CONCEPT OF CURATIVE PETITION AND ROLE OF JUDICIARY IN EVOLUTION AND DEVELOPMENT By- Deepak

CONCEPT OF CURATIVE PETITION AND ROLE OF JUDICIARY IN EVOLUTION AND DEVELOPMENT

Authored By- Deepak1

  INTRODUCTION

A curative petition is a new concept and judicial innovation in the Indian legal system. It is considered as the last and final resort. The concept  was first evolved by the Supreme Court of India in case of Rupa Ashok Hurra vs. Ashok Hurra and another on the question whether an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, even after the dismissal of a review petition. The court used the Latin maxim “actus curiae neminem gravabit”, which means that an act of the court shall prejudice no one. The jurisprudence behind the birth of curative petition is that even though Judges decide every case in a bona- fide and fair manner, but their actions are also subject to human limitations, in order to reconsider the decisions when situation requires, such exercise of power is highly important. This was formulated keeping in mind of the unintentional human errors can be made by the judges too and to render the correct the judgement SC proved that it will not leave any stone unturned.

In the said decision it was clarified that the Court's curative power derives from Article 1422 which grants the Court the power to do justice. The Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power", observed the 5-judge bench in that case. Article 1373 of the Indian Constitution supports the idea of curative petition. This provides that the Supreme Court has the right to review any judgment rendered by it in the matter of laws and rules made pursuant to Article 145. Its objectives are two folds- avoid miscarriage of justice and to prevent abuse of process.

    1 Author is an advocate practicing in Panipat District Courts

2 Art. 142 of COI,1950 - Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc

3 Art. 137 of COI - Review of judgments or orders by the Supreme Court

MEANING OF CURATIVE PETITION

A curative petition may be filed after a review plea against the final conviction is dismissed. A curative petition is the last constitutional resort available for redressal of grievances in court after a review plea is dismissed or has been exhausted. Curative Petition is an opportunity to ask the court to review its decision and revise it, even after a judgement on review petition is passed as it has been either dismissed or allowed.

EVOLUTION AND DEVELOPMENT OF CURATIVE PETITION

Before the case, there was no provision of curative petition, and the final resort which the parties had were the provision of review petition. According to which the Binding Decision of Supreme Court or High Court can be reviewed, when the petition is filed by the aggrieved parties. This petition is time barred; as such petition has to be filed within 30 days of the pronouncement of such judgement or order. The power to review the judgement is exception to the principle of stare decisis4, and the power of the same is enshrined under Article 137 of the Constitution of India, and rules of Article 145. Review petition is not an inherent power of the Supreme Court but a protective measure against the fallibility of the institutions of judiciary to ensure delivery of justice. The court furthermore do not rehear the case in hand in case of a review petition, it is limited to remedying the apparent error causing grave injustice as a consequence of the decision of Supreme Court.

It was after the case of Rupa Ashok Hurra vs. Ashok Hurra and another

 that the Supreme Court evolved the concept of Curative Petition to re-consider its judgments in exercise of its inherent power to prevent abuse of its process and to cure a gross miscarriage of justice. Under this concept curative petition may be filed after a review plea against the final conviction is dismissed. It is the last constitutional resort available for redressal of grievances in court after a review plea is dismissed or has been exhausted. Curative Petition is an opportunity to ask the court to review its decision and revise it; even after a judgement on review petition is passed as it has been either dismissed or allowed.

4 Stare decisis means “to stand by things decided”

There is no time limit on curative petition as prescribed under Article 137 of the Constitution of India, although court prescribes that it should be filed within reasonable time. However, the Supreme Court is very cautious while allowing curative petitions, as such petitions are rare and it can only be filed when there is a gross violation of the principle of natural justice, and such has been proved by the contending party, for this purpose the guideline suggests that a Senior Advocate needs to certify and put forward the substantial grounds which will be entertained in the petition. The Bench for Curative Petition will consist of three senior-most Judges, along with the Judge who passed the previous judgement. The Apex Court has also specified that at any stage of case, if the Court finds the petition displeasing, it could impose exemplary damages.

WHEN IS A CURATIVE PETITION AVAILABLE TO A PERSON

The judgement of the case itself specifies that the petitioner is only entitled to relief under Curative Petition, if the petitioner establishes the following;

1. Gross Violation of principles of Natural Justice, in case if he is not the party to the case, then in such case the judgement has adversely affected his interest.
2. In case where the person was party to the matter, but was not served with the notice of the proceeding, and the matter proceeded as though he has the choice
3.  Where the Learned Judge failed to disclose his connection with the Subject Matter,
4.   The parties having scope for an apprehension of bias, and that the judgement adversely affects the petitioner

Moreover, the petitioner is required to get a certificate from the senior advocates, who will with certainty put forward the substantial grounds which will be entertained in the petition. The Bench for Curative Petition will consist of three senior-most Judges, along with the Judge who passed the previous. These conditions are necessary and non fulfilment of these became the ground for rejection of curative petition. In the case of Pawan Kumar Gupta v. State (NCT of DELHI)5.

5 SPECIAL LEAVE PETITION (CRIMINAL) NO. 547 OF 2020

 The Court dismissed the Curative petition filed by the convict of Nirbhaya Rape case. The court held that the grounds of petition and the documents presented did not come under the ambit of the parameter mentioned in the Ashok Hurra case; further the court also rejected the prayers of oral hearing and stay on execution of death sentence.

PROCEDURE FOR FILING A CURATIVE PETITION

• • After an appeal for review against the final sentence is rejected a curative petition may be submitted.
  • It can be pursued if the petitioner claims that there was a breach of natural justice standards and that before issuing an order he was not heard by the court.
  • Curative petitions should be a rarity rather than regular.

ROLE OF JUDICIARY

There can be no peace without justice, no justice without law and no meaningful law without the Courts to decide what is just and lawful under any given circumstances.6 The Indian Judiciary, after independence, has come a long way. With remarkable achievements on its side, it became more than a mere adjudicating body, to the holder of the fundamental rights as well as the guardian of our constitution. One of the most important reasons behind our judiciary’s commendable work in protecting and safeguarding our rights is the independency granted by our constitution. But, in our contemporary world, it can be seen that in numerous instances the judiciary has not confined himself to statutory provisions and it goes miles ahead for doing a complete justice . One such instance is the formulation of the judicially-devised mechanism of Curative Petition.

What is the difference between a Review Petition and a Curative Petition? The main difference between the review petition and curative petition is the fact that review petition is inherently provided in the constitution of India whereas the emergence of the curative petition is in relation with the interpretation of the review petition by the Supreme Court which is enshrined in article 137.

6 -Benjamin B. Ferencz

CONCLUSION

It can thus be concluded, that the aim to develop and evolve Curative Petition and incorporate it in Justice Dispensation Mechanism was to correct any fallacy or any other misjudgement which might have been rendered by the Supreme Court as Judges even though, they are the Guardian of Constitution are also humans and they cannot always be accurate and can make errors and mistakes. So in order to ensure that fair functioning is taking place, this concept was introduced. The instrument of Curative petition was developed and designed innovatively by the Supreme Court to obviate any miscarriage of justice which may be visible to the Judicial conscience and which they may be feeling in their heart but the petitioner or the victim apparently seemed to have exhausted all his remedies as available in the Constitution and in the Legal system being administered. The Supreme Court was of the considered opinion that rather than feeling helpless and clueless at this anomaly, there must be some mechanism to do away with that anomaly and to clear the Judicial conscience and to make it transparent and crystal white without any prickings in the same.