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EVOLUTION OF THE CONCEPT OF CURATIVE PETITION
Team SoOLEGAL 17 Jan 2020

EVOLUTION OF THE CONCEPT OF CURATIVE PETITION

EVOLUTION OF THE CONCEPT OF CURATIVE PETITION

Curative petition is the last constitutional remedy open to an individual whose review petition has been rejected by Supreme Court. Although the Constitution makes explicit reference to the Supreme Court's review power pursuant to Article 137, it is silent on ' curative jurisdiction.’

In the case, Rupa Ashok Hurra v. Ashok Hurra & Anr the curative petition was shaped and structured, where the apex court reconsidered its judgment in exercising its inherent power to prevent misuse of its proceedings and to cure a serious miscarriage of justice.

In the said decision it was clarified that the Court's curative power derives from Article 142 of the Constitution, 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 137 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. Such a petition must be filed within 30 days of the date of the judgment or decision.

WHEN IS A CURATIVE PETITION AVAILABLE TO A PERSON?

a) Violation of the principles of natural justice where he was not a party to the lis but whose rights were adversely affected by the judgment.

b)He was a party to the lis, but the notice of the proceedings was not given and the case continued as if he has the choice.

c)Where a Learned Judge failed to disclose its connection to the subject-matter in the proceedings.

d)The parties to suspect prejudice and the verdict adversely affect the petitioners.

The petitioner shall, in the curative petition thus filed, assert that the reasons given in the petition for review had been taken and that it was dismissed by circulation. The curative petition should also include a Senior Advocate certification for the fulfillment of the requirements set out above.

PROCEDURE FOR FILING A CURATIVE PETITION

  1. 1.      After an appeal for review against the final sentence is rejected a curative petition may be submitted.
  2. 2.  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.
  3. 3. Curative petitions should be a rarity rather than regular.
  4. 4. Curative petition must first be submitted to a Bench of the three highest judges and, if appropriate, the judges who passed the judgment in question. It is only when a majority of judges agree that the matter needs hearing that it should be put before the same Bench.
  5. 5.  The Bench will ask a senior counsel to assist it as amicus curiae (friend of the court) at any point of consideration of the curative petition.
  6. 6. Judges in the chamber usually decide on a curative petition, unless a specific request for an open court hearing is allowed.

REASONS FOR REFUSAL:

It may impose a penalty on the petitioner in case the Bench holds at any point that the petition is without any merit.

A recent examples of dismissed curative petitions-

The Supreme Court has rejected the curative pleas filed in the 2012 Nirbhaya gangrape and murder case by two of the four death row convicts. The hearings were in-chamber.The five judges were unanimous in stating that the two disqualified petitioners did not have any substance in the curative petitions filed.

The bench said “The applications for stay of execution of death sentence are also rejected. We have gone through the Curative Petitions and the relevant documents. In our opinion, no case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra & Another, reported in 2002 (4) SCC 388. Hence, the Curative Petitions are dismissed,". 

FEW EXAMPLES WHERE CURATIVE PETITIONS WERE ALLOWED

The Supreme Court set aside its own judgment which held that the conduct of a woman simply kicking her daughter-in-law or threatening her with divorce would not fall within the scope of "cruelty" pursuant to Section 498 A of the Indian Penal Code. The three judge Bench allowed the National Commission for Women's (NCW) curative petition by restoring the Special Leave Petition.

CONCLUSION

In the case Rupa Hurra V/s Ashok Hurra, the Court gave shape to the contours of curative jurisdiction, in order to do justice. Even though there is a narrow line that differentiates between a curative  petition and a petition for review, the apex court has set out specific grounds for filing both of these petitions and this makes it clear that the two petitions are totally different.

Therefore it can be said that the concept of a curative petition is a statutory remedy that is a last resort that arose in order to rectify the Supreme Court's decision by itself as a legal and moral duty in determining the rarest of the rarest case.

 

 

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