Q . Does a curative petition which finds no mention in Constitution delays justice? Critically analyze.24TH,NOVEMBER,2020 (10 marks, 150 words, GS-2)
Answer-
Approach-
- Beginning with what is curative petition and how it originated.
- The second para could be about its legal position with respect to Constitution and SC.
- Then to include the comparison with different petitions and conditions to file it.
- Ending with the condition when it can be rejected and a conclusion.
What is Curative Petition?-
- A curative petition may be filed after a review plea against the final conviction is dismissed.
- It is meant to ensure there is no miscarriage of justice, and to prevent abuse of process.
- A curative petition is usually decided by judges in chamber, unless a specific request for an open-court hearing is allowed.
Origin of Curative Petition-
- The concept of curative petition was evolved by the Supreme Court in the Rupa Ashok HurraVs. Ashok Hurra and Anr. Case (2002). The question was whether an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, after dismissal of a review petition.
- The judgment held that technical difficulties and apprehensions over the reopening of cases had to give way to a final forum for removing errors in a judgment where administration of justice may be affected.
What Constitution says?-
- There is no explicit mention of Curative Petition in the Constitution of India.
- Article 137provides for the review power of SC over its own judgments.
- SC has clarified that the Court’s curative power derives from Article 142 of the Constitution, which grants the Court the power to do justice.
What SC says about Curative Petition?-
- The court ruled that a curative petition can be entertained if the petitioner establishes there was a violation of the principles of natural justice, and that he was not heard by the court before passing an order.
- It will also be admitted where a judge failed to disclose facts that raise the apprehension of bias.
- The SC has held that curative petitions must be rare rather than regular, and be entertained with circumspection.
- A curative petition must be accompanied by certification by a senior advocate, pointing out substantial grounds for entertaining it.
- Adding to the speciality, a curative petition is not governed by the provisions of the Limitations Act but the court made it clear that it needs to be filed within a reasonable time.
Mercy Petition Vs. Curative Petition Vs. Review Petition-
- Review Petition–
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- In India, a binding decision of the Supreme Court/High Court can be reviewed in a review petition. A review petition can be filed by the parties aggrieved by the decisions of Supreme Court.
- As per Article 137 of the Constitution of India and the rules made under Article 145, the Supreme Court ofIndia has the power to review its judgment pronounced by it.
- A criminal review petition can be filed only on the ground of error apparent on the face of record.
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- Curative Petition–
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- Through Curative Petition, an aggrieved person is entitled to any relief against the final order/judgment of the Supreme Court after dismissal of review petition.
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- Mercy Petition–
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- In the context of Indian Judicial System, Mercy Petition is the last resort.
- When a person has lost all the remedies available to him/her under all the prevailing laws as well as under the Constitutional remedies, he may file a mercy petition before the President of India under Article 72 of the Constitution or the Governor of the state under Article 161 of the Constitution.
- Then the petition of his will be treated on mercy not on the legality of the case.
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Conditions-
- Review petition rejected.
- New evidence/ arguments found which were not presented earlier before court.
- Allegation of biasness from judge’s side.
- Certified by the senior-most lawyer.
- Circulated to the three senior most judges and the judges who delivered the impugned judgement and accepted by them.
Rejection of Curative Petition-
- In the event of the Bench holding at any stage that the petition is without any merit, it may impose a penalty on the petitioner.
- When no new evidence found, it can be rejected.
- No finding of biasness.
- SC has held that grounds like pending of divorce petition, age, socio-economic conditions, etc. can’t be the grounds to accept the Curative Petition.
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