This Tuesday, the Supreme Court dismissed a curative petition of two of the four death row convicts in the 2012 Nirbhaya gang-rape and murder case, which paved for their execution along with two other convicts. It was the unanimous decision of the bench of Justices NV Ramana, Arun Mishra, RF Nariman, R Banumathi and Ashok Bhushan that there was no merit in the curative petition of Vinay Kumar Sharma and Mukesh Singh seeking reconsideration of death sentence awarded.
Both of them had moved a curative petition in the apex court after a trial court in Delhi issued death warrant in their name scheduling their date of execution to January 22. However, both of them moved to the President of India with mercy petition but the President rejected one of the accused Mukesh Singh’s mercy plea on Januray 17, latest by the time of writing of this piece of article. But this is not the end of the process of postponement of execution for now, since the other two accused persons haven’t yet filed the curative petitions or mercy pleas.
On the judicial side, a curative petition is the last constitutional remedy available to a person whose review petition has been dismissed by the Supreme Court. Constitution quite explicitly speaks about the review power under Article 137; however, it is completely silent about the ‘curative power’. This is in fact an act of judicial innovation and has come to existence in the case of Rupa Ashok Hurra v. Ashok Hurra and another, where the apex court innovated this to prevent miscarriage of justice and abuse of process. The curative power of the court flows from Article 142 of the Constitution, which actually gives the power to optimise the process of justice delivery by doing complete justice. In the case of Rupa Hurra, the Constitution bench of the Supreme Court observed, "We are of the view that though Judges of the highest court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error."
The bench further remarked, "Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by the apex court was specifically provided by Article 137 of the Constitution. And Article 145(c) permitted the apex court to frame rules as to the conditions subject to which any judgment or order may be reviewed.” And while putting primacy over the need to uphold the cause of justice, it observed, “The court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice.”
While dealing with this case the court has relied on the Latin maxim “actus curiae neminem gravabit”, which means an act of the court shall prejudice no one. The applicability of this maxim is attracted when the court is set under an obligation to rectify a wrong committed by the act of the court itself.
Actually, the curative petition is a means to request the court to rethink and revise their own decision once the review petition is dismissed or not considered. However, the court has adopted a cautious approach in considering such petitions. The Supreme Court has clearly stated that such petitions may be used in rarity and to ensure it, it has framed guidelines for filing of the petition, and has further reiterated that such petitions to be entertained only when there is a gross violation of natural justice. While writing his concurring judgment in the Rupa Hurra Case, Justice Banerjee added that, “Curative petitions ought to be treated as a rarity rather than regular.”
As a precautionary measure, it is laid down that, the grounds for filing such a petition to be clearly verified and certified by a senior advocate. The same is to be reviewed by three senior most judges along with the judges who passed the direction or judgment and if the majority so opines that there is a violation, the curative petition is to be allowed.
Another significant feature of the curative petition is that, there is no limitation in filing of the petition, but it should be filed within reasonable period of time. One of the instances where curative petition was allowed is Navneet Kaur Vs State of NCT of Delhi, where the curative petition was filed by the wife of the convict against the dismissal of a review petition, where she had prayed for setting aside the death sentence since there was an inordinate delay of 8 years in disposal of the mercy petition. The Supreme Court in this case allowed the curative petition by commuting the death sentence to life imprisonment on the ground of such inordinate delay and on the ground of insanity.
The courts have always well acknowledged and therefore ruled out the state of absolute infallibility of the judges, since man is to err is as much an axiom, as other axioms of nature. So, the judicial apparatus of curative petition has been devised and designed as a last remedy or course correction in case of an prejudice or any other form of injustice that might have crept-in, even while delivering justice after last scrutiny in the penultimate stage of review.
However, the noble intent behind curative petitions shouldn’t be allowed as a means to frustrate the process of justice. Therefore, it is expedient that, when such petition is being filed by the convicts in rarest of rare crimes, it should be barred by limitation, which may suitably be stipulated by law and in such cases, where there are more than one convict for the same cause of action and offence, separate curative petitions shouldn’t be allowed. And if any of them prefers not to proceed with the curative petition at the same time with the other or others, his right to file the petition should be deemed to have been waived by choice. This shall defeat the dilatory tactics adopted by the convicts in such cases and shall credibly uphold the ends of justice.
(The writer is a lawyer and can be reached at sjyotiranjan3@gmail.com)