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Trending: Call for Papers Volume 3 | Issue 3: International Journal of Advanced Legal Research [ISSN: 2582-7340]

CURATIVE PETITION- IN LIGHT OF RULE OF LAW – Shalvi Sanjay & Neetish Patnaik

ABSTRACT

This research paper deals with the topic “Curative Petition in the light of rule of law”. The researchers have tried to elaborate on the concept of curative petition as its relevance in today’s time. The researchers have tried to mention the conditions as well procedures, which are required in order to file a curative petition in the court. It deals with the grounds on which a curative petition is rejected. In addition, this research paper has dealt with the advantages as well as the disadvantages of curative petition. Then, the researchers have tried to mention certain cases related to the topic. The case that recognised the concept of curative petition has also been mentioned in the research paper.

Keywords: Curative Petition, Supreme Court, Rule of Law, Review Appeal

 

OBJECTIVE

The basic objective of the research is to discuss the basics of Rule of Law and then find out the relevance of Curative Petition in light of Rule of Law.

 

SOURCES OF DATA

Primary Source: The primary sources of the research paper are government websites, The Constitution of India and other trusted websites from which data as well as case laws has been found out.

 

Secondary Source: Secondary sources for the research paper are news websites from which information about events have been received as well as information regarding developments in curative petition.

 

LITERATURE REVIEW

“A curative petition concept is introduced by the Supreme Court in “Rupa Ashok Hurra vs Ashok Hurra”. This Curative Petition is sometimes also called a second review petition. Supreme Court has introduced this concept in order that there should not be miscarriage of justice and principles of natural justice must be followed even at last stage of appeal”[1]. “Review petitions have been provided for in the Constitution unlike curative petitions which are a result of a Supreme Court pronouncement. Many questions have been raised, among academics and lawyers, as to whether it was necessary for the Supreme Court to propound the modalities of curative petitions”[2]. “The procedure for Curative Petition has been defined by the Supreme Court of India in its Judgment dated 10.04.2002 in Rupa Ashok Hurra vs Ashok Hurra to address miscarriage of justice even after a review of a matter has been concluded”[3]. “Curative Petition is viewed as the ‘last remedy in the court of last resort’ and the concept has been evolved following the Doctrine of Ex Debitio Justiciae, i.e., the requirement of justice must be fulfilled and Actus Curiae Neminem Gravabit meaning the act of court cannot prejudice anyone. But there is a conflicting principle that restricts the application of curative petition like Interest Reipublicae Ut Sit Finis Litium that fosters the attainment of finality of judgment in order to settle the lis between the parties and manifest certainty of rights and liabilities”[4].

 

ANALYSIS AND DISCUSSION

Rule of Law

The main principle of ‘Rule of Law’ is that rather than the elected representative or the rules ruling the state, law rules it. It supports the idea that every citizen is viewed equally in the eyes of law and stops arbitrary use of power. Since the 4th century BCE, the idea of ‘rule of law’ has been the pivot to legal and political thoughts. The ‘rule of law’ simply means that the laws will be created and will be governed by themselves only, and no one would be placed higher than the law. It also ensures the impartial and consistent adjudication of legal rules by officials across similar cases without being biased based on class, status, etc. It also sets certain characteristics and contents of the laws and also ensures that the law is general, transparent, open and everyone has a knowledge of law. It makes sure that the law is stable from inside and if there are some discrepancies, those can be resolved through the ways prescribed by the law.

Curative Petition

The law clearly states that every person has a right to be heard. It is based on the principle of “audi alteram partem”. Curative petition is the final step in the process of providing justice. It gives a last opportunity to the unheard to be heard. It is the final option that is available to the parties to get justice as the Constitution promises. It is a method that enables the parties to ask the court to revisit the judgement and if necessary revise the judgement.

Even if it is the last option to get justice, the court has been very sceptical in using this. It has clearly stated that rather than using this as a regular practice, it should be used in rare cases. It has prescribed certain guidelines that would be required to be complied with in order to file a curative petition. As per the court, a serious violation of natural justice has to be proven in order to file such a petition.

 

Procedure of Filing a Curative Petition

A curative petition may be filed when a review appeal against the final conviction is rejected. If the complainant shows that the rules of natural justice had been violated and that the court failed to hear him before making a decision, the case may be considered. It must be unusual rather than common. A senior advocate has to certify as well as point out appropriate grounds for entertaining the petition.

 

Reasons for Rejection of a Curative Petition

If the petitioner cannot establish that the principles of natural justice were violated, then the curative petition will not be entertained. Substantial faults have to be proven in order to make the curative petition to be entertained. The Bench has the authority to punish the petitioner by imposing “exemplary cost”, if it determines at any point that the petition is without merit.

 

Hearing of Curative Petition

A curative petition must first be distributed to a Bench of the three senior-most judges plus, if available, the judges who rendered the relevant ruling. The same Bench should hear the case if the majority of the judges agree that it has to be heard. The top three justices, including the Chief Justice of India, as well as the judges who dismissed the review petition, hear curative applications. The Bench may, at any time during its examination of the curative petition, request the services of a senior lawyer to serve as an “amicus curiae” (Friend of the court). Unless a particular request for an open- court hearing is granted, judges typically decide curative petitions in the chamber.

 

Conditions required for Curative Petition to be entertained

The Supreme Court has established the following requirements to consider curative petitions:

  • The applicant must prove that the natural justice principles were broken, and that he was afraid of the judge’s partiality and the outcome of the case.
  • The petition must expressly state that the grounds listed in the review petition were used to dismiss the petition through circulation.
  • A certificate of a senior advocate highlighting the errors as well as substantial grounds to file a curative petition is needed to be presented.
  • In the event that the petitioner’s plea is unjustified, the court may levy “exemplary costs” on him.

 

Advantages of Curative Petition

  • By curative petition, the principle of natural justice i.e., “Audi alteram partem” is strengthened, as everybody gets a fair chance to be heard. It creates a road for the people who feel that they have been left unheard and were not given a fair chance of interpretation while proving themselves in the court.
  • It works as a systematic tool against the quite possible detriment behaviour of the judicial system and the judges.
  • In addition, any error or misconception made by the judge while giving the verdict can be overturned.

 

Disadvantages of Curative Petition

  • It is quite evident that the judicial system of India already lags behind, by introducing the idea of curative petition, the entire process becomes more complicated which leads to a further delay in the grant of justice.
  • An unjustified petition simply takes up the court’s time and increases the pressure on the court.
  • Curative petition in some way or the other, directly or indirectly, tries to question the sayings or integrity of the apex institution i.e., the Supreme Court.

 

The Birth of Curative Petition

The first case which recognised the concept of curative petition was Rupa Ashok Hurra v. Ashok Hurra and Another[5], which set a benchmark in the area of judicial oversight and dealt with the issue of whether a party who had been wronged might seek any relief from the Supreme Court’s final decision or order after a review petition had been denied. This case dealt with a matrimonial strife in which the Supreme Court considered whether the divorce order was genuine because Rupa Ashok Hurra withdrew her agreement for a mutual divorce, although having previously given it. This case served as a confirmation that the courts in this country, and specifically the Honourable Supreme Court, the highest judicial body, will look into every opportunity to provide justice to individuals, by introducing the idea of even reviewing the review petition, through curative petition.

Regardless of whether it intends to revisit its own decision in the future, the court will take every measure necessary to satisfy the disputants that justice has been done. The Latin proverb “actus curiae neminem gravabit,” which indicates that a judicial action shall not prejudice anyone, was used by the court. It so applies when the court is required to right a wrong caused to a party by the court’s actions. In order to prevent abuse of its process and correct grave injustice, the Supreme Court declared that it might revisit its decisions.

 

Other leading cases of Curative Petition

In the case of, Yakub Abdul Razak Memon vs State of Maharashtra[6], where he, Yakub Memon, was found engaged in criminal conspiracy for participating in terrorist acts, killing people, and carrying out terrorist actions. He was also found guilty of illegally transporting and possessing weapons and ammunition with the intent to harm his life. The only death row inmate in connection with the 1993 Mumbai serial explosions case, filed a curative petition, but the Supreme Court rejected it, stating that Memon’s sentence is consistent with natural justice.

Also recently in the case of Mukesh & Anr. v. NCT of Delhi & Ors.[7] (2017) (Nirbhaya Case), the Supreme Court received a curative plea from the respondent Akshay. Afterward, the attorney moved for a curative petition. The idea behind filing a curative petition is to seek any relief for the party who has been wronged even after the verdict has been rendered.

However, the Supreme Court rejected the argument, taking into account the welfare of the country, the need to prevent similar crimes in the future, as well as the need to prevent the administration of similar cases down a wrong path of injustice.

 

CONCLUSION

The concept of Curative Petition was introduced in order to stop any arbitrariness of the law that might be caused during the court proceedings of a case. The concept of Curative Petition has strengthened “rule of law” and assures that people get the due justice, which they deserve. Although it questions the working of the apex court, since our Constitution has the rule of ‘check and balance’, this curative petition does perform its job of observing the decision and giving another chance to review and if necessary change the decision of the apex court. The doctrine “Ex Debitio Justiciae” along with the Inherent powers of the Apex Court has empowered the petitioner to avail justice even in the last resort, which helps in strengthening the belief of people on law.

 

REFERENCES

[1]Chaitanya Laddha, The era of Second review petition – curative petition, SSRN Electronic Journal (2015).

[2]Anurag Tripathi, Comparison between curative petition and Second Review Petition, SSRN Electronic Journal (2010).

[3]Kanwal Jit Singh, Curative petition and the rule of law, SSRN Electronic Journal (2022).

[4]Divyendu Shekhar & Roshni Rashmi, Curative Petition: Last Remedy in the Court of Last Resort, 4 INT’l J.L. MGMT. & HUMAN. 1905 (2021).

[5]Rupa Ashok Hurra versus Ashok Hurra and Another A.I.R. 2002 S.C. 177 (India)

[6]Yakub Abdul Razak Memon and Ors. vs. State of Maharashtra through CBI, Bombay (21.03.2013 – SC) (2013) 13 SCC 1

[7]Mukesh & Anr v. State For NCT of Delhi & Ors. (2017) 6 SCC 1