By Bhavya Pandey-
A curative petition is a plea given to people as a last resort for justice. After the dismissal of the review petition, a person can apply for a curative plea. People can only file this petition in rare cases and if they feel that their case is facing prejudice and gross miscarriage of justice. A curative petition is the last chance for a person to seek justice and undo the judgement of Supreme Court of India. The bench is consisting of topmost senior judges along with judges who were addressing the particular case. The origin of this petition is from the case Rupa Ashok Hurre v. Ashok Hurre and Others (2002).
This article talks about the curative petition, the legal procedure in filing a ‘curative petition’ and how the convicts of Nirbhaya case tried to use this petition to escape the death penalty. Nirbhaya case is one of the most famous case in India which shook the nation due to its brutality. Out of six victims, four were sentenced to death. To escape from capital punishment, they tried every loophole in the law.
What is Curative Petition?
A curative petition, in simple words, is the final and last option for the people to acquire justice as mentioned and promised by the Constitution of India.[1] This is a new concept in India which originated from a landmark case Rupa Ashok Hurra v. Ashok Hurra and others.[2] which throws a light on whether the final judgment of the Supreme Court should be reviewed and entitled to get relief, after the dismissal of a review petition. This case was about a husband and wife where they applied for divorce in the District Court under Section 13B (1) of The Hindu Marriage Act, 1955 which states ‘mutual consent’ as one of the grounds for filing a dissolution petition. After 18 months of filing the divorce, the wife cancelled her consent to divorce by which the district court cancelled the petition. The husband then appealed to High Court that the wife took back her consent after 18 months when the divorce was filed but the law provides that if any party wants to cancel their consent, it has to be done before 18 months, so the husband appealed that he should be granted with divorce. This case went to the Supreme Court of India and the court, while delivering the judgement, evolved the ‘curative petition’.
The court used the Latin maxim “actus curiae neminem gravabit” which means that an act of the court shall prejudice no one.[3] This becomes applicable when the court is obligated to review or change their decision. This petition can only be filed when there is bias-ness or gross miscarriage of justice i.e., violation of the principle of natural justice. Article 137 and Article 145 of the Indian Constitution gives legality to this petition. The petition is to be sent to the three senior-most judges and judges of the bench who passed the judgement affecting the petition.[4] This petition is narrowly scoped so that this petition can be filed only in rare cases and usually its hearing doesn’t happen in the open courts.
The procedure of Filing Curative Petition:
- A curative petition can only be filed after the dismissal of review petition and should be filed on the same grounds as a review petition.
- While filing the curative petition, a person should keep in mind the case is rare than regular cases.
- Infringement of the principle of natural justice should be proved.
- Requirements are valid only if it is certified by a senior lawyer.
- There is no limit for filing the curative petition.
- The court can impose exemplary costs if the petitioner’s plea lacks merits.
- The petition is to be sent to the three topmost senior judges and judges of the bench who passed the judgement affecting the petition.
- If the bench agrees that the case is admissible and requires a hearing, then the case goes back to the judges who dismissed the petition.
Advantages of the Curative Petition:
- Its helps people to find a remedy for the last time so that the gross miscarriage of justice and lapses in the legal system can be prevented and prejudice can be avoided.
- If any fact or any point is unheard and given chance of representation in court in a fair manner.
- It prevents any misconception while giving judgement.
Disadvantages of Curative Petition:
- It makes the process of judiciary lengthy as it is an additional step or stage in the case.
- It questions the credibility of the Supreme Court of India and goes against the power of the court.
Jurisprudence Behind Curative Petition
The main objective for introducing Curative petition is to reduce the abuse of the law process and to alleviate the gross miscarriage of justice and errors in the system of justice.
It is considered because of the last and final option available for redressal of grievances.
It is generally not allowed to happen in an open court and is heard within the chamber of the judge.
It is a rare phenomenon that the identical could also be heard in an open court.
The aggrieved parties have the statutory right to appeals or civil reviews or revisions betting on the character of dispute and issues which escalate vertically to appellate/ revisional/ reviewing forums.[5] The final jurisprudence of Appeals allows parties to use their chance within the highest court of the country i.e., The Supreme Court of India by way of Writs, SLP’s statuary appeals.
Once a choice is given by the Supreme Court of India the identical is also considered final and binding. The reasoning behind the identical lies within the Latin maxim “interest Reipublicae Ut sit finis litium” which suggests within the interest of society and public as a full, any litigation must come to an end considering the time taken for every litigation to achieve an outcome.
However, within the interest of justice, the founding fathers and mothers inserted Article 137 of the Constitution, which allows a review of orders gone along the Supreme Court.[6]
The question which came to the sunshine was regarding any situation where the parties feel that even after the revision petition, justice has not been served. The question seemed logical and practical because the main aim of the judiciary is to administer proper aspiring to the provisions of law and any miscarriage of justice shall be harmful to the society at large
Actus Curiae Neminem Gravabit: Keeping in mind that within the Apex Court, there lies no appeal against an order of its own which implies that there’s no intra court appeal within the Supreme Court. It’s also a well-settled principle that an act of the court shall prejudice no one. The identical is predicated on the Latin Maxim “actus curiae neminem gravabit”. Considering that it might be a particularly strong discretionary power which could only be exercised in rare cases.
Therefore, finding a solution to the above-stated question doesn’t only seem as a necessity but also as an indispensable step to forestall any error within the prevailing system of law. It may be noted that while introducing such an idea, it was mentioned that the premise of such petitions can only be limited to the question of law and law only, no doubt of facts and numbers would be entertained under such a petition.
Brief Facts of Nirbhaya Case
On the dark night of 16th December 2012, a 23-year-old paramedic student who came to be known as ‘Nirbhaya – the fearless’ was not only gang-raped but savagely assaulted and murdered in a moving private school bus in the south district of the capital city of India. The victim, Nirbhaya had gone out to watch a movie like any other student with her male friend and was returning at around 8:30 PM to her place in Munirka. Less was the victim aware that boarding the private school bus would cost her life.
A total of 6 people – Mukesh Singh, Vinay Sharma, Akshay Kumar Singh, Pawan Kumar Gupta, Ram Singh and a juvenile were convicted in the gang rape and murder of the paramedic student under section 302, 307, 363, 377and 391 of the Indian Penal Code, 1860. The victim was dragged at the back of the bus and raped dreadfully in turns. Shockingly, the Juvenile was the most brutal out of the 6 Accused who not only raped her but also used two iron rods and inserted the same in the victim’s vagina to such a degree that he even pulled out the intestine of the victim. Thinking the victim had died, the Accused flung the bare bodies of the victim and her male friend out of the moving bus. Immediately, the public on seeing the bare bodies of the victim and her male friend called for an ambulance which took them to the Safdarjung Hospital, New Delhi. The victim, thereafter, succumbed to the injuries on December 29th, 2012 at Mount Elizabeth Hospital in Singapore where she was taken for better medical treatment.
There were a series of protests to seek justice for the victim and to punish the Accused. The country witnessed thousands of men and women on the streets performing candle march, holding placards, shouted slogans fighting for justice. The Delhi Police thoroughly investigated the matter, caught hold of the suspected rapists and the trial finally began against them. On 10th September 2013, the Trial court held the Accused guilty under Section 302, 307, 363, 375, 377 and 391 of Indian Penal Code, 1860 and sentenced them to a punishment of Death. Aggrieved by the said order of the trial court, the Accused approached the Hon’ble High Court of Delhi. The Hon’ble High Court of Delhi dismissed the appeal of the Accused and confirmed the Trial Court order.
Thereafter, the Accused approached the Hon’ble Supreme Court of India who again turned down the prayer of the Accused and confirmed the Black Warrants issued against the accused.
It is pertinent to mention herein that all the convicts in the Nirbhaya case, had each filed a mercy petition at different times due to which the date of the execution of the death sentence had been deferred thrice. It is further necessary to take note of the fact that the execution had been deferred from 22nd January 2020 to 1st February 2020 to 3rd March 2020 to finally, 20th March 2020. It is almost after an inordinate delay of 3 months that the death sentence awarded to the convicts was finally given effect to.[7]
As noted above, the accused had at multiple times filed mercy petitions under Article 72 of the Constitution of India. The question that is necessary that is to be dealt with herein is whether mercy pleas of the Accused violative of Article 21 of the Constitution of India. It is important to understand the intricacies of the whole exercise of presentation of mercy petition, its grant or rejection read along with Article 21 of the Constitution of India, which guarantees right to life and liberty.
Curative Petition by Nirbhaya Case Convicts
Nirbhaya case was a brutal incident that shook everyone in our country. This case led to the tightening of anti-rape laws in India. To save themselves from execution all the four convicts tried their best and used all the loopholes. Out of four, two of the convicts Vinay Sharma and Mukesh filed a curative petition after the dismissal of their review petition to challenge the death sentence decision. The changes in death penalty led to the argument that ignoring the subsequent changes in the law against the death penalty would be a “gross miscarriage of justice”.[8] Sharma was one of the first to file for Curative Petition. The convicts argued that due to the changes in the penalty, they should get heard again. They also alleged that the death penalty is given to them due to political pressure and pressure from media and public which means there is bias-ness. So, the convicts wanted to convey that they are being the victim of bias-ness and gross miscarriage of justice and should be heard and therefore they filed a curative petition.
The crime committed by these convicts was so brutal that the death penalty was something they deserved. The bench consisted of Hon’ble Justices N V Ramana, R F Nariman, R Banumathi, Arun Mishra and Ashok Bhushan. They stated that this case has no similarity to the case Rupa Ashok Hurra v. Ashok Hurra and Others. the case which is the origin of the curative petition in 2002, therefore their plea for the curative petition was rejected by the court. The severity of the crime the convicts committed was so brutal that it had no space for any mercy.
Conclusion
A curative petition is the last chance where a person can seek justice and this petition can change the final judgement of the Supreme Court of India. If we go to the district court and if we weren’t satisfied or felt the justice isn’t served right then we can approach to the High Courts but the final judgement of the Supreme Court is irreversible until this curative petition was devised in the origin case Rupa Ashok Hurre v. Ashok Hurre and Others. (2002). The hon’ble justices of the Supreme Court of India are only humans and sometimes justice by them can be served incorrectly.
Nirbhaya convicts used their last source of remedy to escape capital punishment. A curative plea was devised to give justice to innocents who gets wrong penalty and redressal to seek justice but victims like Nirbhaya case who did such a heinous crime against a woman uses such remedy just to delay their capital punishment. All these convicts used and exhausted all the remedy to delay the punishment but on 20th March 2020, the final justice was served.
References
[1] DH Web Desk, Explained| What is Curative Petition? DECCAN HERALD (Last Modified: January 10th, 2020; 01:26 PM) https://www.deccanherald.com/national/explained-what-is-curative-petition-793140.html
[2] Rupa Ashok Hurre v. Ashok Hurre and Others, A.I.R. 2002 S.C. 177 (India).
[3] Supra 1
[4] Sakshi Sethi, Explained| Curative Petition, LEXLIFE INDIA (Last Modified: January 20th, 2020) https://lexlife.in/2020/01/20/explained-curative-petition/
[5] Namit Saxena, The last chance after last chance-Curative Jurisprudence, LIVE LAW (May 8th, 2017; 03:06 PM) http://www.livelaw.in/last-chance-last-chance-curative-jurisprudence/
[6] Supra 5
[7] Sanyukta Dharmadhikari, Nirbhaya convicts hanged to death: A brief timeline that shook India, THE NEWS MINUTE (Last Modified: March 20th, 2020; 8:17 PM), https://www.thenewsminute.com/article/nirbhaya-convicts-hanged-death-brief-timeline-case-shook-india-120675
[8] Legal Correspondent, Nirbhaya case: Two death row convicts file curative plea in Supreme Court, THE HINDU (January 10th, 2020; 08:58 AM) https://www.thehindu.com/news/national/nirbhaya-case-death-row-convict-vinay-kumar-sharma-moves-curative-petition-in-sc/article30521658.ece
[1] DH Web Desk, Explained| What is Curative Petition? DECCAN HERALD (Last Modified: January 10th, 2020; 01:26 PM) https://www.deccanherald.com/national/explained-what-is-curative-petition-793140.html
[1] Rupa Ashok Hurre v. Ashok Hurre and Others, A.I.R. 2002 S.C. 177 (India).
[1] Supra 1
[1] Sakshi Sethi, Explained| Curative Petition, LEXLIFE INDIA (Last Modified: January 20th, 2020) https://lexlife.in/2020/01/20/explained-curative-petition/
[1] Namit Saxena, The last chance after last chance-Curative Jurisprudence, LIVE LAW (May 8th, 2017; 03:06 PM) http://www.livelaw.in/last-chance-last-chance-curative-jurisprudence/
[1] Supra 5
[1] Sanyukta Dharmadhikari, Nirbhaya convicts hanged to death: A brief timeline that shook India, THE NEWS MINUTE (Last Modified: March 20th, 2020; 8:17 PM), https://www.thenewsminute.com/article/nirbhaya-convicts-hanged-death-brief-timeline-case-shook-india-120675 [1] Legal Correspondent, Nirbhaya case: Two death row convicts file curative plea in Supreme Court, THE HINDU (January 10th, 2020; 08:58 AM) https://www.thehindu.com/news/national/nirbhaya-case-death-row-convict-vinay-kumar-sharma-moves-curative-petition-in-sc/article30521658.ece