is an efficient tool against the possible prejudice of the judicial system and Judges.
  • The misconception that could arise in the procedure followed of pronouncing the verdict is prevented.
  • Curative Petition provides a way to be heard if unheard and was not given a fair chance of interpretation in court.

Disadvantages

  • As it is an additional stage in any case Curative Petition it makes the judicial process lengthy and burdensome.
  • Curative Petition goes against the prerogatives of the Apex Court which is an esteemed institution and therefore questions its integrity.

Case laws

Naz Foundation Trust vs. Suresh Kumar Koushal And Ors.

Hon’ble Justice(s) S. A Bobde and Ashok Bhushan gave a judgement that elucidated the position that it may always not be essential to probe into the merits of the case submitted by the bar. All that noted the curative petition was placed before the Chief Justice of India, since the issues were of substantial significance and public interest to list before the appropriate bench.

Yakub Abdul Razak Memon vs. State of Maharashtra

Justice Kurian of the Supreme Court of India  highlighted that Curative Petitions must be heard in accordance with the regulations as and did not reach agreement with the view taken by Justice Anil Dave.

Central Bureau of Investigation [CBI] and Ors. vs. Keshub Mahindra and Ors. (18)

Although the handbook makes it evident that Curative Petitions may not be regulated by the provisions of The Limitations Act 1963, it does mention that such a petition is required to be filed within a reasonable time. In the above-mentioned case, as there was no realistic reason as to why the petitioners took 14 years to file such a petition therefore, the petition was dismissed.

Conclusion

Just like air is important for a human being, justice is important in order to have an ideal society. The Judges of any court are not Gods or perfect and are not error-free; they are human and as the famous saying ‘To err is human’ they are bound to make mistakes at some point or the other. The decision given by the Supreme court is final and binding and cannot be reviewed. There is no intra appeal against the Supreme Court’s judgement but there are certain loopholes where aggrieved parties do have a chance to seek redressal through review or curative petition. In order to guarantee impartial working of the judicial system the perception of Curative Petition was incorporated to correct any misconception that could ascend in the judgement passed by the Supreme Court of India.

References

  • https://www.deccanherald.com/national/explained-what-is-curative-petition-793140.html
  • https://en.wikipedia.org/wiki/Curative_petition
  • https://www.indialegallive.com /is-that-legal-news/what-is-curative-petition
  • http://legislative.gov.in/sites/default/files/A1963-36.pdf
  • Rupa Ashok Hurra Vs. Ashok Hurra, (2002) 4 SCC 388 [7] Supra 6
  • Naz Foundation Trust Vs. Suresh Kumar Koushal And Others, (2016) 7 SCC 485 
  • Yakub Abdul Razak Memon vs State of Maharashtra (2015) 9 SCC 552 
  • Central Bureau of Investigation and Ors Vs. Keshub Mahindra And Ors., (2011) 6 SCC 216

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