October 21, 2021

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History of curative petition in India

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This article is written by Ilashri Gaur, an undergraduate pursuing B.A. LLB (Hons.) from Teerthanker Mahaveer University. This article deals with all the aspects of the curative petition, consisting of its history in India.

Table of Contents

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As we all know about the famous case of Mukesh & Anr. v. State For NCT Of Delhi & Ors. (2017) (Nirbhaya case), in which the respondent Akshay had filed a curative plea in the Supreme Court. The curative petition is the last chance available for the protection from the compensation of injustice in the court after the review petition is dismissed or has been exhausted. Imagine, you have committed a murder and for the same; you have been imprisoned in that situation, then what are the options to protect yourself? So, in that case, you can petition for a curative petition. It is important to discuss some answers to the question which one could be thinking of, i.e why there is a need for a curative petition? How does this petition help? Is the fundamental rights are not enough to protect these? 

So, we have been provided with different types of rights like Right to Education, Right to Dignity, Right to Life, but like that example as given above, we can say that there is no meaning of rights until and unless they are protected. To understand it in more simple terms let us take an example, whenever we buy any jewellery, the first thing that we keep in our minds is safekeeping. Similarly, in the same way for the protection of fundamental rights and their safeguard, we have some constitutional remedies.

The idea of therapeutic request was developed by the Supreme Court to forestall the premature delivery of equity and to forestall the maltreatment of cycle on account of Rupa Ashok Hurra v. Ashok Hurra and Anr. (2002), an instance of wedding struggle.

In this case, after the discharge of the review petition, a question arose as to whether an aggrieved party is entitled to give any relief against the concluding order of the Supreme Court. Also, in this case, the Supreme Court said that to prevent and cure a miscarriage of justice, it is necessary to reconsider its judgements in exercise of its inherent powers. For the same, the court has come up with a term which is known as ‘curative petition.’In a healing appeal, the petitioner is needed to make the grounds that are referenced there and which had been taken before in the audit request documented, which was excused.

From that point onward, the remedial appeal is circled between the three senior-most appointed authorities, the adjudicators who convey the legitimate judgment. For recording the remedial request there is no time limit. This is ensured under Article 137 of the Indian Constitution which says that the matter of laws and rules are made under Article 145 of the Indian Constitution. To put it plainly, it implies that the Supreme Court has the ability to audit any judgment articulated by it.

A curative petition means a way to ask the court to review or to revise the decision even after a review petition is dismissed or used. The court has been very aware of the use of such a petition. Such a petition needs to be filed within 30 days of the judgment or order.

There is a Latin Maxim used by the court “Actus Curiae Neminem Gravabit ” which means that an act of the court will be prejudiced to no one. The court should pass an order that the interest of none of the parties is harmed. The maxim becomes applicable when the court is under an obligation to undo a wrong done to a party by the act of court itself.

Relation of this petition to the Nirbhaya case

As it was discussed earlier that a curative petition is the final resource that is available to the convicts. Going out with the procedure regarding the potential grounds, the lawyer of the convict had provided the argument that “young age and the socio-economic background should be considered as a mitigation factor.”

The advocate challenged the thinking of the Supreme Court by pointing out reports and studies by law universities and the National Crime Records Bureau stated that a death sentence won’t have any restraining effect on the society, which is the reason on which the sentencing by SC was based.

Because of the existing media and political pressure on this case from the beginning, it will be interesting to see the adverse result of the petition, which would go down as one of the landmark judgments in the history of this nation’s legal system.

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Jurisprudence

The petitioner aims to permit such an appeal is to decrease or limit any maltreatment in the cycles of law and to fix the unsuccessful labour in the arrangement of equity and consequently, it is considered as the last or the last alternative accessible for the remuneration of bad form. 

It is for the most part not permitted to occur in an open court and it is heard in the workplace of the appointed authority. It is the uncommon cycle that the equivalent might be heard in an open court. The distressed gatherings have the necessary rights to bids or audits relying upon the idea of debate and issues.

The overall statute of bids permits gatherings to utilize their opportunity in the most noteworthy court of the nation. When the choice is given by the Supreme Court of India the equivalent might be viewed as last and authoritative. The thinking behind similar lies in the Latin proverb “interest reipublicae ut sit finis litium“, it implies in light of a legitimate concern for society overall or any case reaches a conclusion subsequent to arriving at its ultimate result.

Nonetheless, in light of a legitimate concern for equity, the establishing fathers and moms embedded Article 137 of the Indian Constitution, which permits a survey of the request passed by the Supreme Court. 

The inquiry which went to the light was with respect to any circumstance where the gatherings feel that even after the correction appeal, equity has not been served. The primary point of the legal executive is that there should be legitimate importance to the arrangements of law and any unsuccessful labour will be unsafe for the general public everywhere as they discover the inquiry sensible and reasonable.

Conditions

The Supreme Court has laid down various specific conditions or the procedure which are needed to accept the curative petitions are:

  1. The applicant should demonstrate that there was a certifiable infringement of standards of regular equity and dread of biasness of the judgment and the adjudicator that will antagonistically influence him.
  2. One of the important conditions is that the petitioner will have to specifically mention the grounds that have been taken in the review and that it was dismissed by motion.
  3. The curative petition must go along with the certification by the senior lawyer relating to the fulfilment of the above requirements.
  4. It is required that the petition must be sent to the three most senior judges and the bench of judges who passed the judgment which affects the petition, if available. 
  5. Additionally, if most of the judges on the above seat concur that the issue should be heard, at that point it is shipped off a similar seat beyond what many would consider possible.
  6. If the petitioner’s plea is lack merits then the court could impose ‘exemplary costs’ (it means that a huge cost is given to them so that from the next time others would change the way of doing any act) to him.
  7. It must be rare rather than regular.
  8. Except if there is a particular solicitation for an open court hearing, the therapeutic appeal is normally chosen by decision in their workplaces.
  9. The bench at any stage of consideration of the curative petition can ask the senior counsel to assist it as a friend of the court.

Grounds for rejection

The ground for rejection of the petition is that if the petition is without any merit, it may impose a penalty on the petitioner.

A review petition means that a binding decision of the Supreme Court can be reviewed in this petition. The parties on any order of the Supreme court which contained obvious error can file a review petition. In this, the court will not take fresh stock; they will just correct the errors. Whereas the curative petition is considered as the last source as even after the review petition if the aggrieved party wants to revise the decision of the court or the judgment then they file a curative petition which is not normally giving an open court hearing. It is also supported by Article 137 of the Indian Constitution.

                   

Rupa Ashok Hurra v. Ashok Hurra & Anr., 2002

In this case, the Supreme Court’s Hon’ble Justice Syed Shah Mohammed Quadri held numerous inquiries on whether an oppressed individual is qualified for any help against a last judgment of the court after the excusal of audit request either under Article 32 of the Constitution or something else. Article 124 of the Indian Constitution builds up the Supreme Court of India in a setting that indicates its ward and controls and empowers Parliament to give it. Since the locale of this court under Article 32 of the Indian Constitution is summoned in these writ petitions. Solutions for the usage of rights:

  • The option to move the Supreme Court by suitable procedures for the requirement of the privileges of basic rights is ensured.
  • The Supreme Court has the ability to give requests or writs, whichever might be fitting for the authorization of any rights given by any gathering.
  • Without bias to the forces on the Supreme court by point (1).
  • With the due process of law, Parliament entitles any other court to exercise within the local limits of its jurisdiction and any power which is exercisable by the Supreme Court.
  • Under this article, the right guaranteed will not be suspended except if not provided by the Constitution.

The appointed authorities have fundamentally analyzed the nature and the chronicled foundation of writs in India just as English Laws. It was said that a High Court can’t give a writ to another High Court nor can a seat of High Court issue a writ to an alternate seat of a similar High Court.

Naresh Shridhar Mirajkar v. State of Maharashtra, 1966

In this case, the writ recorded in the Supreme Court of India has tested an oral request of the High Court of Bombay. It was proposed that the High Courts may give a writ to this court and to another High Court and an appointed authority or a seat in the Court and the Supreme court may give a writ to another adjudicator or seat in the Court.

This is an off-base suspicion made by them. The High Court can’t give a writ to the Supreme Court in light of the fact that the cycle of writ is that it goes descending not the upward way. Simply similarly, the High Court can’t give a writ to another High Court. Where the nation practised the intensity of the High Court, the writ was held to be wrongly given to it.

Subsequent to hearing both the gatherings the court held that Article 32 under the Indian Constitution can’t be conjured and tested a last judgment passed by this court in the wake of depleting the final retreat given under Article 137.

A curative petition is a new concept and judicial innovation in the Indian legal system. It is considered as the last and final resort. But if talking about the context of justice like in the Nirbhaya case it gives a drop back for the judges to give the judgment on time. There are so many loopholes in our legal system. It gives a way to escape a criminal from the punishment.

The hearing request is considered as uncommon instead of standard. It tends to be useful for those if the solicitor builds up that there was an infringement of standards of common equity and that he was not heard by the court prior to passing a request.


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