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Curative Petition: In Light Of Legal Developments

A theoretical evolution that popularised the conceptual aspects is different from the practical one. It's been said that "Justice is the crowning glory of the virtues" whether it is true or not, comes under the debatable umbrella of procedural aspects of delivering justice. This paper basically tries to figure out the crispness of the procedural part, specifically in relation to the last resort in the way of justice that has been promised to each one of us. Curative Petition can be simply seen as the last option in delivering justice, as it indulges many criticisms in light of legal developments despite being the newer concept in the legal field of the land.

Introduction
Curative petitions are a newer to the field of law specifically in the context of our country and its judicial system. It is basically seen as a last resort or final option in delivering the justice that has been promised & guaranteed by the mother-law (Constitution of India). Discussing the vitals, despite being a newer concept there are many times when it witnesses the fist of criticism as it has the capability to shake the trust that a large public bestows in the legal system. It can not only be seen as a last resort but also become the rare one, as the parameters within the petition may be allowed too narrow in the practicality of the situation.

The concept of curative petitions is not new to the legal world in itself, but the need for the same in our country is debatable. Imagine you committed a murder, and for the same, you are sentenced to death by the apex court. Later on, if it has been discovered that there is a mistake in delivering the judgement on the law point, then the only last resort you are left with is the Curative Petition.

The Constitution of India uplifts the citizens and grants them the pearls of many rights, but when any of the rights guaranteed suffers an injury in the legal aspect then the protection part comes into the role. In a similar way, when the delivered justice bestows the burden of injustice in itself then the curative petition comes as a guarded right in rendering the promised justice.

Curative Petition: History & Constitutional Background

Certainty lies in the bowl of objectiveness. On the other hand, the justice system draws maps considering the subjectiveness of the uncertain occurrence. The case of Rupa Ashok Hurra Vs. Ashok Hurra and Anr.[1] before the hon'ble Supreme Court holds the questions of premature delivery of justice and that particularly leads to the evolution of the concept of Curative Petition. The main issue which has been raised comprises "whether an aggrieved person is entitled to any relief against the final judgment/order of the Supreme Court, after the dismissal of a review petition?"[2]

In this case, the main question lies around the relief against the final judgement when the option of review petition has already been discharged. The apex court considered the question that arose and stated to prevent the miscarriage of justice and cure the same, it's a necessary step to reconsider the judgements by exercising the inherent powers of the court. And to counter the problem, the apex court come up with a term which is known as "Curative Petition" with a twofold objective, firstly prevent the miscarriage of justice and secondly restrain the abuse of process.

The concept evolved in the case of Rupa Ashok Hurra Vs, Ashok Hurra and Anr. are not newer to the constitution itself. Article 137 of the Indian Constitution broadly supports the idea of a curative petition. It states that the "Supreme Court has the power to review any judgment pronounced (or order made) by it if the matter concerns the laws and rules made under Article 145"[3]

The Jurisprudence: Curative Petition

In the books, justice can't be climatized, it is more or less objective in nature and subjective in application but in reality, justice is the pawn of that chessboard where each move holds a significant position in deciding the game. The main idea behind the concept of the curative petition is to cure the game of chess in which the pawn mistakenly takes the wrong position and the game suffers because of that. Simply, it holds the objective to prevent the miscarriage of justice and cure the same with an account to minimize any kind of abuse in the process of law and look for those lapses in the judicial system.

Curative petitions are not only the last resort left to readdress any kind of grievances, but also, it's a kind of petition that is not generally allowed to be heard in open courts as it's mostly brought upon & heard in the chamber of judges and only in the rarest case it is allowed to happen in the open courts. "The SC has held that curative petitions must be rare rather than regular, and be entertained with circumspection."[4] The principle on which the concept of a curative petition is based i.e., "It is better that a guilty person go free than an innocent be punished"

According to the rules prescribed in the Supreme court Rules of 1966[5], [The same petition has to be filed within 30 days of the original judgement /order, to the same Bench Judges who delivered the judgment or order that sought to be reviewed.] The aggrieved parties hold the statutory right to appeal in the apex court of the country (Supreme Court of India) and once the apex court reserves the judgement against the statutory appeals it should be seen as a final & binding order.

There is a Latin proverb that suits the reasoning "interest Reipublicae Ut sit finis litium" It particularly means any litigation must come to an end in the interest of society and the public at large while considering the time taken for each litigation to reach its final outcome.[6] Furtherance with the justice promised and securing the interest, makers are always ready with the possible solution and as a result, the Indian Constitution is honoured with Article 137, which specifically inherits the power to review the orders passed by the SC.

In occurrence with the legal developments over the period of time, the question arose that what if the dismissal of the review petition later witnesses the violation of natural justice? To cure that miscarriage of justice the concept of the curative petition came into practicality to guard the justice promised by the founding brains. This concept of the petition at the last resort evolved in relation to the doctrine of Ex Debitio Justiciae which means the requirements in the way of justice must be fulfilled secondly it also draws the principles from the Latin proverb i.e., Actus Curiae Neminem Gravabit which means that the act of court cannot be prejudice to anyone[7]

Question on the finality of the Judgement
"Error is not a fault of our knowledge, but a mistake of our judgment giving assent to that which is not true"[8]. Honouring such rights to question the final order of the apex court is likely to invite someone to open the pandora's box of litigations which must be flooded and undulated. So, to keep an eye on and have some control the idea evolved from the Doctrine of Harmonious Construction helps out.

It particularly ensures that the final judgement laid down by the apex court can't be questioned until or unless it's a matter of miscarriage of justice or abuse of process of law, having this doctrine made it possible that the curative petition is not vulnerable to any misuse and doesn't act as an opening gate of reservoirs which holds the numbers of probable litigations inside.

It emphasizes questioning the finality of judgement on the basis of gross miscarriage, violation of principles of natural justice and abuse of the process of law. But again, it can't be seen as a blanket guiding principle and must be considered and applied in accordance with the facts & circumstances of the case to deliver the justice that has been granted.

The procedure of filling a Curative Petition

It becomes important to look into the procedural aspects of filling a Curative Petition. The Hon'ble Supreme Court has laid down specifically the prescribed conditions & the procedure that grants the acceptance of curative petitions.

In the Handbook on Practice and Procedure and Office Procedure of the Supreme Court of India[9] , there are certain points made that explain the nuances in filling the curative petition:
  • There shall be Plenary Jurisdiction that has been inherent in the Supreme Court to hear such kinds of petitions. Ref. Chapter 2 (Handbook). It basically means that if there is lapses in regard to the merit of the petition then the court holds a power to impose an exemplary cost.
  • Curative petitions can be civil or can be criminal.
  • The petitioner should clearly showcase that there was a gross miscarriage in the delivery of justice and holds the biasness that leads to the abuse of the process of law.
  • In a petition it should be specifically highlighted on which grounds the review should be considered as well as on which it was dismissed by the bench.
  • A senior lawyer must certify the petition, and look into that every ground has been fulfilled.
  • Petition must be circulated to the three most senior judges and the bench who dismissed the review petition. *If available.
  • It must be rare in nature and not regular.
  • Adding to that, "if the majority of the judges conclude that the issue should be heard, then it will be shipped off a similar bench beyond what many would consider possible."[10]
  • Curative petitions are not generally allowed to be heard in open courts as it's mostly brought upon & heard in the chamber of judges and only if there is a particular solicitation then it is allowed to happen in the open courts.
  • The bench at any stage while considering the curative petition can ask the senior counsel as an amicus curiae (Friend of the court).

Additionally with the above procedural aspects, the handbook specifically states that no new grounds will be considered in the curative petition and the grounds that were brought upon had to be taken in the application for review, which may particularly be dismissed by the circulation.

Grounds of Rejection
If the Hon'ble Bench concurs at any stage of the petition that it does not hold the merit, then the bench inherent with the powers may impose a plenary cost on the petitioner.

Special Leave Petition v/s. Review Petition : Comparative look

Special Leave Petition:

SLP can be filed under Article 136 of the Indian Constitution before the hon'ble SC. It states that an appeal can be directly made to the SC against any order or decree passed by any court or tribunal in India.[11]

Review Petition:

Review Petition basically prayed before the hon'ble court to review its order or judgement that has already been pronounced. The court may accept such petitions in consideration of grave error by judicial lords and fallibility.

The legal remedies guaranteed, somehow comprise the crispness of the order in the filing process: A review Petition is followed by a curative petition which is overlooked by a mercy petition. A convict who is awarded the death sentence and that sentence particularly upheld by the order of the apex court, then he/she has three legal options left in the bucket i.e., Review and Curative Petition before the Hon'ble SC and on dismissal of the same the Mercy Petition before the President.

Important Judgements: In light of legal developments

Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388; AIR 2002 SC 1771

Briefly, this case comprises the facts of matrimonial discord as the woman withdrew her consent that she had given to the divorce by mutual agreement. The question that arose here deals with the validity of a divorce and that was also brought before the hon'ble SC. The apex court held in the judgement that there are technical difficulties in relation to reopening the particular case. However, the court entertained and evolved the concept of the curative petition, and asked the petitioner to establish the violation of the principles of natural justice.

While the case surrounds itself under the dilemma of Article 32 which specifically raises the issue that "whether an aggrieved person is qualified for any alleviation against a last judgment or request of the Supreme Court, after excusal of Review Petition, either under Article 32 or otherwise?"[12] The court concluded that in relation to judicial scrutiny, every possibility of the investigation will be done to grant justice and the court will ensure that justice has been done regardless of reviewing its own decision a subsequent time.

Naresh Shridhar Mirajkar v. State of Maharashtra, 1966

In this case, the Apex Court witnesses the question that whether an order by the Hon'ble High Court prohibiting the publication of evidence in the newspapers which is pending to be heard in relation to the suit is amenable by a writ of the SC under Art.32(2). Court held in his judgement that the SC does not holds the jurisdiction to issue a writ of certiorari to the High Courts or also for the another bench of the same court under Article 32, until or unless the judgement laid down shows ultra-vires side and becomes a well established part of the Indian law. " The court opened its doors even after the dismissal of review petition in cases where the intervention the Court became imperative so as to make justice available to the parties."

Conclusion: Way Ahead
Curative Petitions can be weighed with the help of the quote that "No one will dare maintain that it is better to do injustice than to bear it."[13] It can be said that it's the last remedy in the court of last resort. The concept was evolved in the case of Rupa Ashok Hurra v. Ashok Hurra (2002)4 SCC 388; AIR 2002 SC 1771 and must be seen as a boon to the Indian Judicial System.

It prevents the miscarriage of justice and restrains the abuse of the process of law which is particularly influenced by the Doctrine of Ex Debitio Justiciae and Actus Curiae Neminem Gravabit, which has been extensively discussed in this paper. The court holds and respects the intentions of the makers i.e., Justice promised to each one of us and also draws the subjective lines that bounds such petitions to be misused by the hands of many.

In light of legal developments, theories and conceptual legal debates evolved over the period and honouring the idea of a curative petition is a result of such brains.

End-Notes:
  1. Rupa Ashok Hurra vs Ashok Hurra And Anr : AIR 1999 SC 2870
  2. Utkarsh Anand, Explained- 1993 Mumbai serial blast: What is curative petition?, The Indian Express, July 29, 2015
  3. Article 137, The Constitution Of India 1949
    Review of judgments or orders by the Supreme Court Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.
  4. Express Web Desk: What is a Curative Petition? The Indian Express, January 07, 2022
  5. The supreme court rules, 1966
  6. The State Of Tamil Nadu vs Dr.R.Ramasamy, September 27, 2013
  7. Legal Maxim: Actus Curiae Neminem Gravabit, https://bnblegal.com/actus-curiae-neminem-gravabit/
  8. Locke (The New Dictionary of Thoughts, p.181)
  9. Supreme court of India handbook on practice and procedure and office procedure, 2017
  10. GS Paper 2 : Curative Petition, Drishti IAS , https://www.drishtiias.com/daily-updates/daily-news-analysis/curative-petition
  11. Article 136 : The Constitution of India , 1949
    Special leave to appeal by the Supreme Court
    1. Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India
    2. Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces
  12. Ankit Kumar : Rupa Ashok Hurra vs. Ashok Hurra Case Summary 2002 SC , lawplanet.in, https://lawplanet.in/rupa-ashok-hurra-vs-ashok-hurra/ , May 13, 2022
  13. Aristotle (The New Dictionary of Thoughts, p.370)
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